Suit is a Wisconsin court to enjoin the cutting of an embankment in order to use the water-power created thereby. The complaint was dismissed, but on appeal to the state supreme court the decision was reversed, with instructions to award an injunction. 35 N. W. Rep. 529. From the decree entered in pursuance thereof defendant brings error. Affirmed.
The facts of the case fully appear in the following statement by Mr. Justice BROWN: [142 U.S. 254, 255] This was a complaint in the nature of a bill in equity filed in the circuit court of Outagamie county, Wis., by the Green Bay & Mississippi Canal Company against the Kaukauna Water-Power Company and a number of other defendants, lessees and tenants of the water-power company, for the purpose of enjoining them from interfering with the plaintiff and its employes while engaged in maintaining, repairing, and rebuilding a certain embankment and drain upon a certain lot of land upon the bank of the Fox river, in the state of Wisconsin, and from cutting, tearing away, or removing such embankment or drain. The case made by the complaint, pleadings, and evidence was substantially as follows:
By an act approved August 8, 1846, congress granted certain lands to the state of Wisconsin, upon its admission into the Union, for the purpose of improving the unvigation of the Fox and Wisconsin rivers, the former of which is one of the navigable rivers of the state, having an [142 U.S. 254, 256] average flow of 150,000 cubic feet per minute, and affording a water-power of 300 horsepower per foot fall. By an act approved June 29, 1848, the legislature accepted the grant, and by a subsequent act, entitled 'An act to provide for the improvement of the Fox and Wisconsin rivers, and connecting the same by a canal,' approved August 8, 1848, created a board of public works to superintend the construction of the improvements contemplated by the act of congress. In this act (section 16) the legislature pro- [142 U.S. 254, 257] vided that, 'whenever a water-power shall be created by reason of any dam erected or other improvements made on any of said rivers, such water-power shall belong to the state, subject to the future action of the legislature.' The board was limited, by the act in their contracts and expenditures, to the proceeds of the sale of the lands granted by congress. In 1851 the state made a contract with Morgan L. Martin for the improvement of the Fox river between Lake Winnebago and Green bay. At Kaukauna, in township 24 N., range 18 E., were rapids in the Fox river, and the navigation at this point had to be improved by the construction of a dam across the river to secure slack-water, and of a canal leading therefrom on the north side of the river to a point below the rapids.
In 1853, the state of Wisconsin, finding itself unable to complete the improvement from the grant made to it, incorporated the Fox & Wisconsin Improvement Company, for the purpose of carrying forward the improvements of these rivers, and relieving the state of its indebtedness on account of the work already done, and from its liability upon its contracts not then executed. The grant was made upon condition that the company should file with the secretary of state a bond for the vigorous prosecution of the improvement to completion, and for the completion of the same within three years. The bond was further conditioned to pay all the state's in- [142 U.S. 254, 258] debtedness, and to save the state harmless from all liability growing out of the improvement. Having complied with all of these conditions, all of the dams, locks, water-powers, and other appurtenances of said works, and all the said rights, powers, and franchises, were passed to and vested in the Fox & Wisconsin Improvement Company. Pursuant to the conditions of this grant, the improvement company went on to complete the works as then contemplated, and in its prosecution of the same, in order to secure slack- water navigation around the rapids, in 1853-'4 and '5 built a dam at the head of the rapids, so as to raise the water about 8 feet above the natural level, reaching from lot 5, section 22, south of the river, to section 24, north of the river; and also built a canal and locks on the north side of the river, reaching from the pond created by the dam to the slack-water of the river below the rapids and below the dam. The south end of the dam abutted upon lot 5, now owned by the canal company. This dam was built and maintained by virtue of the act of the state, approved August 8, 1848, providing for the completion of such improvement; and there was no other authority for building or maintaining the same. The dam so constructed was maintained by the improvement company and its successor, the Green Bay & Mississippi Canal Company, until 1876, when the United States, having taken title to the improvement, built the new dam now in question 40 feet below the old one, and extended the embankment down the river to meet it. In the belief that it also owned the hydraulic power mentioned in the sixteenth section of this act, the improvement company bought lands adjacent to the canal for the purpose of rendering such power available.
