Arimond v. Green Bay & Mississippi Canal Co.

Constitutional Lem. — If migadle Streams.— Compensation for flowage of lands. — Prescription—Limitation of Actions.— Construction of statutes. — Pleading. 1. The act of the territorial legislature of 1848 (Terr. Laws of 1848, p, 129), authorizing certain persons to construct a dam across the northern outlet of Lake Winnebago, to enable them to make use of the waters of the river for hydraulic purposes, provides (sec. 2) that “ said dam shall not exceed seven feet in height above high water mark of said river : provided, that said dam shall not raise the water of Lake Winnebago above its ordinary level,” etc. It appearing from the pleadings herein that the dam maintained by defendant at that place, or any dam suitable for hydraulic purposes, or which would create a power, would necessarily “raise the water of Lake Winnebago above its ordinary level:” Held, that the act was inoperative, and conferred no authority for the erection of such dam. 2. The act declares that the grantees of the franchise “ shall be subject to, and entitled to all the benefits and provisions of,” the Mill Dam Law then in force. Defendant’s dam not being within the protection of the act, Held, that said act does not operate to restrict plaintiff’s remedy for flowage of his land to the provisions of the Mill Dam Law. 3. Whatever rights the state may have, as against riparian proprietors, over the bed of a navigable stream and the waters flowing therein, within the banks and below high water mark, it cannot, for the purpose of improving the navigation, authorize the obstruction of the channel so as to overflow the lands of citizens, without providing that compensation shall be made therefor. 4. By an act of the state legislature (Laws of 1848,1st sess., p. 62), damages for such flowage of land caused by the improvement of the Fox and Wisconsin rivers are provided for, and directed to be “ paid out of the fund appropriated to said improvements,” which fund was created by sale of lands granted to the state by congress for that purpose. It seems that this was a legitimate appropriation of said fund; but it was net necessary to determine that question in this case. 5. The flooding of land by artificial obstructions placed in a running stream is a talcing of the land, tvitliin the meaning of the constitutional provision which requires compensation to be made for private property taken for public use. Alexander v. Milwaukee, 16 Wis., 248, distinguished; and Pettigrew v. Bvansville, 25 Wis., 223, approved. 6. Plaintiff did not take his title from the United States to lands adjacent to Pox river, burdened with an easement which authorized the flow-age of his land by means of structures erected for the purpose of improving the navigation of that river — there being no such reservation in the patent. 7. A plea of prescription for such an easement must show an adverse user for twenty years, and not for ten years only. 8. A statute of limitation cannot be applied to a cause of action as to which the period limited had expired before the passage of the act, or would expire so soon thereafter as not to allow plaintiff reasonable time for bringing suit. 9. Whether the period of one yea/)' after the passage of ch. 184, Laws of 1863, within which, by the terms of the act, a party whose lands had been flowed by a mill dam for ten years before its passage, might bring his action therefor, was a reasonable time, and rendered the act valid as applied to such cases, is not here decided; such one year limitation not having been pleaded in the action, and it not appearing that the dam in question was a mill dam. 10. The answer alleges that the dam here in question, “ in manner and form in which it was built, contrived, erected, completed, maintained and continued,” was and always had been “ an essential, necessary and integral part of the said works of improvement of the navigability of the Pox and Wisconsin rivers,” etc. It also alleges that the same is “ a dam of the class referred to ” in ch. 184, Laws of 1863. Seld, that the latter averment is merely of a conclusion of law, and not sufficient, in view of the former, to show that said dam is a mill dam.

