#### McDonald, Respondent, vs. Apple River Power Company, Appellant.

*November 17*

December *5, 1916.*

*Navigable rivers: What are: Mills and. milldams: Statute construed. Hydroelectric plant is “water mill:'’ Flooding of lands: Talcing for public use: Remedy of landowners.*

1. A river which has never been meandered or declared by the legislature to be a navigable river is not shown to be “navigable” within the meaning of sec. 3374, Stats., 1898, by the mere fact that it is so far capable of floating logs as to entitle the public to a right of way therein for that' purpose.

2. A hydroelectric plant used to generate electricity for lighting and power purposes, etc., is a “water mill” within the meaning of sec. 3374, Stats.

3. The flooding of lands by the erection and maintenance of a dam to furnish power for such a plant is a taking of the lands for a public use, authorized by the milldam law (secs. 3374-3402, Stats.); and the only remedy of the landowners is that provided by said law.

4. An action by owners of lands so flooded to abate the dam and recover damages for the flowage need not be dismissed, but, under sec. 28366, Stats. 1915, may be treated as an action to obtain compensation and other appropriate relief under the milldam law.

Appeal from a judgment of tbe circuit court for St. Croix county: G-eoeg-e ThompsoN, Circuit Judge.

*Reversed.*

Tbis is an action for tbe abatement of a dam owned and operated by tbe defendant company and to recover tbe damages to plaintiff’s premises and to bis crops tbereon caused by tbe overflow from sucb dam.

Tbe defendant has been and now is a corporation existing under tbe laws of the state of Wisconsin. Before tbe incorporation of tbe defendant, F. W. Epley, one of tbe incor-porators, obtained authority from tbe state of Wisconsin for himself^ bis successors and assigns to build and maintain a dam across Apple river upon lands be owned which are described in tbe complaint. Tbe dam was authorized to be *451constructed for tbe purpose of improving Apple river and for tbe manufacture of flour, feed, and other milling products, and tbe transmission of electric power, tbe dam not to raise tbe water to exceed twenty feet. Tbe dam was constructed in 1903 and in tbe same year a hydroelectric plant was built at tbe dam. It is known as “River Dale Dam.” The defendant owns another dam, “Somerset Dam,” about two and* one-balf miles from tbe “River Dale Dam.” Both of these dams are used exclusively for tbe manufacture of electricity. Tbe electric current so manufactured at these two plants is sold to tbe Consumers Power Company, a foreign corporation, with the exception of a small percentage of such current which is sold to tbe village of Somerset and tbe residents thereof for lighting purposes and to tbe village of Holton. The population of these two villages is less than 1,000 people. Tbe balance of the entire output is sold to tbe Consumers Power Company, which transmits it by electric line across tbe state border and sells it in tbe state of Minnesota for tbe purpose of supplying light and power to tbe city of Stillwater and tbe residents thereof. Tbe city of Still-water in tbe state of Minnesota has a population of about 10,000 people. A portion of tbe electric current is sold by tbe Consumers Power Company to furnish lights for tbe Minnesota state penitentiary.

Apple river is located wholly within tbe state of Wisconsin and is a nonnavigable stream.

Tbe plaintiff is tbe owner of two tracts of land about two miles up tbe river from tbe “River Dale Dam.” Plaintiff has been tbe owner of one of these tracts for more than 'ten years. Immediately before the- commencement of this action be purchased tbe other tract from William McDonald, who assigned all causes of action then existing in bis favor to tbe plaintiff. Tbe tracts of land are located at an elevation only slightly higher than tbe surface of tbe water in tbe river before the dam was built, and under ordinary conditions this land produces crops of marketable hay.

*452Before tbe year 1901 no part of plaintiff’s land was flooded or damaged by tbe defendant’s dam, but in 1901 tbe defendant began tbe practice of using flasb-boards to raise tbe water in tbe river over and above tbe original twenty feet authorized by tbe act of tbe legislature. Two feet of flasb-boards, it is found, do not affect plaintiff’s land, but tbe defendant bas been using more tban two feet of flasb-boards, and as a result tbe plaintiff’s land is constantly being flooded and tbo crops being damaged. Tbis bas occurred annually since 1907, and neither tbe plaintiff nor his grantor, William McDonald, bas in any manner consented to tbe raising of tbe dam by means of flasb-boards or in any other manner. Plaintiff alleges that tbe damages to tbe crops year after year since 1907 amount to $2,275. Tbe defendant threatens to continue tbe use of tbe full three feet of flasb-boards. Tbe trial court found that tbe use of these flasb-boards is wholly unnecessary to supply any public use that defendant may reasonably be called upon to supply in tbe state of Wisconsin.