In order to raise funds for the completion of the work and the payment of the state indebtedness, it mortgaged the property to the amount of $500,000; and also, under an act of the legislature of October, 1856, made a deed of trust to three trustees of all the unsold lands granted to the state in aid of the improvement, and of all the works of improvement constructed on the river, including the dams, locks, canals, water-powers, and other appurtenances. This trust-deed was subsequently [142 U.S. 254, 259] forclosed for the purpose of paying the state indebtedness and the bonds issued under the mortgage, as well as those secured by the trust-deed, and the property upon such foreclosure was sold to a committee, which subsequently became incorporated under the name of the Green Bay & Mississippi Canal Company, plaintiff in this suit, which in this manner became seised in fee of all the improvements, and all the rights, powers, and privileges connected with the improvement company, including the dam and canal and all the hydraulic power thereby furnished and the mill lots connected therewith. Plaintiff entered into possession of this property, and spent considerable sums in improving, repairing, and operating such works of improvement. Finding its expenses largely exceeded the revenue derived from it, an act of congress was procured in 1870, authorizing the secretary of war to ascertain the amount which ought to be paid to the plaintiff for its property and rights in the canal, which amount being subsequently settled by a board of arbitration, a deed was made to the United States of the entire property, with a reservation of the water- power created by the dam, and by the use of the surplus water not required for the purposes of navigation, with the rights of protection and reservation appurtenant thereto, and the land necessary to the enjoyment of the same, and acquired with reference to such use. [142 U.S. 254, 260] The dam which furnishes such hydraulic power rests upon the south side of the river on lot 5 of the government survey, which lot in its natural condition was low, and scarcely raised above the surface of the water in the river at its natural stage. In order to maintain a head of water in the pond for the purpose of navigation or hydraulic power, it was necessary to build an embankment about 10 feet high, and of a thickness and strength sufficient to hold the water in the pond. Such embankment was built and extended across the fronts of lots 5, 6, and 7, shortly before the construction of the dam. This lot No. 5 was entered by one Denniston in 1835. He afterwards assigned his duplicate therefor to one Hathaway, who received a patent from the United States, August 10, 1837. His title, through several mesne conveyances, became vested in the water-power company May 14, 1880, but no authority was ever obtained from the owner of this lot to erect or abut the dam upon it, or to build an embankment upon it, and no condemnation proceedings under the act of 1848 to obtain an appraisal of damages to such lot were proved at the trial. Lots 6 and 7, also originally entered by Denniston, lie immediately above lot 5, and in their natural state were also low and flat. In 1854, one John Hunt, then the owner in fee of these lots, granted to the improvement company, its successors and assigns, the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company, reserving the right to 'myself to use said embankment when completed, but not so that the same shall be injured through lots 6 and 7; ... also the privilege of excavating a ditch along the south or east side of said embankment, not exceeding three feet in width.' Under and by virtue of such grant the improvement company built the embankment, and dug the ditch, and the same have ever been maintained under and by virtue of such grant and the legislative act of 1848.
The defendant the Kaukauna Water-Power Company, claiming to own that part of lots 5, 6, and 7, adjacent to Fox river, by purchase of lot 5 from one Beardsley and of lots 6 and 7 from Hunt in 1880, began to excavate and build a canal upon these lands, in order to draw water from the pond on the south [142 U.S. 254, 261] side, and use the same for hydraulic purposes, when plaintiff gave notice in writing of its claim to such hydraulic power, stating that it would resist the breaking of such embankment and the drawing of water from the pond, thereby depriving plaintiff of the use thereof, and of the control of and dominion over the same. The other defendants claimed the right to use the water from the canal of the water-power company under, and as tenants of, such company. The complaint was dismissed by the circuit court, and an appeal taken to the supreme court of the state, by which the decree of the circuit court was reversed, and the case remanded to that court with instructions to enter judgment for the plaintiff, and for an injunction against the defendants restraining them from drawing any water from the pond maintained by the dam for hydraulic purposes. From the decree so entered by the Circuit Court
The following is a map of the improvements:
the Kaukauna Water-Power Company and the other defendants sued out this writ of error, claiming that there was drawn in question the validity of a statute of the state, and of an authority exercised under the state, upon the ground of their [142 U.S. 254, 262] repugnance to the constitution of the United States. A motion to dismiss the writ of error upon the ground that no federal question was involved was postponed to a consideration of the case upon the merits.
