Thien v. Voegtlander , 3 Wis. 461 ( 1854 )

By the Court,

WbutoN, G. J.

There is no doubt that the plea of the defendant below is bad.

It sets out an authority granted to him by the legislature of the territory of Wisconsin to build and maintain a dam across the Milwaukee river, at the place described in the declaration of the plaintiff, and avers that the dam was there erected by him for the purpose mentioned in the act, and that in consequence of the building of the dam the water of the river was flowed back, and the land of plaintiff overflowed, &c.

The principal defect in this plea is the omission to state that any compensation was made to the plaintiff "by the defendant for the damage occasioned by flowing the land. It has been determined by the Supreme Court of this State, that an act of the legislature of the territory of Wisconsin which authorized any person to “erect and maintain a water-mill and a dam to raise water for working it, upon and across any stream that is not navigable,” was valid and obligatory, although it authorized the flowing of land belonging to other persons, (Newcomb vs. Smith, 1 Chand. R. 71.) But this act provided for a compensation to the owner of the land overflowed, and a mode of recovering it.

The opinion of the majority of the court which sustained the law, was founded upon the fact that the use to which the land was devoted was a public use, and that full compensation was made to the ownei*. It cannot be maintained that private property can be taken for the use of the public unless compensation is made to the owner, and no one can claim that the property of one person can without his consent be given to another, even if compensation is made. Const. Wis. Art. 1, Sec. 13.

Admitting, then, that the use to which the overflowed land of the plaintiff was applied was a public use, still the plea is bad for not averring that compensation was made for it. There are other defects in the plea, but we have confined our attention to the one above stated. The judgment of the court below must be affirmed.