(dissenting).
The consequences to be anticipated from the decision in this case are of such great importance, and in my judgment so disastrous, not only to the people of the locality directly affected, but also to those at other places in the state where water powers were created in the early days, which have since become useless, that I feel compelled to dissent.
The dam in question was built in 1856, — more than 40 years ago, and prior to the admission of this state into the Union in 1858, and prior to the making of the United States surveys in that section of the country, — and the waters in the stream and in the lakes through which it flowed were then raised to the height at which they now stand. When the surveys were made, in 1857, these lakes were treated as natural bodies of water, and the tracts of land bordering thereon were meandered, and the metes and bounds of the shore tracts established in accordance therewith. This was all shown upon the topographical map introduced in evidence. For more than 20 years the shores around these meandered bodies of water-have been well defined on the new lines, so that no person unacquainted with the real facts would even suspect that the waters had ever been raised, or that the old original shores had been submerged. To all appearances, the artificial condition has always been the natural. All titles to these surrounding tracts of land were obtained by defendants or their grantors subsequent to these government surveys, and with reference thereto and to the then flooded *241condition of the lands which they now propose to obtain by draining the lakes. Their rights are not those of persons whose real property has been submerged by a trespasser, but are simply those of riparian owners upon meandered bodies of water. Their equities are wholly subject to the fact that the waters were raised and the land overflowed while the government was owner, and before the defendants or their predecessors in interest had acquired any rights in or title to the shores.
The'proposition of these defendants is to destroy the dam, and thus to draw down and lower the waters of these lakes from two to four feet below the levels at which they were when the surveys were made, and the lands bordering on the lakes meandered, and metes and bounds established. This proposition is the one which meets the approval of this court. To carry it out, an act which is forbidden by law must be performed; for, under the provisions of (t. S. 1894, §§ 6878, 6879, it is made a misdemeanor for any person - to drain, or attempt to drain, or cause to be drained, any body of water in this state which has been meandered by the government survey, and where metes and bounds have been established. That is exactly what these defendants claim they have the right to do, and what the court says they may do, under the contract. It seems to me that equities which, to be of any value, must be obtained through a violation of a penal statute, are not entitled to much weight when determining where the real equities are in this case. In the main opinion it is urged that there can be no reciprocal rights? ■ as between the parties, because nothing was done during the' whole prescriptive period which was inconsistent with the rights! of the party flooding the land. If there be any force in this argu-j | ment, it follows that a riparian owner above the dam, who was j satisfied with its construction, or who was, or at least thought heS / was, benefited, instead of injured by the flooding of his land, could j obtain no rights by acquiescence. He would have to remain in un-J certainty and doubt as to whether he had best object to the flooding, and seek compensation for an act which was not injurious in fact, or which he believed to be no injury, or he would have to remain silent, and take the chances of having nothing done in the *242future which would prove a serious detriment to his property. I see no manner in which he could protect himself against future injury, except by making such improvements as would appear to a court to create greater equities in his favor than could be presented by his adversary.
It is assumed in the main opinion that the dam is of a perishable character, and may go out, causing great damage to property below, for which defendant Muggli would be held liable. This fact seems to have great weight with the majority! The dam has been in place 40 years, and I am of the opinion that it is hardly fair to the plaintiff to assume that it may give way, or, if it did, that loss and destruction of property would ensue. But, as I understand the theory on which the cases are decided in which the doctrine of reciprocal rights has been applied, it is that the artificial conditions which once existed have become the natural conditions. In other words, and briefly stated, what was once an artificial obstruction to the flow of a stream has, through lapse of time and the change it has wrought in the conditions, become a natural one. If this be so, the dangers which it is suggested lie in wait for defendant Muggli, should the obstruction be swept away and injury result to the riparian owners below, are not so great as anticipated.
Referring again to the doctrine of equitable estoppel, let me call attention to the fact that, if comparative benefits are to be considered, no one would be safe, for he would never know what might be the fact when it became necessary for him to invoke the aid of the doctrine. He might be safe in making improvements to-day, relying upon the conditions, and absolutely without protection tomorrow. I do not think that the doctrine of equitable estoppel is to be influenced by weighing the benefits as between the parties. But I will not discuss the questions further. The cases which are' mentioned in the main opinion go into the subject of reciprocal rights and of equitable estoppel in cases of this character quite fully. See also Village v. Savoy, 103 Wis. 271, 79 N. W. 436, and Priewe v. Wisconsin, 103 Wis. 537. I am of the firm opinion that when the defendants propose to appropriate — not to reclaim — submerged land outside of the meander lines, to which they have no right or title except as owners of the meandered tracts, and in order to do *243this must violate a criminal statute, they have no equities which should be allowed to outweigh and overcome those which have been presented by plaintiff and another riparian owner, who is plaintiff in one of the companion cases. I am opposed to the establishment of any rule which will countenance or permit the drainage and destruction of any of the splendid bodies of water with which the state is blessed, whether natural originally, or recognized as natural by the general government when causing surveys to be made, and thereafter so considered by the people, and which have become natural in fact, unless such rules are the inevitable result of careful research, based upon the clearest principles, and sustained by the undoubted weight of authority.
BUCK, J.I agree with Justice COLLINS.
A petition for reargument having been presented .in this case and in the two cases which follow next after, the following opinion was filed August 1, 1899:
START, O. J.A petition for reargument herein having been duly made and considered, it is ordered that the petition be, and it is hereby, denied, and the stay heretofore entered herein vacated; but ordered, further, that the order heretofore entered, herein, remanding the case to the district court, be modified so as to read as follows:
“Ordered, that a new trial be, and is hereby, granted in each of the cases, and that remittiturs be sent down accordingly.”