RyaN, C. J.
It is stated in the complaint that the respondent was organized under ch. 73, R. S. This was clearly a mistake; for the articles of association, produced during the argument, are dated 30th December, 1872, and were filed in the secretary’s office 8th January, 1873. The organization must therefore have been under ch. 144 of 1872, which expressly repeals ch. 73, R. S. And it was accordingly so stipulated by counsel on the argument.
[301]*301The court aciberes to the construction given to the constitutional amendment of 1871 in Attorney General v. Railroad Companies, 35 Wis., 425, and in Kimball v. Rosendale, 42 id., 407. That construction was too deliberately and solemnly determined to be open to review. A special preexisting charter may still be amended by special statute; but no corporation, except cities, can be created by special statute, but under general statutes only; and the charters of corporations existing under general statutes passed since the amendment can be amended by general statute only.
The respondent therefore took nothing under ch. 126 of 1873. That statute is, beyond!question, a legislative attempt to amend the respondent’s charter under the general statute, enlarging its powers by special grant. It unquestionably grants corporate powers and privileges; corporate franchises, not before possessed by the corporation. Sellers v. Lumbering Co., 39 Wis., 525.
The court was not indisposed, if it could, to construe the sections pf the latter statute relied on, as an employment of an existing corporation to improve the navigation of the river in the public right, and to provide a compensation for it. But the argument of the learned counsel for the appellant appears to be conclusive against such a view. His position was, that corporate franchises are always supposed to be granted on some public consideration, with corresponding benefit to the grantees; and that to hold the sections in question a valid grant of power on the ground suggested, would open the door indefinitely to special grants to corporations under general laws, so far nullifying the constitutional amendment, and continuing the evils which the amendment was intended to obviate, as stated in Kimball v. Rosendale. And so the court holds in this case.
On the argument, ch. 399 of 1876 appears to have been overlooked. That is an amendment of ch. 144 of 1872, relating to corporations created for driving, sorting and delivering logs [302]*302on the rivers of the state, and for the improvement of such rivers for that purpose. It authorizes such corporations, be ing owners of both shores, to improve such rivers by clearing and straightening the channels, closing sloughs, erecting sluiceways, etc.; provided that such works shall not materially obstruct navigation. Except in one particular, the exclusive right of maintaining works on the river within limits beyond its own rights of property, this statute appears substantially to replace, for all the questions now before the court, the attempted amendment of the respondent’s charter in 1873.
It is true that the works of the respondent were begun, and probably completed, before the passage of the statute of 1876. Rut the statute must have the effect of a confirmation of acts authorized by it, giving them legal right, as against the state, from the date of its passage. What the statute authorized to be done after its passage, it legalized from thenceforth, as against the state, when done before. It is sufficient here that the respondent’s works, so far as authorized by the statute, and so far as the state had power to authorize them, had b e-come legal before the commencement of this suit.
In rivers like the Wisconsin, it may not be always easy to determine which is the main channel and which is the slough. And indeed the natural action of the waters of the river may, from time to time, alter the character of its channels; making what was before a slough, the main channel, and what was before the main channel, a slough. And it does not appear to be a strained construction of the grant of ch. 399 of 1876, to hold that when the owners of a slough, across a bend in the river, so improve the slough as materially to straighten the river and to become its main channel, so dedicating it to public use, they may treat the disused bend as a slough, although, before the improvement, it may have been the main channel. With all the light now before it, the court so holds in this case for the purposes of this motion.
So far, therefoi-e, as the motion papers disclose, the respond[303]*303ent must be held to be lawfully in possession of the slough and the wrorks which it has constructed upon it. It therefore has •a right to enjoin any obstruction of the river below, which will interfere with the beneficial use of its property above.
But the injunction goes further. It enjoins the appellants from constructing any boom at a point below, absolutely and without any qualification. And this brings the court to the case of the appellants.
They show that they are in possession as riparian owners, under color of title, on one bank of the river, below the respondent, where they propose to construct their boom. And, for the purposes of this appeal, the court will regard them as such riparian owners, with title to the thread of the stream.
Their title is impeached, as it is understood,- in one particular only. It appears that in the year 1859, one Brawley, without apparent title, was in possession of the land claimed by the appellants. In that year he received from the legislature a charter or license to maintain a boom in the river within limits including that point. Ch. 149, P. & L. Laws of 1859. It further appears that he actually constructed some works at that point, long since disused and fallen into decay. Both parties appear to claim Brawley’s franchise. The court is not satisfied that either claim is sustained.
Of course, the legislature could grant the franchise or license as against the public only. It could not license a trespass by its grantee upon land to which he had no title. The franchise granted to Brawley presupposed some title in him within the limits designated, and he took the right to use it only where he had title. As against the owner of the land, his user appears to have been a mere trespass.
