seeks to create, is a private one and so conceded to be by its friends. To this class of corporations the right of "eminent domain" does not inhere. The power asked for by section 18 of the bill can only be exercised by the State itself, and for the public use only,—justified in that case, alone, upon the ground that the public use is paramount to private interest, compelling compensation wherever private property is so taken or appropriated by a well guarded provision of the constitution itself, to the effect that "the property of no person shall be taken for public use without just compensation therefor."

Your committee are therefore of the opinion that the second interrogatory involving this question of law, should be answered in the negative; and feel that they are fully sustained upon this point by the opinion of Chief Justice Dixon, in the late case of Whiton vs the Sheboygan and Fond du Lac Railroad Company, which is a clear exposition of the adjudicated law upon this subject.

of

Second. The first proposition submitted to your committee for their consideration and opinion, naturally involved a review of the general principles of law upon this subject, and an application the same to the provisions of this bill. The dedication to the public use for highways of all waters naturally navigable, has obtained by the common consent of mankind. The demands and benefits of commerce and trade among nations, states and individuals, has created a rule of law vesting the title of navigable channels and waters in the public as firmly as any right given by the natural law to the individual. Long before this principle had found expression in any written ordinance or constitution, it had been recognized and clearly defined by common law writers. Chancellor Kent, one of the most reliable authors in England or America, declares in vol 3, page 561, of his commentaries, that "the public have at common law a right to navigate over every part of a common, navigable river, and on the large lakes. And in England, even, the Crown has no right to interfere with the channels of public, navigable rivers. They are public highways at cormon law. The sovereign is trustee for the public, and the use of navigable waters is inalienable." The court of last resort in the state of New York, has defined this right in the following language: "The true rule is that the public have a right of way in every stream which is capable, in its natural state, and its ordinary volume of water of transporting, in a condition fit for market, the products of the forest, or mines, or of the tillage of the soil upon its banks. If its navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement." (35 N. Y., p. 459; also 31 Maine, p. 9.) It was upon this principle embraced in the law of nature and nations, that congress, under the confederation, and later, under the established government of the United States, asserted the right of the people to the free navigation of the Mississippi river through

Spanish territory to the sea. They who celed the territory northwest of the Ohio to the general government, ordained as a fundamental provision to remain forever unalterable, that the navigable waters leading into the Mississippi and St. Lawrence rivers, and the carrying places between the same, should be common highways and forever free.

The general government accepted this territory upon this fundamental condition. Wisconsin, carved out from that same territory, and becoming a State, adopted substantially this provision as a part of her organic law. (Art. 9, sec. 2, R. S.) The Chippewa river, then, leading into the Mississippi river, and conceded to be navigable from Chippewa Falls to the mouth, by the friends of this bill, SO far as its natural navigable waters as a highway are concerned, has become vested in the public the whole people of the United States by the operation and force of the common law, the ordinance of 1787, and the constitution of the State of Wisconsin. Within the scope and

meaning of all these, it is as much a navigable stream as the Mississippi, into which it empties. Like that declared by the National Congress to be a highway free to all the citizens of the United States, and like that subject to the law and regulations of Congress relative to steamboat navigation. Every steamboat that pl es its waters, moves under the regulations of national law, and the pilot and the engineer guiding and directing the same, obtain their license therefor from the same general source. How far, then, can the State, through its Legislature, deal with this interest thus vested in all the people of the United States; and upon what principle can its legislative power over the same, if it has any, be exercised? It is conceded that the Legislature has the constitutional power to au thorize the construction of bridges over the navigable rivers wholly within this State; but this power is subject to the paramount rights of free navigation, and must be so exercised as not to interfere with, or obstruct the navigation of the river. In all cases this power is exercised upon the ground of public convenience and necessity, and not for private interest or personal speculation. In a few instances, State legislatures have assumed and exercised the right to authorize the construction of dams across navigable rivers. The legislature of Ohio passed an act of this kind in 1812, authorizing a dam to be built across the Muskingham river. Afterwards, a case came up under this act, and was carried to the supreme court of that State, and is reported in the 5th Ohio Reports, page 410, and was cited to your committee by the counsel for the friends of this bill as an adjudication in its favor.

It must be considered that as a matter of fact, the Muskingham river at the point of the location of the dam was not navigable for steamboats. It must be considered also, that the power was exer cised by the legislature upon the sole ground that it would improve the navigation of the river by what is called "slack-water navigation." The court, in the reported case says, "that had it been

supposed that the navigation would have been in the least obstruct ed, it is not probable that any legislative action would have taken. place. Throughout the whole act, the legislature seemed to have been particularly cautious to secure the free navigation of the river." And further on, they declare that the legislature of Ohio cannot by any law they may pass, impede or obstruct the navigation of the river. Not only 18 this declared to be the law of the case, but the fact was also established that the dam in question was an infringement upon the rights of navigation, and the prosecutor obtained judgment at the hands of the court against the corporation for the sum of $2,136.77, the value of the boat and loading lost by him, and the same evidence adduced in a proper suit, brought for that purpose, would have warranted the court in abating the dam as a nuisance at common law.

