1. Where a plea relies on a statute authority as a defense, it
must allege the facts which it asserts to be so authorized, and
cannot plead generally that it complied with the statute. Hence a
plea is bad which states that defendant raised the water in a lake
no higher than the statute authorized when the state forbid the
water being raised above its ordinary level.
2. Where a declaration charges a defendant with overflowing the
plaintiff's land by raising the water in the lake, a plea
containing neither a denial of what is alleged nor authority for
doing it is bad.
3. By the general law of European nations and the common law of
England, it was a qualification of the right of eminent domain that
compensation should be made for private property taken or
sacrificed for public use.
4. And the constitutional provisions of the United States and of
the several states which declare that private property shall not be
taken for public use without just compensation were intended to
establish this principle beyond legislative control.
5. It is not necessary that property should be absolutely taken,
in the narrowest sense of that word, to bring the case within the
protection of this constitutional provision. There may be such
serious interruption to the common and necessary use of property as
will be equivalent to a taking, within the meaning of the
Constitution.
6. The backing of water so as to overflow the lands of an
individual, or any other superinduced addition of water, earth,
sand, or other material or artificial structure placed on land, if
done under statutes authorizing it for the public benefit, is such
a taking as by the constitutional provision demands
compensation.
7. This proposition is sustained by the decisions of the Supreme
Court of Wisconsin construing the provision of the constitution of
that state on the subject, and by many other adjudged cases in this
country.
8. The cases which hold that remote and consequential injury to
private property by reason of authorized public improvements is not
taking such property for public use have many of them gone to the
utmost limit of that principle, and some beyond it, though the
principle is a sound one in its proper application to many injuries
so originating.
9. Lands sold by the United States with no reservation, though
bordering on it navigable stream, are as much within the protection
of the constitutional principle awarding compensation as other
private property.
The Constitution of Wisconsin ordains that
"The property of no person shall be taken for public use without
just compensation therefor. "
Page 80 U. S. 167
With this provision in force as fundamental law, one Pumpelly,
in September, 1867, brought trespass on the case against the Green
Bay & Mississippi Canal Company for overflowing 640 acres of
his land by means of a dam erected across Fox River, the northern
outlet of Lake Winnebago, by which, as the declaration averred, the
waters of the lake were raised so high as to forcibly and with
violence overflow all his said land from the time of the completion
of the dam in 1861 to the commencement of this suit, the water
coming with such a violence, the declaration averred, as to tear up
his trees and grass by the roots and wash them, with his hay by
tons, away, to choke up his drains and fill up his ditches, to
saturate some of his lands with water, and to dirty and injure
other parts by bringing and leaving on them deposits of sand, and
otherwise greatly injuring him. The canal company pleaded six
pleas, of which the second was the most important, but of which the
fourth and sixth may also be mentioned.
This second plea was divisible, apparently, into two parts.
The
first part set up (quoting it entire) a statute of
Wisconsin Territory, approved March 10, 1848, by which one Curtis
Reed and his associates were authorized to construct a dam across
Fox River, the northern outlet of Winnebago Lake, to enable them to
use the waters of the river for hydraulic purposes.
The second section of the act quoted read thus:
"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 benefit and
provisions of the Act relating to Mills and Mill Dams approved
January 13, 1840."
"[NOTE -- 'The Act relating to Mills and Mill Dams, approved
January 13, 1840,' thus referred to in the statute of 1848, as an
act to which Reed and his associates should be subject, was an act
of Wisconsin which provided a special remedy for persons whose
lands were overflowed or otherwise injured by mill dams. Section 4
was as follows: "
Page 80 U. S. 168
" Any person whose land is overflowed or otherwise injured by
such dam may obtain compensation therefor upon his complaint before
the district court for the county where the land, or any part
thereof, lies, provided that no compensation shall be awarded for
any damages sustained more than three years before the institution
of the suit."
"Sections 5 to 27, inclusive, provided for the manner of
prosecuting the suit, the form, effect, and mode of enforcing the
judgment, and for appeals and proceedings thereon. Section 28 was
thus:"
" No action shall be sustained at common law for the recovery of
damages for the erecting, maintaining, or using any mill or mill
dam except as provided in this act.]"
The plea, still continuing its first part, averred that Reed and
an associate commenced the building of this dam; that by certain
legislation of Wisconsin (now become a state), it was afterwards
adopted as part of the system of improving the navigation of the
Fox River, and became the property of the defendants. The plea,
after referring to the provisions of the act of 1848, averred
"That the said dam was built to the same height and in the same
manner, and to no greater height and in no different manner from
that duly authorized under and according to the provisions
aforesaid, and to no greater height than was authorized by the act
aforesaid, approved March 10, 1848."