APPEAL from the Circuit Court for Fond du Lac County. The complaint averred that for six; years last preceding the action, the defendant company had wrongfully maintained “ a certain dam and obstruction ” across the north channel of the outlet of lake Winnebago, at the village of Menasha, by means whereof the water of the lake had been raised and flowed back upon certain described premises of the plaintiff adjacent to said lake, and had wholly submerged the same, etc., to plaintiff’s damage $6,000. The answer, first, denies generally the averments of the complaint, except as afterwards admitted. It then sets up five additional defenses: II. The second defense is substantially as follows: In 1848, the territorial legislature of Wisconsin passed an act, approved March 10 of that year, by the first section of which “ Curtis Reed and his associates” are authorized “to construct a darn across the north channel or outlet of Winnebago lalce, at such point as they may deem suitable, on the fractions of section 22,” in a certain designated township, “and to make use of the waters of said river for hydraulic purposes;” while the second section declares that “said dam shall not exceed seven feet in height above high water mark of said river: provided, that said dam shall not raise the water in lake Winnebago above its ordinary level; and the said Curtis Reed and his associates, their heirs and assigns, shall be subject to, and entitled to all the benefits and provisions of, the act relating to mills and mill dams, approved January 13, 1840.” Said fractions of section 22, at the place where the dam was afterwards erected, were situate upon the north channel or outlet of said lake, at least one and one-half miles distant from the lake at the place of en-, trance to such outlet; the natural fall between those points was and is at least nine feet, and the current was full and rapid; and the fact was and is, that “ the placing of a dam across said outlet not high enough to serve any hydraulic or useful purpose would nevertheless cause the waters to pile up in said lake to some extent above its ordinary level.” Said Reed and his associates built a dam under and by virtue of said act, and at the place there designated, and this is the dam described in the complaint. Afterwards, and after the admission of Wisconsin as a state into the union, and after the acceptance by said state of the grant of land made by congress to aid in the improvement of the Eox and Wisconsin rivers, to wit, on or about the 8th of August, 1848, the legislature of this state passed an act, approved on the day last named, entitled “ an act to provide for the improvement of the Eox and Wisconsin rivers and connecting the same by a canal,” to which act and the several acts amendatory thereof, and those relating to the board of public works, reference is made. The board of public works, organized pursuant to the act of August 8th, entered into a contract with Reed and his associates, by which the latter agreed to complete the erection of said dam previously commenced by them, and that when completed it should be the property of the state; and they accordingly completed the same in or prior to the year 1852; “ which dam, when so completed, was built to a height no greater than that authorized by said act ” of March 10, 1848. Reed and his associates thereupon released to the state said dam, and all their right, etc., in and to the same. Ever since that time the dam has been maintained at the same height and in the same manner. About the same time a certain other dam was built by other parties, under legislative authority, across the south channel of said Fox river, and has ever since been there maintained; and by means of said two dams, and not because of the dam first aforesaid, if at all, the waters of said river and of lake Winnebago were set back and made to overflow or otherwise injure plaintiff’s premises. The answer then sets up the “ act to incorporate an association for the completion of the improvement of the Fox and Wisconsin rivers,” approved July 6, 1853 (Laws of 1853, ch. 98), under which the Fox and Wisconsin Improvement Company was organized; and alleges that under said act said company was required to construct, repair and maintain said dam, and the state granted and conveyed to the company, with other property, etc., said dam, and the privilege of constructing and repairing the same, and all other rights and privileges belonging to the improvement, etc. It then sets up the act of the legislature, approved April 13, 1861, entitled “ an act to facilitate the sale of the lands and other property of the Fox and Wisconsin Improvement Company, to provide for the proper application of the proceeds of such sale, and to authorize the formation of a corporation by the purchasers,” and the acts amendatory thereof; and it alleges that, by virtue of these acts, on the 15th of August, 1866, defendant