#### Minehan, Respondent, vs. Murphy and another, Appellants.

*February 23*

March *12, 1912.*

*Waters: Dams: Artificial condition may become natural: Lalce or river? Question for fury: Evidence.*

1. The artificial condition of a lake or stream, originally created by a dam, may by lapse of time become a natural condition.

2. Evidence showing, among other things, that a dam built fifty years ago across a small, unmeandered, unnavigable creek connecting two lakes had created navigable water between it and. the upper lake and had raised the level of that lake; that between the dam and the upper lake the water retained many of the characteristics of a river, its course being winding, its width varying from sixty to several hundred feet, and there being at all times a perceptible current; and that there was. but a narrow navigable channel which was kept open largely by the passing of small boats and launches, is *held*to sustain a verdict to the effect that such navigable water was a river,, not a lake.

Appeal from a judgment of the county court of Dodge-county : FRaek M. LawReuoe, Judge.

*Affirmed.*

Action in ejectment. The pleadings raised the question of' whether the bed of the navigable water which bounded plaintiff’s land was that of a lake or that of a river. She claimed that it was the latter and that she had title thereto-, incidental, to her title to the bank, subject to ordinary public rights in' such waters, and so defendants, who adversely to her occupied a part of such bed on her side of the center line of the stream, were liable in the action. They claimed the *locus in quo*to-be bed of a lake and therefore that plaintiff’s riparian right, was not such as to enable her to maintain ejectment.

The evidence established, or tended to establish, this:: Plaintiff had sufficient title to enable her to maintain ejectment, if the *locus in quo*was river bed, otherwise not. Her-title was based on a chain of conveyances reaching back to a remote grantee, her western boundary being described as the-*15center line of tlie creek. That, in a state of nature and when the United States parted with title to the land, was a small, unmeandered, unnavigable rivulet, about three miles long, connecting Eox lake with Beaver Dam lake in Dodge county, — the latter lake being the lowest. The land in question was a short distance below the outlet from the Eox lake basin and on the left bank of the creek. Some fifty years ago a fourteen-foot dam was constructed across the creek, which created navigable water therefrom to the lake and raised the-lake level. The artificial navigable water retained much of the characteristics of a river. It was of varying width, from several hundred feet down to sixty or less. There was but a narrow navigable channel which was kept open largely by the-passing of small boats and launches. There was, at all times, a perceptible current, — more when the gates at the dam were opened than otherwise. The course from the outlet of the conceded lake to the dam was of winding character and more like that of a river than that of a lake. Plaintiff, for years, had claimed title as if the water was that of a navigable stream. There were many boat houses opposite her shore line,, the proprietors of which located them with her permission and' paid for the privilege of occupancy. The particular place was> taken possession of by defendants’ predecessor under contract, with the plaintiff.

Defendants’ counsel moved the court for a directed verdict.. The motion was denied. The cause was submitted to the jury under instructions which were not excepted to. Somé requests were made for instructions by defendants’ counsel, which were refused, and the rulings duly excepted to. The jury found for plaintiff and judgment was rendered accordingly.

Eor the appellants there was a brief by W. *G. North*and! *Bwhe & Laech,*and oral argument by *M. E. Bwrke.*

Eor the respondent there was a brief by *Kading é*Kading, and oral argument by *O. A. Kading.*

*16Maeshall, J.

Tbe court instructed tbe jury, in effect, that, if tbe artificial condition mentioned in tbe foregoing statement bad existed, before tbe commencement of tbe action, for tbe full period requisite to divest title to tbe real estate from one and vest it in another by tbe law of adverse possession, and tbe *locus in quo*was bed of a navigable labe rather than of a navigable river, tbe former private title bad become vested in tbe state tbe same as that of natural lakes, and if such *locus in quo*was bed of a navigable stream, tbe former private title bad become changed to tbe same character of qualified title as that of riparian proprietors to tbe beds of navigable rivers in general. That was good law as conceded by counsel on both sides. Tbe court gave it as settled by tbe decisions of this court, following tbe letter and logic, particularly, of *Smith v. Youmans,*96 Wis. 103, 70 N. W. 1115; *Pewaukee v. Savoy,*103 Wis. 271, 79 N. W. 436; *Diana S. Club v. Lamoreux,*114 Wis. 44, 89 N. W. 880; *Johnson v. Eimerman,*140 Wis. 327, 122 N. W. 775.