The respondent claims under a sale of Brawley’s works, upon execution on a judgment against him. It is sufficient to say that whatever Brawley did was subject to the right of the actual riparian owner, with title extending usque ad fil/um aqurn. And no sale of Brawley’s works, by him or as against him, could [304]*304affect the title to the land upon, the bank of the river, extending to its thread. The purchaser of a trespasser’s possession takes no right which the trespasser had not.
The appellants claim under foreclosure of a mortgage given by Brawley, of land which they now appear to own. It must be taken, to give any right to the appellants, that they hold under a better title than Brawley could give. The works which he constructed were appurtenant to the fee, and went with it. If the appellants have acquired the fee under the water, they have acquired Brawley’s works. But if his charter, so long unused, retain any validity, the franchise#appears to be still in him to construct a boom within the designated limits wherever he may have title.
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RyaN, C. J.
It is stated in the complaint that the respondent was organized under ch. 73, R. S. This was clearly a mistake; for the articles of association, produced during the argument, are dated 30th December, 1872, and were filed in the secretary’s office 8th January, 1873. The organization must therefore have been under ch. 144 of 1872, which expressly repeals ch. 73, R. S. And it was accordingly so stipulated by counsel on the argument.
[301]*301The court aciberes to the construction given to the constitutional amendment of 1871 in Attorney General v. Railroad Companies, 35 Wis., 425, and in Kimball v. Rosendale, 42 id., 407. That construction was too deliberately and solemnly determined to be open to review. A special preexisting charter may still be amended by special statute; but no corporation, except cities, can be created by special statute, but under general statutes only; and the charters of corporations existing under general statutes passed since the amendment can be amended by general statute only.
The respondent therefore took nothing under ch. 126 of 1873. That statute is, beyond!question, a legislative attempt to amend the respondent’s charter under the general statute, enlarging its powers by special grant. It unquestionably grants corporate powers and privileges; corporate franchises, not before possessed by the corporation. Sellers v. Lumbering Co., 39 Wis., 525.
The court was not indisposed, if it could, to construe the sections pf the latter statute relied on, as an employment of an existing corporation to improve the navigation of the river in the public right, and to provide a compensation for it. But the argument of the learned counsel for the appellant appears to be conclusive against such a view. His position was, that corporate franchises are always supposed to be granted on some public consideration, with corresponding benefit to the grantees; and that to hold the sections in question a valid grant of power on the ground suggested, would open the door indefinitely to special grants to corporations under general laws, so far nullifying the constitutional amendment, and continuing the evils which the amendment was intended to obviate, as stated in Kimball v. Rosendale. And so the court holds in this case.
On the argument, ch. 399 of 1876 appears to have been overlooked. That is an amendment of ch. 144 of 1872, relating to corporations created for driving, sorting and delivering logs [302]*302on the rivers of the state, and for the improvement of such rivers for that purpose. It authorizes such corporations, be ing owners of both shores, to improve such rivers by clearing and straightening the channels, closing sloughs, erecting sluiceways, etc.; provided that such works shall not materially obstruct navigation. Except in one particular, the exclusive right of maintaining works on the river within limits beyond its own rights of property, this statute appears substantially to replace, for all the questions now before the court, the attempted amendment of the respondent’s charter in 1873.
It is true that the works of the respondent were begun, and probably completed, before the passage of the statute of 1876. Rut the statute must have the effect of a confirmation of acts authorized by it, giving them legal right, as against the state, from the date of its passage. What the statute authorized to be done after its passage, it legalized from thenceforth, as against the state, when done before. It is sufficient here that the respondent’s works, so far as authorized by the statute, and so far as the state had power to authorize them, had b e-come legal before the commencement of this suit.
In rivers like the Wisconsin, it may not be always easy to determine which is the main channel and which is the slough. And indeed the natural action of the waters of the river may, from time to time, alter the character of its channels; making what was before a slough, the main channel, and what was before the main channel, a slough. And it does not appear to be a strained construction of the grant of ch. 399 of 1876, to hold that when the owners of a slough, across a bend in the river, so improve the slough as materially to straighten the river and to become its main channel, so dedicating it to public use, they may treat the disused bend as a slough, although, before the improvement, it may have been the main channel. With all the light now before it, the court so holds in this case for the purposes of this motion.
So far, therefoi-e, as the motion papers disclose, the respond[303]*303ent must be held to be lawfully in possession of the slough and the wrorks which it has constructed upon it. It therefore has •a right to enjoin any obstruction of the river below, which will interfere with the beneficial use of its property above.
But the injunction goes further. It enjoins the appellants from constructing any boom at a point below, absolutely and without any qualification. And this brings the court to the case of the appellants.
