(dissenting). The conclusions reached by the court in this case are summarized in the final paragraph of the opinion, where it is said: “We hold, therefore, that under the evidence the plaintiff owns.no land west of the highway, and hence has neither a common-law nor statutory right to a tunnel or channel under or across the highway.” (The italics are mine.)
I believe the decision is contrary to well settled principles of law and that the court' in reaching its conclusion has overturned findings of fact made by the trial judge which were not only well supported by the evidence but were sustained by the decided preponderance of proof. I think the plaintiff was entitled to judgment independent of the tunnel statute and regardless of whether or not he owned land between the road and the lake. If the tunnel statute be held to confer a new right rather than to regulate the exercise of an existing one, then I think the plaintiff was entitled to relief under that statute because the proposed construction was a tunnel and the plaintiff did own land on both sides of the highway as well as the highway itself. The case is an important one, *146and I cannot help thinking that the court has wandered far afield from long established legal rules in deciding it. The respective interests of the public and an abutting owner in the highway have been fixed by a well nigh uniform current of authority. Where the right' of the public ends and that of the abutting owner begins, has been just as firmly established. Whenever a conflict arises between these two, there is always one and only one question to be determined, and that' is, Does the use which the owner proposes to make of his property unreasonably interfere with the use and enjoyment of the public easement therein ?
The plaintiff owns the fee in the highway and the public has a mere easement across his land. Andrews v. Youmans, 78 Wis. 56, 47 N. W. 304; Wegge v. Madler, 129 Wis. 412, 109 N. W. 223; Smith v. Beloit, 122 Wis. 396, 100 N. W. 877; Brown v. Baraboo, 98 Wis. 273, 74 N. W. 223; Chase v. Oshkosh, 81 Wis. 313, 51 N. W. 560; Donohoo v. Murray, 62 Wis. 100, 22 N. W. 167; Pettibone v. Hamilton, 40 Wis. 402. It is conceded that Lawler's land runs to the lake, so he owns the fee in the highway whether the lake forms it’s western boundary line or not.
The right of the public in a highway is well defined. It has the right of passage. It may cut down elevations, fill depressions, grade the roadway, and make reasonable use of the material which it finds on the right' of way for construction and repair work. It may improve and fit for travel so much of the right of way as it sees fit, and prevent obstructions in or encroachments on the road' that would endanger or materially interfere with travel. On the other hand, the owner of the fee has the right to use his land for all purposes consistent with the enjoyment of the easement acquired by the public. 37 Oyc. 207, and cases cited in note 1.
“The public have simply an easement, a right of passage along the highway, but' not the right to make a pasture of the road. . . . And as a general rule in this state, the fee of the *147highway belongs to the owner of the adjoining ground, subject to this easement or right of passage in the public/’ Harrison v. Brown,, 5 Wis. 27, 31.
An individual has no right to pile wood along the unused portion of a highway against the protest of an abutting owner. “To establish any such right as incident to a public easement, would be a flagrant violation, not only of the rights of landowners, but of the public also.” Orton v. Harvey, 23 Wis. 99, 102.
The owner of a city lot, having an estate in fee to the center of the adjacent street, has a right to the enjoyment of any use of his estate, consistent with the servitude to which it' is subjected. And where such owner has occasion to build thereon, he may lawfully unload his materials and-earth within the limits of the street, taking care not to improperly obstruct the street, provided he removes such material within a reasonable time. Hundhausen v. Bond, 36 Wis. 29. To the same effect are Gardiner v. Tisdale, 2 Wis. 153; O'Linda v. Lothrop, 21 Pick. 292; Clark v. Fry, 8 Ohio St. 358; Storrs v. Utica, 17 N. Y. 104; Chicago v. Robbins, 2 Black (67 U. S.) 418.
The abutting owner has a right to use the subsurface of the street for legitimate purposes, provided such use does not interfere with the right of the public in the street. Papworth v. Milwaukee, 64 Wis. 389, 25 N. W. 431.
The correctness of these decisions of our own court has never heretofore been questioned. The principles thereby established are abundantly supported by the decisions of other courts.
The owner of the soil over which a highway is located is entitled to the entire use of the land, except the right which the public has to use the land and materials- thereon for the purpose of building and maintaining a highway suitable for the safe passage of travel. And the public have no right to take materials from the right of way for any purpose other *148than tbe building and maintaining of tbe same. Cole v. Drew, 44 Vt. 49, 8 Am. Rep. 363.
Tbe abutting owner is “entitled to tbe timber and tbe grass wbicb may grow upon tbe surface, and t'o all minerals wbicb may be found below it.” Barclay v. Howell's Lessee, 6 Pet. 498, 513.
Tbe original owner “bas a right to tbe freehold and to all tbe profits wbicb may be derived from it, consistently with tbe right of passage of tbe public, — to all mines beneath tbe surface, to all trees, grass and pasturage upon and above tbe surface.” Tucker v. Eldred, 6 R. I. 404.
“Tbe public acquires a right of way with tbe powers and privileges incident to that right, such as digging tbe soil, using tbe timber and other materials found within tbe limits of tbe road, in a reasonable manner, for tbe purpose of making tbe road and its bridges. Tbe former proprietor of tbe soil still retains tbe exclusive right in all tbe mines, quarries, springs of water, timber and earth, for every purpose not incompatible with tbe public right' of way.” Pemberton v. Dooley, 43 Mo. App. 176.
A right of way existing in tbe public over land for a highway is a right of passage, and not a right to get water in tbe streams or springs on tbe soil of tbe landowner, and a spring in a public highway is not a part thereof, nor is its use an incident to tbe use of tbe road, and the landowner bas a right to fence it off from tbe public use as long as tbe use of tbe highway is not theréby unreasonably interfered with. Old Town v. Dooley, 81 Ill. 255; Tacoma S. D. Co. v. Chicago, 247 Ill. 192, 93 N. E. 153.
Tbe abutting owner bas tbe right to remove gravel from tbe right of way unless thé material so taken is necessary for tbe construction or repair of such roadway, provided tbe roadway is not materially injured by removing such gravel. Glencoe v. Reed, 93 Minn. 518, 101 N. W. 956, 67 L. R. A. 901.
