{dissenting). With so much.of the majority opinion as determines that there is a right of action to recover for amounts expended in repairing town highways damaged by the back water of defendant’s dam I cannot agree.
It is conceded that the defendant’s dam built in 1909' was erected across one of the navigable streams of this state which, under the constitution, art. IX, sec. 1, must remain forever free to the citizens of the United States as well as to the inhabitants of this state, and that such dam was erected and has been maintained pursuant to the express legislative authority given by ch. 462 of the Laws of 1901.
This chapter by its title authorized the building and maintaining of this dam for two express purposes: First, to improve the navigation of the Wisconsin river above the dam; and second, for the purpose of creating hydraulic power.
*510This act expressly gave the grantees four different methods or remedies by which title to or right to use lands might be acquired for the purpose of such construction and use; first, by purchase, lease, or license by act of the parties; second, by the remedies and provisions of ch. 146, Stats. 1898, “Mills and Milldams,” so far as applicable and not inconsistent with said ch. 462; third, the rights granted to and conferred upon corporations by secs. 1777 to 1777e, inclusive, Stats. 1898, and any subsequent amendments thereto (these being the additional powers of log-driving corporations) ; fourth, the grantees “may enjoy the rights granted to and conferred upon corporations by sections. 1850 to 1857, both inclusive,” of the Statutes of 1898 (these being substantially all of the statutes of 1898 which conferred the right of eminent domain upon railroad corporations) .
The right to alter, amend, or repeal this chapter was expressly reserved. -
Of the foregoing four express grants the first needs no consideration here, and the second, or the chapter on mill-dams, as it was.then found in the Statutes of 1898, was by sec. 3374 confined to the maintaining of water mills and dams to raise water for working them upon and across any stream that is not navigable. (This was expressly held to exclude streams declared to be; or in fact, “navigable or public highways.” Wood v. Hustis, 17 Wis. 416, 418.) Said chapter on milldams also provided for the regulating of the height of the dam and the period of time for which it may be kept up each year, by verdict of jury (secs. 3376, 3381), and provided an exclusive remedy for compensation to any person whose land was overflowed or otherwise injured and which right was lost if not' asserted within three years. McDonald v. Apple River P. Co. 164 Wis. 450, 456, 160 N. W. 156.
Manifestly here the permission to construct the dam across *511a navigable stream, which under the constitution as above quoted must remain as a public highway, is an entirely separate matter. Non-navigable streams, of course, are not the water highways referred to in the constitution and the Ordinance of 1787. Navigable streams have been from an early date and continúously held to be “public highways by ’water” as they were at common law. Whisler v. Wilkinson, 22 Wis. 572, 576; Allaby v. Mauston E. S. Co. 135 Wis. 345, 348, 116 N. W. 4. See, also, A. C. Conn Co. v. Little Suamico L. M. Co. 74 Wis. 652, 655, 43 N. W. 660; In re Crawford County L. & D. Dist. 182 Wis. 404, 408, 196 N. W. 874.
In the third of the above specified methods, namely, the acquiring of necessary lands, rights, easements, or privileges so that “the complete construction of the dam may be successfully carried out” (to quote from the grant), they were to have the rights enjoyed by corporations under secs. 1777 to 1777e, which were particularly applicable because from their very terms they relate to navigable streams. • These particular provisions gave the right to flow lands and to acquire property and specify -the methods of obtaining and paying for the same, and expressly provide, sec. 1777e, that such corporation may exercise the right of eminent domain and may acquire it in the manner prescribed in ch. 87 of the Statutes of 1898, namely, the railroad -eminent domain statutes, covered and included in the fourth of the above specified grants.