They show that they are in possession as riparian owners, under color of title, on one bank of the river, below the respondent, where they propose to construct their boom. And, for the purposes of this appeal, the court will regard them as such riparian owners, with title to the thread of the stream.
Their title is impeached, as it is understood,- in one particular only. It appears that in the year 1859, one Brawley, without apparent title, was in possession of the land claimed by the appellants. In that year he received from the legislature a charter or license to maintain a boom in the river within limits including that point. Ch. 149, P. & L. Laws of 1859. It further appears that he actually constructed some works at that point, long since disused and fallen into decay. Both parties appear to claim Brawley’s franchise. The court is not satisfied that either claim is sustained.
Of course, the legislature could grant the franchise or license as against the public only. It could not license a trespass by its grantee upon land to which he had no title. The franchise granted to Brawley presupposed some title in him within the limits designated, and he took the right to use it only where he had title. As against the owner of the land, his user appears to have been a mere trespass.
The respondent claims under a sale of Brawley’s works, upon execution on a judgment against him. It is sufficient to say that whatever Brawley did was subject to the right of the actual riparian owner, with title extending usque ad fil/um aqurn. And no sale of Brawley’s works, by him or as against him, could [304]*304affect the title to the land upon, the bank of the river, extending to its thread. The purchaser of a trespasser’s possession takes no right which the trespasser had not.
The appellants claim under foreclosure of a mortgage given by Brawley, of land which they now appear to own. It must be taken, to give any right to the appellants, that they hold under a better title than Brawley could give. The works which he constructed were appurtenant to the fee, and went with it. If the appellants have acquired the fee under the water, they have acquired Brawley’s works. But if his charter, so long unused, retain any validity, the franchise#appears to be still in him to construct a boom within the designated limits wherever he may have title. His franchise to maintain a boom within those limits could not pass by a mortgage of a piece of land within them, to which he had no title. And the right in Brawley’s charter, claimed by the appellants, is not supported by his trespass on premises which the court presumes them to own by a better title than they could derive from Brawley.
The Brawley charter is therefore not here considered as aiding either party.
“Distinguished from appropriation and occupation of the soil under the water, a riparian owner upon navigable water, whether or not he owns the soil usque ad medium filum aquce, and unless prohibited by local law, has a right to construct, in shoal water, in front of his land, proper wharves or piers in aid of navigation, and, at his peril of obstructing navigation, through the water far enough to reach actually navigable water; this being held to further the public use of the water, to which the public title under the water is subordinate; and therefore to be, in the absence of prohibition, passively licensed by the public, and not a pourpresture.” Diedrich v. Railway Co., 42 Wis., 248.
This was said of waters generally navigable by all methods. This court has, however, uniformly held streams of sufficient [305]*305capacity to float logs to market to be so far navigable. Whisler v. Wilkinson, 22 Wis., 572; Sellers v. Lumbering Co., 39 id., 525; Olson v. Merrill, 42 id., 203. In such streams, proper booms and like works'to aid in floating logs to market serve the like purpose, and stand for and in the same right, and subject to like limitations, as the piers and wharves on waters generally navigable, spoken of in Diedrieh v. Iiailway Go.
Such being the riparian right of the appellants, they may lawfully, until prohibited by statute, construct, in front of their land, proper booms to aid in floating logs, so as not to violate any public law or obstruct the navigation of the river by any method in which it may be used, or infringe upon the rights of other riparian owners. Although this right apperT tains properly to their riparian title and not to their title to the soil under the water, yet, in view of the riparian rights appertaining to the opposite bank, it is presumably limited by the thread of the stream. In any case, it must not obstruct the free navigation of the river by floating logs to market or otherwise.
Subject to these conditions, the appellants appear to have a right, as riparian owners, to construct a proper boom from their own premises on the bank of the river.
It is always dangerous, in deciding preliminary motions, to pass upon the rights of the parties absolutely. In the present case, the record is far from satisfactory in disclosing the rights of the parties. It was so regarded in the court below, and apparently with great justice. And what is here said of the rights of the parties is based on what here appears, and is intended to apply to this appeal only. If either party, on the hearing, is able to establish a broader title in itself, or broader limitations to the the title of the other, it ought not to be precluded by anything now decided.
But it follows from what has been said, that the injunc-tional order was too broad, and that the order sustaining it [306]*306must be reversed, witb directions to the court below to modify it according to the views bere declared.
This appears to be a proper occasion to declare that when an order is reversed for the purpose of modification, the order must be considered in force until the modification be actually made in the court below.
By the Court.— The order is reversed, and the cause remanded to the court below with directions to modify the in-junctional order to conform with this opinion.