*149And where a city entered into a contract for street grading and permitted the contractor to clear and take away the rock found in the part of the street covered by the contract, it was held that the owner of the fee-was entitled to recover the value of the rock so taken away, it appearing that it was not necessary to remove the rock for the purpose of grading or improving* the street, it being located below the grade line. Rich v. Minneapolis, 37 Minn. 423, 35 N. W. 2.
The owner of the fee has a right to sell sand from a bed located on one side of the traveled road, provided no injury is done to the highway by such removal. Williams v. Kenney, 14 Barb. 629.
The building of a pipe line along a highway does not come within the use for which the highway was intended; the owner has the right not only to expel those who are engaged in the unlawful work, but also the right to tear up and remove the pipes which they have placed in his land. Consumers'’ G. T. Co. v. Huntsinger, 14 Ind. App. 156, 39 N. E. 423.
A contractor for the construction of a sewer is liable to the .owner of the fee for the value of stone taken from a ledge in the street which it was not necessary to remove for the purpose of constructing the sewer. Viliski v. Minneapolis, 40 Minn. 304, 41 N. W. 1050.
Where the public authorities had piped water from a spring on the side of a highway to a public drinking trough, the abutting owner undertook to take up the pipes and was restrained from so doing by the town authorities. The court said that subject to the public easement the abutting owner “may take trees growing upon the land, occupy mines, sink watercourses under it, and generally has a right to every use and profit which can be derived from it, consistent with the easement, and when disseized (as he may be) can maintain ejectment and recover possession subject to the easement', and can also maintain trespass for any act done to the land not necessary for the enjoyment of the easement, which would be actionable injury if the land was not covered by the highway. *150... In the case before ns, as between tbe public and tbe respondent, tbe owner of tbe spring, tbe latter is entitled to any and all uses of it wbicb do not interfere with tbe public safety, do not obstruct or binder public travel, and do not increase tbe public burden of making repairs. If, therefore, tbe officers can at tb¿ same cost make and keep tbe way equally safe and convenient, and still allow tbe water to flow from tbe spring over and upon tbe land of tbe owner of it, it is tbeir duty so to do. Tbe right of tbe owner to tbe use of tbe spring under these limitations takes precedence of tbe right of tbe officers to divert it to tbe lands of others, if in so doing tbeir sole motive is to establish a public watering place. Of course such places afford great relief to man and beast; but, commendable as is tbe act of establishing them, towns have no right' to take private property without compensation for that purpose.” Suffield v. Hathaway, 44 Conn. 521, 526, 527.
“When tbe sovereign imposes a public right of way upon tbe land of an individual, tbe title of tbe former owner is not extinguished; but is so qualified that it can only be enjoyed subject to that easement. Tbe former proprietor still retains bis exclusive right in all mines, quarries, springs of water, timber, and earth, for every purpose not incompatible with tbe public right of way.” Jackson v. Hathaway, 15 Johns. 447, 452.
Other cases bolding a like doctrine are Chamberlain v. Enfield, 43 N. H. 356; Holden v. Shattuck, 34 Vt. 336; Overman v. May, 35 Iowa, 89; Board of Comm’rs v. Beckwith, 10 Kan. 603; Winter v. Peterson, 24 N. J. Law, 524, 61 Am. Dec. 678; West Covington v. Freking, 71 Ky. 121; Phifer v. Cox, 21 Ohio St. 248; Bolling v. Mayor, etc. 3 Rand. (Va.) 563; Highway Comm’rs v. Ely, 54 Mich. 173, 19 N. W. 940.
Proceeding now to what might be termed cases directly in point, that is to say, cases where tbe foregoing principles were applied so as to give tbe abutting owner tbe right to construct ditches and carry watercourses in and across a highway, we find that they are uniformly to tbe effect that tbe *151right exists, provided its exercise does not unreasonably interfere with tbe enjoyment of the public right.
The common-law right of an abutting owner to cut a ditch so as to carry a raceway across a highway is recognized and impliedly sanctioned in President, etc. v. Mann, 59 Wis. 69, 17 N. W. 972, where it is held that when such a channel is cut the owner of the raceway is liable for the maintenance of the bridge.
“The owner of the soil traversed hy the highway had the right to construct a watercourse across it. . . . This familiar and well settled rule of law does not in our opinion grow out of the feudal tenure, or any peculiarity in the laws of England in relation to the duties of parishes, as argued by the defendant’s counsel, but results, as we think, from the fact that the public right is a mere easement, and the owner of the soil, as such, can lawfully do anything upon it that does not' interfere with the public easement.” Inhabitants of Woburn v. Henshaw, 101 Mass. 193, 198.
To the same effect are Parley v. Chandler, 6 Mass. 454, and Adams v. Emerson, 6 Pick. 57.
The owner of land through which a public road runs may cut a passage across the road for the purpose of draining his land or running water to his mill, because the land is his own, but in doing so he must not injure the public easement, and. to preserve it must construct bridges over such ditches where they cross the road and must keep the same in repair. Woodring v. Forks Tp. 28 Pa. St. 355.
Later it was held by the same court that the owner of land adjoining a highway may cut a ditch .across the road, but he must, by bridging or otherwise, make the highway as safe for travel as before. Phoenixville v. Phoenix Iron Co. 45 Pa. St. 135.
The general rule is laid down in 15 Am. & Eng. Ency. of Law (2d ed.) 419, as follows:
“The owner of the fee may sink a drain or watercourse below the surface of the highway, or make any other excavation *152therein, provided be takes proper precaution to cover it so as not to interfere with the safety and convenience of travelers.”
The owner of land through which a highway passes may dig a ditch across such highway, but if he does he must by bridging or otherwise keep the highway as good and safe for •travel as before. The court said the defendant certainly committed no trespass in digging the ditch.