In the fourth grant, which dips into the chapter regulating railroad corporations and takes therefrom certain express statutes relating to the power to acquire lands and interests therein and providing the method in which the constitutional provision for compensation shall be met for taking of private property, there are several important features to be here considered. One is that whereas the legislature, by ch. 462 of the Laws of 1901, supra, twice clothes the grantees there *512with the same rights and powers for condemning property-under eminent domain that railroads have, yet it omits any reference to sec. 1836, created by ch. 119 of the Laws of 1872 and found in the same ch. 87 of Railroads. This sec. 1836 expressly places upon every railroad crossing .a stream, water-course, street, high/way, or canal, etc., the duty to restore every such to its former state and thereafter.maintain’ the same in such condition against any effects in any manner produced by such railroad. It further expressly provided that when lands shall be required in order to change any such highway, street, etc., such required land may be condemned, taken, and compensation made in the manner provided in such ch. 87, and when so taken shall become a part of the highway. Here, as clearly as can be done by express legislative language, a duty is placed upon a railroad company towards a public highway which the majority opinion in- effect says shall be the duty of the defendant power company, and this latter without any express statute or any suggested method or remedy by which the defendant .could acquire or obtain any lands necessary for the making of a substitute highway if the same should be absolutely necessary or more advantageous than the keeping up of the old. It is difficult to believe that the legislature intended by omitting reference to said sec. 1836 in said ch. 462 of the Laws of 1901, supra, to nevertheless place a similar burden on those improving a water highway that they did expressly on railroads and without giving those building the dam the power to substitute by condemning other lands for destroyed highways.
The legislature has no power under the constitution to authorize the construction of such dam except when, as was expressly declared in the present instance to be the purpose, as an aid to navigation’ the right to use the power being but an incident (In re Southern Wis. P. Co. 140 Wis. 245, 261, 122 N. W. 801), and as is stated in the same case *513(p. 262), when such improvement is made in conformity with the delegated power, neither the necessity nor the usefulness of the improvement, nor the manner in which it is made, can be called in question by private persons, citing among other cases the very pertinent case of Wis. River Imp. Co. v. Manson, 43 Wis. 255, 265.
That property devoted to one public use such as that for a land highway may be subjected by legislation to 'another public use, either with or without compensation, because the constitutional provision as to compensation for private property does not apply, is well established law. 20 Corp. Jur. 599; Kilbourn v. Southern Wis. P. Co. 149 Wis. 168, 182, 183, 135 N. W. 499; In re Milwaukee Southern R. Co. 124 Wis. 490, 501, 102 N. W. 401; People ex rel. Palmer v. Travis, 223 N. Y. 150, 166, 167, 119 N. E. 437; Prince v. Crocker, 166 Mass. 347, 362, 44 N. E. 446.
That the highway here, in which the town is interested only as an arm of the state to carry out a governmental function, and for default in which carrying out it is liable to third persons injured by express legislative declaration only (Uecker v. Clyman, 137 Wis. 38, 118 N. W. 247), ought to stand in no better, higher, or different position than the state itself if its property, were injured by 'the building or maintenance of a dam on a navigable stream by express ■legislative grant, would seem to be a reasonable conclusion. If this were the state itself complaining, it would be foreclosed from relief by what this court said in Black River Imp. Co. v. La Crosse B. & T. Co. 54 Wis. 659, 11 N. W. 443, particularly what was said'at p. 676, viz.:
“At the time the charter was granted to the plaintiff, the lands along the river where it would be necessary to make embankments and levees, were, to a great extent, owned' by the state; and as there were no means provided by the charter by which the corporation could -acquire the right to make such embankments or levees upon the state lands by *514making compensation to the state, while the charter contained provisions for acquiring the right from private owners, although such provisions may have been insufficient to accomplish that purpose, it would seem to be a fair inference that the legislature intended to. grant the right of such use to the corporation without compensation as to all lands owned by it which it would become necessary to use in executing the purposes of the grant.”
As against one doing all that it is claimed causes the alleged injury by direct legislative warrant and which it cannot “successfully carry out” without maintaining the height of water alone responsible for the injury, there ought to be shown clear constitutional or legislative warrant for the right to maintain this perpetual and ever renewable claim. The necessity of legislative warrant for compensation is discussed in such cases as Eltor v. Tacoma, 228 U. S. 148, 33 Sup. Ct. 428, holding (p. 150) that a city as agent of the state in making streets in a governmental function is not liable for consequential damages in absence of legislation so providing, and in Mitchell v. U. S. 267 U. S. 341, 45 Sup. Ct. 293; Joslin Co. v. Providence, 262 U. S. 668, 675, 43 Sup. Ct. 684; In re Board of Water Supply, 211 N. Y. 174, 183, 105 N. E. 213; Earle v. Comm. 180 Mass. 579, 583, 63 N. E. 10.
