
    HENRY THIEN, Plaintiff in Error, vs. GOTTHELF VOEGTLANDER, Defendant in Error.
    ERROR TO THE CIRCUIT COURT OF WASHINGTOX COUNT!'.
    The constitutionality of the act commonly called the mill dam act of 1840, lias been sustained only upon tlio ground that the use to which the flowed land was devoted by the erection of a dam was a public use, and that full compensation was made by the provisions of said act to the owner of the lapd overflowed.
    Private property cannot bo taken for the use of the public unless compensation is mado to the owner, nor can the private property of one person be given to another without his consent, even though compensation be made.
    A plea of justification for the overflowing of the lands of other persons under the mill-dam law of 1840, is bad, unless it avers compensation, or an offer of compensation, in accordance with the provisions of said act, for the lands so overflowed.
    This was a special action on the case brought in the Circuit Court for Washington county by Grotthelf Voegtlander, plaintiff, against Henry Thien, defendant, to recover damages for the flooding of plaintiff’s land by a mill dam constructed and maintained by the defendant in and upon the Milwaukee river in said county.
    The plaintiff by his declaration averred his title and possession, and described the premises injured as lot number two in section number twenty-three, in township number nine, north of range twenty-one east.
    The flowing of the lands described, and the injury sustained by the plaintiff, were specially stated, and damages claimed in the sum of five hundred dollars.
    
      The defendant Thien filed his plea to the declarar tion as follows:
    ' And the said defendant, by O, K. Watkins, his at-^o:mey, comeg an(j defends the wrong and injury when &c., and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that in and by an act of the Council and House of Kepresentatives of the Territory of Wisconsin, enacted, approved and made a law, March 25, 1843, entitled “An act to authorize Henry Thien to build and maintain a dam on the Milwaukee river,” it was among other things enacted “That Henry Thien (the above named defendant) and his associates, successors and assigns, be and are hereby authorized to build and maintain a dam across the Milwaukee river upon the. north-west fractional quarter of section twenty-three in township nine north, of range twenty-one east in the county of Washington, to erect mills or other machinery, or in any other manner to make use of the water for hydraulic purposes that maybe deemed necessary for the facilities of business, provided that the lands upon which said dam and its appurtenances are constructed shall be owned by the said Henry Thien or his associates.”
    And this defendant further says that after the passing of said act at the time when &c., the same being in full force and effect, to erect mills and other machinery, and to use the'' water of the said Milwaukee river for hydraulic purposes and for the facilities of his business, he did by virtue of said act build a dam with its appurtenances upon land owned by this defendant across the said river upon the premises in said act described, and both mills and machinery erected thereon, and the said dam built for the use of said mills and machinery and for hydraulic purposes as he might lawfully do at the place aforesaid. And tire said defendant further says that to use the water for said hydraulic purposes and for the facilities of his "business, this defendant by virtue of the said act hath maintained, and the said dam kept across the Milwaukee river at the place aforesaid, and did and hath thence hitherto, and at the time when &c.? thereby hinder and obstruct the natural current of said river, and so much flowed back the water of said river (as he lawfully might do) as was indispensable and necessary to the facilities of said hydraulic purposes and the business of this defendant in the premises, and then and there did thereby cause the premises in the said declaration described to be overflow’ ed for the uses, purposes and facilities aforesaid, ,as he well and lawfully doth for the cause and purpose aforesaid; and this defendant further saith that the said several injuries and grievances in the declaration aforesaid supposed, ai*e the same in this plea set forth and none other or different, and this the said defendant is read;y to verify, wherefore, <fec.
    To this plea the plaintiff demurred and specified the following causes of demurrer:
    1st. The said plea seeks to justify the wrong and injury in the declaration stated and charged under a private act of the Council and House of Representa ti ves of the Territory of Wisconsin, but said plea does not fully set forth the terms of said act. y
    2nd. The said plea does not show that the defen danthas fully complied with the terms and conditions of said act in the erection of said dam.
    3rd. The said plea claims a naked authority to erect said dam under said act, and does not show that any remedy or means of indemnity was provided by said act for those whose lands or other property should be injured by such erection.
    4th. That said act in manner and form as descril' ed and set forth in said plea is unconstitutional and void, and does not bar the plaintiff’s action.
    5th. That said plea is in other respects, uncertain, informal and wholly insufficient to bar the said plain tiff from having or maintaining his aforesaid action.
    The defendant joined in demurrer and the cause was brought to argument at the October term of the court, 1852.
    The court having heard the parties by their respective counsel, sustained the demurrer and dismissed the plea with costs; and by stipulation between the parties judgment was entered for the plaintiffpn» forma for six cents damages and • the costs, to give the defendant Thien, an opportunity to bring the decision of the court below sustaining plaintiff’s demurrer to this court for review.
    
      C. K. Watkins, for the plaintiff in error.
    
      J. Stark, for the defendant in error.
   By the Court,

WbutoN, G. J.

There is no doubt that the plea of the defendant below is bad.

It sets out an authority granted to him by the legislature of the territory of Wisconsin to build and maintain a dam across the Milwaukee river, at the place described in the declaration of the plaintiff, and avers that the dam was there erected by him for the purpose mentioned in the act, and that in consequence of the building of the dam the water of the river was flowed back, and the land of plaintiff overflowed, &c.

The principal defect in this plea is the omission to state that any compensation was made to the plaintiff "by the defendant for the damage occasioned by flowing the land. It has been determined by the Supreme Court of this State, that an act of the legislature of the territory of Wisconsin which authorized any person to “erect and maintain a water-mill and a dam to raise water for working it, upon and across any stream that is not navigable,” was valid and obligatory, although it authorized the flowing of land belonging to other persons, (Newcomb vs. Smith, 1 Chand. R. 71.) But this act provided for a compensation to the owner of the land overflowed, and a mode of recovering it.

The opinion of the majority of the court which sustained the law, was founded upon the fact that the use to which the land was devoted was a public use, and that full compensation was made to the ownei*. It cannot be maintained that private property can be taken for the use of the public unless compensation is made to the owner, and no one can claim that the property of one person can without his consent be given to another, even if compensation is made. Const. Wis. Art. 1, Sec. 13.

Admitting, then, that the use to which the overflowed land of the plaintiff was applied was a public use, still the plea is bad for not averring that compensation was made for it. There are other defects in the plea, but we have confined our attention to the one above stated. The judgment of the court below must be affirmed.  