tion of the claim of the canal company. At page 78 the cross bill states the basis of the claim of title as follows: "That by the appropriation under said act, approved August 8, 1848, and the building and maintaining of the dam, canal, and embankment hereinbefore specified the Green Bay & Mississippi Canal Company acquired the easement to and exclusive ownership of all the hydraulic power created by said dam, extension thereof and canal."

The canal company makes no claim by virtue of any grant from the United States. It alleges that the dam and canal "were constructed under the act approved August 8, 1848, and acts of the legislature subsequent thereto, other than which there was no authority for building and maintaining the same."

The controversy over construction of this act arises between citizens of Wisconsin. Is not the construction of a local statute, in controversy between its own citizens, a state question, and not a Federal question?

The state's construction of its own legis lation between its own citizens is binding on this court.

St. Anthony Falls Water Power Co. v. St. Paul Water Comrs. 168 U. S. 349, 42 L. ed. 497, and cases cited.

This court said of a state decision respecting this identical act, in a controversy between the identical parties now before the court: "The construction thus given to this act is obligatory upon this court." 142 U. S. 254, 277, 35 L. ed. 1004, 1012.

We are not now questioning the jurisdiction of the court over this case, but only the power of the court to determine certain questions which are state, and not Federal. III. On error to the state court in chan[185]cery cases this court is concluded by the findings of fact of the court below.

Egan v. Hart, 165 U. S. 188, 41 L. ed. 680; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305; Backus v. Fort Street Union Depot Co. 169 U. S. 557, 42 L. ed. 853; Bartlett v. Lockwood, 160 U. S. 357, 40 L. ed. 455; Stanley v. Schwalby. 162 U. S. 255, 40 L. ed. 960.

The opinions of the Wisconsin supreme court are a part of the record made such by § 2410, Wisconsin Statutes of 1898, in force

since 1870.

"Sec. 2410. The supreme court shall give their decisions in all cases in writing, which shall constitute a part of the record in the action and shall be certified therewith to any court of the United States to which such action or proceeding, or the record thereof, may be in any manner certified or removed."

Such opinions must therefore be examined by this court as part of the record, to ascertair what the court below found as facts. Gross v. United States Mortg. Co. 108 U. S. 477, 27 L. ed. 795; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680; Kreiger v. Shelby R. Co. 125 U. S. 39, 31 L. ed. 675.

On appeals in equitable actions the supreme court of Wisconsin retries the case upon the merits, so that its findings of facts are ultimate findings in the case. Whitney v. Traynor, 76 Wis. 628.

When the supreme court of Wisconsin retried this case on appeal it had before it a full record of all the proceedings in the lower court, including all the evidence, findings, requests for findings, refusals, and exceptions.

Some of the Facts Found by the Wisconsin Supreme Court:

First. Such court found that the state never took any of the water powers below the dam, and never granted any such water powers to the improvement company or to the canal company.

We quote:

"The property owned by the state and granted to the improvement company consisted in an easement in the lands occupied by the canal, dams, and ponds, and the water powers incidentally created by the dams. The water powers which the state owned and transferred to the improvement company were such as the state owned by virtue of section 16 of the act of 1848, which provided: 'Whenever a water power shall be created by reason of any dam or other improvement made on any of said rivers, such water power shall belong to the state.' The state did not take or own real estate below its dams, except what was taken for and occupied by the canal.

"This court held that the Green Bay & Mississippi Canal Company owned all the water power which was created by construction and operation of a government dam at Kaukauna; the limit of this right

is at the point where it infringes upon the rights of others. It concedes all the rights which the state had or could acquire as against such lower owners."

The finding above quoted, that the state did not take or own real estate below its dams, except what was taken for and occupied by the canal, really covers the whole question of fact as to its taking water powers below the dam. If it did not take any real estate below the dam, it took no water powers, for such water powers are part and parcel of the land itself.

Gould, Waters, § 204.

These findings are fully supported by the evidence, viz.: the report of the Secretary of War to Congress, and the accompanying report of Major Houston to the Secretary of War, as to the water powers which the canal company claimed, before the board of arbitrators, to own at Kaukauna, and for the value of which it gave credit to the United States in its sale of improvements to the United States.

The report of Major Houston is found at page 69 of the canal company's compilation of laws and documents referred to in the printed record.

Referring to the water powers created by the dams, and surplus water not required for purposes of navigation, valued by the arbitrators at $140,000, the major says:

"This water power is estimated to be equal to 14,000 horse power, distributed as fol lows, according to the testimony of Morgan L. Martin, upon whose evidence the award seems to be based.

