Statement of the case. and became possessed of the "River Improvement," so called, and of its dams, water-powers, "also all other rights, privileges, franchises, easements, and appurtenances of all kinds described in the acts of the legislature of Wisconsin, &c., . . . including the easement or right to overflow, as hereinafter mentioned." The plea then proceeded to say that by the act of building and completing the damn, &c., and by means of the waters of Lake Winnebago, Reed and Doty, and the State by its board of public works, did, as they lawfully might do, seize, and, to the extent necessary and for the purposes of a water-power and of the said improvement, take possession of the lands and premises, trees, grass, herbage, drains, ditches, &c., in the declaration mentioned, to the extent that the same were, as therein alleged, destroyed, damaged, overflowed, saturated, and subverted, and otherwise injured; that the seizure and taking possession were so made and done under claim and color of right and title duly made by virtue of the laws of Wisconsin, and that the defendant had done as lawfully it might. THE FOURTH plea set forth the legislation authorizing the erection of the dam and the improvement of the river, the title of the defendant to the improvement and its privileges and duties in relation thereto-all as in the second pleaand alleged that the dam was completed in the year 1852; that the State, by its board of public works, seized so much of the plaintiff's land as was overflowed and as was necessary for this improvement, and ever since the completion. of the dam, in 1852, that the State, its successors, and the defendant, had held, and that the defendant now held the same; that such seizure was made under claim and color of right and title, by virtue of the laws of Wisconsin; publicly and notoriously, and with the knowledge and acquiescence of the plaintiff, and under like claim and color, and in like manner had since been held; that the plaintiff, at the time of such seizure, was seized in fee and was in possession of the land described in the declaration, subject to the rights acquired by the State by its seizure and possession; that Statement of the case. during all the said time-i. e., since the completion of the dam, in 1852—the plaintiff had been under no disability which disabled him from bringing suit. THE SIXTH plea alleged that by the Ordinance of 1787, the act of Congress of August 7th, 1789, the act establishing the territorial government of Wisconsin, the act admitting the State of Wisconsin into the Union, the Constitution of the State of Wisconsin, and the laws of the United States and of the State of Wisconsin, it was declared that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying-places, &c., should be common highways and forever free; that the Fox and Wisconsin Rivers and Lake Winnebago were and ever had been of the navigable waters thus referred to; that the Fox River was a navigable water leading into the St. Lawrence. The plea then set out the legislation in regard to the improvement, the incorporation of the Fox and Wisconsin Improvement Company, the organization, incorporation, and title of the canal company (the defendant), as set forth before, and further alleged that the dam was built and maintained under the authority of the laws of the United States and of the State of Wisconsin, and the board of public works; that as constructed and maintained, it was and is an essential portion of the works for the improvement of the navigability of the Fox and Wisconsin Rivers, and to the proper development as common navigable highways; that the ordinauce, the laws of Congress and of the State, granted and assigned to the defendant, the improvement and the easement, right and privilege of overflowing, &c., the lands described in the declaration, to the extent necessary to improve the navigability of said rivers; that under a treaty with the Winnebago Indians, in 1832, the United States patented certain land (of which the plaintiff's was a part) to one Theresa Paquette; that she, the said Theresa and original grautor of the lands described in the declaration, and all the subsequent grantees thereof, including the plaintiff, purchased with full notice of, and subject to, the casement LIDIANI Argument for the builders of the dam. and right aforesaid; and which easement and right was granted to the State prior to the original grant of title to plaintiff's land, which is alleged to have been in 1849. A general demurrer to these three pleas being overruled by the court, the plaintiff brought the case here. Messrs. B. J. Stevens and H. L. Palmer, in support of the ruling below: I. The fact that our dam causes an overflow, even if the fact were conceded, does not make us liable anywhere. For the second section of the act of March 10th, 1848, gave us a right to build a dam of seven feet, or of any greater height, above high-water mark in Fox River, provided only that such dam did not raise the water in Lake Winnebago above its ordinary level. And it gave us a right to build to the seven feet, let the result be what it might. This is the fair construction of the proviso. Now we have pleaded that we built the dam just as the statute authorized