"That the said dam has ever since been and is now continued and
maintained at the same and no greater height, and in the same and
no different manner from that to which and in which it was
originally built and erected as aforesaid."
In what might be distinguished as its second part, the plea
having set forth and pleaded in the first, as already indicated,
that the Legislature of Wisconsin, after it had become a state,
passed an act to provide for the improvement of the Fox and
Wisconsin Rivers; that Doty and his associate accepted the terms of
the act; that under the act, a board of public works was organized
which, through Doty and his associate, built the dam -- went on to
say that by subsequent legislation, in the years 1861 and 1866, the
present defendants were made a corporation under the laws of
Wisconsin,
Page 80 U. S. 169
and became possessed of the "River Improvement," so called, and
of its dams, water powers,
"also all other rights, privileges, franchises, easements, and
appurtenances of all kinds described in the acts of the Legislature
of Wisconsin &c., . . . including the easement or right to
overflow, as hereinafter mentioned."
The plea then proceeded to say that by the act of building and
completing the dam &c., and by means of the waters of Lake
Winnebago, Reed and Doty, and the state by its board of public
works, did, as they lawfully might do, seize, and, to the extent
necessary and for the purposes of a water power and of the said
improvement, take possession of the lands and premises, trees,
grass, herbage, drains, ditches &c., in the declaration
mentioned, to the extent that the same were, as therein alleged,
destroyed, damaged, overflowed, saturated, and subverted, and
otherwise injured; that the seizure and taking possession were so
made and done under claim and color of right and title duly made by
virtue of the laws of Wisconsin, and that the defendant had done as
lawfully it might.
The fourth plea set forth the legislation authorizing the
erection of the dam and the improvement of the river, the title of
the defendant to the improvement and its privileges and duties in
relation thereto -- all as in the second plea -- and alleged that
the dam was completed in the year 1852; that the state, by its
board of public works, seized so much of the plaintiff's land as
was overflowed and as was necessary for this improvement, and ever
since the completion of the dam in 1852 that the state, its
successors, and the defendant, had held, and that the defendant now
held the same; that such seizure was made under claim and color of
right and title, by virtue of the laws of Wisconsin; publicly and
notoriously, and with the knowledge and acquiescence of the
plaintiff, and under like claim and color, and in like manner had
since been held; that the plaintiff, at the time of such seizure,
was seized in fee and was in possession of the land described in
the declaration, subject to the rights acquired by the state by its
seizure and possession; that
Page 80 U. S. 170
during all the said time --
i.e., since the completion
of the dam, in 1852 -- the plaintiff had been under no disability
which disabled him from bringing suit.
The sixth plea alleged that by the Ordinance of 1787, the Act of
Congress of August 7, 1789, the act establishing the territorial
government of Wisconsin, the act admitting the State of Wisconsin
into the Union, the Constitution of the State of Wisconsin, and the
laws of the United States and of the State of Wisconsin, it was
declared that the navigable waters leading into the Mississippi and
St. Lawrence, and the carrying places &c., should be common
highways and forever free; that the Fox and Wisconsin Rivers and
Lake Winnebago were and ever had been of the navigable waters thus
referred to; that the Fox River was a navigable water leading into
the St. Lawrence.
The plea then set out the legislation in regard to the
improvement, the incorporation of the Fox and Wisconsin Improvement
Company, the organization, incorporation, and title of the canal
company (the defendant), as set forth before, and further alleged
that the dam was built and maintained under the authority of the
laws of the United States and of the State of Wisconsin and the
board of public works; that as constructed and maintained, it was
and is an essential portion of the works for the improvement of the
navigability of the Fox and Wisconsin Rivers, and to the proper
development as common navigable highways; that the ordinance, the
laws of Congress and of the state, granted and assigned to the
defendant, the improvement and the easement, right and privilege of
overflowing &c., the lands described in the declaration, to the
extent necessary to improve the navigability of said rivers; that
under a treaty with the Winnebago Indians in 1832, the United
States patented certain land (of which the plaintiff's was a part)
to one Theresa Paquette; that she, the said Theresa and original
grantor of the lands described in the declaration, and all the
subsequent grantees thereof, including the plaintiff, purchased
with full notice of, and subject to, the easement
Page 80 U. S. 171
and right aforesaid, and which easement and right was granted to
the state prior to the original grant of title to plaintiff's land,
which is alleged to have been in 1849.
