Am. Dec. 299; Buckingham v. Smith, 10 Ohio, | ed States, and that the right and title of the Janesville v. Carpenter, 77 Wis. 288, 8 L. R. A. 808; Halsey v. Lehigh Valley R. Co. 45 N. J. L. 26; Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39. Plaintiff in error has no right as a riparian owner to divert water from complainants for power. said canal company to the use of the water Assuming the truth of such allegations, it Webb v. Portland Mfg. Co. 3 Sumn. 189; Pratt v. Lamson, 2 Allen, 275; Vandenbergh v. Van Bergen, 13 Johns. 212; It is, however, urged that, whatever may Harding v. Stamford Water Co. 41 Conn. have been the right, title, privilege, or au87; Parker v. Griswold, 17 Conn. 288, 42 thority possessed by the canal company and Am. Dec. 739; Blanchard v. Baker, 8 Mc. derived from the United States, such right, 253, 23 Am. Dec. 504; Moulton v. Newbury title, privilege, or authority was not specialport Water Co. 137 Mass. 163; Illinois & M.ly set up and claimed in the state courts at Canal Trustees v. Haven, 11 Ill. 554; Corn-a time and in a manner to give this court ing v. Troy Iron & Nail Factory, 40 N. Y. 191. Plaintiff in error has gained no right to convert the water for power, by prescription or estoppel. Prentice v. Geiger, 74 N. Y. 341; Holsman v. Boiling Spring Bleaching Co. 14 N. J. Eq. 335; Norway Plains Co. v. Bradley, 52 N. H. 86; Carlisle v. Cooper, 21 N. J. Eq. 576. There can be no estoppel to assert a legal right or title, by acquiescence, if the facts on which the right or title depends were equally known to both parties; nor unless the acquiescence was fraudulent. Brant v. Virginia Coal & I. Co. 93 U. S. 326, 23 L. ed. 927; Kingman v. Graham, 5! Wis. 232; Canning v. Harlan, 50 Mich. 320; Robbins v. Potter, 98 Mass. 532; Steel v. St. Louis Smelting & Ref. Co. 106 U. S. 447, 27 L. ed. 226; Powell v. Rogers, 105 Ill. 318, Henshaw v. Bissell, 18 Wall. 255, 21 L. ed. 835; Williams v. Wadsworth, 51 Conn. 277. [66] *Mr. Justice Shiras delivered the opinion of the court: First for our consideration is the motion made by the defendants in error to dismiss the writ of error because the record does not disclose that any Federal question was involved in the controversy, and because no title, right, privilege, or immunity claimed under the Constitution of the United States, or any treaty or statute of, or commission held, or authority exercised under, the United States, was specifically set up or claimed in the trial court or in the supreme court of the state of Wisconsin by the plaintiff in error, nor was there any decision in either of said state courts against any such title, right, privilege, or immunity specially set up or claimed by the plaintiff in error. The contention that no Federal question is disclosed in the record is sufficiently disposed of, we think, by an inspection of the crosscomplaint filed by the Green Bay & Mississippi Canal Company. It was therein claimed that the water power in question was created by a dam, canal, and other improvements owned and operated by the Unit jurisdiction. This contention is based on the words in section 709 of the Revised Statutes, carried forward from the twenty-fifth section of the judiciary act of 1789, "specially set up or claimed;" and the effect to be given to those words has been frequently considered by this court. There is a class of cases wherein it has been held and laid down as settled doctrine that "the revisory power of this court does not extend to rights denied by the final judg ment of the highest court of a state, unless the party claiming such rights plainly and distinctly indicated, before the state court disposed of the case, that they were claimed under the Constitution, treaties, or statutes of the United States; that if a party intends to invoke for the protection of his rights the Constitution of the United States, or some treaty, statute, commission, or authority of the United States, he must so declare; and unless he does so declare 'specially,' that is, unmistakably, this court is without authority to re-examine the final judgment of the state court; that this statutory requirement is not met if such declaration is so general in its character that the purpose of the party to assert a Federal right is left to mere inference." The last elaborate discussion of this phase of the subject is found in the opinion of the court in Oxley Stave Company v. Butler County, 166 U. S. 648 [41: 1149], delivered by Mr. Justice Harlan, in which many of the cases are reviewed and from which the preceding quotation is taken. But no particular form of words or phrases has ever been declared necessary in which the claim of Federal rights must be asserted. It is sufficient if it appears from the record that such rights were specially set up or claimed in the state court in such manner [68] as to bring it to the attention of that court. "The true and rational rule," this court said in Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 143 [17: 576], "is that the court must be able to see clearly, from the whole record, that a certain provision of the Constitution or act of Congress was re lied on by the party who brings the writ of error, and that the right thus claimed by him was denied." In Roby v. Colehour, 146 U. S. 159 [36: 