148 Wis. 421 | Wis. | 1912
Sec. 1607cs, Stats. (1898), provides that lakes which have been meandered and returned as navigable by the government surveyors, and also those which have been meandered and are navigable in fact, are declared to be navigable and- public waters. Appellant contends that the maxim enumeratio unius est exclusio alterius should apply to this •section, and that we have in effect a legislative declaration that monmeandered lakes are neither navigable nor public waters. The power of the legislature to make such a declaration is, to say the least, a matter of grave doubt. Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918; In re Horicon D. Dist.
Sec. 1607, Stats. (1898), provides: “The following rivers,, having been heretofore so declared by acts of the legislature,, are hereby declared to be navigable to the extent thereof, stated respectively, as follows.” Then follows an enumeration of twenty-two streams, coupled with a description of the-portions of each declared navigable. It would not be claimed that the effect of this statute was to declare all streams not. therein named nonnavigable, and neither could it be successfully contended that the effect thereof was to determine that-all of the streams named in said section were nonnavigable except as to the portions declared to be navigable. This court has held in a long line of cases that any watercourse which is navigable in fact is a navigable stream, regardless of the fact that it is not meandered or declared to be navigable by legislative action. Whisler v. Wilkinson, 22 Wis. 572; Sellers v. Union L. Co. 39 Wis. 525; A. C. Conn Co. v. Little Suamico L. Mfg. Co. 74 Wis. 652, 655, 43 N. W. 367; Falls Mfg. Co., v. Oconto River Imp. Co. 87 Wis. 134, 149, 58 N. W. 257; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273; Diedrich v. N. W. U. R. Co. 42 Wis. 248, 263; In re Horicon
Sec. 1607 was incorporated in tbe Revision of 1878 and was a codification of a large number of independent statutes. We must presume tbat tbe legislature was advised of tbe decisions of tbis court defining wbat were navigable waters, after sec. 1607 was enacted, and tbat it did not anticipate tbat any construction would be placed on sec. 1607a different from tbat wbicb bad in effect been placed on sec. 1607. These statutes would seem to be in pari materia, and if sec. 1607 is construed as not excluding everything tbat is not. included, sec. 1607a should be construed likewise. We have bad a number of decisions dealing with tbe navigability of inland lakes, and tbe same test has been applied as in tbe case of streams — tbat of navigability in fact. Priewe v. Wis. S. L. & I. Co. 93 Wis. 534, 67 N. W. 918; S. C. 103 Wis. 537, 79 N. W. 780; Ill. S. Co. v. Bilot, 109 Wis. 418, 426, 84 N. W. 855, 85 N. W. 402.
■ It is true tbat in these cases tbe lakes involved were meandered, but no great significance was attached to tbis fact, and it is difficult to see wherein it was of much significance, at least before tbe passage of sec. 1607a- In Johnson v. Eimerman, supra, tbe pond over wbicb tbe controversy arose was created by damming a nonnavigable and nomneandered creek, and it was held tbat tbe pond so created was a navigable body of water. So, too, a pond created by a dam placed in tbe Rock river was held navigable though not, meandered. In re Horicon D. Dist., supra. In each of these cases it was said tbat tbe artificial condition existed for such a length of time that in a legal sense it became a natural condition. So, in these two cases decided since tbe enactment of sec. 1607a., tbe court has held tbat a nonmeandered lake or pond, if navigable in fact, is a navigable and public body of water. Whether a law is wise or unwise does not concern tbis court
By the Court. — Order affirmed.