HARLAN, J., dissenting. Affirming 35 N. W. Rep. 529.
Alfred L. Cary and D. S. Ordway, for plaintiffs in error.
Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.
1. The only question involved in this case proper for us to consider is whether the act of the legislature of Wisconsin of August 8, 1848, reserving to the state the water-power created by the erection of the dam over the Fox river, as construed by the supreme court of the state, and the proceedings thereunder, operated to deprive the plaintiffs in error of their property without due process of law. Notwithstanding the inhibition of the constitution is not distinctly put in issue by the pleadings, nor directly passed upon in the opinion of the court, it is evident that the court could not have reached a conclusion adverse to the defendant company without holding either that none of its property had been taken, or that it was not entitled to compensation therefor, which is equivalent to saying that it had not been deprived of its property without due process of law. This court has had frequent occasion to hold that it is not always necessary that the federal question should appear affirmatively on the record, or in the opinion, if an adjudication of such question were necessarily involved in the disposition of the case by the state court. Wilson v. Marsh Co., 2 Pet. 245; Armstrong v. Treasurer, 16 Pet. 281; Insurance Co. v. Needles, 113 U.S. 574 , 5 Sup. Ct. Rep. 681; Canal Co. v. Superior Court, 116 U.S. 410 , 6 Sup. Ct. Rep. 429.
It is argued by the defendant in error that, inasmuch as the act of the legislature complained of was enacted in 1848, and the fourteenth amendment to the constitution was not adopted until 1868, the provision of the latter against the 'depriving' a person of property without due process of law has no application to this case. There are several answers made by the plaintiff in error to this contention. First. It was not the act itself which deprived the water-power company of its property, but the proceedings taken under the act; and, so far as such proceedings were taken subsequent to the constitutional amendment, they fall within its inhibition. It may well be doubted whether the mere construction of the dam [142 U.S. 254, 270] and embankment operated of itself to deprive the owner of lot 5 of any right to the water-power, as the water continued to flow past the lot as it had previously done, though at a higher level than before. Be this as it may, however, it is possible that the notice given by the canal company, in 1880, of its claim to the exclusive right to this water-power, may be considered as a deprivation within the meaning of the amendment. Until this time there had been no active interference with any claim or riparian rights belonging to the water-power company. Second. If the erection of the dam and embankment be treated as an assertion of an exclusive right to the water-power in front of these lots, perhaps the maintenance of this dam and embankment may be regarded as a continuous deprivation of the rights of the riparian owner to such water-power, within the meaning of the constitutional provision. The act of deprivation continues so long as the canal company maintains its paramount and exclusive right to the use of the water flowing in front of such lot. Third. While it is undoubtedly true that the first dam and embankment were constructed in the years 1853 to 1855, before the constitutional amendment was adopted, the new dam, the southerly end of which also abutted on lot 5, as well as the embankment connecting this with the old dam, was not built until 1876; and in the construction of these the water-power company claims that it was deprived of its property without due process of law. The allegation of the answer in this connection is 'that the dam which now raises the water of said Fox river for the filling of said government canal, in the said complaint mentioned, is not the same dam which was built by the board of public works, and in said complaint referred to; that, after the United States became the owner of said canal and water-way, and in about the year 1874, the United States abandoned said old dam and built a new one, ... the southerly half of which said new dam and which point of abuttal is upon land which, prior to and at the time of the commencement of this suit, belonged to, and was in the possession of, and still belongs to, and is in the possession of, the defendant the Kaukauna Water-Power Company; ... that, [142 U.S. 254, 271] after the building of said new dam by the United States, as aforesaid, it ( the said United States) constructed and extended the said embankment along the southerly shore of said Fox river, on said lot 5, from the said old dam down stream to, and joined and terminated the same upon, its said new dam, as the same is now in use; and these defendants state upon information and belief that neither the United States nor any other party ever, by purchase, condemnation, dedication, or in any other way, acquired of or from the owner of said lot 5 the right to so construct or abut said new dam upon said lot 5, or to so lengthen or construct said new part of said embankment thereupon,' etc.
