140 Wis. 327 | Wis. | 1909
The trial court held that Waterloo creek is not in fact navigable, but that the pond therein created by the flowage from the dam sought to be condemned is navigable, and that its navigability could not be destroyed under the powers granted or rights conferred by ch. 419,. Laws of 1905, as amended by ch. 646, Laws of 1907. The evidence tended
Slight as is the showing of navigability in this case, still we think it is sufficient to sustain the finding of the trial court that this pond is in fact navigable and is water in which the public has acquired rights, under the repeated decisions of this court. Indeed, counsel for the appellant did not assert otherwise on the oral argument. The following cases, among others which might be cited, define what constitutes the test of navigability in a stream or body of inland waters: Whisler v. Wilkinson, 22 Wis. 572; Sellers v. Union L. Co. 39 Wis. 525; Olson v. Merrill, 42 Wis. 203; A. C. Conn Co. v. Little Suamico L. Mfg. Co. 74 Wis. 652, 43 N. W. 660; Falls Mfg. Co. v. Oconto River Imp. Co. 87 Wis. 134, 58 N. W. 257; Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273; In re Horicon D. Dist. 136 Wis. 227, 116 N. W. 12. It is true that the body of water found to be navigable in this case is small, but if it is navigable in fact' and constitutes a public highway the rights of the public therein are as sacred and as much entitled to protection as they would be in the case of a more pretentious watercourse.
By the Court. — Order affirmed.