Tbe circuit court entered judgment in favor of tbe plaintiff awarding him damages in'tbe sum of $2,275, together with bis costs and disbursements of tbis action, and further ordered, adjudged, and decreed that all flash-boards in excess of two feet over and above tbe original height of tbe dam be removed therefrom. From such judgment tbis appeal is taken.

For tbe appellant there was a brief by *Brown & Guesmer*and *McNally &*Boar, and oral argument by *Borne G. Brown*and *W. F. McNally.*

For tbe respondent there was a brief by *Booth & McDonald*and *N. 0. Vamum,*and oral argument by *Mr. Franh W. Booth*and *Mr. Vamum.*

SiebecKee, J.

Tbe court found that tbe defendant is a Wisconsin corporation and that its articles of-incorporation *453provide “that the business and purposes of said corporation ‘shall be improvement of Apple river, development of power thereon, and transmission of same.by means of electricity to New Eichmond and other points, and the running and operation of a manufacturing plant or plants, which said business is to be carried on within the state of Wisconsin and especially within the county of St. Croix in said state.’ ” It appears, as found by the court, that Epley, one of the incorporators, had been granted authority by the state of Wisconsin “to construct, reconstruct, and maintain a dam across Apple river upon lands owned hy himself” in St. Croix county, such grant providing: “said dam to be constructed for the purpose of improving Apple river and for the manufacture of flour, feed and other milling products and the transmission of electric power; provided that the said dam shall not raise the water to exceed twenty feet.” Ch. 185, Laws 1901; ch. 220, Laws 1903. This defendant became vested with the riparian rights appurtenant to the lands where the dam is located and constructed the dam in 1903 at the height authorized. It also appears that the defendant after 1907 has operated the dam with three feet of flash-boards above the authorized height of the dam. The court found as a fact that Apple river is wholly located within the state of Wisconsin, and that it is a nonnavigable river within the meaning of the Wisconsin mill-dam act (ch. 146, Stats.). These facts are practically free from controversy. The parties radically conflict in their claims as to the rights of defendant in operating this dam and as to its authority to raise the water in excess of the twenty feet authorized by the grant to Epley, if such excess causes flooding of lands not affected by the twenty-foot dam.

The milldam act prior to 1911 (sec. .3374, Stats. 1898) provided: “Any person may erect and maintain a water mill and a dam to raise water for working it upon and across any stream that is not navigable upon the terms and conditions and subject to the regulations hereinafter expressed.” *454Since the dam in question was constructed in 1903, the rights of the parties became fixed before the 1911 amendment. *Water Power*Cases, 148 Wis. 124, 134 N. W. 330. As above indicated, the trial court found that tbis dam was erected in a honnavigable stream witbin tbis state. Tbis conclusion is well established by the facts of the case. The question of the test of navigability of streams witbin the milldam act was fully considered and elaborated in the case of *Allaby v. Mauston E. S. Co.*135 Wis. 345, 116 N. W. 4. It is there declared that, “In view of the extent to which tbis court has gone in declaring streams navigable in the sense that they are *public highways,*it is obvious that the word was used in tbis statute [milldam act] in a very different signification. Its object was to enable the utilization of water power upon many of the important streams of the state.” It was there held that the fact that a stream was capable of floating logs, thus entitling the public to a *right of way*therein for such a purpose, did not suffice to show its navigability in the sense of sec. 3374, Stats. Apple river has not been meandered nor declared to be a navigable river by the legislature of the state.

Tbe defendant maintains and operates a hydroelectric plant. Tbe trial court determined that defendant’s plant constituted a “water mill and dam” witbin tbe sense these terms are used in tbe milldam law. The word “mill” as defined in the case of *Home Mut. Ins. Co. v.*Roe, *71*Wis. 33, 36 N. W. 594, was considered applicable to its use in tbis law. It is there said:

> “A ‘mill’ is defined to be '(1) An engine or machine for grinding or comminuting any substance; . . . usually having a word prefixed, denoting tbe particular object to which it is applied. ... (2) Tbe building, with its machinery, where grinding or *some process of manufacturing is carried*on/ Webster. ‘The original purpose of mills was to com-minute grain for food, but tbe word “mill” is extended to engines or machines moved by water, wind, or steam, for carrying on many other operations.’ Imperial.”

