1. An owner of a dam and hydroelectric plant near the confluence
of navigable and nonnavigable streams, and embracing land riparian
to the navigable stream, is not entitled under the Fifth Amendment
to compensation from the United States for a reduction in the
generating capacity of the plant which resulted from an authorized
navigation improvement that raised the level of the water of the
navigable stream above ordinary high water mark. United States
v. Cress, 243 U. S. 316
distinguished. Pp. 324 U. S. 504
324 U. S.
2. The resulting damage to the riparian owner in this case did
not constitute such a taking of property as is required by the
Fifth Amendment to be compensated. P. 324 U.S. 510
101 Ct.Cl. 222 reversed.
Certiorari, 323 U.S. 694, to review a judgment for the plaintiff
in a suit against the United States to recover compensation for an
alleged taking of property.
Page 324 U. S. 500
MR. JUSTICE JACKSON delivered the opinion of the Court.
The Willow River Power Company has been awarded $25,000 by the
Court of Claims as just compensation for impaired efficiency of its
hydroelectric plant caused by the action of the United States in
raising the water level of the St. Croix River. Reality of damage
and reasonableness of the award are not in issue. Our question
Page 324 U. S. 501
whether the damage is the result of a "taking" of private
property for which just compensation is required by the Fifth
Willow River in its natural state was a nonnavigable stream,
which flowed to within a few rods of the St. Croix River, turned
and roughly paralleled it for something less than a mile, and then
emptied into the St. Croix. Many years ago, an earth dam was thrown
across the Willow about a half-mile above its natural month. A new
mouth was cut across the narrow neck which separated the two
rivers, and a dam was built across the artificial channel close to
or upon the banks of the St. Croix. Here also was built a mill,
which operated under the head produced in the pool by the two dams,
which obstructed both the natural and the artificial channel of the
These lands and appurtenant rights were acquired by the Willow
River Power Company, a public utility corporation of the Wisconsin,
and were devoted to hydroelectric generation for supply of the
neighborhood. The plant was the lowest of four on Willow River
operated by the Company as an integrated system. The power house
was located on land owned by the Company above ordinary high water
of the St. Croix. Mechanical energy for generation of electrical
energy was developed by water in falling from the artificial level
of nonnavigable Willow River to the natural level of navigable St.
Croix River. The elevation of the head water when at the crest of
the gates was 689 feet above mean sea level. The operating head
varied because elevation of the tail water was governed by the
fluctuating level of the St. Croix. When that river was low, the
maximum head was developed, and was 22.5 feet; when the river was
at flood stage, the operating head diminished to as little as eight
feet. The ordinary high water mark is found to have been 672 feet,
and the head available above that was seventeen feet.
The Government, in pursuance of a congressional plan to improve
navigation, in August of 1938, had completed what is known as the
Red Wing Dam in the Upper Mississippi, into which the St. Croix
flows. This dam was some thirty miles downstream, but it created a
pool which extended upstream on the St. Croix beyond respondent's
plant at an ordinary elevation of 675 feet. Thus, the water level
maintained by the Government in the St. Croix was approximately
three feet above its ordinary high water level at claimant's
property. By thus raising the level at which tail waters must flow
off from claimant's plant, the Government reduced the operating
head by three feet, using ordinary high water as the standard, and
diminished the plant's capacity to produce electric energy. The
Company was obliged to supplement its production by purchase from
Loss of power was made the only basis of the award. The Court of
Claims found as a fact that
"The value of the loss in power as a result of the raising of
the level of the St. Croix River by 3 feet above ordinary high
water was $25,000 at the time and place of taking,"
and it rendered judgment for that amount. There is no finding
that any fast lands were flooded, or that other injury was done to
property or that claimant otherwise was deprived of any use of its
property. It is true that the water level was above high water mark
on the St. Croix River banks and on claimant's structures, but
damage to land as land or to structures as such is not shown to be
more than nominal, and accounts for no part of the award. The court
held that the Government
"had a right to raise the level of the river to ordinary high
water mark with impunity, but it is liable for the taking or
deprivation of such property rights as may have resulted from
raising the level beyond that point."
Turning, then, to ascertain what property right had been
"taken," the Court referred
Page 324 U. S. 502
to United States v. Cress, 243 U.
, 243 U. S.