became and ever since has been a corporation, etc.; and that on or about the 16th of August, 1866, defendant received a conveyance and thereby became seized of said dam, and of the privilege of constructing and repairing the same, and all other rights and privileges belonging to the improvement which the Fox and Wisconsin Improvement Company at any time held therein; and that said dam had ever since been maintained under and by authority from the defendant. III. It is further alleged that the supposed cause of action mentioned in the complaint did not accrue at any time within ten years next before the commencement of the action. IY. The above mentioned acts of the territorial and state legislatures are again set up in the fourth defense; and it is then alleged that by the act of building the dam aforesaid, and by the building by other parties of said other dam across the south channel of the Fox river, “ and by means of the waters of said late Winnebago, the said Reed and his associates, and the said state by its board of public works, did, as they lawfully might do, seize, and, to the extent necessary, and for the pmposes of a water power and of said improvements, take possession of,” the premises mentioned in the complaint, so far as they were in fact submerged, etc., if at all; and that ever since the completion of said dam, in 1852, they and this defendant, and the intermediate grantees of said works of improvement, etc., kavere-sjDectively held continuous, uninterrupted and exclusive possession of the same; that said seizure and taking of possession were made under claim and color of right and title duly made by virtue of the laws of this state aforesaid, and were so made publicly and notoriously, and with the knowledge and acquiescence of the lawful owners of the said premises ; that under the like claim and color of title, in like manner and with like knowledge and acquiescence, the possession thereof has since been and is now maintained ; and that during all of said time said owners were not under any legal disability to sue, etc. Y. The answer then further alleges that the dam mentioned in the complaint, ever since its construction, has been and is “ a dam of the class and character referred to in the act of the legislature of Wisconsin,” approved April 2d, 1862, published as ch. 184, Gren. Laws of 1862; that the same was fully constructed prior to said April 2, 1862, to wit, in or about or prior to the year 1852; and that the flowage of plaintiff’s land by reason thereof, if any, had continued more than ten years preceding the commencement of the action. YL The sixth defense alleges that under the provisions of the ordinance of 1787 for the government of the territory northwest of the river Ohio, and of an act of congress relating thereto passed August 7, 1789, and of the act of congress of 1836 establishing the territorial government of Wisconsin, and of the act of congress of 1846 relating to the admission of Wisconsin into the Union as a state, and of the constitution of this state, etc., the navigable waters leading into the Mississippi and St Lawrence, and the carrying places between them, are declared to be common highways and forever free, etc.; and that the Fox and Wisconsin rivers and lake Winnebago are among the navigable waters so described. It then recites the act of congress of 1846 granting lands to the state of Wisconsin to aid in the improvement of said two rivers, etc.; the acceptance of such grant by the state, and the subsequent legislation and events showing that the dam here in question was built and maintained under the.authority of the laws of the United States and of this state for the purpose of improving the navigability of said waters; and it closes with the following averments: “ That the said dam, in the manner and form in which it was built, contrived, erected, completed, maintained and continued, to wit, as mentioned in the said complaint, was, ever since it was so built has been, and now is, an essential, necessary and integral part or portion of the said works of improvement, and necessary to the proper improvement of the navigability of said Fox and Wisconsin rivers, and to tire proper development and enlargement of their capacity as common navigable highways ; that in and by the ordinance, acts of congress, and laws herein referred to, the United States reserved for the purposes aforesaid, and with the said works of improvement subsequently granted, assigned, and transferred to the said state (under which the defendant claims and holds), the easement or right