{dissenting) '. The plaintiffs’ complaint alleges as the sole ground of the claimed invalidity of the ordinance that the same constitutes “an unreasonable exercise of police power by the city of Hurley and deprive [s] the plaintiffs of property rights without just compensation in violation of the Fourteenth amendment of the federal constitution and the provisions of sec. 13, art. I of the Wisconsin constitution.” This court has always interpreted the provisions of sec. 13, art. I 1 of the Wisconsin constitution, as being embraced within the due-process clause of the Fourteenth amendment of the United States constitution, so it therefore is only necessary on this appeal to consider authorities arising under the due-process clause of the Fourteenth amendment.
There is no question but that a state, or any political subdivision thereof empowered so to do by the legislature, may exercise the police power to protect the purity of the water supply of its citizens. This is because the protection of the *24public health is always recognized as a proper objective for the exercise of the police power.
Where there is no actual taking of property by reason of a statute or ordinance, but only a deprivation of the owner from making certain use of such property to his damage resulting from a statute or ordinance properly enacted to carry out the police power in promoting the general welfare, no damages are recoverable by the owner. Carazalla v. State (1955), 269 Wis. 593, 608a, 70 N. W. (2d) 208, 71 N. W. (2d) 276, 277; and State ex rel. Carter v. Harper (1923), 182 Wis. 148, 153, 196 N. W. 451, 33 A. L. R. 269.
As the majority opinion points out, there is a division of authority as to whether an ordinance or statute, which prohibits swimming, bathing, and boating on waters from which the community draws its drinking water, is constitutional under the due-process clause of the Fourteenth amendment as against the claim of riparian owners that they are being deprived of their riparian rights without compensation. The leading case holding that such an ordinance is unconstitutional is People v. Hulbert (1902), 131 Mich. 156, 91 N. W. 211. On the other hand, the cases of State v. Morse (1911), 84 Vt. 387, 80 Atl. 189, and State v. Heller (1937), 123 Conn. 492, 196 Atl. 337, have upheld the validity of such a statute or ordinance on the ground of it being a valid exercise of the police power enacted to protect the health of the community.
The United States supreme court is the final arbiter on the issue of whether a statutory enactment purporting to be in the exercise of police power transcends the requirements of the due-process clause of the Fourteenth amendment. The unsuccessful riparian owners in the case of State v. Heller, supra, decided by the Connecticut court appealed such decision to the United States supreme court. The United States supreme court dismissed the appeal in Heller v. Connecticut (1938), 303 U. S. 627, 58 Sup. Ct. 765, 82 L. Ed. 1088, in *25a short per curiam decision, which stated that no substantial federal quéstion was presented, and cited Mugler v. Kansas (1887), 123 U. S. 623, 668, 669, 8 Sup. Ct. 273, 31 L. Ed. 205, and Euclid v. Ambler Realty Co. (1926), 272 U. S. 365, 388, 389, 47 Sup. Ct. 114, 71 L. Ed. 303, in support of such holding.
The citation of these two cases in the per curiam opinion of the United States supreme court in Heller v. Connecticut, supra, is highly significant. The case of Mugler v. Kansas, supra, was recently cited by this court in Carazalla v. State, supra, and involved the constitutionality of a state prohibition law which rendered virtually valueless property of the plaintiff. The case of Euclid v. Ambler Realty Co., supra, involved the constitutionality of a city zoning ordinance which was alleged to have greatly depreciated the value of plaintiff’s property. It is thus the position of the United States supreme court that a riparian owner, who has been barred from exercising his riparian rights of swimming, boating, and bathing by reason of a statute or ordinance enacted to protect the public health, stands in the same category as does the owner of a stock of liquor which is rendered valueless by a prohibition statute or an owner of real estate the value of whose property is seriously reduced by enactment of a zoning ordinance.
The Illinois court in People ex rel. Baker v. Strautz (1944), 386 Ill. 360, 54 N. E. (2d) 441, well stated the principle which governs the disposition of the instant case as follows (p. 364) :
“The exercise of the police power is a matter resting in the discretion of the legislature or the board or tribunal to which the power is delegated, and the courts will not interfere with the exercise of this power except where the regulations adopted for the protection of the public health are arbitrary, oppressive, and unreasonable. The court has nothing to do with the wisdom or expediency of the measures *26adopted.” (Citing among other authorities the Vermont case of State v. Morse, supra.)
Other decisions laying down this same principle and citing State v. Morse, supra, as authority therefor are Weber City Sanitation Comm. v. Craft (1955), 196 Va. 1140, 87 S. E. (2d) 153, 159, and Moore v. Draper (Fla. 1952), 57 So. (2d) 648, 649.