A
general demurrer to these three pleas being overruled
by the court, the plaintiff brought the case here.
Page 80 U. S. 174
MR. JUSTICE MILLER delivered the opinion of the Court.
The second plea, the most important, is technically liable to
the objection that it relies on two substantially different grounds
of defense, but as the demurrer was general and
Page 80 U. S. 175
not special, and as the part of it which sets up the first of
these defenses may be treated as mere inducement to the other, we
will consider whether there is found in the plea any sufficient
defense to the cause of action set out in the declaration.
This first part of the plea is clearly designed to present this
defense, that the dam was authorized by statute and built in
conformity to the specific requirements of the act, so that the
defendants are not liable for exceeding the authority which it
conferred, and that for any injury to the plaintiff's property
arising from this lawful erection of the dam his only remedy was
the one provided in the act referred to, concerning mills and mill
dams. As this enacted that persons whose lands were overflowed
might obtain compensation upon complaint before the district court
of the county where the land lay, and that no action at common law
should be sustained for such damages except as provided in the act,
if the remainder of the plea is good, it is a defense to the
present suit. But this part of the plea is defective in this. It is
contended by the counsel for the defendants that the second section
of the act authorizes them to build their dam seven feet above high
water mark of the river at all events, and that the restriction
that the water of the lake shall not be raised above its ordinary
level is only applicable to such raising if the dam should exceed
the first limitation, while the counsel for the plaintiff asserts
that both limitations were effectual, and that if the dam raised
the water in the lake above its ordinary level, the law was
violated, though it may not have reached the seven feet above high
water of the river.
It will be seen that the plea, in averring that the dam, when
completed, was no higher than the statute authorized, pleads a
conclusion of law, and does not state the facts on which the court
can construe the law for itself and ascertain if the fact pleaded
is a good defense. This is bad pleading. It is also liable to the
objection that it does not either deny the allegation of the
declaration that the dam raised the water in Winnebago Lake so as
to overflow the plaintiff's land
Page 80 U. S. 176
nor admit that allegation and aver that they were authorized to
do so by the statute. But as we are of opinion that the statute did
not authorize the erection of a dam which would raise the water of
the lake above the ordinary level, and as the plea does not deny
that the dam of the defendant did so raise the water of the lake,
we must hold that, so far as the plea relies on this statute as a
defense, it is fatally defective.
But this same plea further alleges that the Legislature of
Wisconsin, after it became a state, projected a system of improving
the navigation of the Fox and Wisconsin Rivers, which adopted the
dam of Reid and Doty, then in process of construction, as part of
that system, and that under that act, a board of public works was
established which made such arrangements with Reid and Doty that
they continued and completed the dam, and that, by subsequent
legislation changing the organization under which the work was
carried on, the defendants finally became the owners of the dam,
with such powers concerning the improvement of the navigation of
the river as the legislature could confer in that regard. But it
does not appear that any statute made provision for compensation to
the plaintiff or those similarly injured for damages to their
lands. So that the plea, as thus considered, presents substantially
the defense that the State of Wisconsin, having, in the progress of
its system of improving the navigation of the Fox River, authorized
the erection of the dam as it now stands, without any provision for
compensating the plaintiff for the injury which it does him, the
defendant asserts the right, under legislative authority, to build
and continue the dam without legal responsibility for those
injuries.
And counsel for the defendant with becoming candor argue that
the damages of which the plaintiff complains are such as the state
had a right to inflict in improving the navigation of the Fox River
without making any compensation for them.
This requires a construction of the Constitution of Wisconsin,
for though the Constitution of the United States provides that
private property shall not be taken for public
Page 80 U. S. 177
use without just compensation, it is well settled that this is a
limitation on the power of the federal government, and not on the
states. The Constitution of Wisconsin, however, has a provision
almost identical in language,
viz.: that "the property of
no person shall be taken for public use without just compensation
therefor." [
Footnote 1] Indeed,
this limitation on the exercise of the right of eminent domain is
so essentially a part of American constitutional law that it is
believed that no state is now without it, and the only question
that we are to consider is whether the injury to plaintiff's
property, as set forth in his declaration, is within its
protection.
The declaration states that by reason of the dam, the water of
the lake was so raised as to cause it to overflow all his land, and
that the overflow remained continuously from the completion of the
dam, in the year 1861, to the commencement of the suit in the year
1867, and the nature of the injuries set out in the declaration are
such as show that it worked an almost complete destruction of the
value of the land.
The argument of the defendant is that there is no taking of the
land within the meaning of the constitutional provision, and that
the damage is a consequential result of such use of a navigable
stream as the government had a right to for the improvement of its
navigation.