and privilege of overflowing, damaging, undermining, destroying, saturating, subverting and otherwise injuring the lands, premises and buildings mentioned in the said complaint, to the extent and in the manner in which they were injured, etc., if at all, and to the extent necessary in order to improve the navigability of the Fox and Wisconsin rivers; that the lands and premises, described in said complaint, were granted by the gen eral government, long subsequent to the several acts of con gress aforesaid, and particularly the act of congress approved August 8th, 1846, and were so granted with full notice of and subject to the easement or right aforesaid, therein and thereupon reserved, and prior thereto granted to said state for the purposes aforesaid; and that each and all of the subsequent grantees of the said lands and premises, including the said plaintiff, if such a grantee, purchased the said lands and premises with full notice at the time thereof, and subject to the same easement,” etc. The plaintiff demurred to all the defenses after the first, for insufficiency ; and from an order sustaining the demurrer defendant appealed. 1. The second defense alleges that the natural descent in the bed of the north channel of the Fox river, between lake Winnebago and the point where the dam in question is built, is at least nine feet, and che current, full and rapid, 'and that a dam on section 22, not high enough to serve any hydraulic or useful purpose, would nevertheless cause the water to pile up in said lake to said extent above its ordinary level. These fafls did. not appear in defendant’s pleas in the Pumpelly case (J3 "Wall., 166). In the light of such facts, what construction should he given to the provisions of section 2 of the act of 1848, authorizing the construction of the dam by Reed and others ? The proviso should not he so construed as to defeat the object of the act. The proper construction is one which will, if possible, permit both the grant and the proviso to stand. In order that the grant may stand, permission must be given to raise the water at the dam sufficiently high for hydraulic purposes; and in order that the proviso may stand in connection with the grant, the waters of the lake must not be raised above the point where the “ piling up ” of water ceases ; consequently the proper construction is, that the darn may be raised to a point not exceeding seven feet above high water mark, and not exceeding a point at which the water at the top of the dam will not be raised above the ordinary level of the waters of the lake.. "While the language of the proviso is plain, its meaning is ambiguous, and we are left in doubt as to the intention of the legislature in using it. This being so, the whole act is to be construed so as to give effect to the grant, clearly expressed in the first section. State v. Williams, 8 Ind., 191; Ingraham, v. Speed, 30 Miss., 410 ; Blunt v. Walker, 11 Wis., 334; Monongahela Bridge Go. v. Kirk, 46 Pa. St., 112. Counsel further argued that if the construction and maintenance of the dam were authorized by the Reed charter, then, by the terms of that act, plaintiff’s remedy would be only under the Mill Dam Law. 2. Counsel contended that the facts alleged in the second defense showed defendant’s authority to maintain the dam, not only under the Reed charter, but also under the act establishing the board of public works, approved August 8, 1848 ; that the state, having accepted the grant of lands “for the purpose of improving the navigation of the Eox and Wisconsin rivers,” was authorized to erect such dams as would accomplish that object; that although the state had acquired the right granted to Reed in respect to the dam, it was not subject to the restric tions imposed upon Rim; that defendant had succeeded to the rights of the state; that the provision of sec. 17 of the act of August 8th for the payment of damages for any lands, etc., “ appropriated by the board to the use of the public in the construction of said improvements,” “out of the fund appropriated to said improvement,” were not applicable to a case of injury from the fio wage of lands, or, if applicable, were so far void, as in conflict with the act of congress granting the land from the sale of which such fund was derived; and that the state was under no obligation to make compensation in such cases. Me Keen v. Delaware Canal Co., 49 Pa. St., 424, 439; Hollister v. Union Co., 9 Conn., 436, and cases there cited. 