with the consent of the owner of the land; but a new location of the road will not extinguish the right of a private crossing. Hamlin v. N. Y., N. H. & H. R. Co., 166 Mass. 462 (44 N. E. Rep. 444).

Sec. 791. Railroad

crossings-Other railroadsStreet railways. Where a railroad by its charter is given power to cross, intersect, join, or unite with another road, it may, in order to enforce such right, avail itself of the statutes providing for the condemnation of right of way. East St. L. & C. Ry. Co. v. Belleville City Ry Co., 159 Ill. 544 (42 N. E. Rep. 974). In order to authorize one street-railway company to occupy the tracks of another, there must be legislative permission for the same or it must result from such necessary implication from the grant that an abandonment of the grant would necessarily result from the non-occupancy of the roadbed of the street railway first occupying the street. Miller and Breaux, JJ., dissenting. Crescent City R. Co. v. New Orleans & C. R. Co., 48 La. 856 (19 So. Rep. 868). Where the plan of the condemning railway company for the crossing of the tracks of another road necessitates a temporary interference with the operation of the latter, but does not prevent the carrying on of its business and any other plan of crossing would entail great expense, danger and delay, the condemning road will be permitted to execute such plan under the protection of an injunction. National Docks & N. J. J. C. R. Co. v. Pennsylvania R. Co., 54 N. J. Eq. 142 (33 Atl. Rep. 860).

Sec. 792. Equitable power to prevent severance of operating railroad. In the foreclosure of a vendor's lien against a vendee who has permitted the construction of a railroad over the land, a court of equity having all the parties before it will so assess damages and direct payments as will if possible prevent a severance of an operating railroad, it appearing that the possession of the road was not tortious. Finnell v. Louisville & S. R. Co., 99 Ky. 570 (36 S. W. Rep. 553). The court say: "This not being a wrongful entry the party is not in the light of a trespasser, as in the case of Holloway v. Railway Co., reported in 92 Ky. 244 (17 S. W. Rep. 572),

when an ejectment was maintained because of the wrongful entry; but a case is presented in a court of equity, where an equitable adjustment becomes necessary, to prevent a sale of that in which the public has an interest, and the sacrifice of the property of the appellee."

RIPARIAN OWNERS.

PRIEWE v. WISCONSIN STATE LAND & IMPROVEMENT CO. (93 Wis. 534.)

Riparian rights-Power of state to destroy. A legislature has no power, under the guise of protecting the health, to destroy a lake and the riparian rights of land owners, for the benefit of private parties.

Sec. 793. Facts stated. The complaint alleges, in effect: That Muskego Lake is situated within the boundaries of Waukesha county, and is a natural body of water, and up to 1891 was about four and one half miles long and one and one-half miles wide (its greatest length being from north to south), and from one to ten feet deep; that the lake was regularly surveyed and meandered by the United States prior to the admission of this state into the Union, and covered about 3,500 acres of land; that long prior to 1891, the United States patented to settlers and purchasers the lands lying in, about, adjacent to, and bordering upon that lake, together with the riparian rights, water rights, privileges, and easements incident to, in connection with, and adjacent to said lake; that the lake, at all times prior to the acts complained of, abounded in fish and game in great quantities; that it was navigable for sail, steam, and row boats, and much used for business and pleasure; that upon the northerly side a large number of small creeks and living streams of water flowed into the lake, and the waters in the lake constantly moved toward the south; that at the southern end of the lake was an outlet, which emptied into Wind Lake, in Racine county; that ever since 1875 the plaintiff has been and is now the owner in fee-simple and in possession of sixty-six and one half

acres of land, described, adjacent to and upon the north side of Lake Muskego, and in contact with the waters thereof, having a natural frontage line upon that lake of about 100 rods; that during that period he has been and now is engaged in the business of farming, stock raising, and maintaining a club house, lodging house, and resort, with boats and hunting and fishing tackle, both for use and rent upon the waters of that lake; that the plaintiff had erected thereon houses, barns, stables, fences, and other improvements, situated near to and adjacent to the lake; that the lake, prior to the acts complained of, was a source of health, pleasure, and profit to the plaintiff and his guests, and the public in general; that the plaintiff made great use of the waters of the lake, and of the riparian rights belonging to and forming a part of his premises, in connection with his farm, club house, dwelling house, boarding house, etc.; that, prior to the acts complained of, his premises were worth $9,000. The complaint then alleges that, since the earliest settlements in the vicinity, the bottom of the lake has generally, but erroneously, been supposed to be composed of a deep layer of decayed musk or vegetable matter, which would become productive and of great value for agricultural purposes if the water could be drained therefrom; that to secure such drainage, and the title to and possession of 3,500 acres of the bed of the lake, many schemes have been at various times devised, and some work done towards carrying out the same; that to effect such purpose, the Muskego Canal Company was incorporated by chapter 262, Priv. & Loc. Laws, 1854, with power and authority to construct and maintain a canal for the purpose of draining the waters of Muskego and Wind Lakes, in the counties of Waukesha and Racine, into the Root river or its tributaries, and to connect the waters of adjoining lakes with the waters of these lakes, and to drain the same, thereby giving the incorporators the sole and exclusive right to do as therein authorized; that the power and authority so given was extended by chapter 498, Priv. & Loc. Laws, 1856, to January 1, 1858; that by chapter 198, Priv. and Loc. Laws, 1868, substantially the same powers, rights, privileges, and reservations as granted to the Muskego Canal Company were attempted to be given and granted to James Reynolds and others; that chapter 198, Priv. & Loc. Laws, 1868, was repealed by chap

