If the adjudication of a federal question is necessarily
involved in the disposition of a case by a state court, it is not
necessary that it should appear affirmatively in the record or in
the opinion of that court that such a question was raised and
decided.
Proceedings under a state statute enacted before the adoption of
the Fourteenth Amendment which, if taken before its adoption, would
not have violated the Constitution may, when taken after its
adoption, violate it if prohibited by that amendment.
In Wisconsin 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, and the law, so settled by the
highest court of the state, is controlling in this Court as a rule
of property.
A state legislature may authorize the taking of land upon or
riparian rights in a navigable stream for the purpose of improving
its navigation, and if a surplus of water is created incident to
the improvement, it may be leased to private parties under
authority of the state, or retained within control of the state;
but so far as land is taken for the purpose of the improvement,
either for the dam itself or the embankments or for the overflow,
or so far as water is diverted from its natural course, or from
Page 142 U. S. 255
the uses to which the riparian owner would otherwise be entitled
to devote it, such owner is entitled to compensation.
Where a statute for the condemnation of lands for a public use
provides a definite and complete remedy for obtaining compensation,
such remedy is exclusive.
The Act of March 3, 1875, 18 Stat. 506, c. 166, "to aid in the
improvement of the Fox and Wisconsin Rivers, in the State of
Wisconsin," provided a mode for obtaining compensation to persons
injured by the taking of their land or their riparian rights in
making such improvements, and, as it remained in force for thirteen
years, it gave to persons injured a reasonable opportunity for
obtaining such compensation, and if they failed to avail themselves
of it, they must be deemed to have waived their rights in this
respect.
Such an owner, who fails to obtain compensation for the taking
of his property for use in a public improvement by reason of his
own neglect in applying for it, cannot violently interfere with the
public use or divert the surplus waters for his own use.
It is not decided whether or not a bill in equity, framed upon
the basis of a large amount of surplus water not used, will lie to
compel an equitable division of the same upon the ground that it
would otherwise run to waste.
Under the circumstances disclosed in this case, there was no
taking of the property of the plaintiff in error without due
process of law.
The Court stated the case as follows:
This was a complaint in the nature of a bill in equity filed in
the circuit court of Outagamie County, Wisconsin, by the Green Bay
and 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 employees 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 navigation of the Fox and
Wisconsin Rivers, the former of which is one of the navigable
rivers of the state, having an
Page 142 U. S. 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. [
Footnote
1] In this act (sec. 16) the legislature provided
Page 142 U. S. 257
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., R. 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 and 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 indebtedness,
Page 142 U. S. 258
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 and 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 1853-1854 and 1855 built a dam at the head of
the rapids, so as to raise the water about eight 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 and Mississippi Canal Company, until 1876, when the United
States, having taken title to the improvement, built the new dam
now in question forty 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
Page 142 U. S. 259
foreclosed 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 and 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. [
Footnote 2]
Page 142 U. S. 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
ten 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
Page 142 U. S. 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,
image a:
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
Page 142 U. S. 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.
Page 142 U. S. 269
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. Blackbird Creek
Marsh Co., 2 Pet. 245;
Armstrong
v. Athens County, 16 Pet. 281;
Chicago Life
Insurance Co. v. Needles, 113 U. S. 574;
Eureka Lake Co. v. Yuba County, 116 U.
S. 410.
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
Page 142 U. S. 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 waterway, 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
Page 142 U. S. 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 downstream 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 sufficient 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,
insofar 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 insofar 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, 2 Wis.
384, 4 Wis. 486;
Norcross v. Griffiths, 65 Wis. 599, 27
N.W. Rep. 606. In
City of Janesville v. Carpenter, 77 Wis.
288, it is said of the riparian owner:
"He may construct
Page 142 U. S. 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 anyone'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;
Hardin v. Jordan, 140 U.
S. 371. 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 as it 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
Page 142 U. S. 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 sometime 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
Page 142 U. S. 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
Little Miami 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
Page 142 U. S. 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.
