Grant County herald. [volume] (Lancaster, Wis.) 1850-1968, 1912-02-07
STATE DOES NOT OWN
WATER POWER RIGHTS
Supreme Court Declares Law of
1911 Unconstitutional.
Riparian Rights of Owners of Land
Through Which Streams Pass Can
Not be Overridden.

Madison, Wis, Jan. 80. Declaring
that the effect of the enforcement Of
chapter 652 of the laws of 1911 1.-THE
water power law would be state
appropriation of property rights of
riparian proprietors Of the banks of
navigable rivers without due process
of law that a mere declaration of
state authority to regulate navigable
rivers in the interest of navigation-a
self evident facts unimportant and
contrary to fact If construed as an
assertion that the state owns the
natural power capacity Of such rivers
for public purpose or to lease Or grant
for private purpose, the supreme court
today declared the water powers
act, . as passed by the last Legislature,
unconstitutional and enjoins enforce
ment of any part of the law except as
to future non interference, without
state permission, of streams navigab
in fact but not meandered.
COURT UNANIMOUS IN OPINION
The opinion, written by Justice
Timlin, is by unanimous decision Of
the court participating, Justices
Kerwin and Barnes not sitting It
removes from the public mind great
uncertainty which the court holds
was a menace 10 the stability and
security Of existing private invest
ments and causing hesitation to the
detriment Of enterprise and to the
growth of the wealth of the state.
The court points out that the power
of the legislature to make laws is
limited by state and federal constitu
tions, and that when it keeps within
the limitation prescribed it is
supreme. But the power of the court
to determine when the Legislature has
exceeded such limitation is as supreme
as that of the Legislature within its
Legitimate field.
The court confesses, too, that such
Difference is dne from the judicial to
che legislative branch as Will preclude
condemnation of action by the latter
unless it is manifestly unconstitu-
tional.
LEGISLATIVE FIAT NOT OMNIPOTENT
Subject to this consideration, the
court, says Justice Timlin, must
firmly and emphaticalIy exercise its
authority. What is a public and
what a private purpose and what is
public and what is private property,
the court holds are judicial questions.
On6 cannot be made the other by
legislative declaration alone.
Upon the questions involved in the
case before it the court holds that the
water power energy Of the water of
navigable river is appurtenant to the
private ownership of its banks and
bed, wherever the government has
parted with title to the land; but
subject to the rights of navigation
and the incidents thereto. The power
incident Of water being private to the
appurtunant property it cannot be
appropriated by the state for either
public or private purposes except by
the power of eminent domain,
exercised by due power of law. The
opinion continues
PRIVATE OWNERSHIP RECOGNIZED
I'm the beginning the state adopted
as its policy recognition of owners Of
the banks of navigable streams to be
owners of the beds of such streams, so
far as consistent to the public rights
of navigation and the rights incident
+ thereto Such ownership of banks
and beds, from the first, has been
recognized as including as an
appurtenance ownership of the power
inherent in the natural fall of water,
with the rights. subject to legislative
permission, to obstruct the stream
therefore, to make the stream avail
able for use by artificial means.
"Such general policy as adhered to
has become a rule of property; the
endowment of it and reliance upon
continuance of it, and vast investments
have been made, largely adding to the
wealth of the state. promoting the
public welfare and making it the
great commonwealth which it is -
BIG PROPERTY RIGHTS INVOLVED
"The large property rights thus
created and the great development,
with the beneficial results suggested,
was accomplished by private enter
prise in reliance on the law Of the
land, particularly the constitutional
prohibition against taking private
property for public use without
rendering just compensation therefor
to the owner, and by necessary
inference prohibiting the taking of |
such property at all for private use
also the federal constitutional pro-