In tbe last case cited tbe court, speaking by Mr. Justice Bashes, said with reference to a long existing artificial condition, as in this case: “The artificial condition originally created by tbe dam became by lapse of time a natural condition.” In *Diana S. Club v. Lamoreux,*speaking, on tbe same subject, it was said: “By operation of tbe statute of limitations tbe artificial condition is thus stamped with tbe character of a. natural condition, and tbe title to tbe lands covered by tbe waters of tbe lake is deemed to have passed from private ownership to tbe same trust as that of lands covered by tbe waters of natural navigable lakes.”

Tbe law having been thus given to tbe jury with instructions, which are not complained of, as regards tbe distinction between a lake and a river, leaving to tbe jury merely tbe question of determining from tbe evidence the ultimate fact in controversy, counsel make no serious complaint, as we understand it, except in so far as tbe court failed to bold that there *17was no jury question in respect to tbe matter on tbe evidence. Tbe point was raised that there was no sucb question by motion to direct a verdict as well as by tbe several requests for instructions. No special attention need be paid to tbe requests as they involve tbe same subject as tbe motion.

Tbe statement of facts sufficiently meets tbe contention that there was no jury question as to whether tbe body of water was that of a lake. It is there said, in effect, — and we repeat it, — there was competent direct evidence and there were evi-dentiary circumstances tending to show that tbe disputed premises were in tbe waters of a navigable river. So long as there was evidence, circumstantial and direct, or either, tending to prove that sucb was tbe fact, tbe question was for jury solution as to whether it did so efficiently or not. Hence tbe result must be affirmed.

*By the Court.*— So ordered.

Tbe following opinion was filed March 16, 1912:

TiMUN, J.

I do not wish to be counted as assenting to tbe *dictum*hereinafter mentioned contained in tbe opinion in this case and some other cases.

I find nothing to criticise in tbe words “the artificial condition originally created by the dam became by lapse of *time*a natural condition.” These words are to my mind proper to describe a situation whereby riparian owners and others by long acquiescence and user became entitled to have tbe easement of overflow continued, their right to reach tbe water continued, and tbe water continued at its height and in tbe condition in which it was kept for more than twenty years as against any one who would, by draining the lake or pond or by other material interference, destroy the easement or render less available or valuable the riparian.rights. But I do not agree that the title to the lands covered by water raised by a dam in a river is deemed to have changed from private *18ownership to ownership by the state, even where that river is the outlet of a lake and. the raised water reaches back to the level of the waters of the lake. The person erecting and maintaining the dam acquires by condemnation or adverse-user an easement to overflow such lands. If by purchase or in consequence of a particular statute he should acquire title-for that purpose, he, and not the state, succeeds to the private ownership of the person whose title he has acquired. But where he acquires an easement the former proprietorship continues subject to the easement. Under the *dictum,*stated in this and the other cases referred to in the opinion, the owner of the land subject to the easement of flowage is to be cut off by a supposed adverse possession .which never existed. The state has in fact made no claim to the land. Neither has there been a day in which the owner of the submerged land could have brought an action against the state to assert his title, for the reason that the state was not in possession or making any claim, and for the further reason that the legislature has not authorized any such suit against the state. There is no statute giving the state title under such conditions, and if there were it would be unconstitutional. The-power to create limitations of this kind is legislative, not judicial. *Missouri v. Illinois,*200 U. S. 496, 520, 26 Sup. Ct. 268. Long before the XIYth amendment to the constitution of the United States was adopted forbidding any agency of the state, legislative or judicial, to deprive any person of his property without due process of law, it was decided by the supreme court of the United States in *Webster v.*Cooper, 14 How. 488, that a legislative act making the seisin of the occupant adverse as against one who had no legal right to bring, an action, was invalid as taking away the property of one man and vesting it in another. The *dictum*here criticised would take away the property of one man and vest it in the state. See, also, *Pratt v.*Churchill, 42 Me. 471; *Wass v. Bucknam,*38 Me. 356; *Adams v. Palmer,*51 Me. 480; *Forster v. Fors*
      *19
      *ter,*129 Mass. 559; *Christmas v. Russell,*5 Wall. 290, 300. There must be some time within which the landowner could' have brought an action and he must have neglected during that time to do so. To attempt to take his property arbitrarily and vest it in the state merely because some other person has been twenty years in uninterrupted enjoyment of an easement thereon, seems to me very obviously unsound and unconstitutional. *Terry v. Anderson,*95 U. S. 628; *McGahey v. Virginia,*135 U. S. 662, 705 *et seq.,*10 Sup. Ct. 972.

I am authorized to add that Mr. Justice Kerwin concurs in the foregoing.