We think these facts and allegations are aufficient to raise the constitutional question whether the property of the water-power company has been taken without compensation, and that the motion to dismiss should therefore be denied.
2. The act of the legislature of Wisconsin of August 8, 1848, in so far as it provided that the water-power created by the dam erected, or other improvements made on the river, should belong to the state, is claimed to be invalid upon the grounds: First, that it purported to take private property for a private purpose; and, second, that, if it were held to be the taking or private property for a public purpose, it was void under the constitution of the state, and not due process of law, because the act did not provide a method of ascertaining and making compensation for the property so taken. Practically the only question is whether this act was valid in so far as it authorized the state to take and appropriate the water-power in question.
It is the settled law of Wisconsin, announced in repeated decisions of its supreme court, that the ownership of riparian proprietors extends to the center or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels. Jones v. Pettibone, 2 Wis. 308; Walker v. Shepardson, Id. 384, 4 Wis. 486; Norcross v. Griffiths, 65 Wis. 599, 27 N. W. Rep. 606. In City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. Rep. 128, it is said of the riparian owner: 'He may construct [142 U.S. 254, 272] docks, landing places, piers, and wharves out to navigable waters, if the river is navigable in fact; but, if it is not so navigable, he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes. ... Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property, under the protection of the constitution, and it cannot be taken, or its value lessened or impaired, even for public use, 'without compensation,' or 'without due process of law;' and it cannot be taken at all for any one's private use.' With respect to such rights, we have held that the law of the state, as declared by its supreme court, is controlling as a rule of property. Barney v. Keokuk, 94 U.S. 324 ; Packer v. Bird, 137 U.S. 661 , 11 Sup. Ct. Rep. 210; Hardin v. Jordan, 140 U.S. 371 ; 11 Sup. Ct. Rep. 808, 838. There is no doubt, under the facts of this case, that the owner of lot 5 was entitled to compensation for the land appropriated by the state in the construction of the dam and of the embankment in front of the lot. To what extent he was entitled to the use of the water-power created by the dam, as against the public and the other riparian owners, may be difficult of ascertainment, depending, asit does, largely upon the number of proprietors, the width and depth of the river, the volume of the water, the amount of fall, and the character of the manufactures to which it was applicable. Nor is it necessary to answer the question in this case, since it appears that, whatever this property is, it has been appropriated, and no provision made for the compensation of the owner.
