PUMPELLY v. GREEN BAY COMPANY.

SUPREME COURT OF THE UNITED STATES. 1871.

[13 Wall. 166.]

ERROR to the Circuit Court of the United States for the District of Wisconsin; the case being thus:

The Constitution of Wisconsin ordains that "the property of no person shall be taken for public use without just compensation therefor." With this provision in force as fundamental law, one Pumpelly, in September, 1867, brought trespass on the case against the Green Bay and Mississippi Canal Co. for overflowing 640 acres of his land by means of a dam erected across Fox River, the northern outlet of Lake Winnebago, by which, as the declaration averred, the waters of the lake were raised so high as to forcibly and with violence overflow all his said land, from the time of the completion of the dam in 1861 to the commencement of this suit; the water coming with such a violence, the declaration averred, as to tear up his trees and grass by the roots, and wash them, with his hay by tons, away, to choke up his drains and fill up his ditches, to saturate some of his lands with water, and to ing it, had no application here. The demand for water they found greater than the supply, as is the unfortunate fact still all over this arid region. Instead of attempting to divide it among all, thus making it unprofitable to any, or instead of applying the common-law riparian doctrine, to which they had been accustomed, they disregarded the traditions of the past, and established as the only rule suitable to their situation that of prior appropriation. This did not mean that the first appropriator could take all he pleased, but what he actually needed, and could properly use without waste. Thus was established the local custom, which pervaded the entire west, and became the basis of the laws we have to-day on that subject. Very soon these customs attracted the attention of the legislatures, where they were approved and adopted, and next we find them undergoing the crucial test of judicial investigation. As far back as 1855, the Supreme Court of California, in Irwin v. Phillips, 5 Cal. 145, and in Tartar v. Mining Co., Id. 397, distinctly held that the prior appropriator of water should hold it against the riparian claim of the owner of land through which it flowed, and, also, that in all branches of industry the prior appropriator of land, water, and easements would be protected. Not only had such become the law by custom, by the legislative will, and the decisions of the courts, without dissent, but the general government, for many years, without protest, acquiesced in such occupation and use of its lands and waters by its citizens, while valuable properties and industries were building upon this principle. To put the question beyond uncertainty, to approve and adopt what already existed as the common law of the west, the Congress, by its Act of July 26, 1866, § 9, provided that whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.' It will be observed that the act is based upon the existence of local customs, laws, and decisions of courts. It is not necessary that all these conditions shall exist for the protection of the right; but, as held in Basey v. Gallagher, 20 Wall. 684, the existence of either condition is sufficient." Compare Stowell v. Johnson et al., 7 Utah 215, Strickler v. Col. Springs, 25 Pac. Rep. (Col) 313. ED.

dirty and injure other parts by bringing and leaving on them deposits of sand, and otherwise greatly injuring him. The canal company pleaded six pleas, of which the second was the most important, but of which the fourth and sixth may also be mentioned.

This second plea was divisible, apparently, into two parts.

The first part set up (quoting it entire) a statute of Wisconsin Territory, approved March 10th, 1848, by which one Curtis Reed and his associates were authorized to construct a dam across Fox River, the northern outlet of Winnebago Lake, to enable them to use the waters of the river for hydraulic purposes.

A general demurrer to these three pleas being overruled by the court, the plaintiff brought the case here.

Messrs. B. J. Stevens and H. L. Palmer, in support of the ruling below.

Messrs. J. M. Gillet and D. Taylor, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

As we are of opinion that the statute did not authorize the erection of a dam which would raise the water of the lake above the ordinary level, and as the plea does not deny that the dam of the defendant did so raise the water of the lake, we must hold that, so far as the plea relies on this statute as a defence, it is fatally defective.

But this same plea further alleges that the legislature of Wisconsin, after it became a State, projected a system of improving the navigation of the Fox and Wisconsin rivers, which adopted the dam of Reid and Doty, then in process of construction, as part of that system; and that, under that Act, a board of public works was established, which made such arrangements with Reid and Doty that they continued and completed the dam; and that by subsequent legislation, changing the organization under which the work was carried on, the defendants finally became the owners of the dam, with such powers concerning the improvement of the navigation of the river as the legislature could confer in that regard. But it does not appear that any statute made pro-" vision for compensation to the plaintiff, or those similarly injured, for damages to their lands. So that the plea, as thus considered, presents substantially the defence that the State of Wisconsin, having, in the progress of its system of improving the navigation of the Fox River, authorized the erection of the dam as it now stands, without any provision for compensating the plaintiff for the injury which it does him, the defendant asserts the right, under legislative authority, to build and continue the dam without legal responsibility for those injuries.

And counsel for the defendant, with becoming candor, argue that the damages of which the plaintiff complains are such as the State had a right to inflict in improving the navigation of the Fox River, without making any compensation for them.

This requires a construction of the Constitution of Wisconsin; for though the Constitution of the United States provides that private property shall not be taken for public use without just compensation, it

1

is well settled that this is a limitation on the power of the Federal government, and not on the States. The Constitution of Wisconsin, however, has a provision almost identical in language, viz., that "the property of no person shall be taken for public use without just compensation therefor." Indeed this limitation on the exercise of the right of eminent domain is so essentially a part of American constitutional law that it is believed that no State is now without it, and the only question? that we are to consider is whether the injury to plaintiff's property, as set forth in his declaration, is within its protection.