ter 326, Priv. & Loc. Laws, 1869. It is then alleged that chapter 169, Laws 1887, entitled, "An act to provide for the drainage and reclamation of certain lands in Racine and Waukesha counties," went into effect April 21, 1887, and provided, in effect, that when over fifteen or more owners of wet or overflowed lands lying adjacent to any one or more of the lakes of Wind, Muskego, and Eagle shall be of the opinion that such lands will be benefitted by the system of drainage and subject to the assessment therein provided and who shall be of the opinion that the public health and welfare will be promoted thereby, shall desire to institute proceedings for the drainage and reclamation of lands in any such part of either of said counties, either by constructing extending, opening, enlarging, widening, straightening, or deepening water courses, or removing natural or artificial obstructions therefrom, or by permanently lowering the ordinary level of the water in any or all of said lakes, they may apply to the circuit court, or the judge thereof, by petition, for the institution of such proceedings and for the appointment of five commissioners, etc., giving to such commissioners certain powers, and prescribing certain things to be done by them; that such proceedings were commenced by the filing of a petition and the Appointment of commissioners in October, 1887; that such commissioners were appointed for the purpose of lowering the water in Muskego Lake 4 feet, and to widen and deepen the river between Muskego and Wind Lakes; that during 1889 and 1890 such proceedings were had by said commissioners that the plaintiff was assessed for benefits to be derived from said system of drainage, including the lands which this plaintiff was to acquire by means of draining the water in said lake from his front line, which assessment the plaintiff paid; that during said years, by the system of drainage thus adopted and carried out, the level of Muskego Lake was lowered in 1890 about 4 feet below the low-water mark. That the water in that lake receded from its ordinary and usual level, as maintained January 1, 1888, upward of 2 rods, and that the plaintiff acquired, by means thereof, under such proceeding, upward of 4 acres, and his line of lake frontage of his said lands was by said public proceeding changed accordingly, for all of which he was assessed and paid a valuable consideration; that the

plaintiff thereupon laid out and expended large sums of money upon his said lands in order to reasonably and profitably enjoy and use the same for farming and resort purposes; that the amount of profitable and remunerative business of the plaintiff constantly increased until the acts herein complained of; that the plaintiff paid such assessments, relying upon the action of the commissioners and others under said last-named act as being a final settlement of the question of lowering the level of Muskego Lake; that the public health and well being of the communities adjacent to Muskego Lake did not thereafter, and never have, required that the system of drainage so adopted and carried out should be extended, enlarged, and completed, so as to drain the bed and bottom of said lake. The com. plaint then alleges that chapter 202, Laws 1891, entitled An act granting to James Reynolds, his heirs and assigns, the right to complete the draining of certain swamp, wet and overflowed lands in the counties of Waukesha and Racine and to confirm his title thereto," went into effect April 13, 1891. That it recited certain provisions of said chapter 198, Priv. & Loc. Laws, 1868, and proceedings under said chapter 169, Laws 1887, and contained, among others, the following recital: "Whereas, the preservation of the public health, and the well being of the communities adjacent to said lakes, imperatively require that said system of draining should be extended, enlarged and completed so as to effectually drain such wet and overflowed lands; " that twelve days after the publication of that act, and on April 25, 1891, James Reynolds and wife, of Illinois, executed and delivered to the defendant company a certain quitclaim deed, for the nominal consideration of $299,700 in the shares of the capital stock of the defendant, at their par value, of all the lands within the meander lines and boundaries of Muskego Lake as they existed prior to January 1, 1888; and, further, by said deed purported to grant and convey the lands within said meander lines, and the overflowed lands adjacent thereto, as also the lands within the meander lines of said Wind Lake; that said deed was recorded June 26, 1891; that ever since said conveyance the defendant has claimed to hold and to have all the rights, privileges, benefits, and obligations thereby attempted to have been granted and conveyed; that in the summer of