#### Shepard Drainage District: Johnson and others, Commissioners, Appellants, vs. Eimerman, Respondent.

*September 18*

October *5,*1909.

*Navigable waters: Rights of the public: Artificial conditions when become natural: Destruction in drainage proceedings.*

1. Evidence, stated in the opinion, *held*sufficient to sustain the finding of the trial court that a pond, created in a nonnavigable creek hy the flowage from a dam across such creek, is in fact navigable.

*3282. The rights of the public in a small body of water, navigable in fact and constituting a public highway, are as much entitled to protection as they would be in a more pretentious watercourse.

3. An artificial condition of navigability of a pond originally created by a dam, becomes, by continuance for twenty years, a natural condition.

4. Sec. 1379 — 28, Stats. (Laws of 1907, ch. 646), authorizing drainage commissioners to condemn “riparian rights, rights of flow-age and water power,” does not authorize the destruction of bodies of water navigable in fact.

Appeal from an order of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.

*Affirmed.*

The appeal is from an order refusing to confirm the preliminary report of certain drainage commissioners theretofore appointed. The commissioners reported in favor of the creation of a drainage district in the towns of York and Medina in Dane county, Wisconsin. The drainage system recommended by the commissioners contemplated the removal of a dam known as Marshall dam and the destruction of a pond created thereby known as Marshall pond. The circuit court held that the pond created by the flowage of the dam constituted navigable waters of the state and that such waters ctfuld not be destroyed under the drainage acts. The commissioners appeal from such order:

For the appellants there was a brief by *Tenney, Sail & Tenney,*attorneys, and a supplemental brief by *Whitehead & Malheson*and *Kearney, Thompson & Myers,*of counsel, and oral argument by *F. W. Hall*and *T. M. Kearney.*

*Elmore T. Elver,*for the respondent.

BaRNes, J.

The trial court held that Waterloo creek is not in fact navigable, but that the pond therein created by the flowage from the dam sought to be condemned is navigable, and that its navigability could not be destroyed under the powers granted or rights conferred by ch. 419,. Laws of 1905, as amended by ch. 646, Laws of 1907. The evidence tended *329to show that the milldam in question was bnilt nearly sixty years ago and has been maintained ever since; that the pond was about a mile and a half long, and -varied in width from a few feet at the upper end to 200 or 300 feet at the lower end, and had a depth of eight feet at the dam, which gradually lessened until it did not exceed two or three feet at its upper end; that such pond covered about 150 acres; that it was navigated by rowboats; that it was used as a reserve for fire protection for the village of Marshall; that it furnished the source of supply of ice for said village and the neighborhood adjacent thereto; that it was resorted to'for fishing, and that farmers in its immediate vicinity might transport their grists to the grist mill over the same if they saw fit (although no evidence was offered to show that they had done so or were ever likely to do so) ; and that it was used by the public for the purposes enumerated.

Slight as is the showing of navigability in this case, still we think it is sufficient to sustain the finding of the trial court that this pond is in fact navigable and is water in which the public has acquired rights, under the repeated decisions of this court. Indeed, counsel for the appellant did not assert otherwise on the oral argument. The following cases, among others which might be cited, define what constitutes the test of navigability in a stream or body of inland waters: *Whisler v. Wilkinson,*22 Wis. 572; *Sellers v. Union L. Co.*39 Wis. 525; *Olson v. Merrill,*42 Wis. 203; *A. C. Conn Co. v. Little Suamico L. Mfg. Co.*74 Wis. 652, 43 N. W. 660; *Falls Mfg. Co. v. Oconto River Imp. Co.*87 Wis. 134, 58 N. W. 257; *Willow River Club v. Wade,*100 Wis. 86, 76 N. W. 273; *In re Horicon D. Dist.*136 Wis. 227, 116 N. W. 12. It is true that the body of water found to be navigable in this case is small, but if it is navigable in fact' and constitutes a public highway the rights of the public therein are as sacred and as much entitled to protection as they would be in the case of a more pretentious watercourse.

*330Tbe decision of the circuit court bolding that tbe millpond in question is navigable being warranted by tbe facts shown in evidence, it seems to us tbat every claim and every contention made by appellants is settled adversely to them by tbe decision of this court in *In re Horicon D. Dist., supra.*Tbe artificial condition originally created by tbe dam became by lapse of time a natural condition. *In re Horicon D. Dist., supra; Diana Shooting Club v. Lamoreux,*114 Wis. 44, 89 N. W. 880; *Pewaukee v. Savoy,*103 Wis. 271, 79 N. W. 436; *In re Dancy D. Dist.*129 Wis. 129, 108 N. W. 202; *Smith v. Youmans,*96 Wis. 103, 70 N. W. 1115; *Mendota Club v. Anderson,*101 Wis. 479, 78 N. W. 185. In tbe *Hori-con Drainage Case*tbe court does not decide tbat the legislature may not authorize the destruction of bodies of water' navigable in fact, but it does decide that the act we are considering did not authorize any such destruction, and it is at least strongly intimated in some of tbe decided cases tbat such an act could not be upheld. *In re Dancy D. Dist., supra; Priewe v. Wis. S. L. & I. Co.*93 Wis. 534, 67 N. W. 918. It follows tbat the order of tbe circuit court was correct.

*By the Court.*— Order affirmed.