MR. JUSTICE BROWN, after stating the case, 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. Willson 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 and embankment operated of itself to deprive the owner of lot 5 of any right to the water power, as the water continued to flow past the lot as it had previously done, though at a higher level than before. Be this as it may, however, it is possible that the notice given by the Canal Company, in 1880, of its claim to the exclusive right to this water power may be considered as a deprivation within the meaning of the amendment. Until this time there had been no active interference with any claim or riparian rights belonging to the Water Power Company. Second. If the erection of the dam and embankment be treated as an assertion of an exclusive right to the water power in front of these lots, perhaps the maintenance of this dam and embankment may be regarded as a continuous deprivation of the rights of the riparian owner to such water power, within the meaning of the constitutional provision. The act of deprivation continues so long as the Canal Company maintains its paramount and exclusive right to the use of the water flowing in front of such lot. Third. While it is undoubtedly true that the first dam and embankment were constructed in the years 1853 to 1855, before the constitutional amendment was adopted, the new dam, the southerly end of which also abutted on lot 5, as well as the embankment connecting this with the old dam, was not built until 1876; and in the construction of these the Water Power Company claims that it was deprived of its property without due process of law. The allegation of the answer in this connection is "that the dam which now raises the water of said Fox River for the filling of said government canal, in the said complaint mentioned, is not the same dam which was built by the board of public works, and in said complaint referred to; that, after the United States became the owner of said canal and water-way, and in about the year 1874, the United States abandoned said old dam and built a new one, ... the southerly half of which said new dam and which point of abuttal is upon land which, prior to, and at the time of, the commencement of this suit, belonged to, and was in the possession of, and still belongs to, and is in the possession of, the defendant, the Kaukauna Water Power Company; ... that, after the building of said new dam by the United States, as aforesaid, it, the said United States, constructed and extended the said embankment along the southerly shore of said Fox River, on said lot 5, from the said old dam down stream to, and joined and terminated the same upon, its said new dam, as the same is now in use; and these defendants state, upon information and belief, that neither the United States or 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, in so far as it provided that the water power created by the dam erected, or other improvements made on the river, should belong to the State, is claimed to be invalid upon the ground, first, that it purported to take private property for a private purpose; and second, that if it were held to be the taking of private property for a public purpose, it was void under the constitution of the State, and not due process of law, because the act did not provide a method of ascertaining and making compensation for the property so taken. Practically the only question is, whether this act was valid in so far as it authorized the State to take and appropriate the water power in question.
It is the settled law of Wisconsin, announced in repeated decisions of its Supreme Court, that the ownership of riparian proprietors extends to the centre 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 Wisconsin, 308; Walker v. Shepardson, 2 Wisconsin, 384; S.C. 4 Wisconsin, 486; Norcross v. Griffiths, 65 Wisconsin, 599. In City of Janesville v. Carpenter, 77 Wisconsin, 288, 300, it is said of the riparian owner: "He may construct docks, landing places, piers and wharves out to navigable waters if the river is navigable in fact, but if it is not so navigable he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to use the waters for hydraulic purposes.... Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property under the protection of the constitution, and it cannot be taken, or its value lessened or impaired, even for public use, `without compensation,' or `without due process of law,' and it cannot be taken at all for any one's private use." With respect to such rights, we have held that the law of the State, as declared by its Supreme Court is controlling as a rule of property. Barney v. Keokuk, 94 U.S. 324; Packer v. Bird, 137 U.S. 661; 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 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 of controlling or disposing of such water as an incident of its right to make such improvement. Indeed, it might become very necessary to retain the disposition of it in its own hands, in order to preserve at all times a sufficient supply for the purposes of navigation. If the riparian owners were allowed to tap the pond at different places, and draw off the water for their own use, serious consequences might arise, not only in connection with the public demand for the purposes of navigation, but between the riparian owners themselves as to the proper proportion each was entitled to draw — controversies which could only be avoided by the State reserving to itself the immediate supervision of the entire supply. As there is no need of the surplus running to waste, there was nothing objectionable in permitting the State to let out the use of it to private parties, and thus reimburse itself for the expenses of the improvement.
The value of this water power created by the dam was much greater than that of the river in its unimproved state in the hands of the riparian proprietors who had not the means to make it available. These proprietors lost nothing that was useful to them except the technical right to have the water flow as it had been accustomed and the possibility of their being able some time to improve it. If the State could condemn this use of the water with the other property of the riparian owner it might raise a revenue from it sufficient to complete the work which might otherwise fail. There was 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, it 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, 643, 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 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. 379. 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 pretence 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 Wisconsin, 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 Wisconsin, 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 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 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 17th 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 Wisconsin, 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 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 nowise 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, 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 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 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 road-bed. Such a proceeding was attempted in State v. Hessenkamp, 17 Iowa, 25, and the result was an indictment for wilfully obstructing the track. The court declined to instruct the jury that if the defendant owned the land, and the railroad company had not obtained a right of way over it, defendant had a right to place what he pleased upon the land, and should be acquitted; and the Supreme Court said of this refusal that it was so obviously right that "we can scarcely believe it is expected of us to undertake a vindication of its correctness." So in Dunlap v. Pulley, 28 Iowa, 469, the defendant, during his term of office 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 or lease might assist in defraying the expenses of the improvement. A ruling which would allow a single riparian owner upon the pond created by this dam to take to himself one-half of the surplus water without having contributed anything towards the creation of such surplus or to the public improvement, would savor strongly of an appropriation of public property for private use. If any such water power were incidentally created by the erection of a dam, it was obviously intended that it should belong to the public and be used for their benefit, and not for the emolument of a private riparian proprietor. The cutting of the embankment under the circumstances of this case and the appropriation of the surplus water which the Water Power Company had had no hand in creating, was a trespass which the court had a right to enjoin.
We do not undertake to say whether a bill in equity, framed upon the basis of a large amount of surplus water not used, might not lie to compel an equitable division of the same upon the ground that it would otherwise run to waste.
Our conclusion is that there was no taking of the property of the plaintiff in error without due process of law, and the decree of the Supreme Court of Wisconsin is
MR. JUSTICE HARLAN dissented.