The declaration states that, by reason of the dam, the water of the lake was so raised as to cause it to overflow all his land, and that the overflow remained continuously from the completion of the dam, in the year 1861, to the commencement of the suit in the year 1867, and the nature of the injuries set out in the declaration are such as show that it worked an almost complete destruction of the value of the land.

The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation.

It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legisla tion to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.

...

[Here follows a statement of Sinnickson v. Johnson, 2 Harrison, 129; and Gardner v. Newburgh, 2 Johns. Ch. 162 (ante, pp. 979 and 986, with quotations from them.]

If these be correct statements of the limitations upon the exercise of the right of eminent domain, as the doctrine was understood before it had the benefit of constitutional sanction, by the construction now sought to be placed upon the Constitution it would become an instrument of oppression rather than protection to individual rights. But there are numerous authorities to sustain the doctrine that a

1 See supra, p. 956, note. - ED.

serious interruption to the common and necessary use of property may be, in the language of Mr. Angell, in his work on water-courses, equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken. Angell on Water-courses, § 465 a; Hooker v. New Haven and Northampton Co., 14 Connecticut, 146; Rowe v. Granite Bridge Co., 21 Pickering, 344; Canal Appraisers v. The People, 17 Wendell, 604; Lackland v. North Missouri Railroad Co., 31 Missouri, 180; Stevens v. Proprietors of Middlesex Canal, 12 Massachusetts, 466. And perhaps no State court has given more frequent utterance to the doctrine that overflowing land by backing water on it from dams built below is within the constitutional provision than that of Wisconsin. In numerous cases of this kind under the Mill and Mill-dam Act of that State this question has arisen, and the right of the mill-owner to flow back the water has been repeatedly placed on the ground that it was a taking of private property for public use. It is true that the court has often expressed its doubt whether the use under that Act was a public one, within the meaning of the Constitution, but it has never been doubted in any of those cases that it was such a taking as required compensation under the Constitution. Pratt v. Brown, 3 Wisconsin, 613; Walker v. Shepardson, 4 Id. 511; Fisher v. Horicon Iron Co., 10 Id. 353; Newell v. Smith, 15 Id. 104; Goodall v. City of Milwaukee, 5 Id. 39; Weeks v. City of Milwaukee, 10 Id. 242. As it is the Constitution of that State that we are called on to construe, these decisions of her Supreme Court, that overflowing land by means of a dam across a stream is taking private property, within the meaning of that instrument, are of special weight if not conclusive on us. And in several of these cases the dams were across navigable streams.

It is difficult to reconcile the case of Alexander v. Milwaukee, 16 Wisconsin, 248, with those just cited, and in its opinion the court seemed to feel the same difficulty. They assert that the weight of authority is in favor of leaving the party injured without remedy when the damage is inflicted for the public good, and is remote and consequential. There are some strong features of analogy between that case and this, but we are not prepared to say, in the face of what the Wisconsin Court had previously decided, that it would hold the case before us to come within the principle of that case. At all events, as the court rests its decision upon the general weight of authority and not upon anything special in the language of the Wisconsin bill of rights, we feel at liberty to hold as we do that the case made by the plaintiff's declaration is within the protection of the constitutional principle embodied in that instrument.

We are not unaware of the numerous cases in the State courts in which the doctrine has been successfully invoked that for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers, and other highways, for the public good, there is no redress; and we do not deny that the principle

is a sound one, in its proper application, to many injuries to property so originating. And when, in the exercise of our duties here, we shall be called upon to construe other State constitutions, we shall not be unmindful of the weight due to the decisions of the courts of those States. But we are of opinion that the decisions referred to have gone to the uttermost limit of sound judicial construction in favor of this principle, and, in some cases, beyond it, and that it remains true that where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution, and that this proposition is not in conflict with the weight of judicial authority in this country, and certainly not with sound principle. Beyond this we do not go, and this case calls us to go no further.

We are, therefore, of opinion that the second plea set up no valid defence, and that the demurrer to it should have been sustained. [A discussion of the fourth and sixth pleas is omitted, as not material to the subject in hand.]

Judgment reversed, and the case remanded to the Circuit Court for further proceedings not inconsistent with this opinion.1

EATON v. THE BOSTON, CONCORD, AND MONTREAL

RAILROAD.

SUPREME JUDICIAL COURT OF NEW HAMPSHIRE. 1872.

[51 N. H. 504.]

ACTIONS on the case, against the Boston, Concord, & Montreal Railroad, one brought by Ezra B. Eaton, the other by Milo Aiken, to recover damages done during the freshet of October, 1869, to their respective farms in Wentworth, and alleged to have been occasioned by the construction of the defendants' railroad.

The defendants were duly incorporated by legislative authority, and constructed their road across the farms of the plaintiffs during the years 1849, 1850, and 1851, — the road having been previously surveyed and located. Damages were duly appraised and paid.

Eaton, on March 24, 1851, after the construction of the road, gave the defendants a warranty deed of that part of his farm on which the road is located, and on the same day executed the following release: "I, the subscriber, do hereby acknowledge that I have received of the Boston, Concord, & Montreal Railroad the sum of two hundred and seventy-five dollars, in full for the amount of damages assessed to

1 See Mills et al. v. U. S., 46 Fed. Rep. 738. - ED.