8. Counsel further argued that the facts alleged in the fourth defense show that defendant has acquired a right to flow defendant’s land by prescription; that the .taking of said land, if any, became perfect in 1852 or 1858; that the provision of the act of August 8, 1848, for compensation being void, the taking by the state under that act was hostile to plaintiff’s title (unless that title was subordinate to a paramount right of the state, as averred in the sixth defense); that by sec. 6, ch. 138, R. S., “ whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of any premises under claim of title, founding such claim upon some written instrument as being a conveyance of the premises, * * and that there has been a continual occupation and possession of the premises included in such instrument, * * under such claim for ten years, the premises so included shall be deemed to have been held adversely;” that by sec. 10 of the same chapter, “ an adverse possession of ten years ” under said sixth section bars an action for a recovery; that the taking by the board of public works was under sec. 15 of the act of August 8, 1848, which provides that “ in the construction of such improvements, the said board shall have power to enter on, take possession of and use all lands, waters and materials, the appropriation of which for the use of such works of improvement stall, in their judgment, he necessary and that such taking was under claim of title, based upon said section; that by ch. 98, Laws of 1853, the state granted to the Improvement Company the improvement, together with the dams, water power and other appurtenances, “ and all other rights and privileges belonging to the improvement, to the same extent and in the same manner,” that the state then held the same; that said section 17 of the act of 1848 is not technically a “ written instrument,” whether the act of 1853 is so or not, but the latter is a conveyance of the easement, and either is of quite as high authority as a deed or judgment; that the period of twenty years for the acquisition of an easement by prescription was fixed by the courts in analogy to the statute of limitations; that in this case the possession, while complying with the statute in spirit, but not in letter, would have ripened into a title in twenty years (Boolcer v. Perkins, 14 Wis., 79, 82), as was held by the supreme court of the United States in the Pumpelly case; and that, the period of limitations having been recently reduced to ten years where possession is taken under claim of title based upon some written instrument as being a conveyance, there is no reason why, in like cases, in analogy to the statute as thus changed, courts should not fix the period for acquiring an easement at ten years, where the statute is complied with in its spirit though not in its letter. 4. In support of the fifth defense, counsel argued that a dam “for hydraulic purposes ” is a mill dam within the meaning of ch. 184, Laws of 1862, which bars the right of recovery where lands have been flowed for ten years by reason of the construction of a mill dam. They further cited sec. 16 of the act of August 8, 1848; ch. 277, Laws of 1850; ch. 283, Laws of 1850; sec. 2, ch. 98, Laws of 1853; and secs. 2, 3, 4, 6, ch. 112, Laws of 1856, as showing that the dams on the improvement were contemplated as creating water power, to be sold or leased for the purpose of mills; and they contended that there was no reason why such dams should be excluded from the operation of the act of 1862. People v. Tibbetts, 19 N. Y., 523. 5. In support of the sixth defense, counsel contended that the dam in question is a part of a work of public improvement undertaken by the state for the purpose of improving the navigability of waters having an inter-state communication; which waters, navigable in fact, were declared a common highway by statute and constitutional law, and to the improvement of which both the United States and the state were pledged by the dedication and accejatance of a grant of lands. Prom these facts they argued, (1.) That the flowage of plaintiff’s premises was the exercise of a “ public right,” not included in the grant by patent from the UnitedStates to the plaintiff’s grantor; and that the government did not have the power to dispose of such right. Attorney General v. Burridge, 10 Price, 350, 377, 411; Mayor of Mobile v. JEslava, 9 Port. (Ala.), 577; and authorities cited infra. (2.) That if the government had power to dispose of such right to its patentee, such power was never exercised, but the right was, by prior dedication through grant to the state, reserved to the public; and that, while in the