“It was his own soil. The only right adverse to his was one to have a common highway for the purpose of travel. All the public could require was, that he should make and keep the road as good as it was before he dug his ditch. That he accomplished by building a substantial bridge originally, which did not get' out of repair for a number of years. The road, however, in the end, proved to be less safe than it was when the bridge was first built, certainly less so than before the ditch was dug. In suffering this, the defendant came short of his obligation to the public.” Dygert v. Schenk, 23 Wend. 445 (op. by CoweN, J.).
The owner of the fee in a public highway may sink a watercourse under it for use in connection with the adjoining premises where the highway is not thereby rendered unsafe. Clay v. Hart, 25 Misc. 110, 55 N. Y. Supp. 43.
The owner of the fee in a public highway may dig ditches therein to drain his lands, provided his acts do not render the highway less safe, useful, or convenient for the public. Nelson v. Fehd, 104 Ill. App. 114; affirmed in 203 Ill. 120, 61 N. E. 828.
“It is well established in this state, in conformity with the principles of the common law, that a highway is simply an easement or servitude, conferring upon the public only the right of passing over the land on which it is laid out, and, as an incident of such right, that of using the soil and the materials upon it in a reasonable' manner for the purpose of making and repairing it. The title of the owner of the land is not extinguished, but is simply so qualified that it can only be enjoyed subject to the easement. He retains the fee and all rights of property in the land not' incompatible with the *153public enjoyment of tbe right of way, and whenever the highway is abandoned or lost, the" entire, exclusive, and unincum-bered enjoyment reverts to him. Subject to this right of the public he may take trees growing upon the land, occupy mines, sink watercourses under it, and, generally, has a right to every use and profit which can be derived from it consistent with the easement. . . .” Woodruff v. Neal, 28 Conn. 165.
The same question was before the South Carolina court, and it was held by that court' that the abutting owner had the right to carry a conduit for water under the highway. Baring v. Heyward, 2 Speers (S. C.) 553.
The owner of a raceway adjoining a public street may lawfully increase the flow of water to his mills so long as the safeguards erected by the public remain sufficient. State v. Society, etc. 46 N. J. Law, 274.
Where a defendant was the owner of the land within the limits of a country‘highway, subject only to the public easement, and the land contained a valuable deposit of sandstone, defendant was not required to maintain the highway unobstructed to its full width so as not to interfere at all with the use of the highway for public travel as a condition of its right to remove the sandstone, but was only required to keep a passageway open and in good repair within the limits of the highway on the surface of the ground or by a bridge of width sufficient to enable teams to pass each other. Clarendon v. Medina Q. Co. 92 N. Y. Supp. 530, 1148.
Since the public has only an easement of use in a highway, and the fee rests in the abutting owner, be may make such use of the land within the highway as will not interfere with its use by the public. Such owner may use the highway on which t'o maintain irrigation ditches for the benefit of his land, provided he does so without creating a nuisance or interfering with its use as a highway. Holm v. Montgomery, 62 Wash. 398, 113 Pac. 1115.
The state of Oklahoma passed an act forbidding firms or *154corporations to pipe natural gas outside of the borders of tbe state, and provided in the law that no pipe line intended for such purpose should be laid in or across any of the public streets or highways of the state. It was held that the act was void and that it was beyond the power of the state to prohibit the laying of pipes in the streets where they did not materially interfere with the public use, and that any such prohibition as was attempted would operate to deprive the abutting owner of property without due process of law. Kansas N. G. Co. v. Haskell, 172 Eed. 545, affirmed West v. Kansas N. G. Co. 221 U. S. 229, 31 Sup. Ct. 564. This case is very significant, because the legislature attempted to deprive the abutting owner of the right which the plaintiff sought to exercise here, and the court held the legislature had no such power.
I am at a loss to know upon what theory it is claimed that the abutting owner has no common-law right to construct a ditch in a highway simply because he does not own land on both sides of the road. So long as he confines his activities to the part of the highway which he owns in fact, he may make any lawful use of it which he sees fit, provided that by so doing he does not unreasonably interfere with the public use. To say that he cannot do this, is to deprive him of the use of his property without compensation and for a purpose that is not public. Admittedly the plaintiff owned the land over which the road was built to the ordinary high-water line. He had the right to construct his ditch to this point if by so doing he did not interfere with the public easement. Even if he were obliged to stop there, the ditch might be of great use to him in the transportation of ice to his ice house. He is denied the right to use his property to the ordinary high-water mark. This denial is not put' upon the ground that the proposed ditch would materially affect the enjoyment of the easement of the public. The trial court found that it would not. This finding is not' attacked in any way in the *155decision of tbis court. It is amply sustained by tbe evidence. Every legitimate public interest bas been carefully safeguarded by tbe judgment. Tbe plaintiff was required to make bis ditcb safe and secure and to widen tbe concrete bridge whenever required to do so. He was also required to give a bond to keep tbe bridge perpetually in a good state of repair. In fact there is very little serious contention on tbe part of appellants’ counsel that there would be any impairment' of tbe use of tbe highway'by the construction of tbe ditch. Tbe town board did not refuse to grant tbe plaintiff tbe permission which be sought because it conceived that tbe use of tbe highway by tbe public would be affected by tbe ditcb. Tbe plaintiff’s land is located near a number of very costly summer residences. An ice bouse in their midst would no doubt be something of an eyesore to persons of artistic tastes and temperaments. Tbe town board elected to cater to these tastes rather than to the'commercial and plebeian desires of tbe plaintiff. But tbe plaintiff purposed entering upon a perfectly legitimate business on.bis own property. He is precluded from exercising that right without a cent of compensation and without an iota of justification, as I view it.
I have stated that tbe plaintiff had a clear right to carry bis ditch to tbe ordinary high-water line of tbe lake. Although tbe question is not very material, I do not for a moment concede that be was obliged to stop there. He bad the right to cut tbe banks and connect bis-ditcb with the lake, provided that by so doing be did not interfere with tbe public right of navigation or of bunting or fishing. Tbe riparian proprietor on a navigable lake bas certain well defined rights and privileges peculiar to himself, which extend beyond bis boundary line and into public waters.
