1891 the defendant commenced the prosecution of said work and drainage for the sole and express purpose of draining the bed of the said lake, and acquiring and possessing itself of the lands under the waters thereof; that in the prosecution of said work the defendant, from time to time, has been opening, extending, and deepening the ditches and drains in and about said lake, with the purpose and intent of withdrawing all of the water from said lake bed, and of confining the same within the ditches and canals constructed by it, so that the said lake shall be entirely destroyed; that the waters of the lake have already been lowered several feet from the level at which the same stood prior to June 26, 1891; that the same was done entirely without the consent or approval of the plaintiff; that by reason of the destruction of the plaintiff's water rights and privileges, so unlawfully and wrongfully done and performed by the defendant, the plaintiff has suffered and is suffering great and irreparable loss and damage, in the sum of $6,000; that the defendant now proposes and intends a still further drain of the lake to withdraw the waters therefrom, and intends to and will, unless restrained, completely drain said lake, to the plaintiff's great and irreparable loss and injury. The complaint further alleges that the said public drainage proceedings under said last-named chapter are being subverted from the alleged purpose to promote the public health and public weal, into a purely private and speculative purpose, and that the act is wholly unconstitutional and void, and all proceedings thereunder by the defendant are wholly unlawful; that the defendant is acting in violation and disregard of chapter 202, Laws 1891, by its failure to give a bond as therein required; that the bed of Muskego Lake is composed largely of muck and vegetable matter, sand, shells, and is full of springs, and is so soft where the water has been withdrawn that a pole can be thrust down from fifteen to thirty feet; that if the bed of the lake should be left exposed to the sun and rain, as a great bog or marsh it would never be productive or useful for any purpose, but would be a fruitful source of disease and malaria to all persons living in the vicinity thereof, and of great damage and injury to the property and home of the plaintiff; that he has already suffered considerable sickness in his family, and

has been put to a considerable expense on account thereof, by reason of the prosecution of said work by the defendant, who is guilty of creating a great and continuing nuisance, from which the plaintiff is a direct sufferer; that the plaintiff has already suffered great loss and damage, to the amount of $10,000, for which he prays judgment, and for a perpetual injunction, and for general relief. To such complaint the defendant demurred on the grounds that the court had no jurisdiction, that there is a defect of parties plaintiff, that causes of action have been improperly united, and that it does not state facts sufficient to constitute a cause of action. The court sustained the demurrer upon the last ground stated, but overruled the same as to the other grounds mentioned. From that part of the order sustaining the demurrer, the plaintiff appeals.

CASSODAY, C. J.

Sec. 794.

Nature of riparian rights-Power of state over. Upon the facts stated it must be admitted that, January 1, 1888, and for several years prior thereto, the plaintiff was the owner of the land mentioned; that the same extended to the lake upon the north side or shore thereof; and that he had a natural frontage upon the lake of about 100 rods. That being so, it must be conceded that, during that time, the plaintiff owned and possessed all the rights and privileges in and upon that lake incident to such riparian proprietorship. It has repeatedly been held, in effect, by the supreme court of the United States, that it is for the several states themselves to determine to what waters and to what extent the prerogative of the state shall be exercised in regulating and controlling the shores of such waters and the lands under them, and that, if any state determine to resign to riparian proprietors rights which properly belong to it in its sovereign capacity, it is not for others to raise objections. Barney v. Keokuk, 94 U. S. 338; Hardin v. Jordan, 140 U. S. 382 (11 Sup. Ct. Rep. 808, 838); Kaukauna Water Power Co. v. Green Bay & Canal Co., 142 U. S. 271, 272 (12 Sup. Ct. Rep. 173); Shively v. Bowlby, 152 U. S. 45, 46 (14 Sup. Ct. Rep. 548). In this state it has been repeatedly held that the riparian proprietor upon navigable lakes and ponds takes the

land only to the water's edge, but that, as such proprietor, he has the exclusive right of access to and from the lake in front of his land, and of building piers and wharfs there in aid of navigation, not interfering with the public easement; that such private rights grow out of his title to the land, and have a pecuniary value, and their destruction or material abridgment is generally an injury, entitling him to redress. Delaplaine v. C. & N. W. R. Co., 42 Wis. 214; Boorman v. Sunnuchs, 42 Wis. 233; Diedrich v. N. W. & R. Co., 42 Wis. 248; Cohn v. Wausau Boom Co., 47 Wis. 322 (2 N. W. Rep. 546); F. S. Keatar Lumber Co. v. St. Croix Boom Corp., 72 Wis. 82 (38 N. W. Rep. 529); Janesville v. Carpenter, 77 Wis. 300 (46 N. W. Rep. 128); Land Co. v. Bigelow, 84 Wis. 163, 164 (54 N. W. Rep. 496). Thus in Cohn v. Wausau Boom Co., supra, Ryan, C. J., said: "It is settled in this state that a riparian owner on navigable water may construct in front of his land, in shoal water, proper wharves, piers, and booms in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian right, resting on title to the bank, and not upon title to the soil under the water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public, is subordinate to the public use, and may be regulated by law." See, also, Farnum v. Johnson, 62 Wis. 620 (22 N. W. Rep. 751). Quite similar language of Mr. Justice Orton in City of Janesville v. Carpenter, supra, is quoted approvingly by Mr. Justice Brown in Kaukauna Water Power Co. v. Green Bay & M. Canal, 142 U. S. 271, 272 (12 Sup. Ct. Rep. 173). Certainly one such riparian owner, without legislative authority, has no legal right to draw the water from such lake, to the injury of other such riparian proprietors thereon. Sampson v. Hoddinott, 87 E. C. L. 590; Wilts & Berks Canal Nav. Co. v. Swindon Water Works Co., 9 Ch. App. 451; S. C. L. R. 7 H. L. 697; Miner v. Gilmour, 12 Moore P. C. 156; North Shore R. Co. v. Pion, 14 App. Cas. 621; Miller v. Miller, 9 Pa. St. 74; Lawson v. Mowry, 52 Wis. 219 (9 N. W. Rep. 280); Kimberly & Clark Co. v. Hewitt, 79 Wis. 334 (48 N. W. Rep. 373).

