#### In re Rutland Drainage District: Bixby, Appellant, vs. Parish and others, Respondents.

*February 2*

February *20, 1912.*

*Lalces and ponds: Navigability: Legislative declaration: Question of fact.*

1. The power of the legislature to declare that nonmeandered labes are neither navigable nor public waters, is *doubted.*Assuming that it has such power, its intent to destroy the public character of labes navigable in fact must, to be effective, be expressed in plain and unambiguous language and not be left to doubtful inference.

2. Sec. 1607a, Stats. (1898), providing that labes which have been meandered and returned as navigable by the government surveyors, and also those which have been meandered and are nav- - igable in fact, are declared to be navigable and public waters, is not to be .construed as a declaration that nonmeandered labes are nonnavigable.

3. A nonmeandered labe or pond, if navigable in fact, is a navigable and public body of water.

4. The navigability of a nonmeandered labe is in every instance a question of fact to be determined from the evidence in each particular case.

Arrear from an order of the circuit court for Dane county: E. Ray SteveNS, Circuit Judge.

*Affirmed.*

This proceeding was brought under our drainage statutes, ch. 419, Laws of 1905, as amended by ch. 646, Laws of 1907. The scheme comprehended the draining of a body of water known as Island Lake in the town of Rutland in Dane county. Remonstrances against the proposed action were filed by the respondents, and the circuit court held that Island Lake was a navigable body of water and could not therefore be interfered with under the drainage laws. The petitioner appeals from the order of the circuit court. Briefly stated, the evidence tended to show that fifty-odd years ago Island Lake was a body of water about a mile long and three quarters of a mile wide and that its extreme depth was about twelve feet; that *422there were fisb in tbe lake at one time; that there were a number of small boats on the lake, used mostly for hunting purposes; and that the' lake had a well defined shore line. Through evaporation and other causes, the volume of water has greatly decreased, so that the open water area does not exceed thirty or thirty-five acres, and the- depth of the water at an ordinary stage does not exceed six and one-half feet. At high water the lake is still a mile long and three quarters -of a mile wide. Outside of the open water grass and weeds have grown up and there is some floating bog. Where the open water exists the bottom is sandy and gravelly. It is conceded that skiffs and rowboats can navigate this lake, but that the only purpose for which it is navigated at the present time is hunting. The ground is marshy between the hard land and the open water, and access to such water is difficult from most points around the lake. There is no public highway leading thereto, and the lake was neither meandered nor returned as being navigable in fact by the government surveyors, and has no inlet or outlet.

Eor the appellant there was a brief by *Gilbert, Jackson & Ela,,*and oral argument by *F. L. Gilbert*and *Emerson Ela.*

They cited and commented upon the following authorities: *Delaplaine v. 0. &, N. W. B. Co.*42 Wis. 214; *Boorman v. Sunnuchs,*42 Wis. 233; *Diedrich v. N. W. U. B. Go.*42 Wis. 248; *Mariner v. Schulte,*13 Wis. 692; *Smith v. Youmans,*96 Wis. 103, 70 N. W. 1115; *Ne-pee-nauk Glut v. Wilson,*96 Wis. 290, 71 N. W. 661; *Mendota Club v. Anderson,*101 Wis. 479, 78 N. W. 185; *Pewaukee v. Savoy,*103 Wis. 271, 79 N. W. 436; *Priewe v. Wis. S. L. <& I. Go.*103 Wis. 537, 79 N. W. 780; *McLennan v. Prentice,*85 Wis. 427, 442— 445, 55 N. W. 764; *Att’y Gen. ex rel. Askew v. Smith,*109 Wis. 532, 85 N. W. 512; *III. S. Go. v. Bilot,*109 Wis. 418, 84 N. W. 855, 85 N. W. 402; *Bossmiller v. State,*114 Wis. 169, 89 N. W. 839; *Diana S. Club v. Lamoreux,*114 Wis. 44, 54, 89 N. W. 880; *In re Dancy D. Dist.*129 Wis. 129, *423132, 108 N. W. 202; *In re Horicon D. Dist.*136 Wis. 227, 116 N. W. 12; *Johnson v. Dimerman,*140 Wis. 327, 122 N. W. 775; 1 Earnbam, Waters & Water Rights, pp. 100, 101, 165, 265, 269; 18 Am. & Eng. Ency. of Law (2d ed.) 132; *Hardin v. Jordan,*140 U. S. 371, 11 Sup. Ct. 808, 838; *Gouverneur v. Nat. Ice Go.*134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, and note; *Hardin v. Shedd,*177 Ill. 123, 52 N. E. 380; sec. 1597, Stats. (1898).