The case of the plaintiff canal company depends primarily, as stated above, upon the legality of the legislative act of 1848, whereby the state assumed to reserve to itself any water-power which should be created by the erection of the dam across the river at this point. No question is made of the power of the state to construct or authorize the construction of this improvement, and to devote to it the proceeds of the land grant of the United States. The improvement of the navigation of a river is a public purpose, and the sequestration or appropriation of land or other property, therefore, for such [142 U.S. 254, 273] purpose, is doubtless a proper exercise of the authority of the state under its power of eminent domain. Upon the other hand, it is probably true that it is beyond the competency of the state to appropriate to itself the property of individuals for the sole purpose of creating a water-power to be leased for manufacturing purposes. This would be a case of taking the property of one man for the benefit of another, which is not a constitutional exercise of the right of eminent domain. But if, in the erection of a public dam for a recognized public purpose, there is necessarily produced a surplus of water, which may properly be used for manufacturing purposes, there is no sound reason why the state may not retain to itself the power to controlling or disposing of such water as an incident of its right to make such improvement. Indeed, it might become very necessary to retain the disposition of it in its own hands, in order to preserve at all times a sufficient supply for the purposes of navigation. If the riparian owners were allowed to tap the pond at different places, and draw off the water for their own use, serious consequences might arise, not only in connection with the public demand for the purposes of navigation, but between the riparian owners themselves as to the proper proportion each was entitled to draw,-controversies which could only be avoided by the state reserving to itself the immediate supervision of the entire supply. As there is no need of the surplus running to waste, there was nothing objectionable in permitting the state to let out the use of it to private parties, and thus reimburse itself for the expenses of the improvement.
The value of this water-power created by the dam was much greater than that of the river in its unimproved state in the hands of the riparian proprietors who had not the means to make it available. These proprietors lost nothing that was useful to them, except the technical right to have the water flow as it had been accustomed, and the possibility of their being able some time to improve it. If the state could condemn this use of the water with the other property of the riparian owner, it might raise a revenue from it sufficient to complete the work which might otherwise fail. There was [142 U.S. 254, 274] every reason why a water-power thus created should belong to the public, rather than to the riparian owners. Indeed, it seems to have been the practice, not only in New York, but in Ohio, in Wisconsin, and perhaps in other states, in authorizing the erection of dams for the purpose of navigation or other public improvement, to reserve the surplus of water thereby created to be leased to private parties under authority of the state; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation, as is believed, has been uniformly sustained. Thus, in Cooper v. Williams, 4 Ohio, 253, the law authorizing the construction of the Miami canal, from Dayton to Cincinnati, empowered the canal commissioners to dispose of the surplus water-power of the feeder for the benefit of the state, and their action in so disposing of the water was justified. The ruling was repeated in the same case, 5 Ohio, 391. In Buckingham v. Smith, 10 Ohio, 288, it was held that, if the water of private streams should be taken by the state for the mere purpose of creating hydraulic power, and rented to an individual, the transaction would be illegal, and no title would pass as against the owner; but it was intimated that in conducting water through a feeder a discretionary power must necessarily rest in the agents of the state, and in making provision for a supply it must frequently occur that a surplus will accumulate, and that such surplus might be subject to lease by the commissioners. In Elevator Co. v. Cincinnati, 30 Ohio St. 629, the right to lease surplus water for private use was recognized as an incident to the public use of a canal for the purpose of navigation; but it was held that such use was a subordinate one, and that the right to the same might be terminated whenever the state, in the exercise of its discretion, abandoned or relinquished the public use. It was doubted whether the state could, after abandoning the canal as a public improvement, still reserve to itself the right to keep up a water-power solely for private use and as a source of revenue. 'By so doing,' said the court, 'the water-power would cease to be an incident to the public use, and the state would be engaged in the private enterprise of [142 U.S. 254, 275] keeping up and renting water-power after it ceased to act as a government in keeping up the public use.' The same ruling was made by this court in Fox v. Cin. cinnati, 104 U.S. 783 . See, also, Hubbard v. City of Toledo, 21 Ohio St. 375. In Spaulding v. Lowell, 23 Pick. 71, 80, it was held that, where a town built a market-house two stories high, and appropriated the lower story for a market, it being bona fide their principal and leading object in erecting the building, the appropriation of the upper story to other subordinate purposes was not such an excess of authority as to render the erection of the building and the raising of money therefor illegal. Chief Justice SHAW, in delivering the opinion of the court, said: 'If this had been a colorable act, under the pretense of exercising a legal power, looking to other and distinct objects beyond the scope of the principal one, it might be treated as an abuse of power, and a nullity. But we perceive no evidence to justify such a conclusion in the present case. The building of a market-house was the principal and leading object, and everything else seems to have been incidental and subordinate. ... If the accomplishment of the object was within the scope of the corporate powers of the town, the corporation itself was the proper judge of the fitness of the building for its objects, and it is not competent in this suit to inquire whether it was a larger and more expensive building than the exigencies of the city required.' See, also, French v. Inhabitants, 3 Allen, 9. In attorney General v. Eau Claire, 37 Wis. 400, it was broadly held that, where the state was authorized to erect and maintain a dam for a public municipal use, the legislature might also empower it to lease any surplus water-power created by such dam. The ruling was repeated in State v. Eau Claire, 40 Wis. 533.