The liability, if any, of the defendant ought, it would seem, to fall under some recognized principle of law under which one can be held liable by reason of the use of his own property causing injury or damage to another. There is clearly here no express statutory liability. Neither is there here any liability arising upon contract, as there was in the case of Levis v. Black River Imp. Co. 105 Wis. 391, 81 N. W. 669; Dekorra v. Wis. River P. Co. 188 Wis. 501, 205 N. W. 423. If it be predicated upon the theory of a tort — that is, that the defendant has breached some duty or obligation that it owes to the town, — it would seem that it could only fit in with the theory that by main*515taining the waters at such a height there is such damage done to the highway that the defendant is maintaining a nuisance; that is, a condition of things on its property whereby damage is unlawfully caused to another. But being directly and expressly authorized by the legislature, it cannot be questioned as a nuisance by private persons (In re Southern Wis. P. Co. 140 Wis. 245, 262, 263, 122 N. W. 801, supra; 2 Cooley, Torts (3d ed.) 1292; 20 Ruling Case Law, 500) ; and being authorized by the state, a court cannot prohibit or enjoin its erection or maintenance. Allaby v. Mauston E. S. Co. 135 Wis. 345, 353, 116 N. W. 4; Milwaukee-Western F. Co. v. Milwaukee, 152 Wis. 247, 256, 139 N. W. 540, involving permission by federal authority; McDonald v. Apple River P. Co. 164 Wis. 450, 456, 160 N. W. 156; State v. Sutherland, 166 Wis. 511, 524, 166 N. W. 14; Water Power Cases, 148 Wis. 124, 145, 134 N. W. 330; Dekorra v. Wis. River P. Co. 188 Wis. 501, 205 N. W. 423. See, also, Sheboygan v. Sheboygan & F. du L. R. Co. 21 Wis. 667, 671.
There is no possible way suggested in which the defendant can maintain the dam at the prescribed height across the Wisconsin river and avoid the back water in time of high flood from coming upon these highways; so that if it is to be held liable because creating a nuisance, such nuisance arises from the defendant doing exactly that and nothing more than which the state has expressly said it may lawfully do. The defendant clearly could .not be prosecuted for a misdemeanor on the theory that it was maintaining a public nuisance. Stoughton v. State, 5 Wis. 291; State v. Webb’s River Imp. Co. 97 Me. 559, 55 Atl. 495.
Again, it must be remembered that inasmuch as it has been expressly held by this court in Cohn v. Wausau Boom Co. 47 Wis. 314, 324, 2 N. W. 546, that such corporation is a gMoyi-public corporation (Att’y Gen. v. Railroad Cos. 35 Wis. 425), an agent of the state for the improvement *516of the river (Wis. River Imp. Co. v. Manson, 43 Wis. 255), there surely ought to be some express legislative restriction or condition to that effect as there is as to railroad corporations, to make such gwcm'-publi'c agent liable, rather than the somewhat indefinite and undefined ground set forth in the majority opinion.
There is cited in the majority opinion Wells v. Wis. River P. Co. 167 Wis. 345, 167 N. W. 445, which held that the injury to a person whose land was rendered unfit for agricultural purposes by reason of the stoppage of its underground drainage by the back water of the dam was within sec. 1777e, supra, in that the owner could, in condemnation proceedings, obtain compensation for such because he was injured, as that word was used in said statute. That case did not hold that there was any common-law right of action for such, but only that it was to be compensated for in the eminent domain proceedings, and certainly not that it gave rise perpetually to a new right after each flooding, as is the holding by the majority here. If the doctrine of that case were applied here, then, if not barred by.the statute, there could be but one assessment of- damages, and that final.
The case of Inhabitants of Andover v. Sutton, 12 Met. (53 Mass.) 182, also cited in the majority opinion, was an action against the company maintaining a dam upon a wow-navigable stream, and it was there held that there is no remedy provided under their Milldam Act (applying only to non-navigable streams and substantially the same as ours) for an injury to a highway, and that therefore the town had its right of action at common law because no remedy was afforded under the Milldam Act; but the court there expressly stated (p. 187) that under the facts there shown, an indictment against the defendants for a nuisance in overflowing the road would have been sustained. There, of course, the dam, being built under the general authority of thé Milldarn Act by private persons at their own peril as to *517height and extent of flowing, is clearly not analogous with the dam built here on a navigable stream and by express legislative authority. This proposition that a milldam owner in a ww-navigable stream overflowing a public highway is liable to indictment for the maintaining of a nuisance is again stated in Cheshire v. Adams & C. R. Co. 119 Mass. 356.
I am authorized to state that Mr. Justice Rosenberry and Mr. Justice Doerfler join in this dissent.