of water powers, for the improvement of any lakes and streams within the lands owned by it, and the stocking of said lakes with fish, and also for the purpose of acquiring the rights and assuming the duties and obligations, if any, of one James Reynolds in and to such rights, duties, and obligations, if any, as had been prior thereto granted and conveyed to said James Reynolds by an act of legislature of this state." As indicated in the statement, twelve days after that enactment Reynolds and wife conveyed all that he thereby acquired to the defendant. The purpose of incorporating the defendant, as thus alleged, pretty clearly indicated the purpose of the enactment in question. The manifest purpose of both was to secure speculative advantage and pecuniary gain to private parties. Such being the case, the act in question and the conveyance from Reynolds and wife to the defendant both come within the condemnation of this court, as expressed in the opinion of Mr. Justice Pinney, wherein it is said: "In Illinois Cent. R. Co. v. Illinois, 146 U. S. 387 (13 Sup. Ct. Rep. 1100), it was held among other things, that riparian rights are incident to riparian ownership, and existing with it, and passing with the transfer of the land. The land must not only be contiguous to the water, but in contact with it; that proximity, without contact, is insufficient. The riparian right attaches to land on the border of navigable water, without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage.' *It is plain that no grant by the state, for purely private purposes, of such lands, could operate to impair or defeat the previously acquired rights of the riparian owner; for the state has no right to make such a grant. The right which the state holds in these lands is in virtue of its sovereignty, and in trust for the public purposes of navigation. and fishing. The state has no proprietary interest in them, and cannot abdicate its trust in relation to them, and, while it may make a grant of them for public purposes, it may not make an irrepealable one; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. These views are maintained with clearness and vigor in the very able and elaborate opinion of the court

*

in the case last cited."

(55 N. W. Rep. 764).

McLennan v. Prentice, 85 Wis. 444

Certainly, if the state had power, by the act in question, to convey and relinquish to "James Reynolds, his heirs and assigns, forever," and hence to the defendant,—a private corporation, all its right, title and interest in and to all lands lying within the limits of Muskego Lake, then it may, in a similar manner, convey and relinquish to private persons or corporations, all such right, title and interest in and to every one of the 1,240 lakes in Wisconsin. Such conveyance and relinquishment is claimed to be a legitimate exercise of the police power of the state; and it is contended that, because the act asserts that such system of drainage is required for the preservation of the public health, the same is conclusive upon all courts. While the question of the necessity, expediency, or propriety of taking private property for public use is for the legislative department of the government, yet the question whether a particular use is public or private is for the judicial department. Wis. Water Co. v. Winans, 85 Wis. 39, 40 (54 N. W. Rep. 1003), and authorities there cited. In Everett v. Marquette, 53 Mich. 452 (19 N. W. Rep. 140), in considering the question whether the maintaining of a particular structure within the limits of the street constituted a public nuisance, Cooley, C. J., said: "While the city council is entitled, under its supervisory control of the public streets, to consider and pass upon that question for the purpose of deciding upon the institution of legal proceedings for abatement, it cannot make itself the judge. Maintaining a nuisance is a public offense, and the fact, as in other cases of alleged criminality, is to be tried on proper accusation and in the regular courts." In a later case in the same court, it was held that "the legis lature has no power to authorize a municipality to make that a purpresture or nuisance which is not so in fact, if, by so doing, the constitutional rights of any citizen in his person or property are infringed or destroyed." Grand Rapids v. Powers, 89 Mich. 94 (50 N. W. Rep. 661). See Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418 (10 Sup. Ct. Rep. 462, 702); St. Louis & S. F. Ry. Co. v. Gill, 156 U. S. 649 (15 Sup. Ct. Rep. 484). So here, upon the facts alleged in the complaint, the legislature had no power, under the guise

of legislating for the public health, to authorize the destruction of the lake, and thereby create a nuisance, to the great injury of the plaintiff as such riparian owner, for private purposes, and for the sole benefit of private parties. We must hold that the complaint states a cause of action. (By the court)-That portion of the order of the circuit court appealed from is reversed, and the cause is remanded, with direction to overrule the demurrer, and for further proceedings according to law.

Note. The riparian rights of the lower owners of land upon the bank of a stream are property such as cannot be taken by the state for even a public use, except in aid of navigation, without compensation to the owner, and cannot be taken at all or impaired for private use. Patten Paper Co. v. Kaukauna Water-Power Co., 90 Wis. 370 (61 N. W. Rep. 1121; 63 N. W. Rep. 1019; 28 L. R. A. 443). Citing, Chapman v. Oshkosh & M. R. Co., 33 Wis. 629; Delaplaine v. Chicago & N. W. R. Co., 42 Wis. 214 (24 Am. Rep. 386); Janesville v. Carpenter, 77 Wis. 288 (8 L. R. A. 808); Atty-Gen. v. Eau Claire, 37 Wis. 400-436; Cole v. La Grange, 113 U.S. 1 (28 L. ed. 896); Kaukauna Water Power Co. v. Green Bay & M. Canal Co., 142 U. S. 254, 272, 273 (35 L. ed. 1004, 1010). Riparian rights are property rights which may be appropriated to a public use under the right of eminent domain, proper provision being made for compensation for the taking. Cooper v. Williams, 4 Ohio, 253 (22 Am. Dec. 745); Cooper v. Williams, 5 Ohio, 391 (24 Am. Dec. 299); Lux v. Haggin, 69 Cal. 255 (10 Pac. Rep. 674). Water rights may be appropriated for railroad purposes, Bigelow v. Draper, 6 N. Dak. 152 (69 N. W. Rep. 570); to supply a village or community with pure water, Hamor v. Bar Harbor Water Co., 78 Me. 127 (3 Atl. Rep. 40); by the state for a canal, Cooper v. Williams, 4 Ohio, 253 (32 Am. Dec. 745). Shutting off the access of a riparian owner to navigable waters by construction of a railroad embankment across the water front, entitles him to such damages as he may thereby sustain unless he has granted the right or it has been obtained by the power of eminent domain. Rumsey v. New York & N. E. R. Co., 133 N. Y. 79 (30 N. E. Rep. 654; 28 Am. St. Rep. 600; 15 L. R. A. 618). Overruling, Gould v. Hudson River R. Co., 6 N. Y. 522. The right of each navigator of a public river to the use of the bank, is subject to the sovereign power of eminent domain, by the exercise of which power any particular portion of the bank may be appropriated to exclusive use as a ferry or other landing, if the public good requires it. Mayor of Memphis v. Wright, 6 Yerger 497 (27 Am. Dec. 489). Ground between high and low water mark is liable to be taken for public use. Balliet v. Commonwealth, 17 Pa. St. 509 (55 Am. Dec. 581).