A riparian proprietor on a navigable lake
“bas tbe right of exclusive access to and from tbe waters of tbe lake at that particular place; be bas tbe right to build piers and wharves in front of bis land out to navigable waters *156in aid of navigation, not interfering with, tbe public use. These are private rights incident to the ownership of the shore, which he possesses, distinct from the rest of the public. All the facilities which the location of his land with reference to the lake affords, he has the right to enjoy for purposes of gain or pleasure; and they oftentimes give property thus situated its chief value. It is evident from the nature of the case, that these right's of user and of exclusion are connected with the land itself, grow out of its location, and cannot be materially abridged or destroyed without inflicting an injury upon the owner which the law should redress. It seems unnecessary to add the remark, that these riparian rights are not common to the citizens at large, but exist as incidents to the right' of the soil itself adjacent to the water. In other words, according to the uniform doctrine of the best authorities, the foundation of riparian rights, ex vi termini, is the ownership of the bank or shore. In such ownership they have their origin. They may and do exist though the fee in the bed of the river or lake be in the state. If the proprietor owns the bed of the stream or lake, this may possibly give him some additional right; but his riparian rights, strictly speaking, do not depend on that fact.” Delaplaine v. C. & N. W. R. Co. 42 Wis. 214, 226, 227.
The above quoted portion of the opinion is quoted and approved in the case of McCarthy v. Murphy, 119 Wis. 159, 161, 162, 96 N. W. 531, wherein it is held that the riparian owner had the exclusive right to build piers and wharves in front of his land in aid of navigation, and might remove as a private nuisance a pier erected by any. other person.
“It is settled in this state that the riparian owner on navigable water may construct in front of his land, in shoal water, proper wharves, piers, and booms in aid of navigation, at his peril of obstructing it, far enough to reach actually navigable water. This is properly a riparian right, resting on title to the bank, and not upon title to the soil under the water. It is a private right, however, resting, in the absence of prohibition, upon a passive or implied license by the public, is subordinate to the public use, and may be regulated by law.” Priewe v. Wis. State L. & I. Co. 93 Wis. 534, 547, 67 N. W. 918; Cohn v. Wausau B. Co. 47 Wis. 314, 322, 2 N. W. 546.
*157One riparian owner, without legislative authority, “has no legal right' to draw the water from such lake, to the injury of other such riparian proprietors thereon.” Priewe v. Wis. State L. & I. Co., supra.
The right of the private riparian owner is subject to the paramount right of the public to navigate navigable waters. Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185.
A riparian owner on Chequamegon Bay may build docks from his shore t'o the line of navigable water. Northern P. L. Co. v. Bigelow, 84 Wis. 157, 54 N. W. 496.
“Docks, wharves, and public landings are essential to ■navigation, and highly favored in the law. The defendant, .as a riparian proprietor, may have had the right to construct this boom for his own benefit, if it had not interfered in such way with the free and unobstructed navigation of the waters •of the lake. When it does so interfere with the private and public right of navigation, then it becomes a private and public nuisance to be abated, and those who place them or maintain them there are liable in damages for any special injury.” Union M. Co. v. Shores, 66 Wis. 476, 479, 29 N. W. 243.
A riparian owner on the shores of a navigable inland lake whose property is valuable for pleasure resort purposes on account of its proximity to the lake and easy access to its waters for boating and fishing can maintain an action against other riparian owners for so drawing off the water of the lake as to lower its level. Cedar Lake H. Co. v. Cedar Creek H. Co. 79 Wis. 297, 48 N. W. 371.
Each owner of shore line on a navigable lake is entitled .as against other owners to his proportion of the line bounding navigable water for contact with navigation, and to a •direct course over intervening shallows to construct piers or •other structures connecting the shore" with such navigable line. Thomas v. A., S. & I. R. L. R. Co. 122 Wis. 519, 100 N. W. 993.
It would be illogical to hold that the riparian proprietor *158could build a dock from bis laud to navigable waters but could not construct a ditcb from tbe water to bis land, where sucb construction would interfere witb no public right'.
Tbe fact that one of tbe boundary lines of a highway is a navigable body of water does not affect tbe riparian right of tbe abutting proprietor who owns tbe soil in tbe highway, except in that tbe right of tbe public to tbe riparian privilege for public purposes incident to navigation and, to navigable waters is paramount to tbe private riparian right. Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436; Bradley v. Pharr, 45 La. Ann. 426, 12 South. 618, 19 L. R. A. 647.
It is well settled by tbe foregoing authorities, as well as by others, that tbe public and tbe abutting owners each own an estate in a highway, and that tbe estate of tbe abutter carries tbe fee and tbe exclusive right' to use tbe same subject only to tbe public easement and what that easement carries witb it. It is as well settled that tbe abutter cannot unreasonably interfere witb tbe exercise of tbe public right. Whenever tbe abutter asserts a right and tbe public through its proper officers denies tbe existence of sucb right, we have a judicial controversy which is referable to tbe courts for decision. Tbe public or its representatives can no more undertake to finally decide it than it could undertake to decide a dispute which might arise over the boundary line of a highway. It would be intolerable to permit one interested party to a controversy to make itself a court, judge, and jury to pass on its own case when its biased and partisan decision would operate to deprive tbe individual of a valuable property right. It seems to be absurd to claim that tbe town board could in this ease proceed to bear, try, and determine it's controversy witb Lawler and forever conclude him by that determination. Tbe rights of an abutter in a highway are just' as sacred and just as much entitled to protection as is bis right in tbe adjoining field or as is any other property right. The one can no more be taken without compensation than tbe other. Our law, *159common and statute, which was in force when the easement was acquired determines the rights of the parties. It is not within the field of legislative competency to take from the abutting owner a single right or privilege which was secured to him by existing law, without adequate compensation. Town boards have the right to prevent encroachments and obstructions in highways. They cannot, however, adopt arbitrary definitions of these terms, and make encroachment's or obstructions out of things which are not' such in fact.