-330, which it said was identical in facts, and held
it had no option but to follow it, and that "[i]t results that
plaintiff is entitled to recover the value of the decrease in the
head of its dam." [Footnote
The Fifth Amendment, which requires just compensation where
private property is taken for public use, undertakes to
redistribute certain economic losses inflicted by public
improvements so that they will fall upon the public, rather than
wholly upon those who happen to lie in the path of the project. It
does not undertake, however, to socialize all losses, but those
only which result from a taking of property. If damages from any
other cause are to be absorbed by the public, they must be assumed
by act of Congress, and may not be awarded by the courts merely by
implication from the constitutional provision. The court below
thought that decrease of head under the circumstances was a
"taking" of such a "property right," and that is the contention of
the claimant here.
It is clear, of course, that a head of water has value, and that
the Company has an economic interest in keeping the St. Croix at
the lower level. But not all economic interests are "property
rights;" only those economic advantages are "rights" which have the
law back of them, and only when they are so recognized may courts
compel others to forbear from interfering with them or to
compensate for their invasion. The law long has recognized that the
right of ownership in land may carry with it a legal right to enjoy
some benefits from adjacent waters. But that a closed catalogue of
abstract and absolute "property rights" in water hovers over a
given piece of shore land good against all the world is not, in
this day, a permissible assumption. We cannot start the process of
decision by calling such a claim as we have here a
Page 324 U. S. 503
"property right;" whether it is a property right is really the
question to be answered. Such economic uses are rights only when
they are legally protected interests. Whether they are such
interests may depend on the claimant's rights in the land to which
he claims the water rights to be appurtenant or incidental; on the
navigable or nonnavigable nature of the waters from which he
advantages; on the substance of the enjoyment thereof for which he
claims legal protection; on the legal relations of the adversary
claimed to be under a duty to observe or compensate his interests;
and on whether the conflict is with another private riparian
interest or with a public interest in navigation. The claimant's
assertion that its interest in a power head amounts to a "property
right" is made under circumstances not present in any case before
considered by this Court.
Claimant is the owner of lands riparian to the St. Croix River,
and, under the law of Wisconsin, in which the lands lie, the shore
owner also has title to the bed of the stream. Kaukauna Water
Power Co. v. Green Bay & M. Canal Co., 142 U.
, 142 U. S. 271
Jones v. Pettibone,
2 Wis. 308; Willow River Club v.
100 Wis. 86, 76 N.W. 273. The case seems to have been
tried on the theory that the Company may also claim because of
interference with its rights as a riparian owner on the Willow. But
the Government has not interfered with any natural flow of the
Willow past claimant's lands. Where it was riparian owner along
Willow's natural channel, claimant already had created an
artificial level much above the Government level. If claimant's
land along the Willow was at all affected, it was at the point
where the land was riparian to the artificial channel, just back of
the shoreline of the St. Croix, where the land had been cut away to
install the dam and power plant and to utilize the advantages of
being riparian to the St. Croix. We think the claimant's maximum
and only interest in the level of the St. Croix arises from its
Page 324 U. S. 504
thereon, and is not helped by the fact that its utilization of
riparian lands on the St. Croix involves conducting over them at
artificial levels waters from the Willow.
The property right asserted to be appurtenant to claimant's land
is that described in United States v. Cress, 243 U.
, 243 U. S. 330
as "the right to have the water flow away from the mill-dam
unobstructed, except as in the course of nature," and held in that
case to be an "inseparable part" of the land. The argument here is
put that the waters of the St. Croix were backed up into claimant's
tail race, causing damage. But if a dike kept the waters of the St.
Croix out of the tail race entirely, it would not help. The water
falling from the Willow must go somewhere, and the head may be
preserved only by having the St. Croix channel serve as a run-off
for the tail waters. The run-off of claimant's water may be said to
be obstructed by the presence of an increased level of
Government-impounded water at the end of claimant's discharge
pipes. The resulting damage may be passed on to the Government only
if the riparian owner's interest in "having the water flow away"
unobstructed above the high water line is a legally protected
The basic doctrine of riparian rights in flowing streams
prevails with minor variations in thirty-one states of the Union.