Eor the respondents there was a brief signed by *Glancey & Loverud, andbj Rufus B. Smith*for the respondent *Olamp Ga-voille,*and oral argument by *J. M. Glancey.*

They cited *Whisler v. Wilkinson,*22 Wis. 572; *Sellers v. Union L. Go.*39 Wis. 525; *A. G. Oonn Go. v. Little Suamico L. Mfg. Go.*74 Wis. 652, 665, 43 N. W. 367; *Olson v. Merrill,*42 Wis. 203; *Dalis Mfg. Go. v. Oconto Diver Imp. Go.*87 Wis. 134, 149, 58 N. W. 257; *Willow Diver Olub v. Wade,*100 Wis. 86, 76 N. W. 273; *In re Horicon D. Dist.*136 Wis. 227, 116 N. W. 12; *Johnson v. Dimerman,*140 Wis. 327, 122 N. W. '775 ; *Diedrich v. N. W. U. D. Go.*42 Wis. 248, 263; *Walker v. Board of Public Works,*16 Ohio, 540; 29 Oyc. 293; *Leihy v. Ashland L. Go.*49 Wis. 165, 5 N. W. 471; *III. S. Go. v. Bilot,*109 Wis. 418, 426, 84 N. W. 855, 85 N. W. 402; *Ne-pee-nauk Glub v. Wilson,*96 Wis. 290, 295, 71 N. W. 661.

Barnes, J.

Sec. 1607cs, Stats. (1898), provides that lakes which have been meandered and returned as navigable by the government surveyors, and also those which have been meandered and are navigable in fact, are declared to be navigable and- public waters. Appellant contends that the maxim *enumeratio unius est exclusio alterius*should apply to this •section, and that we have in effect a legislative declaration that monmeandered lakes are neither navigable nor public waters. The power of the legislature to make such a declaration is, to say the least, a matter of grave doubt. *Priewe v. Wis. S. L. & I. Co.*93 Wis. 534, 67 N. W. 918; *In re Horicon D. Dist.**424136 Wis. 227, 116 N. W. 12; *In re Dancy D. Dist.*129 Wis. 129, 108 N. W. 202. Tbis court has said that if the legislature bas power in any case to authorize commissioners in. drainage proceedings to appropriate or impair navigable' waters, “the authority must be conferred in the most plain and unambiguous terms.” *In re Horicon D. Dist.*136 Wis. 227, 234, 116 N. W. 12; *Winchell v.*Waukesha, 110 Wis. 101, 108, 85 N. W. 668. By analogy, it should be said that any intent on the part of the legislature to destroy the public character of lakes navigable in fact must be expressed in plain and unambiguous language and not be left to doubtful inference. It is altogether improbable that the legislature intended to-declare nonmeandered lakes nonnavigable. What is now sec. 1607a. was first enacted as ch. 328, Laws of 1895.