Mr. Lawler proposed to dig this ditch over his own land for his own purposes. Whether he had land to the west of the-road is wholly immaterial, as I view the case. Whether he had the right to break the shore line in the construction of his ditch is also immaterial. If the shore line was left intact he might still construct and use his ditch, although it would not be as convenient for him as it would be t'o carry the ditch to the waters of the lake. The cases cited which recognize the right of an abutting owner to construct a ditch across a highway at grade enunciate no new principle. They correctly apply the general rule to specific cases of this nature. This general rule permits the, abutting owner to use property which is his for any legitimate purpose which will not unreasonably interfere with the public use. That a ditch may be so constructed as not to work such interference is not only a matter of common knowledge, but the courts uniformly, as far as I know, so hold. The only question here is, Would the proposed ditch create such interference ? and this is a question of fact which has been decided adversely to the appellants by the trial court on abundant evidence, and such finding has not been interfered with by this court.
Sec. 1346, Stats. 1898 (the so-called tunnel statute), confers no new right. It merely regulates the exercise of an existing one which the legislature can no more take away than it could take plaintiff’s entire parcel of land without compensation. There is no doubt' that the legislature has *160the right to reasonably regulate the maimer in which the abutting owner may exercise his rights in a highway. But regulation and confiscation are essentially different things. There can be no prohibition under the guise of regulation. The latter must be reasonably adapted to accomplish the end sought, and the regulative act itself must' fall within the powers conferred on the body which seeks to regulate. Kansas N. G. Co. v. Haskell, 172 Fed. 545, affirmed West v. Kansas N. G. Co. 221 U. S. 229, 31 Sup. Ct. 564, and other cases heretofore cited. The power which the legislature of our state has conferred on town boards is one of regulation solely, and not' one of confiscation or prohibition. The legislature carefully kept within constitutional lines when it enacted secs. 819, 1223, 1224, 1225, 1226, 1326, and 1330, Stats. Town boards cannot follow the maxim Hoc volo, sic jubeOj sit pro ratione voluntas.
While the trial court found as a fact that plaintiff owned land on both sides of the highway, there is nothing in the ‘decision to suggest that it deemed such finding to be vital to •the plaintiff’s cause of action, or that the judgment would have been different had the circuit judge reached the conclusion arrived at by this court. The authorities cited demonstrate that an abutting owner on one side of a highway only, may construct lateral ditches on the portion of the highway which he owns and may also use the subsurface of the highway for any legitimate purpose although his ownership ceases ■at the center line of the highway.
I cannot see how the question of ownership on both sides of the highway is of any importance in the case, unless it is held that the so-called tunnel statute (sec. 1346) confers rights on the landowner which he did not have at common law. This is not my view of the statute. However, inas-. much as the court has held that the plaintiff was not entitled to judgment because he did not own on both sides of the road, and has decided by inference at least that he would be entitled to judgment if he did own on both sides, I feel it my *161duty to discuss this question. I know that ordinarily there is little justification in writing a dissenting opinion on a pure question of fact. This is particularly true where the dispute is over the dry and uninteresting subject of surveys and boundary lines. The case, however, is one of a great deal of importance to the parties and has been argued and reargued in this court. Three of the judges who originally thought the judgment should he reversed expressed their views in an opinion by Mr. Justice Timlibt. The court has expressed its views in the opinion on rehearing, and I feel that it is proper for those of us who do not' agree with what is said in either opinion to state fully our reasons for the conclusions arrived at.
I cannot escape the conclusion that the action of the court in reversing the findings of fact made by the trial judge is unusual and even extraordinary. I think so because I believe that these findings are not against the clear preponderance of the evidence, but on the contrary are supported by such preponderance. I shall now proceed to give the reasons why I think so. The evidence bearing on the question whether Lake Geneva forms the western boundary of the highway where it passes through Lawler’s land is of two kinds: surveys made in preparation for the trial of this case, and evidence aside from the surveys. I shall first consider the surveys.
In all, three surveys were made, one by an engineer, Mr. Teeple, assisted by another surveyor, Mr. Haskins, for the plaintiff; and two for the defendants, one by a Mr. Carlson and the other by a Mr. Powrie.
In reference to the qualification of Mr. Teeple, it may be said that he graduated from the mechanical engineering course at Cornell University in 1889, studied electrical engineering thereafter, taught electrical engineering in New Hampshire College for five years, then pursued engineering studies for two years at Harvard, and later did surveying for the Illinois Central Railroad for three seasons. His health *162failing, Re was obliged to quit the more active pursuits, and at the time of the trial he had been county surveyor of Wal-worth county for four years.
If it be assumed that he correctly located the point where the Norris survey crossed the north line of section 1, township number 1 north, of range 17 east, every surveyor who testified, including Professor Smith of the engineering department of the University of Wisconsin, testified that he pursued an absolutely correct method of relocating the line of the Norris survey. Briefly stated, Mr. Teeple’s method was this: He ran a random line on what he assumed to be the correct variation of the needle between two established points on the line of the Norris survey, to wit, from a point four chains south of the west quarter corner of section 12 to a point 125 links east of the north quarter corner of section 1. He then measured the distance from this latter point to the point where his random line intersected the section line and corrected his random line by properly proportioning distances.
Mr. Norris made two records and two plats showing the location of his survey on October 24, 1839. Both were filed by the county clerk. One was offered in evidence as plaintiff’s Exhibit 13 and the other as defendants’ Exhibit 3. Exhibit 13 was recorded. \
There were two differences between these exhibits. Exhibit 3 located one of Mr. Norris’ stakes at a point which was marked by a bearing tree fifteen inches in diameter, located one and five-sixths degrees west of north ■ from the stake and a distance of 1.51 links therefrom. In Exhibit 13 this distance is given as 151 links. This difference, did not affect the result in this case, and it is only of importance in determining which plat is correct. I do not think there can be any question that Exhibit 13 correctly shows the above measurement. The idea that a surveyor who was plodding through the swamps, oak openings, and prairies of what is now Wal-*163worth county, seventy-three years ago, locating his bearing trees within one one-hnndredth of a link or one twelfth of an inch, is simply absurd.
The other difference between the records is material. Exhibit 3 shows a stake located on the Norris survey 1.25 links east of the quarter-section comer' on the north line of section 1 aforesaid, being also the south line of section 36 in township number 2. Exhibit 13 shows this stake to be 125 links oast of the quarter corner.