The Legislature of this State also passed an act, in the spring of 1866, entitled "an act to aid in the development of the manufacturing interests of this State," and popularly known as the "Kilbourn City dam bill." It assumed to authorize the creation of a water-power at Kilbourn City, "by raising the dam a sufficient height for that purpose, not exceeding three feet above the usual low water in the Wisconsin river, and so forming the same that rafts of lumber can pass safely and conveniently, without hinderance or delay." At this time steamboats were not navigating the Wisconsin river as high up as Kilbourn City, and the river was used for the purpose of transporting "rafts of lumber' to market. It was clearly the intention of this act that the top of this dam should be so far under water as to allow the passage of lumber r fts without co.ning in contact with the dam; but the fact is notorious that the passage of the same is attended with great hindrance and delay, and with great danger, oftentimes to life and property, and at low stages of water cannot be passed at all. The courts bave not yet passed upon the constitutionality of the act under which this dam was constructed. In the action brought by Cyrus Woodman against the Kilbourn Manufacturing Company, in the United States circuit court for the district of Wisconsin, the case was disposed of on different grounds. Judge Davis, in his opinion, says: "But in the view we take of this controversy, it is unnecessary to discuss the question of the power of the Wisconsin Legislature to authorize the building of this dam, or any other constitutional question involved in this case; or whether the dam as constructed is a nuisance which should be abated because the complainant is not in a position to contest the right of the defendant to build the dam. We are left, then, to Our own opinion as to the constitutionality of this law. But suppose that Congress shall undertake to carry out the great work of improving the channel of the Wisconsin river for steamboat navigation between the Mississippi and the lakes, which it has declared to be a national work, evidently the Kilbourn City dam would obstruct and perhaps

totally prevent the passage of steamboats up and down the river at that point. Does any one doubt that the general government would have the power to cause this obstruction to be removed? And if so, upon what other ground than the paramount rights of navigation over any private interest; and that a navigable river vested in the public as a highway cannot be subverted by state legislation.

Even now, Congress asserts this right over the navigable highways of the nation, and while this bill is pending in the legislature of this state and its power invoked to authorize a private corporation to build dam across one of these highways, the National Congress in the popular branch thereof, has passed the "River and Harbor " appropriation bill containing a provision which authorizes and requires the Secretary of War to remove all bstructions and encroachments upon the navigable waters of the United States, and all such structures upon the same as the government engineers may condemn as obstructions to free navigation; and upon this point your committee respectfully insist that this would be the assumption and exercise of a most abitrary and unwarrantable power on the part of the general government, if the legislature of this State had the constitutional authority to empower the construction of the Kilbourn City dam, which is to say the least, a total obstruction to steamboat navigation at that point on the Wisconsin river.

And now let us apply these legal principles to the bill under consideration. Unquestionably it must be construed as a private and not as a public act. The legislature has no right to assume or expect that a private corporation is to expend its capital and means to any great extent for the public benefit alone, they rarely exercise their generosity in this way, and whatever pretense may be made as to the benefits accruing to navigation by the passage of this bill and the completion of the contemplated works, no fair construction of its provisions upon their face can warrant the conclusion that the improvement of navigation in the Chippewa river is its object. Construed as a private act must be, we are bound to say, that it is for the private benefit of its incorporators, and is not asked for in the public interest. In the opinion of your committee, by fair construction, its real purpose is the incorporation of a booming company with sufficient facilities of boomage to store and control the logs belonging to themselves, and also command the storage, assorting and delivery, year after year, of a vast amount of logs belonging to other persons, which shall afford to this company a revenue of fifty cents per thousand feet for so doing. And to accomplish this purpose it is proposed by the bill to erect a dam sixteen feet high across the entire river bed; appropriate not less than two miles of the whole river from bank to bank; close up the same to navigation and convert it into a vast boom or reservoir for holding logs, thereby absolutely taking away that distance of a public navigable highway from its proper owners-the citizens of the United States a highway, safe and reliable, and over which yearly passes

a commerce of not less than one million of dollars in value, and surrendering the same into the hands of a private corporation for private purposes, upon its promise to provide in lieu thereof a naviga. tion full of dangerous contingencies at least, and involving endless litigation and expense by a cut-off dam, chute and lock, and to provide a standing fund of not less than twenty thousand dollars with which to pay off the infringments of navigable rights which the bill itse f anticipates.

The undersigned, a majority of your committee are of the opinion that the first interogatory herein before set forth, should be also answered in the negative.

They are of the opinion that the public use as a highway of the Chippewa river is vested in the whole people of the United; that the legislature of this State has no power to authorize the subversion of that public use to private purposes, or to impair or obstruct the same; that the legislature cannot authorize experiments of the kind contemplated in this bill upon a ravigable highway; that if a private corporation "of the kind contemplated in this bill," cannot, under the law and the constitution of this State, exercise the right of eminent domain by taking private property for public use, neither can it appropriate to itself the public domain of a navigable river for private uses.

They are of the opinion that if Congress can empower a single government engineer to determine whether the proposed dam, when built as claimed in this bill shall or shall, not be an obstruction or encroachment upon navigation, and compel its removal, if such, then this Legislature cannot authorize its construction.

All of which is respectfully submitted.

GEO. C. HAZELTON,
ANGUS CAMERON,
MYRON REED,

Committee.

The committee on Engrossed Bills have examined and report the following correctly engrossed:

No. 193, S.,

A bill to appropriate money to pay witnesses for the State in a certain case.

No. 163, S.,

A bill to authorize the town of Port Washington, in the county of Ozaukee, to vote a tax for the purpose of assisting in building the harbor at the village of Port Washington.

No. 31, S.,

A bill to amend section 49, chapter 13, revised statutes, entitled "of counties and county officers,'

No. 194, S.,

A bill to amend section 31, chapter 130 general laws of 1868, entitled an act to provide for the assessment of property for taxation, and the levy of taxes there on.