] It chiefly was
evolved to settle conflicts between
Page 324 U. S. 505
parties both of whom were riparian owners. Equality of right
between such claimants was the essence of the resulting water
"The fundamental principle of this system is that each riparian
proprietor has an equal right to make a reasonable use of the
waters of the stream, subject to the equal right of the other
riparian proprietors likewise to make a reasonable use. [Footnote 3
With this basic principle as a benchmark, particular rights to
use flowing water on riparian lands for domestic purposes and for
power were defined, each right in every riparian owner subject to
the same right in others above and to a corresponding duty to those
The doctrine of riparian rights attained its maximum authority
on nonnavigable streams. No overriding public interest chilled the
contest between owners to get the utmost in benefits from flowing
streams. Physical conditions usually favored practical utilization
of theoretical rights. In general, nonnavigable streams were small,
shifted their courses easily, and were not stable enough to serve
as property lines, as larger streams often do. They were shallow,
could be forded, and were no great obstacle to tillage or pasturage
on two sides of the stream as a single operation. Such streams,
like the lands, were fenced in, and, while the waters might show
resentment by carrying away a few spans of fence in the spring, the
riparian owner's rights in such streams were acknowledged by the
custom of the countryside, as well as recognized by the law. In
such surroundings and as between such owners, equality of benefits
from flowing waters was sought in the rule that each was entitled
to their natural flow, subject
Page 324 U. S. 506
only to a reasonable riparian use which must not substantially
diminish their quantity or impair their quality. It was in such a
stream that this Court found Cress, as a landowner under the law of
Kentucky, possessed "the right to have the water flow away from the
mill-dam unobstructed except as in the course of nature."
243 U. S. 243
316, 243 U. S.
Cress owned riparian lands and the bed, as well, of a
nonnavigable creek in Kentucky. He built a dam which pooled the
water and diverted it to his headrace; after it turned the wheel of
his mill, it was returned to the stream by his tail race. The
Government built a dam in the navigable Kentucky River which backed
up the water in this nonnavigable tributary to a point one foot
below the crest of the mill dam, leaving an unworkable head. The
Court concluded that Cress was entitled to compensation as for a
taking. It found that Cress had the right, as a riparian owner, to
the natural flow-off of the water in this nonnavigable stream. The
case is significant in that it measured the rights
of a riparian owner against the Government in improving navigation
by the standard which had been evolved to measure the rights of
riparian owners against each other. The rights of the Government at
that location were held to be no greater than those of a riparian
owner, and therefore, of course, not paramount to the rights of
We are of opinion that the Cress
case does not govern
this one, and that there is no warrant for applying it, as the
claimant asks, or for overruling it, as the Government intimates
would be desirable. The Government there was charged with the
consequences of changing the level of a nonnavigable stream; here,
it is sought to be charged with the same consequences from changing
the level in a navigable one. In the former case, the navigation
interest was held not to be a dominant one at the property damaged;
here, dominance of the navigation interest at the St. Croix is
clear. And the claimant in this
Page 324 U. S. 507
case cannot stand in the Cress shoes unless it can establish the
same right to have the navigable St. Croix flow tail waters away at
natural levels that Cress had to have the nonnavigable stream run
off his tail waters at natural levels. This could only be done by
an extension of the doctrine of the Cress
case. As we have
already said, it "must be confined to the facts there disclosed."
United States v. Chicago, M. St. P. & P. R. Co.,
312 U. S. 592
312 U. S.
On navigable streams, a different right intervenes. While
riparian owners on navigable streams usually were held to have the
same rights to be free from interferences of other riparian owners
as on nonnavigable streams, it was recognized from the beginning
that all riparian interests were subject to a dominant public
interest in navigation. The consequences of the latter upon the
former have been the subject of frequent litigation.
Without detailing the long struggle between such conflicting
interests on navigable streams, it may be pointed out that, by
1909, the lines had become sharply drawn, and were then summarized
by a leading author: [Footnote
"The older authorities hold that such an owner has no private
rights in the stream or body of water which are appurtenant to his
land, and, in short, no rights beyond that of any other member of
the public, and that the only difference is that he is more
conveniently situated to enjoy the privileges which all the public
have in common, and that he has access to the waters over his own
land, which the public do not. . . . . Access to and use of the
stream by the riparian owner is regarded merely as permissive on
the part of the public, and liable to be cut off absolutely if the
public sees fit to do so."
And he quoted another writer of standing: [Footnote 5
"The owner of the bank has no jus privatum,
usufructuary interest, in the water. He does not,
Page 324 U. S. 508
from the mere circumstance that he is the owner of the bank,
acquire any special or particular interest in the stream over any
other member of the public, except that, by his proximity thereto,
he enjoys greater conveniences than the public generally. To him,
riparian ownership brings no greater rights than those incident to
all the public, except that he can approach the waters more
readily, and over lands which the general public have no right to
use for that purpose. But this is a mere convenience arising from
his ownership of the lands adjacent to the ordinary high water
mark, and does not prevent the State from depriving him entirely of
this convenience by itself making erections upon the shore or
authorizing the use of the shore by others in such a way as to
deprive him of this convenience altogether, and the injury
resulting to him therefrom, although greater than that sustained by
the rest of the public, is damnum absque injuria.
