The appellant having moved for a rehearing, the motion was denied, and the following opinion filed, at the June term, 1872.
DixoN, C. J.We have read and carefully considered the able and elaborate argument of the learned counsel for the de*341fendant, but are yet of opinion tbat the motion for a rehearing must be denied upon the points presented.
1. The proviso or inhibition of the Eeed charter was against “raising” the water of Lake Winnebago above its ordinary level, and until it can be demonstrated that the “ piling up ” of the water of the lake above its ordinary level is not a “ raising ” of it above the same level, we must reject the position and argument of the learned counsel with respect to the construction he would have us put upon the charter. To us it is utterly incomprehensible how the water maybe “piled up’’and yet not “ raised; ” and so long as the water is raised above its ordinary level, the charter prohibits it, or furnishes no authority or license whatever for so doing. The charter does not specify or declare that the water shall not be raised by any particular natural process or mode, but does declare that it shall not be raised at all; and we cannot, therefore, stop to inquire into such processes or modes, but only whether the water has in fact been raised by means of the dam. Any raising of the water of the lake above its ordinary level is prohibited. Such we believe to be the true and only proper construction of the charter.
2. We held, in the former opinion, that the structure in question was not a “ mill dam ” within the meaning of the act of April 2, 1862. This was so held upon a statement found in the sixth defense contained in the answer, and which was proper to be considered in determining the question. That statement is as follows: “ That the said dam, in manner and form in which it was built, contrived, erected, completed, maintained and continued, to wit, as mentioned in said complaint, was, ever since it was so built, has been, and now is, an essential, necessary and integral part or portion of the said works of improvement of the navigability of the said Eox and Wisconsin rivers, and to the proper development-and enlargement of their capacity as common navigable highways.” The foregoing statement, connected with the absence of any statement of facts in the fifth defense showing that the structure in question is a *342mill dam, justified us, as we thought, in bolding that it was not, notwithstanding the general averment in the fifth defense that it “is a dam of the class and character referred to in the act,” which is no more than the statement of a conclusion of fact or of law from facts which are not pleaded. The fifth defense, attempting to set up the limitation of the act, was, therefore, as we thought and still think, in this respect faulty and imperfect, as well as inconsistent with other parts of the answer.
3. The fifth defense does not plead or profess to plead the one year limitation prescribed by the proviso of the act of 1862 for the commencement of an action for the recovery of any lands, tenements or hereditaments flowed before the passage of the act. Whether the time thereby limited was reasonable or not, or the act in that respect valid, is a question not here presented. In the case of Berry and Johnson v. Ransdall, 4 Metc. (Ky.), 292, and authorities there referred to, will be found very interesting discussions of this question when it shall arise.
By the Oourt.— Motion denied.