The Norris survey followed section lines from the southwest corner of section 26 to a point four chains south of the west quarter corner of section 12, a distance of two and a half miles, lacking four chains. There was no doubt as to the location of this quarter corner when the three surveys referred to were made. Mr. Teeple started his survey four chains south of this quarter corner, which was admittedly a correct point of commencement. He closed his survey 125 links east of the north quarter corner of section 1. Although both plats were in evidence, none of the surveyors made any contention that Mr. Teeple was not correct in so doing or that the survey should have been closed 1.25 links east of the corner. It' has been argued on the appeal, however, that the learned surveyors and the still more learned counsel for the defendants did not discover that there was any difference between the two plats until the case was appealed to this court. However unwary counsel may have been, we cannot assume that their surveyors were not keenly observant of their employers’ interests. They both had correct copies of Exhibits 3 and 13 long before they made their surveys, and it is not conceivable that they did not discover that there was a plain decimal point between the figures 1 and 25 in Exhibit 3. Neither is it conceivable that they did not regard the decimal point as an obvious error or as inserted to indicate that the measurement was 1 chain and 25 links. Much less can we presume that the court, which had both plats be*164fore it, did not consider both of them and conclude that Exhibit 13 was correct, unless we throw overboard the rule that has been lately enforced with unrelenting vigor in certain classes of cases, that this court will not reversé judgments unless prejudicial error affirmatively appears. This court can indulge in no presumptions based solely on the statements of counsel, not conceded to be correct, that a trial court did not consider evidence legitimately before it.
Eor convenience a copy of that portion of Mr. Norris’ plat showing the line of survey in dispute is herewith inserted.
Mr. Lawler owns a strip of land having a, frontage of 400 feet on Lake Geneva. This strip comprehends the north 300 feet of section 12 and the south 100 feet of section 1 adjacent' to the lake and extending east for some distance, and it is the location of the highway for a distance of 400 feet over this strip with which we are concerned. It is obvious that if Teeple’s closing point is 125 links east of the north quarter corner of section 1 when it should' be only 1.25 links, his survey swings too far to the east, and there is at least a narrower strip of land between the lake and the road where it passes over Lawler s land than the survey shows.
The questions for solution, then, ai’e, Was Mr. Teeple justified in assuming that Exhibit 13 and the record thereof correctly showed the point where the Norris survey crossed the north line of section 1 ? and Did the court err in deciding that the Teeple survey was substantially correct?
In the first place, Exhibit 13 shows fourteen measurements in all. Six of these show full chains and no links. Eight show chains and links both, but in no instance is any fraction of a link shown. Exhibit 3 shows but two measurements containing fractions of a link. One of these has already been discussed, and the manifest absurdity of locating a bearing tree to within one one-hundredth of a link has been alluded to. It is manifest, to my mind, that as to this measurement Exhibit 13 is correct, and that in Exhibit 3 a *166dot was placed between the 1 and the 51 either inadvertently, or intentionally with the purpose of showing the measurement to be 1 chain and 51 links. I think it is almost' as absurd to conclude that Mr. Norris deviated one and one-quarter links, or less than ten inches, from the quarter line when he reached the north quarter corner of section 1. Before reaching section 1 he ran approximately three miles on section lines, and in going all of this distance he ran the center line of the road on the section line. When he came within four chains of the west quarter corner of section 12 he was obliged to deviate to the east because of the lake and of the contour of the country, so that when he reached the north and south quarter line running through section 1, we find that he crossed the same and located the west line of the road a trifle east of this quarter line. It requires a lot of faith to believe that Norris, because of the topography of the country, found it necessary to deviate ten'inches from the quarter line in locating the center line of the road.
*165
*166But there is an item of evidence which more conclusively demonstrates that Norris did not carry the center line of the . road across the north line of section 1 only ten inches east of the quarter-post. This survey was made shortly after the government survey, when the government monuments were plain and readily found, and there can be no doubt that Norris found the quarter-post as he says he did. He made a plat of his road which was four rods wide, and its west boundary line is shown on this plat to be slightly east of the quarter corner, as will be seen by reference to the facsimile above inserted. While Mr. Norris might make a slight error in drawing his lines on this plat, it' is well nigh inconceivable that he would throw the entire roadway east of the quarter corner, if his center line in fact ran within ten inches of it. He would in practice run the center line of the road through the corner if the correct measurement had been 1.25 links, because his plat was drawn on a scale of two inches to the *167mile, and a variation of ten inches op. such a plat would be "expressed by a deviation of about one three-thousandth of an inch. I know it has been said tfiat if the correct distance of the stake set by Norris from the quarter corner was 125 links the plat does not throw the road far enough east. But' on a plat drawn on so small a scale, the deviation of the west line of the road froijL the quarter corner, in order to locate the Norris stake where Teeple located "it’,; would be so small as to be imperceptible. What we .have definitely is the obvious fact that the quarter-post is entirely outside of the highway when it should be practically at its center line if Exhibit 3 is correct.
- There is another obvious reason why the figures on Exhibit 13 are correct — a reason which the only surveyor for defendants who made a survey that could properly be called such, seeks to explain by saying in effect that Norris made a mistake in his survey. It will be noticed by a reference t'o the plat that the survey terminates nearly one half a mile north of the north line of section 1. The length of this piece of road as surveyed is 36 chains and 79 links. The course of the survey through section 36, commencing at it's south line, is as follows: North 21 degrees,. 10 minutes W., 6 chains and 79 links; from thence north 14 degrees and 12 minutes east; 21 chains; from thence north'27-degrees 55 minutes west, 9 chains to the north terminal point. Eunning this line bn the courses and distances given and starting at a point 1.25 links east of the north'quarter-post of section 1 would not only run it through the middle of a steep embankment twenty feet in height, but would run it into the lake at a point about 1,500 feet from said quarter-post. I have been unable to find any evidence in the record which contradicts: this. Following the Norris survey from a point 125 links east of the south quarter corner of section 36 would bring the center line of the road about fifty feet east of the top of this embankment.