On the other hand, the author pointed out, there were cases
holding that the riparian owners on navigable streams "have
valuable rights appurtenant to their estates of which they cannot
be deprived without compensation." He considered this the better
rule, and suggested that the courts indicated some tendency to
However, in 1913, this Court decided United States v.
Chandler-Dunbar Co., 229 U. S. 53
involved the claim that water power inherent in a navigable stream
due to its fall in passing riparian lands belongs to the shore
owner as an appurtenant to his lands. The Court set aside questions
as to the right of riparian owners on nonnavigable streams and all
questions as to the rights of riparian owners on either navigable
or nonnavigable streams as between each other. And it laid aside as
irrelevant whether the shore owner did or did not have a technical
title to the bed of the river which would pass with it "as a shadow
follows a substance." It declared that,
Page 324 U. S. 509
neither event can there be said to arise any ownership of the
river. Ownership of a private stream wholly upon the lands of an
individual is conceivable, but that the running water in a great
navigable stream is capable of private ownership is
229 U.S. at 229 U. S. 62
229 U. S. 69
This Court then took a view, quite in line with the trend of former
decisions there reviewed, that a strategic position for the
development of power does not give rise to right to maintain it as
against interference by the United States in aid of navigation. We
have adhered to that position. United States v. Appalachian
Electric Power Co., 311 U. S. 377
311 U. S. 424
case held that the shore owner had no
appurtenant property right in two natural levels of water in front
of its lands, or to the use of the natural difference between as a
head for power production. In this case, the claimant asserts a
similar right to one natural level in front of his lands, and a
right of ownership in the difference between that and the
artificial level of the impounded water of the Willow River. It
constituted a privilege or a convenience, enjoyed for many years,
permissible so long as compatible with navigation interests, but it
is not an interest protected by law when it becomes inconsistent
with plans authorized by Congress for improvement of
It is conceded that the riparian owner has no right, as against
improvements of navigation, to maintenance of a level below high
water mark, but it is claimed that there is a riparian right to use
the stream for run-off of water at this level. High-water mark
bounds the bed of the river. Lands above it are fast lands, and to
flood them is a taking for which compensation must be paid. But the
award here does not purport to compensate a flooding of fast lands
or impairment of their value. Lands below that level are subject
always to a dominant servitude in the interests of navigation, and
its exercise calls for no compensation. United
States v. Chicago, M., St. P. & P. R.
Page 324 U. S. 510
Co., 312 U. S. 592
312 U. S. 313
U.S. 543; Willink v. United States, 240 U.
. The damage here is that the water claimant
continues to bring onto its lands through an artificial canal from
the Willow River has to leave its lands at an elevation of 675,
instead of an elevation of 672, feet. No case is cited, and we find
none, which holds a riparian owner on navigable waters to have such
a legal right. The Cress
case, which the Court of Claims
relied upon, does not so hold, and does not govern here.
Rights, property or otherwise, which are absolute against all
the world are certainly rare, and water rights are not among them.
Whatever rights may be as between equals such as riparian owners,
they are not the measure of riparian rights on a navigable stream
relative to the function of the Government in improving navigation.
Where these interests conflict, they are not to be reconciled as
between equals, but the private interest must give way to a
superior right, or perhaps it would be more accurate to say that,
as against the Government, such private interest is not a right at
Operations of the Government in aid of navigation ofttimes
inflict serious damage or inconvenience, or interfere with
advantages formerly enjoyed by riparian owners, but damage alone
gives courts no power to require compensation where there is not an
actual taking of property. Cf. Gibson v. United States,
166 U. S. 269
Scranton v. Wheeler, 179 U. S. 141
Bedford v. United States, 192 U.
; Jackson v. United States, 230 U. S.
; Hughes v. United States, 230 U. S.
; Cubbins v. Mississippi River Commission,
241 U. S. 351
Such losses may be compensated by legislative authority, not by
force of the Constitution alone.