EPITOME OF CASES.

In

Sec. 796. Use of banks and waters of stream. Michigan it is held that the fee of the land under the waters

of Lake Erie belong to the state, subject to the right of navigation and that the state may make a valid dedication of such land as a public hunting ground and prohibit the destruction of marine vegetation thereon. People v. Silberwood, 110 Mich. 310 (67 N. W. Rep. 1087; 32 L. R. A. 694). The owner of the uplands cannot exercise his easement of right of access to the channel of the river in such a manner as to prevent other parties to whom the sovereign has granted the bed of the river or some portion of it, from using their own property in a reasonable way. The rights of the parties in these respects are governed by the general rules of law applicable to easements and servitudes. The riparian owner of lands above an inlet to a navigable stream, who has reasonable means of access to the channel, for boats which the inlets in its natural state will float, will not be permitted to recover damages against a railroad company for erecting a bridge over such inlet, simply because it will prevent access of larger boats to the river channel, which it is proposed to float by artificial improve. ment of the channel. Hedges v. West Shore R. Co., 150 N. Y. 150 (44 N. E. Rep. 691; 55 Am. St. Rep. 660).

Sec. 797. Riparian rights upon non-navigable lakes. In the case of Fuller v. Shedd, 161 Ill. 462 (44 N. E. Rep. 286; 52 Am. St. Rep. 380; 33 L. R. A. 146), the supreme court of Illinois held that a grantee of the United States of land bordering on a non-navigable lake, large or small, meandered in the original survey, takes title only to the water's edge; that as such riparian owner he is entitled to the accretion to his land formed by recession of the waters, and he can. not be deprived of this, or his other riparian rights, by a subsequent survey and grant by the government. In determining these questions the court holds that the decisions of the federal courts do not bind it. See opinion for exhaustive collation of authorities. The common law doctrine relating to the right of a riparian proprietor in the water of a natural stream, and the use thereof, has never obtained in Wyoming. Moyer v. Preston, Wyo. (44 Pac. Rep. 845).

Sec. 798. Partition of water rights by courts of equity. Equity has jurisdiction to make partition of the use

of water between opposite riparian proprietors when necessary to secure an equal use or enjoyment in their rights. Warren v. Westbrook Mfg Co., 88 Me. 58 (33 Atl. Rep. 665; 51 Am. St. Rep. 372; 35 L. R. A. 388). Citing, Bardwell v. Ames, 22 Pick. 333; Ballou v. Hopkinton, 4 Gray 324; Lyon v. McLaughlin, 32 Vt. 423; Adams v. Manning, 48 Conn. 477; Burnham v. Kempton, 44 N. H. 78; Lehigh Valley R. Co. v. Society for Establishing Useful Manufactures, 30 N. J. Eq. 145; Frey v. Lowden, 70 Cal. 550 (11 Pac. Rep. 838); Patten Paper Co. v. Kaukauna Water-Power Co., 70 Wis. 659 (35 N. W. Rep. 737); Arthur v. Case, 1 Paige 447; Head v. Manufacturing Co., 113 U. S. 9 (5 Sup. Ct. Rep. 441); Lockwood Mills v. Lawrence, 77 Me. 297 (52 Am. Rep. 763).

66

Sec. 799. Removing ice from mill pond. The lessee of a mill dam with rights of flowage, who is not a riparian proprietor upon the mill pond cannot maintain trespass for the removal of ice from the pond which does not diminish his water power. Reysen v. Roate, 92 Wis. 543 (66 N. W. Rep. 599). The court say: It is settled in this state that the title to the bed of a stream is in the riparian owners, whether the stream be navigable or not. Olson v. Merrill, 42 Wis. 203. Ice which forms on streams or ponds, the bed of which is the subject of private ownership, belongs to the owner of such bed, and such owner may maintain trespass for its removal. Gould, Waters, § 191, and authorities cited; Bigelow v. Shaw, 65 Mich. 341 (32 N. W. Rep. 800; 8 Am. St. Rep. 902).”

Sec. 800. Accretion and alluvian. In a recent case the conflicting authorities are collated and it is held by a divided court, that where the land of a riparian owner is gradually washed away and the place becomes for years the bed of the river, the owner does not acquire title by accretion to new land subsequently formed within his original boundaries unless the formation began at high water mark. Wallace v. Driver, 61 Ark. 429 (33 S. W. Rep. 641; 31 L. R. A. 317). Only such land as may be added to the original grant by the regular or gradual process of accretion or reliction to the shore line belongs to the riparian owner. Perkins v. Adams, 132