Sec. 1607, Stats. (1898), provides: “The following rivers,, having been heretofore so declared by acts of the legislature,, are hereby declared to be navigable to the extent thereof, stated respectively, as follows.” Then follows an enumeration of twenty-two streams, coupled with a description of the-portions of each declared navigable. It would not be claimed that the effect of this statute was to declare all streams not. therein named nonnavigable, and neither could it be successfully contended that the effect thereof was to determine that-all of the streams named in said section were nonnavigable except as to the portions declared to be navigable. This court has held in a long line of cases that any watercourse which is navigable in fact is a navigable stream, regardless of the fact that it is not meandered or declared to be navigable by legislative action. *Whisler v. Wilkinson,*22 Wis. 572; *Sellers v. Union L. Co.*39 Wis. 525; *A. C. Conn Co. v. Little Suamico L. Mfg. Co.*74 Wis. 652, 655, 43 N. W. 367; *Falls Mfg. Co., v. Oconto River Imp. Co.*87 Wis. 134, 149, 58 N. W. 257; *Willow River Club v. Wade,*100 Wis. 86, 76 N. W. 273; *Diedrich v. N. W. U. R. Co.*42 Wis. 248, 263; *In re Horicon**425*D. Dist.*136 Wis. 227, 116 N. W. 12; *Johnson v. Eimerman,*140 Wis. 327, 122 N. W. 775.

Sec. 1607 was incorporated in tbe Revision of 1878 and was a codification of a large number of independent statutes. We must presume tbat tbe legislature was advised of tbe decisions of tbis court defining wbat were navigable waters, after sec. 1607 was enacted, and tbat it did not anticipate tbat any construction would be placed on sec. 1607a different from tbat wbicb bad in effect been placed on sec. 1607. These statutes would seem to be *in pari materia,*and if sec. 1607 is construed as not excluding everything tbat is not. included, sec. 1607a should be construed likewise. We have bad a number of decisions dealing with tbe navigability of inland lakes, and tbe same test has been applied as in tbe case of streams — tbat of navigability in fact. *Priewe v. Wis. S. L. & I. Co.*93 Wis. 534, 67 N. W. 918; *S. C.*103 Wis. 537, 79 N. W. 780; *Ill. S. Co. v. Bilot,*109 Wis. 418, 426, 84 N. W. 855, 85 N. W. 402.

■ It is true tbat in these cases tbe lakes involved were meandered, but no great significance was attached to tbis fact, and it is difficult to see wherein it was of much significance, at least before tbe passage of sec. 1607a- In *Johnson v. Eimerman, supra,*tbe pond over wbicb tbe controversy arose was created by damming a nonnavigable and nomneandered creek, and it was held tbat tbe pond so created was a navigable body of water. So, too, a pond created by a dam placed in tbe Rock river was held navigable though not, meandered. *In re Horicon D. Dist., supra.*In each of these cases it was said tbat tbe artificial condition existed for such a length of time that in a legal sense it became a natural condition. So, in these two cases decided since tbe enactment of sec. 1607a., tbe court has held tbat a nonmeandered lake or pond, if navigable in fact, is a navigable and public body of water. Whether a law is wise or unwise does not concern tbis court *426any more tban it does a private individual, so long as it is constitutional. Put the legislature has made no affirmative declaration in sec. 1607a: that all nonmeandered lakes are nonnavigable, and in determining whether or not the legislature intended that the act should be so construed we may consider the consequences which would flow from the construction adopted. In a case of doubt or ambiguity we should be slow to adopt a construction whereby we found that the legislature intended to surrender valuable public rights, assuming that it had power to do so. It may be said to be a matter of common knowledge that many insignificant bodies of water have been meandered, while other much larger and more important ones have not been. In a timbered country a lake of considerable size that did not come reasonably near to the exterior boundary lines of a section might entirely escape the observation of a government surveyor, and it is not probable that the legislature intended to place such implicit reliance on the judgment, whim, or caprice of such an employee as to make it the basis of depriving the public of the benefit of lakes navigable in fact, if the surveyor for any reason concluded that they should not be meandered. For the reasons stated we conclude that the fact that a lake is not meandered does not render it *ipso facto*nonnavigable. Its navigability in every instance is.a question of fact to be determined from the evidence in each particular case. The evidence in this case is sufficient to sustain the finding of the circuit judge. Counsel for appellant practically concede this to be true if their construction of sec. 1607a is rejected.

*By the Court.*— Order affirmed.