"At Appleton 5000 horse power; at Ce

He further says in his report: "There is an immense water power in the lower Fox, entirely independent of the works of improvement, part of which has been made available by works of private parties."

The state supreme court found as a fact that the water power created by the dam at Kaukauna was about 2700 horse power, and that on the rapids below the dam there was about 12600 horse power. These findings, together with the report of Major Houston, show it to be a conclusive fact that the state never took any of the water powers below the dam, and that the canal company at the time of the arbitration for the sale of the improvement to the United States only claimed to own at Kaukauna 2500 horse power which is a little less than that found by the state supreme court to be created by the dam.

This claim of the canal company, at the time of the arbitration and for the purposes of arbitration, was an honest one, or else the canal company, in only claiming to own 2500 horse power at that point, sought to play a trick upon the government by withholding from the arbitrators proof of its ownership of 12600 horse power below the dam, if it in fact owned the same, thereby largely reducing the amount to be credited the government for its franchises in the purchase by the government of the property of the canal company. The water power upon the rapids below the dam at Kaukauna is nearly equal in extent to all the water powers which the canal company, in its proofs before the arbitrators, claimed to own upon the entire Fox river.

From the above finding by the state supreme court, and the evidence supporting it, [18]it is clear that the water powers below the dam were never taken by the state, and were never treated by the state, the canal company, or the United States, as the source of a fund expended or to be expended in the completion and maintenance of the public improvement.

Second. The dam created 2700 horse power

of water.

Third. The water power below the dam upon the rapids is 12600 horse power. Fourth. The ordinary flow of the river is 300,000 cubic feet per minute.

We do not claim that this finding of nonnavigability of the river at this point excludes the United States from its sovereign power to control and improve the navigation of the Fox river, but only that the plac ing of structures in the bed of the stream where it is not navigable for over a mile in length, for hydraulic or other purposes, would work no injury to the navigation, and could only be complained of by the state.

The supreme court of Wisconsin in A. C. Conn Co. v. Little Suamico Lumber Mfg. Co. 74 Wis. 652, expressly recognizes the right of riparian owners to use navigable streams and their banks for purposes not inconsist ent with the public use, and to place obstructions in the beds of such streams when it will not interfere with the navigation thereof. We quote from opinion at page 657:

"This plainly implies that an obstruction in a navigable stream, which does not impair the free navigation thereof, though not authorized by law, is not a nuisance and unlawful. Dams, booms, mills, and bridges, even, may be constructed on some navigable streams in such a manner as not seriously to affect the navigation thereof, or infringe upon the common right. To say, therefore, that there can be no obstruction or impediment whatsoever by the riparian owner in the use of the stream or its banks would be in many cases to deny all valuable enjoy. ment of his property so situated."

See also State v. Carpenter, 68 Wis. 165. Seventh. The diversion of the water of the river through the canal for water power purposes, "by accelerating the current, impairs navigation."

IV. The water powers reserved to the canal company in its deed to the United States were only those which the arbitrators had valued at $140,000, and the title to which was already in said company.

This seems to be recognized by this court in that part of its opinion which says:

"The substantial meaning of the transaction was that the United States granted to the canal company the right to continue in the possession and enjoyment of the water powers and the lots appurtenant thereto, subject to the rights and control of the United States as owning and operating the public works, and that the United States were credited with the appraised value of the water powers and appurtenances and the articles of personal property. The method by which this arrangement was effected, viz., by reservation in the deed, was an apt one,

oration.

This finding is a verity as to the works of improvement in the river at Kaukauna as they exist to-day. The remainder of the ordinary flow of the river, viz., 299,000 cubic feet per minute, is not required for the purposes of navigation, and constitutes the surplus water which, if not diverted to a pri

etc.

000 only 2500 horse power of water at Kaukauna, a little less than that found by the state supreme court to be created by the dam, leaving the 12600 horse power upon the rapids below the dam (being the water power in controversy) wholly untouched by the award or the deed. This conclusion is emphasized by the language of the reservation in the

All water powers reserved in the deed were granted to the canal company by the state, through state legislation, presenting only state questions, which we respectfully submit are not reviewable by this court upon this writ of error.