The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water-power to lease to private individuals, or where, in building a dam for a public improvement, a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement, and a reasonable provision for securing an adequate supply of water at all times for such [142 U.S. 254, 276] improvement. No claim is made in this case that the water-power was created for the purpose of selling or leasing it, or that the dam was erected to a greater height than was reasonably necessary to create a depth of water sufficient for the purposes of navigation at all seasons of the year. So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal, and was not a colorable device for creating a water-power, the agents of the state are entitled to great latitude of discretion in regard to the height of the dam and the head of water to be created; and, while the surplus in this case may be unnecessarily large, there does not seem to have been any bad faith or abuse of discretion on the part of those charged with the construction of the improvement. Courts should not scan too jealously their conduct in this connection if there be no reason to doubt that they were animated solely by a desire to promote the public interests, nor can they undertake to measure with nicety the exact amount of water required for the purposes of the public improvement. Under the circumstances of this case, we think it within the power of the state to retain within its immediate control such surplus as might incidentally be created by the erection of the dam.
So far, however, as land was actually taken for the purpose of this improvement, either for the dam itself or the embankments, or for the overflow, or so far as water was diverted from its natural course, or from the uses to which the riparian owner would otherwise have been entitled to devote it, such owner is undoubtedly entitled to compensation. So far as concerns lots 6 and 7, no such compensation could be claimed, since the supreme court held, and, we think, correctly, that the release executed by Hunt to the Fox & Wisconsin Improvement Company in 1854, in which he granted to that company and its representatives 'the right to erect and forever maintain an embankment of the dimensions as surveyed by the engineer of said company,' operated as a surrender of all riparian rights appertaining to such lots not reserved in the instrument. No such grant, however, was proven to have been made with respect to lot 5, then owned by one Beardsley, to which the [142 U.S. 254, 277] water-power company now holds the title. Inasmuch as the dam abuts upon this lot, its owner was doubtless entitled to compensation for the land occupied by the dam and embankment, as well as for the value of the use of the water diverted from its natural course. The seventeenth section of the act of 1848 attempted to provide for such compensation by enacting that 'when any lands, waters, or materials appropriated by the board to the use of the public in the construction of said improvements shall not be freely given or granted to the state, or the said board cannot agree with the owner as to the terms on which the same shall be granted,' the superintendent shall take measures to secure the appointment of appraisers to assess the benefits or damages to the owner from the appropriation of the land, etc., with a further provision that, if the damages exceeded the benefits, it should be the duty of the board to direct the same to be paid 'out of the fund appropriated to said improvements.' It was held, however, by the supreme court of Wisconsin in Sweaney v. U. S., 62 Wis. 396, 22 N. W. Rep. 609, as well as in the present case, that it failed to give the land-owner the right to institute condemnation proceedings under it to have his compensation determined; and that, if the state should institute such proceedings, the condemnation, when determined, was, by section 21 of the act, made payable out of the fund appropriated for such improvements, and for these reasons the act did not make adequate provision for the compensation of the owners. The construction thus given to this act is obligatory upon this court.