us to build it; that is to say, conceding an overflow, that we have built it seven feet high and no more. These facts being admitted by the demurrer, the judgment was properly given for the defendant. Further than this, the Mill-dam Act of 1840 having provided a special remedy for injuries sustained by the owners of lands overflowed by mill-dams, the remedy thus provided is the only one available to the land-owner, and excludes all others. II. Passing to the second part of the plea, we come to a grave question in State constitutional law; but here, too, we say that the plaintiff has no claim, and that the demurrer was rightly overruled. The Fox River being a public navigable river, and a common public highway (as it will be admitted in virtue of wellknown public legislation to be), prima facie and of common right belongs to the sovereign power. The lands of individuals bounded on this public navigable river and on the lakes through which it runs, and which form a part of it, Argument for the builders of the dam. were indeed granted to those individuals by the State or National government; but neither the State nor the govern ment thereby divested itself of the right and power of improving the navigation of the river, aud may improve it without liability for remote and consequential damages to individuals. In Lansing v. Smith, a statute of New York authorized the construction of a basin in the Hudson at Albany, and erections whereby the docks, &c., of the plaintiff were rendered inaccessible by vessels and much depreciated in value. But it was determined that the act, although it provided no compensation for such injury, was not unconstitutional, either as taking private property for public use without compensation or as impairing the obligation of contracts; that the plaintiff had not at common law, as owner of the adjacent soil, nor by virtue of a grant from the State for land under water opposite to the shore, and under which he claimed, a right "to the natural flow of the river with which the State had no right to interfere by any erection in the bed of the river or in any other manner." The doctrine of this case was followed in Pennsylvania, in McKeen v. The Delaware Division Canal Company.† That was an action to recover damages for injuries alleged to have been sustained by the plaintiff, by reason of the erection by the defendant of a dam across the Lehigh River for the purpose of improving the navigation of the river, which caused the water to flow back into the plaintiff's mill-race and thereby injured his fall and water-power. The court held that this was but the common case of a consequential injury, and that the injury "which followed the raising of the water in the stream to improve navigation was not a taking of his property, but one merely consequential, which he must suffer without compensation, unless the State should choose out of grace to concede it." "Every one," says the court, "who buys property on a navigable stream purchases subject to the superior rights of the Commonwealth to regulate and * 8 Cowen, 146. † 49 Pennsylvania State, 424. Argument for the builders of the dam. improve it for the benefit of all her citizens." This same view is had in numerous Pennsylvania cases;* and these cases are, we think, approved by this court in Rundle v. Delaware and Raritan Canal Company.† In Canal Appraisers v. The People,‡ a New York case, it was determined that "if, in the improvement of the navigation of a public river, the waters of a tributary stream are so much raised as to destroy a valuable mill site situated thereon, and the stream be generally navigable, although not so at the particular locality of the mill site, the owner is not entitled to damages within the provisions of the canal laws, directing compensation to be made for private property taken for public use." To the same effect is The People v. The Canal Appraisers,§ decided in the same State by the Court of Appeals, in 1865; Fitchburg Railroad Co. v. Boston and Maine Railroad Co.,|| in Massachusetts; Hollister v. The Union Company, ¶ in Connecticut; Commissioners of Homochitto v. Withers,** in Mississippi, and Hanson v. La Fayette,†† in Louisiana. But we must direct particular attention to the Wisconsin case of Alexander v. City of Milwaukee.‡‡ The plaintiff there owned lots on the Milwaukee River, on which he had docks and a shipyard. The city of Milwaukee, under legislative authority, constructed the existing "straight cut" harbor, for the purpose of improving navigation and promoting the interests of commerce. By reason of the construction of the harbor, the waters of the lake were from time to time driven through the cut and upon and over the plaintiff's premises, washed away his buildings, materials, and portions of the * Monongahela Navigation Co. v. Coons, 6 Watts & Sergeant, 101; Susquehanna Canal Co. v. Wright, 9 Id. 9; Henry v. Pittsburg and Alleghany Bridge Co, 8 1d. 85; Monongahela Navigation Co. v. Coon, 6 Barr, 379; Mifflin v. Railroad Co., 4 Harris, 182; New York and Erie R. R. Co. v. Young, 9 Casey, 175; Monongahela Bridge Co. v. Kirk, 46 Pennsylvania State, 112; Watson v. P. & C. R. R. Co., 1 Wright, 469; Shrunk v. Schuyl kill Navigation Co., 14 Sergeant & Rawle, 71. |