*168Another circumstance tending to show that Exhibit 13 shows the correct surrey is the fact that it was the one recorded in the surveyor’s office. It is true that this record was not offered in evidence, but Mr. Teeple testified, without objection, to the fact.
Counsel very complacently assume that Exhibit 3 is correct and that therefore Exhibit 13 is incorrect, without a substantial fact to support such an assumption.
A good deal of attention has been devoted to the true location of the point where the Norris survey crossed the north line of section 1, because if Teeple did not determine the correct point of crossing, the accuracy of his survey would be materially impeached. To describe in detail the three surveys and point out' the weaknesses in each would consume considerable space.
The Carlson survey may be disposed of summarily. It was evidently made with one object in view, and that was to throw the road over so close to the lake that the latter would form the boundary line of the highway where it passed through Lawler’s land. The appellants neither justify nor claim anything under this survey, so nothing more will be said about it.
The appellants, however, do insist that the survey made by Mr. Powrie was made on correct principles, and that it is entitled to great if not controlling weight. Mr. Powrie made his survey on the theory that Norris in making his survey used the polaris or true meridian in running his lines. If Powrie was not correct in making this assumption, then his survey fails, and there is not a particle of evidence in the record to show that Norris used such meridian. It is just as logical to assume that Norris ran his line in accordance with the variation of the compass. All things considered, the latter is the more logical assumption of the two. • In any event, the entire Powrie survey is based on a hypothesis that may be correct or may be incorrect. That the hypothesis is not a correct one must be accepted as a fact, unless it be assumed that *169Norris did not correctly run bis lines. Powrie, by assuming tbat Norris ran bis lines on a time meridian and by following tbe courses and distances wbicb be gayé, found tbat the surrey would cross tbe north line of section one, 151 links west of the quarter-post, whereas Norris stated in Exbibit 13 tbat bis line crosses 125 links east, and, if it be assumed tbat Exhibit 3 „is correct, tbe line still crossed east of tbe quarter-post. Powrie does not explain this discrepancy by actually claiming tbat tbe line in fact passed to tbe west of tbe quarter-post, because this would run tbe continuation of tbe road clear into tbe lake. What be does claim is tbat where Norris described bis last course before reaching tbe quarter-post on tbe north side of section 1 as being 28 chains and 50 links north of tbe stake set on the section line, be really meant tbat be ran about three degrees west of north.
So, while some doubt and discredit may be thrown on. tbe Teeple surrey, when we come to tbe surveys made by tbe appellants we find one of them absolutely worthless and the other based on what is in all probability an entirely wrong hypothesis. , |
Counsel criticise tbe Teeple survey because of tbe fact that it is outside tbe line of tbe traveled track for a considerable distance. This is true, and it is also true tbat tbe Powrie line is outside of tbe traveled track a much greater distance.
An attack is also made on tbe Teeple survey because in carrying it onto tbe map wbicb be made an error of ten feet was made at one point. Tbe error is immaterial as to any question involved in tbe case, and in so far as it would affect tbe credibility of tbe witness it is more than offset by the fact tbat Mr. Powrie made three mistakes in carrying tbe survey of tbe road as made by him onto bis map. Mr. Teeple was tbe only surveyor who made any attempt to find tbe monuments wbicb marked tbe survey made by Norris. These monuments were old and decayed and it is always possible tbat a mistake in reference thereto might be made. Teeple and bis asso*170ciates, however, were certain, that they found, the remnants of a number of these monuments, and there is nothing inherently improbable about the testimony. It was for the circuit court to pass upon its credibility and it has done so. There is no real dispute between Powrie and Teeple as to the correct location of the north quarter corner of section 1. Powrie simply says that he could not locate this corner. It can hardly be said in reference to this that there was even a dispute between the testimony of the two witnesses, and the circuit judge had little choice except to find in favor of the contention of the respondent on the question. The difference between them on this point, if it can be said that there is any, is not great enough to make any material change in the Teeple survey, in any event. Mr. Teeple did at one point change his line seven feet because of an original monument which he conceived he had found, and considerable fault is found with his having done this. But if the change was not made on sufficient evidence, it was wholly immaterial, because, if it had not been, the Teeple survey would still show a strip of land substantially twenty feet in width between the highway and the lake. In so far as the surveys were concerned, the circuit judge was confronted with this situation: He had' a survey by Carlson admittedly worthless. He had one by Powrie which might have been made on a correct hypothesis, but in all probability was made on a wrong one; and he had a survey by Teeple, which, it may be admitted, was subject to some criticism, in that there was a bare possibility that Exhibit 3 correctly showed the point where the Horris survey crossed the north line of section 1, and there was also a possibility that Teeple did not get the correct location of the north quarter corner of this section.
How, then, was there anything in reference to the Eorris line that the court had before it which would satisfactorily and even conclusively show which of the contentions was right? I think there was. It must be remembered that *171Norris made his map at substantially tbe same time that be made bis survey; that be made it when be was familiar with existing conditions, and that we bave it before us. A reference to tbe portion of it wbicb pertains to tbe line of road tbrougb Lawler's land already appears. There is no difference between Exhibits 3 and 13 in this respect. In fact tbe plat shown herein is a blueprint taken from Exhibit 3. This has been used for convenience because no blueprint's were ta¡ken of tbe other plat. Now, this plat shows a well defined strip of' land between tbe lake shore and tbe highway on both sides of tbe section line wbicb forms a boundary between sections 1 and 12. In fact it shows that tbe highway at no point along tbe lake extended to tbe shore line.