The majority opinion in the instant case is partly based upon the provision inserted in the easement granted m 1925 by the Chequamegan Ice Company to the private water utility, dated April 1, 1925, granting the utility the right to draw water out of Lake Lavina under which the grantor ice company reserved its riparian rights. Plowever, such riparian rights of the ice company to which plaintiffs have now succeeded were always subject to exercise by the state or the city of its police power to protect the purity of the water supply of the citizens of Hurley. Any contract which would attempt to foreclose the city from exercising such police power would be absolutely void and of no binding effect upon the city, even if the city had been a party thereto. State v. Sensenbrenner (1952), 262 Wis. 118, 124, 53 N. W. (2d) 773; 11 Am. Jur., Constitutional Law, p. 983, sec. 254; and 16 C. J. S., Constitutional Law, p. 549, sec. 179.
The ordinance before us on this appeal was enacted in July, 1925, by the city at a time when the private water utility was still the source of the water supply of the citizens of Hurley. There would seem to be no question under the authorities previously cited, and particularly the per curiam decision of the United States supreme court in Heller v. Connecticut, supra, that such ordinance, when enacted, was a constitutional exercise of police power by the city. Thereafter, the city bought out the private water utility. The majority opinion stresses the fact that, after the city of Hurley acquired the facilities of the private water-utility company, the city oper*27ated such utility in its proprietary capacity. It is intimated that the city is therefore bound by the reservation of riparian rights in the 1925 grant of easement. However, as pointed out supra, the city cannot by contract abdicate its right to exercise its police power to protect the purity of its citizens’ water supply, and it is immaterial whether such water supply is being provided by a private or a public utility.
If the plaintiffs had sought to enjoin the city in its proprietary capacity from withdrawing further water from the lake on the ground of breach of contract we would be confronted with an entirely different problem. However, the plaintiffs did not institute such action and we are not required to decide any issue based on such a theory of relief. Clearly the plaintiffs are not entitled to enjoin enforcement of the ordinance on the ground sought in this action, viz., that it is an invalid exercise of the police power because it violates the due-process clause of the Fourteenth amendment.
The majority opinion is largely grounded upon the decision of the Michigan court in Allen v. Detroit (1911), 167 Mich. 464, 133 N. W. 317. Undoubtedly, that case was correctly decided, but it is not at all in point here. The Allen Case is a perfect example of a situation where a municipality must resort to eminent domain rather than attempt to take property for its own use under the guise of the exercise of the police power. That is because there was an actual physical acquiring of the land on which it was proposed to erect the fire-engine house. The restrictive covenants running in favor of the plaintiffs were actually property rights in such land and stand in the same category as would rights of easement. In a situation where a municipality makes such use of the servient estate as is inconsistent with the exercise of an easement over the same by others, or violates the provisions of restrictive covenants existing in favor of neighboring landowners, there is an actual “taking” and the municipality *28must resort to eminent domain in order to cut off such easement rights or rights arising under restrictive covenants. Where there is such an actual taking the municipality must resort to the remedy of eminent domain.
1 Nichols, Eminent Domain (3d ed.), p. 69, sec. 1.42 (2), states:
“In the exercise of eminent domain property or an easement therein is taken from the owner and applied to public use because the use or enjoyment of such property or easement therein is beneficial to the public. In the exercise of the police power the owner is denied the unrestricted use or enjoyment of his property, or his property is taken from him because his use or enjoyment of such property is injurious to the public welfare.”
The test of whether or not there is a “taking” by a state, or political subdivision thereof, is whether it has made such use of particular property as will deprive the owner of either the property itself or of his enjoyment of such property or rights appertaining thereto. If the enjoyment of such property rights by the owner is not barred by any incompatible use of the property by the state, or a political subdivision thereof, but results from a statutory enactment grounded in a proper and reasonable exercise of the police power, there is no “taking” in the sense that requires resort to eminent domain. Applying this test to the instant case, it is not the use of the lake made by the city of Hurley in pumping water therefrom which prevents the plaintiff riparian owners from bathing, swimming, or boating. In fact, there is no claim made that the city’s withdrawal of water has in any way interfered with the exercise of such riparian rights. Therefore, it clearly is the prohibitions of the ordinance and not the use of the waters of the lake by the city which has prevented the plaintiffs from utilizing their riparian rights. This conclusively establishes that we are faced on this appeal with *29a proper exercise of police power and not a “taking” for which compensation must be paid.
The learned trial court properly held that the ordinance constituted a valid exercise of the police power by the city and such judgment should be affirmed.
Sec. 13, art. I, Wisconsin constitution, reads: The property of no person shall be taken for public use without just compensation therefor.