922], it was said that "our jurisdiction being invoked, upon the ground that a right or immunity, specially set up and claimed under the Constitution or authority of the United States, has been denied by the judgment sought to be reviewed, it must appear from the record of the case, either that the right, so set up and claimed, was expressly denied, or that such was the necessary effect in law of the judgment." If it appear from the record, by clear and necessary intendment, that the Federal question must have been directly involved, so that the state court could not have given Judgment without deciding it, that will be sufficient." Powell v. Brunswick County, 150 U. S. 440 [37: 1137]; Sayward v. Denny, 158 U. S. 180 [39: 941]; Chicago, Burlington, & Q. R. R. Co. v. Chicago, 166 U. S. 226 [41: 979]. As then, in its cross-complaint, the canal company explicitly set up and claimed, as the foundation of its alleged rights, the acts of Congress and the transactions between the United States and the canal company, under which the United States became the owner of the dam, canal, and other improvements on the Fox river, and the canal company became vested with its rights in the surplus water power incidental to said works, and as, in the final judgment, the supreme court of Wisconsin necessarily held adversely to these claims of Federal right, we hold that the motion to dimiss for want of jurisdiction must be overruled, and that it is our duty to inspect the record in order to see whether there was error in the rulings of the court below. Whether the water power, incidentally created by the erection and maintenance of the dam and canal for the purposes of navigation in Fox river, is subject to control and [69] appropriation *by the United States, owning and operating those public works, or by the state of Wisconsin, within whose limits Fox river lies, is the decisive question in this case. Upon the undisputed facts contained in the record we think it clear that the canal company is possessed of whatever rights to the use of this incidental water power that could be validly granted by the United States. That Fox river is one of the navigable waters of the United States has been already decided by this court in the case of The Montello, 20 Wall. 430 [22: 391], upon the same facts, historical and legislative, that are now before us. That was the case of a libel filed by the Government in the circuit court of the United States for the district of Wisconsin against the steamer Montello, in admiralty, for noncompliance with acts of Congress making enrolment and license and certain provisions as to steam valves necessary for vessels like the Montello navigating the navigable waters of the United States. The court below dismissed the libel, resting its 172 U. S. U. S., Book 43. 24 decision on the ground that before the navi gation of the river was artificially improved there had been numerous obstructions to a continuous navigation, by reason of falls and rapids, and that, therefore, Fox river was not a navigable water of the United States. But this court reversed the judgment and held that Fox river is a stream of a na tional character, and that steamboats navigating its waters are subject to governmental regulations. To aid in the improvement of the Fox and Wisconsin rivers, and to connect the same by a canal, the United States, by the act of August 8, 1846 (9 Stat. at L. 83, chap. 170), granted a quantity of land on each side of Fox river, and the lakes through which it passes, from its mouth to the point where the portage canal should enter the same, and provided that, as soon as the Territory of Wisconsin should be admitted as a state, all the lands granted by the act should become the property of said state "for the purpose contemplated by the act, and no other." it further enacted that the legislature should agree to accept said grant upon the terms specified in the act, and should have power to fix the price at which said lands should be sold, not less than one dollar and twenty-five cents the acre; and to adopt such [70] kind and plan of improvement on said route as the said legislature shall from time to time determine for the best interest of said state; and provided, also, that the lands granted should not be conveyed or disposed of by said state, except as said improvements should progress-that is, the said state might sell so much of said lands as should produce the sum of twenty thousand dollars, and then the sales should cease until the governor of the state should certify the fact to the President of the United States that one half of said sum had been expended upon said improvements, when the said state might sell and dispose of a quantity of said lands sufficient to reimburse the amount expended; and that thus the sales should progress as the proceeds thereof should be expended, and the fact of such expenditure certified in the manner in the act mentioned. It further enacted that the said improvements should be commenced within three years after the said state should be admitted into the Union, and completed within twenty years, or the United States should be entitled to receive the amount for which any of said lands might have been sold by the state. In February, 1848, the state of Wisconsin was created