80 U.S. 166
After Wisconsin became a State, the legislature projected a system of improving the navigation of the Fox and Wisconsin Rivers.1
This system adopted the dam of Reid and Doty, then in process of construction, as part of that system.2 Under that act, a board of public works was established.3 The board made such arrangements with Reid and Doty that they continued and completed the dam.4 By subsequent legislation, 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.5
The land of the plaintiff came to him through a reservation in an Indian treaty in favor of one Therese Pacquett.6 She received a patent from the United States in 1849.7 The dam was completed to its present height in 1852.8
By reason of the dam, the water of the lake was so raised as to cause it to overflow all his land.9 The overflow remained continuously from the completion of the dam in the year 1861 to the commencement of the suit in the year 1867.10 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.11
The second plea alleges that the legislature authorized the erection of the dam as it now stands without any provision for compensating the plaintiff for the injury.12 The fourth plea avers that the defendants have ever since had, used, and enjoyed the easement of overflowing the plaintiff's lands with his acquiescence.13 They had done this under color of right.14 The sixth plea avers that the land of the plaintiff came to him through a reservation in an Indian treaty.15 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.16 The matter came before the Supreme Court after proceedings in the lower court.17
Whether the second plea sets up a sufficient defense to the plaintiff's cause of action?18
A statute authorizing a dam provides no defense to a flooding claim when the statute does not authorize raising the water of the lake above its ordinary level.19 The statute must contain a provision for compensating injured landowners.20 Such flooding that destroys the land's value constitutes a taking under the Wisconsin Constitution.21
No. The second plea alleges legislative authorization for the dam without compensation.22 The established facts show the dam raised the water to overflow all the plaintiff's land continuously from 1861 to 1867.23 This destroyed the land's value.24 The statute did not permit raising the lake above ordinary level.25
The plea fails to deny the overflow or show statutory authority for it.26 Because the flooding amounts to a taking, the absence of a compensation mechanism renders the plea insufficient as a defense.27
The second plea does not set up a sufficient defense because the defendants exceeded statutory authority and the flooding constitutes a compensable taking.28
Whether the fourth plea constitutes a valid defense based on prescription or acquiescence?29
No. The fourth plea avers the dam was completed in 1852.33 The defendants have ever since had, used, and enjoyed the easement of overflowing the plaintiff's lands with the plaintiff's acquiescence under color of right.34 The facts establish that the suit was commenced in 1867, making the period of use only fifteen years, which falls short of the twenty years required for prescription of an easement.35 Moreover, the plea avers that the plaintiff has all the time been seized in fee and in possession, rendering any disseizin claim invalid.36
The authority from the statutes is unavailing because those statutes have already been held invalid for failing to provide compensation for the taking caused by the flooding.37
The fourth plea does not constitute a valid defense because the time is too short for prescription and the plaintiff retained possession.38
Whether the sixth plea validly claims that the plaintiff's title is subject to an easement permitting the complained-of injuries?39
When the United States sells land by patent without reservations, it retains no right to take that land for public use without just compensation.40 It confers no such right on the state.41 The absolute ownership of private property is not varied by the fact that the land borders a navigable stream.42
No. The sixth plea avers the land came through an Indian treaty reservation and patent in 1849.43 It was burdened with an easement for improving navigation of the Fox River.44 The established facts show the title passed by patent without reservations.45 The United States therefore retained and conferred no right to flood the land without compensation.46 The claimed easement does not defeat the taking claim arising from the dam's overflow.47
The sixth plea does not validly claim an easement that permits the injuries without compensation.48
Whether the overflow of the plaintiff's land by the dam constitutes a taking of private property for public use under the Wisconsin Constitution?49
Yes. The dam raised the water of the lake so as to overflow all the plaintiff's land.52 The overflow remained continuously from 1861 to 1867.53 This worked an almost complete destruction of the value of the land.54
The invasion by water occurred under legislative authority for improving navigation.55 No compensation mechanism was provided.56 Where real estate is actually invaded by superinduced additions of water so as to effectually destroy or impair its usefulness, it is a taking within the meaning of the Constitution.
The overflow of the plaintiff's land by the dam constitutes a taking of private property for public use under the Wisconsin Constitution.57