It would be a very curious and unsatisfactory result if in
construing a provision of constitutional law always understood to
have been adopted for protection and security to the rights of the
individual as against the government, and which has received the
commendation of jurists, statesmen, and commentators as placing the
just principles of the common law on that subject beyond the power
of ordinary legislation to change or control them, it shall be held
that if the government refrains from the absolute conversion of
real property to the uses of the public it can destroy its value
entirely, can inflict irreparable and permanent injury
Page 80 U. S. 178
to any extent, can, in effect, subject it to total destruction
without making any compensation, because, in the narrowest sense of
that word, it is not taken for the public use. Such a construction
would pervert the constitutional provision into a restriction upon
the rights of the citizen, as those rights stood at the common law,
instead of the government, and make it an authority for invasion of
private right under the pretext of the public good, which had no
warrant in the laws or practices of our ancestors.
In the case of
Sinnickson v. Johnson, [
Footnote 2] the defendant had been authorized
by an act of the legislature to shorten the navigation of Salem
Creek by cutting a canal and by building a dam across the stream.
The canal was well built, but the dam caused the water to overflow
the plaintiff's land, for which he brought suit. Although the State
of New Jersey then had no such provision in her constitution as the
one cited from Wisconsin, the supreme court held the statute to be
no protection to the action for damages. Dayton, J., said
"That this power to take private property reaches back of all
constitutional provisions, and it seems to have been a settled
principle of universal law that the right to compensation is an
incident to the exercise of that power; that the one is inseparably
connected with the other; that they may be said to exist not as
separate and distinct principles, but as parts of one and the same
principle."
For this proposition he cites numerous authorities, but the case
is mainly valuable here as showing that overflowing land by backing
the water on it was considered as "taking" it within the meaning of
the principle.
In the case of
Gardner v. Newburgh, [
Footnote 3] Chancellor Kent granted an
injunction to prevent the trustees of Newburg from diverting the
water of a certain stream flowing over plaintiff's land from its
usual course because the act of the legislature which authorized it
had made no provision for compensating the plaintiff for the injury
thus done to his land. And he did this though there was no
provision in the
Page 80 U. S. 179
Constitution of New York such as we have mentioned, and though
he recognized that the water was taken for a public use. After
citing several continental jurists on this right of eminent domain,
he says that while they admit that private property may be taken
for public uses when public necessity or utility requires, they all
lay it down as a clear principle of natural equity that the
individual whose property is thus sacrificed must be indemnified.
And he adds that the principles and practice of the English
government are equally explicit on this point. It will be seen in
this case that it was the diversion of the water from the
plaintiff's land, which was considered as taking private property
for public use, but which, under the argument of the defendants'
counsel, would, like overflowing the land, be called only a
consequential injury.
If these be correct statements of the limitations upon the
exercise of the right of eminent domain as the doctrine was
understood before it had the benefit of constitutional sanction, by
the construction now sought to be placed upon the Constitution it
would become an instrument of oppression, rather than protection to
individual rights.
But there are numerous authorities to sustain the doctrine that
a serious interruption to the common and necessary use of property
may be, in the language of Mr. Angell in his work on watercourses,
equivalent to the taking of it, and that under the constitutional
provisions, it is not necessary that the land should be absolutely
taken. [
Footnote 4] And perhaps
no state court has given more frequent utterance to the doctrine
that overflowing land by backing water on it from dams built below
is within the constitutional provision than that of Wisconsin. In
numerous cases of this kind under the Mill and Mill Dam Act of that
state ,this question has arisen and the right of the mill owner to
flow back the water has
Page 80 U. S. 180
been repeatedly placed on the ground that it was a taking of
private property for public use. It is true that the court has
often expressed its doubt whether the use under that act was a
public one within the meaning of the Constitution, but it has never
been doubted in any of those cases that it was such a taking as
required compensation under the Constitution. [
Footnote 5] As it is the Constitution of that
state that we are called on to construe, these decisions of her
supreme court that overflowing land by means of a dam across a
stream is taking private property within the meaning of that
instrument are of special weight, if not conclusive on us. And in
several of these cases, the dams were across navigable streams.
It is difficult to reconcile the case of
Alexander v.
Milwaukee [
Footnote 6]
with those just cited, and in its opinion the court seemed to feel
the same difficulty. They assert that the weight of authority is in
favor of leaving the party injured without remedy when the damage
is inflicted for the public good, and is remote and consequential.
