George Shiras, Jr.

“ Whether the water power incidentally created by the erection and maintenance of the dam and canal for the purposes of navigation in Fox river is subject to control and appropriation by the United States, owning and operating those public works, or by the state of Wisconsin, within whose limits Fox river lies, is the decisive question in this case. ”

“ There was every reason why a water power thus created should belong to the public, rather than to the riparian owners. Indeed, it seems to have been the practice, not only in New York, but in Ohio, in Wisconsin and perhaps in other states, in authorizing the erection of dams for the purpose of navigation, or rather, public improvement, to reserve the surplus or water thereby treated, to be lased to private parties under the authority of the state ”

“ There is a class of cases wherein it has been held and laid down as settled doctrine that 'the revisory power of this court does not extend to rights denied by the final judgment of the highest court of a state, unless the party claiming such rights plainly and distinctly indicated, before the state court disposed of the case, that they were claimed under the constitution, treaties, or statutes of the United States ”

“ Our examination of the cases so cited has not enabled us to perceive that they are applicable to the present subject. In none of them have we found that by the state legislation was there a fund created out of the use of the surplus water, to be expended in the completion and maintenance of the public improvement. As we have seen, the entire legislation-state and federal-in the present instance has had in view the dedication of the water powers incidentally created by the dams and canal to raising a fund to aid in the erection, completion, and maintenance of the public works ”

“ Those proprietors lost nothing that was useful to them, except the technical right to have the water flow as it had been accustomed, and the possibility of their being able some time to improve it. If the state could condemn this use of the water, with the other property of the riparian owner, it might raise a revenue from it sufficient to complete the work, which might otherwise fail. ”

“ In February, 1848, the state of Wisconsin was created by the adoption of a constitution; and the legislature of the new state, by an act passed August 8, 1848, accepted the grant from congress made by the act of August 8, 1846, and organized a board of public works, and authorized the board, in the construction of such improvements, to 'enter on, to take possession of and use all lands, waters and materials the appropriation of which for the use of such works of improvement should in their judgment be necessary.' The act contained the following section:
'Sec. 16. ”