Pumpelly case the plaintiff’s title emanated from the government as early as in 1852, in the present case plaintiff’s grantor purchased from the government with notice of such reserved right in the public, and subject to such easement as the exercise of that right might create. Hollister v. Union Go., 9 Conn., 436, 442 ; Hast Haven v. Hemingway, 7 id., 186, 199 ; The Hlsébe, 5 0. Rob. (Adm. R.), 174, 182; Kwtz v. Mc-Oune, 22 Wis., 628; I Wall., 113 ; 7 id., 272; 4 Pet., 87 ; and cases cited infra. (3.) That if plaintiff’s grantor did in fact acquire said premises not burdened with the easement, then the flowing was not a “ taking ” within the inhibition contained in sec. 13, art. I. of the constitution, but that section must be construed in connection with sec. 2, art. II., sec. 10, art. YIIL, and sec. 1, art. IV., which respectively declare, that the propositions contained in the act of congress admitting Wisconsin “ shall remain irrevocable without the consent” of the United States; that when grants of land shall have been made, “ especially dedicated by tbe grant to particular works of improvement, the state may carry out such particular works, and shall devote thereto the avails of such grants; ” and that the navigable waters here in question “ shall be common highways and forever free.” (4.) That whether the provisions requiring compensation be qualified by the provisions relating to highways or not, there was no “ taking ” within the inhibition; that the damages alleged were remote and consequential, and the injuries to plaintiff “ damnum absque injuria.” Alexander v. Milwaukee, 16 Wis., 247. To these points counsel cited Hollister v. Union Co., 9.0onn., 485; Lansing v. Smith, 8 Oow., 146; McKeen v. Canal Company, 49 Pa. St., 424; Monongahela Navigation Company v. Coons, 6 Watts & S., 101; Susquehannah Canal Company v. Wright, 9 id., 9 ; Henry v. Bridge Co., 8 id., 85 ; P. & T. R. R. Co., 6 Whart., 25; Monongahela Nav. Co. v. Coon, 6 Barr, 379; Mifflin v. R. R. Co., 4 Harris, 182; N. Y. & Brie R. R. Co. v. Young, 9 Oasey, 175 ; Monongahela Bridge Co. v. Kirlce, 46 Pa. St., 112; Watson v. R. R. Co., 1 Wright, 469; Shrunk v. Schuylkill Nav. Co., 14 S. & R., 71; Bundle v. D. & R. Canal Co., 14 How. (H. S.), 80; Canal Appraisers v. The People, 17 Wend., 571; People v. Canal Appraisers, 33 N. Y., 461, 500; Bellinger v. N. Y. Central R. R., 23H. Y., 42; Fitchburg R.R. Go. v. R. R. Co., 3 Cush., 58; Comm’rs of Homo-chitto v. Withers, 29 Miss., 21; Hanson v. La Fayette, 18 La., 295; Natchitoches v. Coe, 3 Martin, N. S., 140 ; Alexander v. Milwaukee, 16 Wis., 247; Bailey v. R. R. Co., 4 Harrington, 389, 395-398; Radeliff & Mayor, 4 Corns., 195; Hooker v. N. H. & N. Co., 14 Conn., 146; U. S. v. New Bedford Bridge, 1 Woodb. & M., 401; Neaderhouser v. State, 28 Ind., 257; Hutchinson v. Thompson, 9 Ohio, 52; 1 Am. Law Reg., 52 etseq.; Sedgw. on Dam. (3d ed.), 113,114. in reference to the second defense, contended, 1. That defendant, claiming under Reed and his associates, cannot claim the privilege of the Mill Dam Act to protect them in the maintenance of a dam which, as appears from the averments of the answer, raised the waters of lake Winnebago above their ordinary level, and is therefore in violation of the terms of the act of March 10, 1848. 2. That under the Mill Dam Act of 1840 (continued in ch. 56, R. S.), no person is entitled to the privileges of the act except one who erects a clam for the purpose of raising water to propel a water-mill owned by himself. This construction of the law was well settled in Massachusetts long before its adoption here. Slowed v. Flagg, 11 Mass., 364; Slack v. Lyon, 9 Pick., 62; Boston, etc., Bam Gorp. v. Newman, 12 id., 477; Fitch v. Stevens, 4 Met., 426; Hill v. Sayles, 12 id., 148; Murdoch v. Stickney, 8 Cush., 117; Large v. Orvis, 20 Wis.,. 696. 3. That under the act of March 10, 1848, Reed and his associates acquired no greater rights than they would have had under the Mill Dam Act if they had erected their dam across a non-navigable stream, and therefore they could claim the privileges of the last mentioned act only so long as they could show that they kept the dam for the purpose of running a water-mill, or mills, erected and maintained by themselves. Wood v. Hustis, 17 Wis., 416; Oi-osby v. Smith, 19 id., 449; Fitch v. Stevens, 4 Met., 426; Hill v. Sayles, 12 id., 148. 4. That the only mills protected by the Mill Dam Act are grist and custom mills. Newcomb v. Smith, 1 Chanel., 71; Pratt v. Brown, 3 Wis., 603; Thienv. Voegtla,nder,i(i.,4:Ql-, Fisher v. Horicon Iron-Si Man. Co., 10 id., 351; Newell v. Smith, 15 id., 101. 