Sec. 795. Constitutional law-Power of state to destroy riparian rights. Assuming that the state had plenary power over the lake in question and the land beneath its waters, when exercised in aid of commerce or any other legitimate public purpose, yet we are constrained to hold that it had no power to arbitrarily take away or destroy such rights of the plaintiff, as such riparian owner, without his consent, and without compensation, and without due process of law, and for the sole purpose of benefitting some other riparian owner, or for any other mere private purpose. Arimond v. Greenbay & M. Canal Co., 31 Wis. 316 S. C. 35 Wis. 41; Barden v. Portage, 79 Wis. 126 (48 N. W. Rep. 210); Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co., 79 Wis. 297 (48 N. W. Rep. 371); Wisconsin Water Co. v. Winans, 85 Wis. 39 (54 N. W. Rep. 1003); In re Theresa Drainage Dist., 90 Wis. 301 (63 N. W. Rep. 288); Grand Rapids v. Powers, 89 Mich. 94 (50 N. W. Rep. 661). Such having been the obvious rights of the plaintiff as such riparian owner of the shore of the lake, as they existed January 1, 1888, the question recurs whether he lost such right by reason of what was thereafter, and prior to April 13, 1891, done under chapter 169, Laws 1887. As indicated in the statement, the lake was, during that period, through the agency of the commissioners, lowered about 4 feet below the low water mark, and by virtue thereof the plaintiff's whole shore line was extended about two rods. The validity of that act is not before us for consideration; but, from what is before us, we may fairly assume that the plaintiff acquiesced in such proceedings, since he paid the assessment made by such commissioners by reason of the benefits he so acquired. This seems to imply that he was the owner of the land thus uncovered upon his shore line; and we find nothing to the contrary in the allegations of the complaint, nor the provisions of the act last cited. It was not the case of reliction or accretion by slow and imperceptible degrees from natural agencies. Boorman v. Sunnuchs, 42 Wis. 233. Nor was it the case of reliction by avulsion from natural agencies. Nebraska v. Iowa, 143 U. S. 359 (12 Sup. Ct. Rep. 396). But it was, apparently, the drainage of low, marshy land, and the lowering of the lake by artificial agencies, for the benefit of riparian owners, including

the plaintiff. We must hold that the plaintiff did not thereby lose his rights as a riparian proprietor, and that he continued to have free access to the lake in front of his premises; and especially should this be so since the question is not raised by the state in its sovereign capacity, but by other alleged riparian owners. This is obvious from the federal cases cited. See, also, Boorman v. Sunnuchs, supra; J. S. Keator Lumber Co. v. St. Croix Boom Corp., 72 Wis. 98 (38 N. W. Rep. 529). It follows that the plaintiff was still such riparian proprietor when chapter 202, Laws 1891, was enacted. As indicated in the statement, that act undertook to grant, convey, assign, and relinquish to James Reynolds, his heirs and assigns, forever, all the right, title and interest of the state in and to all lands within the limits or boundaries of Muskego and Wind Lakes, as they existed or were shown by the low-water mark lines prior to January 1, 1888, and required him and them to lower the then present mean level of the waters of each of those lakes 4 feet more, on the theory that the preservation of the public health and the well-being of the communities adjacent to said lakes imperatively required that such system of drainage, previously adopted, should be extended, enlarged, and completed, so as to effectually drain such wet and overflowed lands. The act provided, in effect, that after Reynolds, his heirs and assigns, should receive, from sales of land thus uncovered and drained, all expenses incident thereto, then out of the first net avails of such sales he or they should pay back 50 per centum of the assessments which had thus previously been paid under the act of 1887; and the act further provided, in effect, that nothing therein should be "construed to defeat or impair any right of action" that might "arise to recover damages caused to any person or property by carrying out the provisions of that act." Section 8. Reynolds, to whom such important rights were thus granted, conveyed, assigned, and relinquished, was at the time, as alleged, a resident of Illinois. About the time of that enactment the defendant appears to have been incorporated, under the laws of this state, "for the purpose of purchasing, improving and selling real estate, and of constructing canals, ditches, drains, and levees for agricultural and sanitary draining, or mining purposes, for the creation and control