The uncompensated damages sustained by this riparian owner on a
public waterway are not different from those often suffered without
indemnification by owners abutting on public highways by land. It
has been held in
Page 324 U. S. 511
nearly every state in the Union that
"there can be no recovery for damages to abutting property
resulting from a mere change of grade in the street in front of it,
there being no physical injury to the property itself, and the
change being authorized by law. [Footnote 6
This appears to be the law of Wisconsin. Smith v. City of
78 Wis. 457, 47 N.W. 830; Walish v. City of
95 Wis. 16, 69 N.W. 818; McCullough v.
123 Wis. 334, 101 N.W. 709; cf.
61 U. S.
20 How. 135; Northern Transportation Co. v.
Chicago, 99 U. S. 635
would be strange if the Wisconsin is free to raise an adjacent land
highway without compensation, but the United States may not
exercise an analogous power to raise a highway by water without
making compensation where neither takes claimant's lands, but each
cuts off access to and use of a natural level.
We hold that claimant's interest or advantage in the high water
level of the St. Croix River as a run-off for tail waters to
maintain its power head is not a right protected by law, and that
the award below based exclusively on the loss in value thereof must
MR. JUSTICE REED concurs in the result on the ground that the
United States has not taken property of the respondent.
101 Ct.Cls. 222, cert. granted,
323 U.S. 694.
The other 17 have some form of the appropriative system. It is
based on the principle of priority or seniority, under which rights
accrue to users in the order in which they first put waters to
beneficial use. The principle is not equal right of use, but
paramount right in the earlier user. The use is not limited to
riparian tracts, but may be diverted to sites remote from the
stream, thus spreading the benefits beyond riparian lands -- a
considerable advantage to some arid regions. The beneficial use is
more extensive, and includes use for irrigation, mining,
manufacturing, as well as domestic uses, and the water may be
permanently diverted and the stream, thereby diminished to an
extent not allowable under the riparian rights theory. See
Bannister, Interstate Rights in Interstate Streams in the Arid West
(1923), 36 Harv.L.Rev. 960.
at 960. Choice of the arid sections of
the country of the appropriative in preference to the riparian
system is cited in Cardozo, Growth of the Law, 118, 119-20, as an
"conscious departure from a known rule, and the deliberate
adoption of a new one, in obedience to the promptings of a social
need so obvious and so insistent as to overrun the ancient channel
and cut a new one for itself."
1 Lewis on Eminent Domain, 3d Ed.1909, 116, 119.
Wood on Nuisances, 1st Ed., 592.
1 Lewis on Eminent Domain, 3d Ed.1909, 210.
MR. JUSTICE ROBERTS.
I think the judgment of the Court of Claims should be affirmed.
The findings of fact by that court are supported by the evidence.
They are to the following effect.
The St. Croix River is navigable. The Willow River is a
nonnavigable stream emptying into the St. Croix at Hudson,
Wisconsin. The respondent has constructed several dams in the
Willow River for the purpose of generating
Page 324 U. S. 512
power. The one farthest down stream is
"located near the confluence of the Willow River and the St.
Croix River in the city of Hudson, Wisconsin, on land owned by
[respondent] above ordinary high water of the St. Croix River."
At the time of the erection of the respondent's dam, ordinary
high water in the St. Croix at Hudson was 672 feet above sea level.
The respondent's dam raised the water level in Willow River to a
height of 694.5 feet above sea level, thus affording a power head
of 22.5 feet. [Footnote 2/1
By the Government's erection of Red Wing Dam, the water level in
the St. Croix at Hudson was raised to 675.3 feet above mean sea
level. The backing up of the water reduced the power head of
respondent's dam by approximately three feet, and diminished its
supply of power accordingly.
In the court below, the United States denied that the Red Wing
Dam had raised the level of the St. Croix at Hudson to the extent
claimed by the respondent, and contended that Willow River was a
navigable stream and the respondent's dam was therefore an
obstruction in the navigable waters of the United States for
interference with or injury to which the United States was not
responsible. These contentions were overruled, and are now
abandoned. There was no claim by the Government that any portion of
the respondent's construction was below
Page 324 U. S. 513
ordinary high water mark in the St. Croix. In fact, the
Government's answer admitted averments of the petition that the dam
and power plant were located near a point where the Willow River
discharges into the St. Croix River, and upon the respondent's
property described in the petition. The answer further alleged that
"dam so constructed by the plaintiff near the point where the
Willow River discharges into the St. Croix River . . . was
constructed upon a concrete foundation extending across or
occupying the full width of the mouth of a navigable stream"
(meaning the Willow River, which the Government then claimed was
navigable). The opinion of the court below states that respondent's
tail race emptied into the St. Croix River below ordinary high
water level, and this seems to be true. But the fact is
The respondent owned the land on either side of the Willow River
at and above the point where its dam was constructed. Under the law
of Wisconsin, the respondent owned the bed of Willow River, and,
both by common and statute law of Wisconsin, it had the right to
erect and use the dam. [Footnote
] That right was property, and such a right recognized as
private property by the law of a state is one which under the
Constitution the federal government is bound to recognize.