In 1875, however, congress passed an act (18 St. 506) to aid in the improvement of the Fox and Wisconsin rivers, the first section of which provided that, 'in case any lands or other property is now or shall be flowed or injured by means of any part of the works of said improvement heretofore or hereafter constructed, for which compensation is now or shall become legally owing, and in the opinion of the officer in charge it is not prudent that the dam or dams be lowered, the amount of such compensation be ascertained,' etc. It is claimed in this connection that there was nothing in the contract of purchase made between the government and the [142 U.S. 254, 278] canal company by which the government was bound to pay anything for or on account of the property which it did not take, and which was excepted in the deed; that the water-power created by the Kaukauna dam and by the use of the surplus water not required for the purposes of navigation was a part of the excepted property which the government did not purchase; that whatever title the canal company had to such water-power and such surplus water at the time of its conveyance it kept, and nothing more; that, if its title was defective, or it had none, the government was in no wise bound to make the same good or supply it; and that to compel the government now to pay for the water-power would require it to make a payment it never assumed to make, and for property it had no title to or interest in. If there were anything in this point, it is one which should more properly be made by the government, and, if the government has seen fit, as it did, to reimburse the riparian owners for all their damages, it comes with ill grace from the mouth of the water-power company to set up the exemption.
This construction, however, in our opinion, is too narrow and technical. The only authority by which private property could be taken or overflowed was one derived from the state or general government. Whatever appropriation was made, or injury done to such lands, was done solely for the benefit of the public, and it was right the public should pay the compensation therefor. There is no sound reason for a distinction in regard to compensation between the property conveyed and the property excepted from the conveyance,-the latter being a mere incident to the former. The Fox & Wisconsin Improvement Company, in receiving title from the state, did not undertake to reimburse the riparian proprietors for damages to their lands, and it was inequitable that it should be called upon to do so. It was said by this court in U. S. v. Jones, 109 U.S. 513, 514 , 3 S. Sup. Ct. Rep. 346, speaking of the act of 1870, authorizing the purchase of the improvements: 'Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States no account was taken of the liability of the [142 U.S. 254, 279] company for such damages. The question, therefore, soon arose whether the payment of these damages devolved upon the United States, and this question was submitted by the committee on commerce of the house of representatives to the secretary of war, and was by him referred to the assistant judge advocate general. That officer held that liability for the damages incurred from the flowage of water on the lands of others, caused by the works constructed, followed the property transferred, and devolved on the United States.' It is true that the defendant in error could not, by its deed of 1870, or by any reservation of the water-power therein contained, saddle the government with the burden, but it was a burden already existing, which could not be discharged until the proper compensation had been provided. The land was not taken for the purpose of creating a water-power, but for improving the navigation of the river; and there was no reason for charging the defendant in error, which had reserved the water-power only, with the payment of compensation. The question of compensation is one separate and apart from the transfers of which this property was the subject, but one which, in honor as well as in law, was chargeable upon the public. The act of 1875, in question, seems to have originated from the report of the assistant judge advocate general, upon whose opinion a bill was prepared for the assumption by the United States of the company's liability for such damages. The terms of this act are broad enough to cover not only lands taken for flowage purposes, but all injury done to lands or other property by means of any part of the works of said improvement, which would include damages caused by the diversion of the water. It is true that this act, after remaining in force about 13 years, seems to have been repealed by the deficiency bill of 1888 , (25 St. 4, 21,) which, after making appropriation for the payment of flowage damages to about 125 different claimants, declared that the United States should not be 'held liable for damages heretofore or now caused by the overflow of the lands or other property of any person ... unless the action or proceeding to ascertain and determine the amount ... shall have been or shall [142 U.S. 254, 280] be commenced ... prior to the passage of this act; and all claims and causes of action now existing, upon which no proceeding has been already or shall be taken within the time last specified to enforce the same, shall be forever barred.' Congress was not obliged to keep the act of 1875 in operation forever; and, reasonable opportunity having been afforded to the plaintiffs in error to obtain compensation for the damages sustained by the construction of the improvement, we think they must be deemed to have waived their right to them.