There are some strong features of analogy between that case and
this, but we are not prepared to say, in the face of what the
Wisconsin court had previously decided, that it would hold the case
before us to come within the principle of that case. At all events,
as the court rests its decision upon the general weight of
authority, and not upon anything special in the language of the
Wisconsin bill of rights, we feel at liberty to hold as we do that
the case made by the plaintiff's declaration is within the
protection of the constitutional principle embodied in that
instrument.
We are not unaware of the numerous cases in the state courts in
which the doctrine has been successfully invoked that for a
consequential injury to the property of the individual arising from
the prosecution of improvements of roads, streets, rivers, and
other highways, for the public
Page 80 U. S. 181
good, there is no redress, and we do not deny that the principle
is a sound one, in its proper application, to many injuries to
property so originating. And when, in the exercise of our duties
here, we shall be called upon to construe other state
constitutions, we shall not be unmindful of the weight due to the
decisions of the courts of those states. But we are of opinion that
the decisions referred to have gone to the uttermost limit of sound
judicial construction in favor of this principle, and, in some
cases, beyond it, and that it remains true that where real estate
is actually invaded by superinduced additions of water, earth,
sand, or other material, or by having any artificial structure
placed on it, so as to effectually destroy or impair its
usefulness, it is a taking, within the meaning of the Constitution,
and that this proposition is not in conflict with the weight of
judicial authority in this country, and certainly not with sound
principle. Beyond this we do not go, and this case calls us to go
no further.
We are therefore of opinion that the second plea set up no valid
defense and that the demurrer to it should have been sustained.
The fourth plea recites substantially the same statutes, and
acts of the defendants and their predecessors as the second plea,
and avers that the dam was completed to its present height in 1852,
and that the defendants have ever since had, used, and enjoyed the
easement of overflowing the plaintiff's lands with his
acquiescence, and that they had done this under color of right, and
as they lawfully might do.
If this is intended as a plea of prescription for an easement,
the time is not long enough. It requires twenty years. If it is
designed as a plea of disseizin, it is bad because it avers that
the plaintiff has all the time been seized in fee and in possession
of the land in controversy.
But the foundation of the plea seems to be the authority
conferred by the various statutes of Wisconsin mentioned in the
second plea. We have already held that the defendants
Page 80 U. S. 182
were not protected by the Act of March 10, 1848, because they
exceeded the authority conferred by it, and that, as to the
plaintiff's rights, the subsequent statutes were void because they
contained no provision for compensation. There is therefore no
light in which we can view this fourth plea that makes it a good
one. The demurrer to it should have been sustained.
The sixth plea, after setting up all the matters alleged in the
second and also that by the Ordinance of 1787 and the subsequent
legislation of Congress, the navigable streams of that territory
were to be forever preserved as free highways, then avers that the
land of the plaintiff came to him through a reservation in an
Indian treaty in favor of one Therese Pacquett, who received a
patent from the United States in 1849. It is alleged that this
title came to the plaintiff burdened with an easement in favor of
improving the navigation of the Fox River which authorized the
injuries complained of and of which therefore he could not
complain.
We do not think it necessary to consume time in proving that
when the United States sells land by treaty or otherwise, and parts
with the fee by patent without reservations, it retains no right to
take that land for public use without just compensation, nor does
it confer such a right on the state within which it lies, and that
the absolute ownership and right of private property in such land
is not varied by the fact that it borders on a navigable
stream.
The demurrer to this plea should also have been sustained.
Judgment reversed and the case remanded to the circuit court
for further proceedings not inconsistent with this
opinion.
[
Footnote 1]
Sec. 13, Article 1.
[
Footnote 2]
2 Harrison, New Jersey, 129.
[
Footnote 3]
2 Johnson's Chancery 162.
[
Footnote 4]
Angell on Watercourses ยง 465a;
Hooker v. New Haven &
Northampton Co., 14 Conn. 146;
Rowe v. Granite Bridge
Co., 21 Pickering 344;
Canal Appraisers v. People, 17
Wendell 604;
Lackland v. North Missouri Railroad Co., 31
Mo. 180;
Stevens v. Proprietors of Middlesex Canal, 12
Mass. 466.
[
Footnote 5]
Pratt v. Brown, 3 Wis. 613;
Walker v.
Shepardson, 4
id. 511;
Fisher v. Horicon Iron
Co., 10
id. 353;
Newell v. Smith, 15
id. 104;
Goodall v. City of Milwaukee, 5
id. 39;
Weeks v. City of Milwaukee, 10
id. 242.
[
Footnote 6]
16 Wis. 248.