5. That the legislature has no constitutional power to grant to a private citizen the right of flooding the lands of another citizen without his consent, by the erection of dams or obstructions across either navigable or non-navigable streams, independent of some use to which the obstructed waters are to be applied; such grants having been upheld only upon the ground that the use designated was a public use. Roxhury Mill Gorp. v. Newman, 12 Pick., 478; 12 id., 556; Slowell v. Flagg, 11 Mass., 364; 8 Gush., 113, 548; 12 Met., 148. 6. That Reed and his associates having surrendered to the state their right to maintain a dam, under their charter, for mere hydraulic purposes, and having consented that the same should become a part of the improvement of the navigation of the river, they or their assigns can only claim such rights.as the board of public works, under the law, were authorized to exercise; that they hold, therefore, only the right to so much water power as may be created by the maintenance of the works necessary to improve the river. 7. That the defense is defective in not alleging that plaintiff’s lands were appropriated or condemned, and compensation made therefor. II. In respect to the fourth defense, counsel argued, 1. That there could be no presumption of a grant of the right to flow lands from an adverse user of less than twenty years, by analogy to the statute of limitations: that the short limitation of ten years applies only to persons who occupy lands under a claim of title founded upon a written instrument as a conveyance of the premises, or upon the judgment of some competent court; and that the possession by flowage is analogous to the adverse possession under claim of title not under a written conveyance or by judgment of court, and therefore requires a possession of twenty years. 13 Wis., 139, 663; 14 id., 79; 17 id., 227; 19 id., 90; 20 id., 441. 2. That there can be no equitable limitation to a legal remedy, and a delay to prosecute such remedy does not estop the party short of the time limited by the statute. 17 Wis., 504; 20 id., 441. III. As to the fifth defense, counsel argued that it was not good as a defense under ch. 184, Laws of 1862, because it does not allege that the dam here in question is a mill dam. The statement that the dam is “ one of the class and character referred to in said chapter,” is of a conclusion, and not of a fact. IV. As to the sixth defense, counsel contended that the permanent flooding of lands by a public or private corporation is a “ taking ” of the land, within the meaning of the constitutional provision which forbids the taking of private property for public use without making compensation therefor (Angelí on Watercourses, § 465; Hooker v. N. H & N. Co., 14 Conn., 146; Canal Appraisers v. The Peoph, 17 Wend., 604; 2 Johns. Ch., 166; 18 Johns., 405; 9 Cranch, 43 ; 2 Pet., 657; Newcomb v. Smith, 1 Chanel., 71; Pratt v. Brown, 3 Wis., 613; Walker v. Shepardson, 4 id, 511, 512 ; Fisher v. Horicon I & PL Co., 10 id., 353 ; Newellv. Smith, 15- id.,104); that if a private corporation attempts to permanently appropriate private property without first making just compensation therefor, it becomes a trespasser, and may be proceeded against as such (Robbins v. B. B. Co., 6 Wis., 636; Shepardson v. B. B. Co., id., 605; Powers v. Bears, 12 id., 218 ; Davis v. B. B. Co., id., 16; Pettibone v. B. B. Co., 14 id., 443; Ford v, B. B. Co., id., 609 ; Loop v. Chamberlain, 17 id., 504; Loop v. Chamberlain, 20 id., 135; Carpenter v. B. B. Co., 24 N. Y., 655; Wager v. B. B. Co., 25 id., 526 ; Stacey v. B. B. Co., 27 Yt., 39 ; Cushman v. Smith, 34 Me., 247); that if defendant is clothed with all the rights conferred by the act of August 8,1848, upon the board of public works, and if that act has provided no mode by which the owner can compel the appraisement of damages or the payment of the compensation, it is void {Norton v. Peck, 3 Wis., 714; Shepardson v. B. B. Co., 6 id., 605 ; Powers v. Bears, 12 id., 213; Pratt v. Brown, 3 id., 603); and that the cases- cited by appellant’s counsel as to the power of the state to construct and improve public highways without being liable to persons whose property is injured thereby, merely show that the state owns the bed of navigable streams and the waters flowing therein, and that public corporations are not liable for mere “ consequential damages ” resulting to private property from the construction and improvement of highways, where there is no “ taking ” of such property.