V. If we may be permitted to do so we desire to suggest that the conclusion expressed in the following language of the opinion, viz.: "It is apparent from the conceded facts that the water power in question did not exist while the stream was in its natural condition," is not strictly accurate. While it its true that in the natural condition of the stream the water power in question (being that below the dam) did not exist in its most available form, yet that it did exist in its most essential and valuable feature as a property right, viz., in the natural fall of 42 feet from the head to the foot of the rapids, is too clear for controversy. Were it not for this natural fall there would be no water power; with it a power exists which can be fully developed for use at a small cost. It also exists in that part of the stream which the state supreme court found as a fact had never been navigable, and where the same court in A. C. Conn Co. v. Little Suamico Lumber Mfg. Co. 74 Wis. 652, and in State v. Carpenter, 68 Wis. 165, 60 Am. Rep. 848, recognizes the right of the riparian owner to place structures to make available the natural power, so long as such structures do not materially or unreasonably interfere with the public right.

VI. We failed to make clear to the court another matter of fact. The court says: "It was found by the trial court that the Green Pay & Mississippi Canal Company has leased all of the water power created by the dam and canal, or arm of the dam, to be used over the water lots abutting on the canal."

This is only true in the sense that the canal company had leased all of the water [187]power "which it could find *customers for;" not that it had leased all the water power "created by the dam and canal." The canal company filed a schedule of its leases existing at the time of the trial of this cause. This schedule, the company's own statement, shows leases of water "to be used over the water lots abutting on the canal" of only 860 horse power out of the 2500 horse power reserved. It also shows leases from the pond at the middle power below the dam, whereon are the mills of the original plaintiffs and whereon the canal company is a riparian owner, of 900 horse power.

On and prior to October 1, 1880, the canal company had leased only 230 horse power "to be used over the water lots abutting on the canal."

VII. This court says: "It is apparent from the conceded facts that the water power in question did not exist while the stream was in its natural condition, nor was it created by the erection of a dam by private persons for that sole purpose." It should have been made to appear that a part of the water power involved in this contention is created by a dam built by private persons,

parian owners, in 1880 for the sole purpose of a water power. The Kaukauna Water Power Company, principal defendant herein, is a riparian owner of part of this power, being the owner of three fourths of the residue after the separation therefrom of certain parcels leased to one of the original plaintiffs, the Union Pulp Company, and to one of the defendants.

VIII. This court held in 142 U. S. 254, 269, 270, 35 L. ed. 1004, 1009, 1010 that it wag necessary that there should be notice of taking while compensation could be had.

The notice of taking held sufficient in that case only related to the withdrawing of water from the pond held by the government dam, and not to the use of the water on the various channels of the river below the dam.

Speaking of this notice Justice Brown said: "Until this time there had been no active interference with any claim or riparian rights belonging to the water power company."

This notice did not in any way relate to the water power *here in contention, which is[188] that created by the fall of the river below the government dam. As to that water power there has been no notice of taking; on the contrary the canal company has recognized the riparian ownership by acting as a riparian owner itself, and by uniting as a riparian owner with other riparian owners in leases of power created by the Mead and Edwards dam, above referred to.

The compensation act of 1875 (18 Stat. at L. 506, chap. 166), was repealed in 1888 (25 Stat. at L. 421, chap. 4. Hence any notice of taking after 1888 is fruitless.

IX. The case of Kaukauna Water Power Co. v. Green Bay & M. Canal, 142 U. S. 254, 35 I.. ed. 1004, between some of the parties to this suit, and relating to water power and other rights on this river at Kaukauna, settles so many questions applicable to the case at bar that we take the liberty of making several quotations from the opinion in that case.

At page 271, 35 L. ed. 1010, the court says: "It is the settled law of Wisconsin, announced in repeated decisions of its supreme court, that the ownership of riparian proprietors extends to the center or thread of the stream, subject, if such stream be navigable, to the right of the public to its use as a public highway for the passage of vessels. Jones v. Pettibone, 2 Wis. 308; Walker v. Shepardson, 2 Wis. 384, 60 Am. Dec. 423, 4 Wis. 486, 65 Am. Dec. 324; Norcross v. Griffiths, 65 Wis. 599, 56 Am. Rep. 642. In Janesville v. Carpenter, 77 Wis. 288, 8 L. R. A. 808; it is said of the riparian owner: 'He may construct docks, landing places, piers, and wharves out to navigable waters, if the river is navigable in fact; but if it is not so navigable he may construct anything he pleases to the thread of the stream, unless it injures some other riparian proprie tor, or those having the superior right to use the waters for hydraulic purposes. Subject to these restrictions, he has the right to use his land under water the same as above water. It is his private property un

der the protection of the Constitution, and it cannot be taken or its value lessened or impaired, even for public use, "Without compensation" or "without due process of law," and it cannot be taken at all for anyone's private use.' With respect to such rights we have held that the law of the state, as declared by its supreme court, is controlling as a rule of property. Barney v. Keokuk. 94 U. S. 324, 24 L. ed. 224; Parker v. Bird, 137 U. S. 661, 34 L. ed. 819; Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428."