Monongahela Nav. Co. v. United States, 148 U.
; Fox River Paper Co. v. Railroad
Commission, 274 U. S. 651
274 U. S.
-655. Compare Ford & Son v. Little Falls
Fibre Co., 280 U. S. 369
280 U. S.
Page 324 U. S. 514
Unless United States v. Cress, 243 U.
, is to be disregarded or overruled, the
respondent is entitled to recover for the property taken by the
reduction of the efficiency of its dam due to the raising of the
high water mark. If the respondent's power dam had been in Willow
River at a distance of one hundred yards or more above the
confluence of the two streams, there can be no question that the
decision in the Cress
case would require payment for the
injury done to its water power. Since, under local law, the owner
of the land and the dam was entitled to have the water of the
nonnavigable stream flow below his dam at the natural level of the
Willow River, which is affected by the natural level of the St.
Croix, the raising of that level by navigation works in the St.
Croix invaded the respondent's rights. This is the basis of
decision in the Cress
case. The fact that the respondent's
dam is close to the high water mark of the St. Croix River cannot
call for a different result.
The court concludes that the Cress
case is inapplicable
by ignoring the finding of the trial court that the increase in
level of the St. Croix above high water mark has diminished the
head of respondent's dam by three feet. But, to reach its
conclusion, the court must also disregard the natural law of
hydraulics that water seeks its own level. At the confluence of the
two rivers at normal high water of the St. Croix, both the St.
Croix and the Willow are at the same level. Any increase in the
level of the St. Croix above high water mark must result in raising
the natural level of the Willow to some extent. The court below has
found that the increase in the level of the St. Croix operates to
diminish the head at respondent's dam by the specified amount. The
facts thus established are in all relevant respects precisely those
on the basis of which this court sustained the recovery of damages
in the Cress
If the fact is that respondent discharges the water from its
power plant through a tail race extending below high-water
Page 324 U. S. 515
mark of the St. Croix, that fact is irrelevant to the problem
presented. Respondent claims, and the court below has sustained,
only the right to have the flow of the Willow maintained at its
natural level. That level has been increased by raising the level
of the St. Croix above its high water mark. The increase in the
level of the St. Croix above high water mark has operated to raise
the level below the respondent's dam to an extent which has damaged
respondent by diminishing the power head. To that extent,
respondent has suffered damage, and is entitled to recover on
principles announced in the Cress
United States v. Cress, supra,
has stood for
twenty-eight years as a declaration of the law applicable in
circumstances precisely similar to those here disclosed. I think it
is a right decision if the United States, under the Constitution,
must pay for the destruction of a property right arising out of the
lawful use of waters not regulable by the federal government
because they are not navigable.
THE CHIEF JUSTICE concurs in this opinion.
The court's opinion refers to the circumstance that the dam in
question is not built across the natural channel of Willow River.
Neither the court below nor the Government relies on this phase of
the case, and I take it that decision does not depend upon it. The
facts are that the St. Croix runs substantially from north to
south. Willow River, which runs westward, formerly turned southward
a short distance from the St. Croix and substantially paralleled
the latter before emptying into it. The respondent dammed the
natural channel to form a pool just east of the St. Croix, and then
built its power house, dam, and spillway at a point at the edge of
the pool nearest the St. Croix.
Revised Statutes Wisconsin 1858, Chap. XLI, §§ 2, 3; Chap. LVI,
§ 1; Wisconsin Stats.1943, §§ 30.01(2)(3)c, 31.07; Wisconsin Laws,
Private & Local, 1866, Ch. 122; 1872, Ch. 115; Mabie v.
17 Wis. 1; A.C. Conn Co. v. Little Suamico
Lumber Mfg. Co.,
74 Wis. 652, 43 N.W. 660; Kaukauna
Water-Power Co. v. Green Bay & M. Canal Co.,
75 Wis. 385,
390, 391, 44 N.W. 638; Water Power Cases,
148 Wis. 124,
134 N.W. 330; McDonald v. Apple River Power Co.,
450, 160 N.W. 156; Apfelbacher v. State,
167 Wis. 233, 167