Cincinnati, 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 of Quincy, 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
Page 142 U. S. 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 and
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
Page 142 U. S. 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. United States, 62 Wis. 396, 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 Stat. 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
Page 142 U. S. 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 and
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
United States v.
Jones, 109 U. S. 513,
109 U. S. 514,
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
Page 142 U. S. 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 thirteen years, seems to have
been repealed by the deficiency bill of 1888, ,25 Stat. 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
Page 142 U. S. 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 on Eminent Domain, sections 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 roadbed. Such a proceeding was
attempted in
State v. Hessenkamp, 17 Ia. 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 Ia. 469, the defendant, during his
term of office
Page 142 U. S. 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 think it was
within the power of the owner of lot 5, after acquiescing for over
twenty-five 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
Page 142 U. S. 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 toward 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.
[
Footnote 1]
One of the briefs for the plaintiffs in error cited the
following sections of this statute.
"SEC 15. In the construction of such improvements, the said
board shall have power to enter on, to take possession of and use
all lands, waters and materials the appropriation of which for the
use of such works of improvement shall in their judgment be
necessary."
"SEC. 16. When any land, waters or materials appropriated by the
Board to the use of said improvements shall belong to the state,
such lands, waters or materials, and so much of the adjoining land
as may be valuable for hydraulic or commercial purposes shall be
absolutely reserved to the state, and 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 future action of the legislature."
"SEC. 17. When any lands, waters or material 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, under the directions
of the board, shall select an appraiser, and the owner shall select
another appraiser, who, together, if they are unable to agree,
shall select a third, neither of whom shall have any interest
directly or indirectly in the subject matter nor be of kin to such
owner, and said appraisers, or a majority of them, shall proceed to
hear testimony and to assess the benefits or damages, as the case
may be, to the said owner, from the appropriation of such land,
water or materials, and their award shall be conclusive unless
modified as herein provided. If the owner shall neglect or refuse
to appoint an appraiser as herein directed after ten days' notice
of such appointment by the superintendent, then such superintendent
shall make such appointment for him."
"SEC. 18. Either party may appeal from such award to the circuit
court of the county in which the premises may be situated within
thirty days after such award may be made and filed with the
secretary of the board, and such appeal shall be tried by a jury as
other cases commenced in said circuit court, and upon the finding
of such jury judgment may be rendered in favor of either party, but
no execution shall issue thereon against the state."
"SEC. 19. An entry of such award, signed by the appraisers, or a
majority of them, or certified by the clerk of the court in case
the same shall have been appealed, and containing a proper
description of the premises appropriated, the names of the persons
interested, and the sum estimated for benefits or damages shall be
made in a book to be kept by the secretary of the board."
"SEC. 20. A transcript of such entry, signed in like manner,
acknowledged or proved as a conveyance of land, shall be recorded
in the office of the register of deeds of the County in which the
premises are situated, and the fee simple of said premises shall
thereupon vest in the state."
"SEC. 21. If the damages exceed the benefits, it shall be the
duty of the board to direct the same to be paid out of the fund
appropriated to said improvements; proof of such payment or the
offer thereof in case the party entitled shall decline to receive
the same shall discharge the state and every person under its
employ from any claim for such land, waters, and materials
appropriated as aforesaid."
[
Footnote 2]
On the 3d of March, 1875, Congress enacted:
"That whenever, in the prosecution and maintenance of the
improvement of the Wisconsin and Fox Rivers in the state of
Wisconsin, it becomes necessary or proper in the judgment of the
Secretary of War to take possession of any lands, or the right of
way over any lands, far canals and cut-offs or to use any earth
quarries or other material lying adjacent or near to the line of
said improvement and needful for its prosecution or maintenance,
the officers in charge of said works may, in the name of the United
states, take possession of and use the same, after first having
paid or secured to be paid the value thereof, which may have been
ascertained in the mode provided by the laws of the state wherein
such property lies. 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 may be ascertained
in like manner."
18 Stat. 506, c. 166, ยง 1.
