#### Patten Paper Company (Limited) and others, Respondents, vs. Green Bay & Mississippi Canal Company, imp., Appellant.

*June 9*

September *26, 1899.*

Appeal from a judgment of the superior court of Milwaukee county: R. N. Austin, Judge. Motion for judgment on the mandate of the supreme court of the United States.

*Motion granted.*

*25The original judgment in this action was reversed on appeal,, and the cause remanded.-to the-superior court with directions to enter judgment in accordance with the opinion'. 90 Wis. 370. Upon the return of the record to the trial court a judgment was entered from which a second appeal was taken, which appeal was dismissed on the ground that the judgment sought to be reviewed was a substantial compliance with the mandate on the former appeal. 93 Wis. 283. The cause was thereupon removed -to the supreme court of the United States on writ of error, the judgment of the superior court being treated as in effect the judgment of this, court. The judgment was reversed in that court, and the cause remanded to this court for further proceedings not inconsistent with the opinion. 172 U. S. 58. Upon the return of the cause to this court the appellant moved for judgment on the mandate of the federal court.

For the motion there were briefs by *B. J. Stevens*and *E.*Mariner, attorneys *(TV. F.*Vilas, of counsel), and oral argument by *Mr. Stevens*and *Mr. Vilas.*

In opposition there was a brief by *Geo. G.*Greene, counsel for the *Patten Pajper Oompcmy,*and a separate brief by *Fish, Gary, Upham db Blade,*attorneys, and *John T. Fish,*of counsel, for the *Eaukcmna Water Power Gompcmy,*and oral argument by *Mr. John T. Fish, Mr. Greene, Mr. P. S. Ordway,*and *Mr. Moses Hooper.*

The following judgment was filed June 22, 1899:

*By the Ooxcrt.*

-After hearing counsel for the respective parties, and in obedience to the mandate of the supreme court of the United States, in the above entitled action, it is determined and adjudged that the judgments heretofore entered in this court, and the judgment heretofore directed by this court to be entered by the superior court of Milwaukee county in this action, be arid the same are hereby reversed and set aside, with costs to be taxed in favor of *The Green**26*Bay & Mississippi Canal Company*in this and the trial court; and it is further adjudged that those portions of the judgment first entered in this action and brought to this court on the appeals be and the same are hereby modified so as to read as follows:

First. It is hereby considered and adjudged that the defendant *The Green Bay & Mississippi Canal Company*is the owner of, and entitled, as against all the parties to this action and their successors, heirs, and assigns, to, the water power incidentally created by said upper or government dam across the Fox river at ICaukauna, and is not obliged to permit any of the water of the river or pond to flow over the dam, but is entitled to withdraw from the pond made by said dam all of the surplus water not necessary for navigation, either through the canal or directly from the pond, and is not obliged to permit any of the water from the river or pond to flow over said dam, subject to any and all rights of the United States with reference thereto.

Second. It is further considered and adjudged that all and singular the parties to this action' are hereby forever enjoined from interfering with said rights of the said *Green Bay & Mississippi Canal Company*hereby adjudged.

And as herein modified said judgment is affirmed. All costs heretofore taxed against and paid by said *Green Bay & Mississippi Canal Company*upon the judgments rendered in this court or in said superior court may be taxed as disbursements by the clerk of this court against the parties to this action to whom the same were paid. Let the record be remitted and judgment be entered by the superior, court in accordance with the direction of this court.

The *Kanhauna Water Power Company*and others moved' for a rehearing; and in support of the motion there was a brief by Fish, *Cary, Uphan & Black.*

The motion was denied September 26, 1899.