*455In *McMillan v.*Noyes, 15 N. H. 258, 72 Atl. 759, the question arose whether a hydroelectric plant was a water mill within the meaning of the milldam act of that state, which had in its provisions the features that are in the act of this state. The court there declared:

> “But it is said that the power company does not bring itself within the terms of the statute because it is not maintaining *‘a,*water mill’ in connection with its dam. That it has erected a building and installed the necessary machinery for the conversion of the water power secured by its dam into electric power is conceded. The machinery is run by water power, and in the ordinary use of language the establishment might be termed a water mill; that is, a mill operated by water power. That the mill in question falls within the literal meaning of the statute is evident.”

The decisions in this court, so far as this question has been considered, are in harmony with the meaning the New Hampshire court gave to the words “water mill” as used in the statutes on the subject. In the *Allaby Case [Allaby v. Mauston E. S. Co.*135 Wis. 345, 116 N. W. 4] it appeared that the power from the dam there in litigation was used to manufacture electricity which was sold to operate a street railway system and to operate a grist mill. It was there determined that the dam was one within the milldam law. We are persuaded that the term “water mill” as used in sec. 3374, Stats., properly includes various kinds of mills operated by water power, and that a hydroelectric plant generating electricity for the manifold uses to which it is applied in modern mechanical, industrial, commercial, and scientific enterprises is a water mill within the meaning of the milldam act. The operation of this dam and the electric plant connected therewith for generating electric energy and distributing it for light, heat, and power purposes has grown to be as much of a necessity to meet the varying demands of the people as the furnishing of hydraulic power in former times for operating grist and other kinds of mills. The erection and maintenance of dams to furnish power for such electri*456cal purposes and tbe consequent flooding of land by setting back and storing tbe water of streams is a devotion of sucb lands to a purpose as public in its nature and character as tbe use of land in tbe past for storing water to operate tbe kind of mills wbicb bave been approved as being within the contemplation of tbe milldam act. The defendant is authorized, as successor to Epley, to construct and maintain this dam “for the purpose of improving Apple river and for tbe manufacture of flour, feed and other milling products and tbe transmission of electric power.” Tbe actual operation of this dam is in accord with this grant, wbicb in legislative contemplation was evidently deemed to be within tbe provisions of the milldam act. It follows that defendant has the *right to*acquire tbe flowage rights conferred by tbe provisions of secs. 3374 to 3402.

> “These statutes are grounded in the theory, confirmed by the courts, that there is a public interest in the utilization of the water powers of the state to run mills sufficient to justify the exercise of the power of eminent domain in the flooding and consequent taking of lands of individuals. (Citing Wisconsin cases.) Hence that the statute is effective to render lawful the building, the maintenance, and the raising of a milldam as against the individual who suffers merely a flooding and taking of bis land. A dam so authorized wbicb does no other damage is therefore not *per se*a nuisance, either private or public. (Citing.) The statute provides a remedy for all sucb damage, wbicb, by most unambiguous language, it makes exclusive of all others, and to it the courts bave therefore uniformly accorded that effect. . . . The utmost right of the individual whose land is flooded or damaged is to seek compensation upon the theory of the continuance of the dam. (Citing.)” *Allaby v. Mauston E. S. Co.*135 Wis. 345, 351, 352, 116 N. W. 4.

It necessarily follows that tbe plaintiff must seek bis remedy pursuant to the provisions of tbe statutes embodied in cb. 146, Stats., pertaining to mills and milldams. It was error to entertain tbe action as one in equity to abate a part *457of tbe flasb-boards used as a part of tbe dam, and bence tbe judgment must be reversed. Tbe action, however, need not necessarily be dismissed. Ob. 219, Laws 1915 (sec. 28366, Stats. 1915). Tbe action may be treated as a civil action under tbe statutes, secs. 3374-3402, Stats., for trial before a jury to ascertain tbe defendant’s liability, if any, to plaintiff for tbe alleged flooding of plaintiff’s lands and to try any other appropriate issue as provided in these statutes. *Allaby v. Mauston E. S.*Co., *supra.*

*By ihe Court.*— Tbe judgment appealed from is reversed, and tbe cause remanded to tbe circuit court for further proceedings according to law.