As to the water power that can be appropriated as an incident to the improvement, the court says, at page 275, 35 L. ed.

1011:

"The true distinction seems to be between cases where the dam is erected for the express or apparent purpose of obtaining a water power to lease to private individuals, or where in building a dam for public improvement a wholly unnecessary excess of water is created, and cases where the surplus is a mere incident to the public improvement and a reasonable provision for eecuring an adequate supply of water at all times for such improvement."

Again, at page 276, 35 L. ed. 1012: "So far, however, as land was actually taken for the purpose of this improvement, either for the dam itself or for the embankment, or for the overflow, or so far as water was diverted from its natural course, or from the uses to which the riparian owner would otherwise have been entitled to devote it, such owner is undoubtedly entitled to compensation." These quotations clearly define and settle many of the rights of defendants in error in the case at bar.

Let us apply the law thus settled to some of the established facts in this case.

(1) The state supreme court found as a fact that the river between the dam and Black water below is rapids and has never been navigable. As to this part of the river the rights of riparian owners to the use of the water for hydraulic purposes, and to erect structures in the bed of the stream to develop such uses, is fully recognized by the above decision.

(2) The state supreme court found as facts that the ordinary flow of the river is 300,000 cubic feet a minute, and that a flow of only a thousand cubic feet a minute is required for the use of the canal for the purposes of navigation during the season of navigation. The diversion of the remaining 299,000 cubic feet of flow of water per minute from the riparian owners below the dam for hydraulic power would seem to be for the express or apparent purpose of obtaining water power to lease to private individuals, and not as an incident to the public improvement below the dam, viz., the

canal.

(3) The taking by the state of the 12600 horse power found by the state supreme court to exist upon the rapids below the dam would seem to be for private purposes only, and not as an incident to the public improvement, and to be thoroughly condemned by the decision which we have just quoted.

*X. This decision goes very far towards overruling all former decisions respecting riparian rights upon public rivers. It praetically denies the existence of such right, as against the claim of the state, to take the waters of the public rivers for private purposes, hydraulic power.

The decision may also work a public calamity to the cities of the Fox river valley. Its effect may embrace the water powers upon the whole line of the improvement, extending from Lake Winnebago to Green Bay, many of which have heretofore been possessed and enjoyed by parties other than the canal company under a supposed ownership. The decision may be so construed as to give all of the water powers throughout the whole line of improvement to the canal company, and place all of the industries of the Fox river valley depending upon water powers (and there are many) under contriLution to that company.

We most respectfully submit this petition to this Honorable Court, and ask it to grant a rehearing herein, and certify that in our judgments the grounds assigned therefor are meritorious and well founded in law and fact.

John T. Fish, Alfred L. Cary, Counsel for Kaukauna Water Power Company and others, Defendants in Error. Moses Hooper, George G. Greene, Counsel for Original Plaintiffs Defendants in Error.

*Mr. Justice Shiras delivered the opinion[189] of the court:

This is a petition by the defendants in error for a rehearing of the case of Green Bay & Mississippi Canal Company v. Patten Paper Company and others, decided at the present term, and reported in 172 U. S. 58 [ante, 364].

The reasons set forth in the petition and accompanying brief seem to go upon a misapprehension of the scope and meaning of the decision of this court."

Thus, it is made matter of complaint that this court did not deal with questions concerning the division of the waters of Fox river after they had spent the force or head given them by the dam and canal, and had passed into a non-navigable portion of the stream below the improvement; and it is suggested that we overlooked the fact that a private dam had been constructed between islands Three and Four.

The

But those are questions to which the ju risdiction of this court does not extend, and[190] hence could not be considered by us. purport of our decision was to preserve to the Green Bay & Mississippi Canal Company the use of the surplus waters created by the dam and canal. After such waters had flowed over the dam and through the sluices, and had found their way into the unimproved bed of the stream, the rights and disputes of the riparian owners must be determined by the state courts.

Again, apprehensions are expressed lest the decision in the present case may be con