In view of tbe evidence furnished by this plat and in view of tbe character of tbe testimony pertaining to tbe surveys; I am wholly at a loss to see bow a court could or can possibly reach' tbe conclusion that Mr. Norris adopted as tbe west boundary line of tbe highway at tbe place in dispute tbe ordinary high-water mark of Lake -Geneva. The Powrie and Carlson surveys throw tbe west line of tbe road actually into tbe lake. ' I do not of course contend that' the plat would be better evidence than tbe survey itself. What I do contend is that where a competent surveyor has made a survey wbicb corroborates tbe plat, tbe latter cannot be impeached by simply showing that another survey was made, when that other survey is based on an assumption wbicb there is neither proof nor presumption to support. -
No presumption can be resorted to in this case to tbe effect that tbe traveled track follows tbe center line of tbe road. We know from practical observation that this is not generally true of ancient highways, particularly where they were carried around obstructions. We know as a matter of fact that it is not true in this case if any attention whatever is to be paid t'o tbe Norris survey. That survey consists of a series of straight lines forming angles at tbe connecting points. *172The survey from a point four chains south of the west quarter-post of section 12 to a point north of the Lawler land runs as follows: North 39¿ degrees east 31 chains and 41 links; thence north 24 degrees 15 minutes east 7 chains and 44 links; thence north 9 degrees 45 minutes east 12 chains and 65 links; thence north 4 degrees west 14 chains and 31 links. We would naturally expect a curvature in the traveled part of the roadway at the angles, hut all of the surveys show deviations from a straight line where there are no angles. All three of the surveys demonstrate conclusively that the roadway as built did not follow the center line of the highway as surveyed by Norris. In none of the surveys made does the alleged relocation of the Norris line coincide with the traveled track any considerable distance. Either Norris did not run straight lines as he says he did or else the traveled track was not built on the center line of the road. Such part of the right of way was used as was found to he best adapted for grading purposes. The expense of building roads when this one was constructed was considered of more importance than that there should be an air line for ox teams into the village of Lake Geneva.
Defendants’ Exhibit 5, being a plat showing the Carlson survey, in the practical accuracy of which Powrie concurs, shows that the center line of the highway as it is claimed Norris surveyed it is in the lake from one to six feet at high water for a distance of 160 feet' through the Lawler land. It shows that such center line for a considerable distance is but from five to eight feet from the low-water line. This would throw the north line of the road from thirty-five to forty feet into the lake at high stage and from twenty-five to twenty-eight feet at' low stage. It requires an abiding faith in the infallibility of the defendants’ surveyors to believe that Norris located his road in any such way, particularly when he solemnly declared in the plat which he made that he did nothing of the kind.
*173Of course there is a highway along this lake by user. But this does not mean that there is any highway by user two rods on either side of the center of the traveled track. It means that the public has the right to use the traveled track and enough land on either side to permit the convenient pas-; sage of teams and vehicles. Bartlett v. Beardmore, 77 Wis. 356, 46 N. W. 494; Konkel v. Pella, 122 Wis. 143, 99 N. W. 453; and Neale v. State, 138 Wis. 484, 120 N. W. 345. The 'defendants’ surveys show that the-center of the traveled track is from twenty to twenty-five feet from the high-water line of the lake. How much farther it.is from the ordinary high-water mark which in reality forms the boundary line of the riparian owner does not appear. The traveled track is wholly within the limits of the survey of the road made by Mr. Teeple.
The court does not hold that the trial judge might not have very properly found that the Teeple survey was correct, if the case was to be decided on the surveys. It does hold that the dispute in the testimony between the surveyors raiseá a question of doubt as to which survey is correct, and in effect' proceeds to disregard all of them and decides the case in defendants’ favor on other evidence offered. This evidence principally consisted of testimony tending to show the location of the fence on the east side of the highway where it crossed the plaintiff’s land, and also the location of a bridge over a creek on the line of the highway.
If the evidence of the surveyors creates a situation of uncertainty, that situation is not relieved by the testimony tending to show the location of the fence and the bridge. In the first place, it is fairly established by the testimony that the fence in question was not erected until more than twenty years had elapsed after the survey was made and the road was opened. Most of the witnesses who testified were familiar with the situation so far as fences were involved for a period of twenty-five years or less. One witness had an in*174distinct recollection that the original fence was erected as early as 1850. But Mr. Gavin, a witness for the defense, testified that he distinctly remembered when there was no fence along the east side of this portion of the highway. He was not born until. 1856, seventeen years after the highway was opened up. By this time the traveled track had been well established, and no doubt the original monuments set by Uorris had been largely obliterated; so there would be nothing very remarkable about placing a fence closer to the traveled track than it should have been placed had the survey been followed. There is another fact in reference to this survey that is still more significant. The witnesses all agree that the original fence was a rail fence which was later replaced by a wire fence. Mr. Button, the man who occupied the premises now owned by Lawler, testified that when the old rail fence had become useless and the new fence was built, it was not built on the line of the old fence but was built eight feet nearer to the traveled track. If this testimony is true, and really there is but very little to contradict it, it would show that Lawler had some land between the highway and the lake, if it be assumed that' the rail fence was originally constructed on the correct boundary line. So I think the ancient' fence did not help the defendants’ case.
It is also said that Mr. Harris set a stake where his line crossed the creek, and that' the presumption would be strong that the bridge was built where the stake was set and that it really marked the center of the highway. This might be so if we assume that highway builders in that day were following air-line routes and that they preferred to have the highway built along the middle of the right of way rather than to take advantage of the topography of the country and build bridges in places within the right of way where they could be most conveniently constructed. The road builders were not obliged to follow the center line of the right of way, but could deviate therefrom if it was *175thought advantageous to do so. That such was the common practice is a matter of common knowledge.
There are some other minor considerations urged in support of the decision' of the court on the facts which I do not think I would he justified in discussing. I do not feel that the surveys should he so cavalierly set aside. Mr. Norris was evidently a competent surveyor. He describes accurately and concisely the line of his survey. The highway as constructed does not extend beyond the exterior boundary lines of the highway surveyed by Norris. He gives his courses and distances and there is no doubt about the location of the starting point and there is no great reason why his line could not be re-established. The probabilities are altogether in favor of the Teeple survey or the Powrie survey being correct. If either is correct, then the road does not follow the center line of the highway. In fact, if any reliance whatever can be placed on the Norris survey, the center line of the road did not follow that survey, but there was some deviation from side to side for convenience in building the highway, such deviation, however, not extending beyond the right of way.
As stated before, I think the trial court was correct in adopting the Teeple survey, and in any event this court should not say that the finding of the trial court is not sustained by the evidence.
Mahshall, J. I concur in the foregoing opinion by Mr. Justice Barnes.