supposed that the navigation would have been in the least obstructed, 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 is 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 load. ing 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 usua! low water in the Wisconsin river, and so forming the same that rafts of lumber can pass safely and conveniently, without hindrance 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 have 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 the carry out the great work. of improving 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 arbitrary 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. 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 navigation 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 pubiic use as a highway of the Chippewa river is vested in the whole people of the United States; that the legislature of this State has no power to authorize the subversion of that public uso 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 navigable 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. Senator Baldwin agrees with the majority of your committee in answering the second of said questions in the negative, but assents from the balance of the report. Senator Magoon, as we are informed, will submit his views upon both questions to the Senate at some future time. All of which is respectfully submitted. GEO. C. HAZELTON, Majority of Committee. |