by the adoption of a Constitution, and the legislature of the new state, by an act passed August 8, 1848, accepted the grant from Congress made by the act of August 8, 1846, and organized a board of public works, and authorized the board, in the construction of such improvements, to "enter on, to take possession of, and use all lands, waters, and materials the appropriation of which for the use of such works of improvement should in their judgment be necessary. The act contained the following section: 369 the same extent and in the same manner "Sec. 16. When any lands, waters, or ma- the rights of way, dams, locks, canals, water terials appropriated by the board to the use power, and other appurtenances of said of said improvements shall belong to the works; also all the right possessed by the state, such lands, waters, or materials, and state of demanding and receiving tolls and so much of the adjoining land as may be val- rents for the same, so far as the state posuable for hydraulic or commercial purposes, sesses or is authorized to grant the same, and shall be absolutely reserved to the state, and all privileges of constructing said works and whenever a water power shall be created by repairing the same, and all other rights and reason of any dam erected or other improve-privileges belonging to the improvement to [71] ments made on any of *said rivers, such water power shall belong to the state subject to future action of the legislature." Sections 17, 18, 19, 20, 21, and 22 provide for condemnation by the board of such lands, The Fox & Wisconsin Improvement Comwaters, and materials belonging to individu-pany, thus created and empowered, agreed to als, with whom the board could not agree, fully execute the trust, and forthwith underand for payment of damages out of the fund. took the work. By an act approved February 9, 1850, the legislature of Wisconsin enacted as follows: "The board of public works are hereby authorized and empowered in any future lettings of contracts for the improvement of the Fox and Wisconsin rivers to consider bids made by any person or persons for improvements which will create a water power, and when such person or persons offer to perform, or perform and maintain, the work in consideration of the granting by the state to him or them, his or their assigns, forever, the whole or a part of such water power: Provided, That before such bid is accepted and the contracts entered into it shall receive the approval of the governor. "When lettings have been made for the improvement of said rivers, whereby a water power is created, the board of public works may relinquish to the person or persons who have performed the same all or a part of such power as a consideration in full or in part for such performance or maintenance of such improvement, or for both." The eighth article of the Constitution of Wisconsin contained the following: "Sec. 10. The state shall never contract any debt for works of internal improvement or be a party carrying on such works; but whenever grants of land or other property shall have been made to the state, especially dedicated by the grant to particular works of internal improvement, the state may carry on such particular works, and shall devote thereto the avails of such grants, and may pledge or appropriate the revenues derived from such works in aid of their completion." By the act approved July 6, 1853, the legislature of Wisconsin created a corporation to supersede the board of public works in the construction and maintenance of the improvements on the Fox and Wisconsin rivers [72] under the name of *the "Fox and Wisconsin Improvement Company," and granted and surrendered to the said company "the works of improvement contemplated by the act entitled 'An Act to Provide for the Improvement of the Fox and Wisconsin Rivers and Connecting the Same by a Canal,' approved August 8, 1848, and by several acts supplemental thereto and amendatory thereof, and known as the 'Fox and Wisconsin rivers improvement,' together with all and singular 370 By an act, approved October 3, 1856, entitled "An Act to Secure the Enlargement and Immediate Completion of the Improvement of the Navigation of the Fox and Wisconsin Rivers," etc., it was enacted, by its second section, as follows: "Sec. 2. To enable said company to make all the dams, locks, canals, feeders, and other structures, and to do all the dredging and other work, and furnish all materials necessary to complete the improvement of the navigation of the Fox and Wisconsin rivers and the canal connecting the same, all the lands now unsold, granted by Congress in aid of said improvement, as explained by the same body (which grants are hereby accepted), are hereby granted to the Fox & Wisconsin Improvement Company, subject, however, to the terms and conditions of said grants by Congress, and to the further terms and conditions following, that is to say: That within ninety days after the passage of this act, the said company shall make a deed of trust to three trustees to be appointed as [78] hereinafter provided, including and conveying to said trustees and their successors all the unsold lands granted to the state of Wisconsin by the several acts and resolutions of Congress to aid in the improvement of the Fox and