Where a statute for the condemnation of lands provides a definite and complete remedy for obtaining compensation, this remedy is exclusive; the common-law remedy or proceeding is superseded by the statute, and the owner must pursue the course pointed out by it. Mills, Em. Dom. 87, 88. It is true that if the statutory remedy be incomplete or imperfect, the owner is not thereby debarred from his common-law remedy, and may recover his damages in an action of trespass or ejectment. But it does not follow, even from this, that he has a right, especially after acquiescing in the appropriation of his land for a number of years, to take the law into his own hands, and manu forti repossess himself of his own. Thus, if a railway company, without condemnation proceedings, took possession of a lot of land for its track, and ran its trains over it for the time which elapsed in this case between the building of the dam and the cutting of the embankment by the plaintiffs in error, it would scarcely be claimed that the owner could enter upon the land, tear up the rails, and throw his fences across the road-bed. Such a proceeding was attempted in State v. Hessenkamp, 17 Iowa, 25, and the result was an indictment for willfully obstructing the track. The court declined to instruct the jury that if the defendant owned the land, and the railroad company had not obtained a right of way over it, defendant had a right to place what he pleased upon the land, and should be acquitted; and the supreme court said of this refusal that it was so obviously right that 'we can scarcely believe it is expected of us to undertake a vindication of its correctness.' So in Dunlap v. Pulley, 28 Iowa, 469, the defendant, during his term of office [142 U.S. 254, 281] as road supervisor, fenced up and obstructed a certain county road which had been laid out over a tract of land owned by him, claiming the right to do so upon the ground that he had never been paid a just compensation. The court held, however, that, though entitled to compensation, he was entitled to it only in the manner provided by law. 'If he failed to ask for compensation, or failed to apply in time, or, applying, was unsuccessful in showing his right thereto, he could not, upon any principle, resist the right of the public to open the road, upon the ground that he has not been paid for injuries or losses which he claims to have sustained. If the board rejected his claim because not properly presented, because not preferred in time, or upon any ground,) having jurisdiction so to decide,) his remedy was by appeal.'
Under the circumstances of this case we do not thing it was within the power of the owner of lot 5, after acquiescing for over 25 years in the construction of the dam, and the exclusive appropriation of the water by the state, to treat their proceedings as a nullity, and take such action as could only be justified upon the theory that the state and the canal company had acquired no rights by its long silence. The claim of the water-power company is to cut the embankment erected by authority of the state, and to draw off one-half of the surplus water-power of the pond, upon the ground that it is now the owner of the southern bank of the river, and this, too, without taking any legal proceedings in assertion of this right so to do. Its position necessarily assumes that by virtue of its ownership of lot 5 (all damages connected with lots 6 and 7 having been released by their then owner, Hunt) it is entitled to one-half of the water created by this improvement, and that, too, without reference to the riparian rights properly appurtenant to lot 5 before the improvement was made, or to any particular fall from the upper to the lower corner of such lot. It is difficult to see how, under these circumstances, this claim can be sustained. The dam was built for a public purpose, and the act provided that if, in its construction, any water-power was incidentally created, it should belong to the state, and might be sold or leased, in order that the proceeds of such sale [142 U.S. 254, 282] or lease might assist in defraying the expenses of the improvement. A ruling which would allow a single riparian owner upon the pond created by this dam to take to himself one-half of the surplus water without having contributed anything towards the creation of such surplus or to the public improvement, would savor strongly of an appropriation of public property for private use. If any such water-power were incidentally created by the erection of a dam, it was obviously intended that it should belong to the public, and be used for their benefit, and not for the emolument of a private riparian proprietor. The cutting of the embankment under the circumstances of this case, and the appropriation of the surplus water which the water-power company had had no hand in creating, was a trespass which the court had a right to enjoin. We do not undertake to say whether a bill in equity, framed upon the basis of a large amount of surplus water not used, might not lie to compel an equitable division of the same upon the ground that it would otherwise run to waste. Our conclusion is that there was no taking of the property of the plaintiff in error without due process of law, and the decree of the supreme court of Wisconsin is affirmed.
Mr. Justice HARLAN dissented.