Wisconsin rivers, and all the works of improvements constructed or to be constructed on said rivers, and all and singular the rights of way, dams, locks, canals, water powers, and other appurtenances of said works, and all rights, privileges, and franchises belonging to said improvement, and all property of said company, of whatever name and description." By the third section it was enacted that, for raising funds, from time to time, for the construction, enlargement, and completion of said works of improvement, and for the purchase of materials to be used therein, etc., said company might issue its bonds, to be countersigned by said trustees, in sums of not less than five hundred nor more than one thousand dollars each, at rates of interest not exceeding ten per centum per annum, payable semi-annually, the principal of said bonds payable at a period to be therein named, not exceeding twenty years from their date, etc., and that the payment of said bonds should be secured by the deed of trust afore172 U. S. was to be deducted from the actual value thereof as found by the arbitrators. said of said lands, works, water powers, | rights of property in and to the line of wa property, and franchises. It was further ter communication between the Wisconsin provided, that, in case the company should river and the mouth of the Fox river, includfail to comply with any of the requirements ing its locks, dams, canals, and franchises, of the act, or to pay the principal or interest or so much of the same as should, in the of its bonds, to be issued as therein provided, judgment of the Secretary of War, be need- [75} the said trustees should sell the said lands, ed," and authorizing the appointment of a in tracts not exceeding six hundred and forty board of arbitrators, to be mutually chosen, acres, and should apply the proceeds thereof who should appraise the properties to be to the purposes expressed in the act, and taken. This act provided that in making that if the proceeds of said sales should be their award the arbitrators should take into insufficient to pay all the evidences of state consideration the amount of money realized indebtedness and interest thereon and redeem from the sale of the lands granted to the all the bonds and other obligations of said state of Wisconsin to aid in the construction company, then the said trustees should seller said water communication, which amount the water powers created by said improve ments, and thereafter all the corporate rights, privileges, franchises, and property of said company in said improvement, and all appurtenances thereto, to pay the same; and that the purchasers thereof should take, hold, and use the same as fully as they were held, used, and enjoyed by said company, etc. [74] *By the fourth section it was enacted that the trustees might, on the requisition of said company, proceed to sell the lands granted by Congress in aid of said improvement, and might sell or lease the water powers created by said improvement in such manner and upon such terms, as to price and time and place of payment, as the company might direct; but that no sales of said lands, or sales or leases of said water powers, should be made until after the execution and delivery of said deed of trust, etc. In pursuance of this legislation, the arbitrators were appointed and acted. They fixed the value of the company's property at $1,048,070; the amount of the land sales at $723,070; leaving a balance of $325,000 to be paid the company. They valued the water power and the water lots necessary to the enjoyment of the same at the sum of $140,000; the personal property at $40,000, and the improvement at $145,000. Subsequently Congress, by act of June 10, 1872, appropriated the amount of $145,000, and on September 18, 1872, the canal company, by its deed of that date, transferred and conveyed the works of improvement to the United States, reserving to itself the personal property and the water powers in the language following: In 1864 the company failed, the deed of "All that part of the franchises of said trust was foreclosed, and the property of the company, viz.: The water powers created company, consisting of the works of im- by the dams and by the use of the surplus provement, lands, and water powers, were waters not required for purposes of navigasold, in February, 1866, to purchasers, who tion, with the rights of protection and reserbecame incorporated, under authority of law, vation appurtenant thereto, and the lots, as the Green Bay & Mississippi Canal Com- pieces, or parcels of land necessary to the enpany. In the act of April 12, 1866, author-joyment of the same, and those acquired izing the purchasers at said sale to form "a with reference to the same, all subject to the corporation for the purpose of holding, sell-right to use the water for all purposes of ing, operating, or managing the lands, water navigation, as the same is reserved in leases powers, works of improvement, franchises, heretofore made by said company; and other property purchased at said sale, and subject, also, to all leases, grants, and or any part thereof," it was enacted that assignments made by said company, the said said corporation should have power to en- leases, etc., being also reserved herefrom." large and increase the capacity of said works Since that time the United States have asand of the said rivers so as to make a uni- sumed possession and exclusive control of the form steamship navigation from the Missis-rivers, and have expended several millions of sippi river to Green Bay, or to surrender the same to the United States for such enlargement on such terms as should be approved by the governor of the state. The amount realized at the sale was just sufficient to pay the state indebtedness, outstanding on account of certificates issued to aid in the work of improvement, and the sum estimated, by a commission duly appointed, to be necessary to complete the improvement. The Green Bay & Mississippi Canal Company, thus organized, continued to hold the works of improvements and manage the same until, in 1870, Congress passed an act providing for the purchase from the company of "all and singular its property and 172 U. S. dollars in their improvement, in pursuance that the water power in question did not ex- ture to legalize such structures for private a public purpose, and the sequestration or purposes. Such a question is for the state tribunals. But we have here the case of a water power incidental to the construction and maintenance of a public work and, from the nature of the case, subject to the control of the public authorities, in this instance the United States. appropriation of land or other property, It also appears that, through the entire history of this improvement, these incidental water powers were recognized by the legislature of the state as a source of revenue for the promotion and success of the public enterprise, and in aid of its completion. By the act of July 6, 1853, the water powers were granted with the rest of the public works to the Fox & Wisconsin Improvement Company, upon a public trust to continue and complete the partially constructed highway, and the company was thereby authorized to mortgage such water powers, as part of the plant, to secure bonds issued to raise money for that purpose; and, subsequently, upon a foreclosure the entire property became vested in the Green Bay & Mississippi Canal Company. The case of Kaukauna Water Power Co. v. Green Bay & Mississippi Canal Co. 142 U. S. 254 [35: 1004], involved some of the questions presented in the present case. There a private riparian owner sought to withdraw water from this very dam to furnish power to its works. The canal company filed a bill against such owner, the Kaukauna Water Company, to enjoin it from interfering with the canal company in building and maintaining the dam, and from cutting said dam in order to permit a flow of water out of the [77] pool into the works of the defendant. *The decree asked for was granted by the circuit court of Outagamie county, and that judgment was affirmed by the supreme court of Wisconsin. 70 Wis. 645. The case was brought to this court where it was contend-river in its unimproved state in the hands of ed, on behalf of the Kaukauna Water Power Company, that said company, by reason of ownership of the bank and of the bed of the stream, was the owner of the use, while passing, of all the water which might flow over the bed of the stream; in other words, was the owner of all the water power which could be utilized upon its land; and that, therefore, the act of the state of Wisconsin, of August 8, 1848, was void as an impairment of such property rights. The judgment of the court below was aflirmed in an opinion by Mr. Justice Brown, some of the observations of which are so pertinent to our present purpose that we quote them at some length: "The case of the plaintiff canal company depends primarily upon the legality of the legislative act of 1848, whereby the state assumed to reserve to itself any water power which should be created by the erection of the dam across the river at this point. No question is made of the power of the state to construct or authorize the construction of this improvement, and to devote to it the proceeds of the land grant of the United States. The improvement of the navigation of a river is 372 "The value of this water power created by the dam was much greater than that of the the riparian proprietors, who had not the means to make it available. Those proprietors lost nothing that was useful to them, except the technical right to have the water flow as it had been accustomed and the possibility of their being able some time to improve it. If the state could condemn this use of the water, with the other property of the riparian owner, it might raise a revenue from it sufficient to complete the work, which might otherwise fail. There was every reason why a water power thus created should belong to the public rather than to the riparian owners. Indeed it seems to have been the practice, not only in New York, but in Ohio, in Wisconsin, and perhaps in other states, in authorizing the erection of dams for the purpose of navigation, or rather public improvement, to reserve the surplus of water thereby created to be leased to private parties under the authority of the state; and where the surplus thus created was a mere incident to securing an adequate amount of water for the public improvement, such legislation has, it is believed, been uniformly sustained." 172 U. S. |