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counsel, all of which have been considered, but none appear to constitute reversible error, or are of sufficient importance to require special mention in this opinion.

The result of the foregoing is that plaintiff was not entitled to recover on any claim for damages other than that caused by its sale of goods to Josephson on and prior to the sixteenth day of September, 1893, amounting in value to four hundred and thirty-four dollars and eighty-three cents. Therefore, a new trial must be had, unless plaintiff consents to take judgment for such amount, with interest and costs.

By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial, unless plaintiff elects to take judgment for four hundred and thirty-four dollars and eighty-three cents and legal interest thereon from the sixteenth day of September, 1893, together with the costs of the trial heretofore taxed in the circuit court.

CORPORATIONS-POWERS-ACTS ULTRA VIRES-Corporations possess only those powers or properties which the charters of their creation confer upon them, either expressly, or as incidental to their existence: Leep v. St. Louis etc. Ry. Co., 58 Ark. 407; 41 Am. St. Rep. 109; and note. A business corporation cannot exercise abnormal and extraordinary powers to carry out its purpose: Northside Ry. Co. v. Worthington, 88 Tex. 562; 53 Am. St. Rep. 778, and note. Contracts of corporations are ultra vires when they involve adventures or undertakings outside and not within the scope of the powers given by their charters: Jemison v. Citizen's Sav. Bank, 122 N. Y. 135; 19 Am. St. Rep. 482, and note. The plea of ultra vires should not prevail, as a general rule, whether interposed for or against a corporation, when it does not advance justice, but accomplishes a legal wrong: Kadish v. Garden City etc. Bldg. Assn., 151 Ill. 531; 42 Am. St. Rep. 256, and note; Carson City Sav. Bank v. Carson City Elevator Co., 90 Mich. 550; 30 Am. St. Rep. 454, and note.

ASSIGNMENT OF CAUSE OF ACTION.-An assignment of the right to complain of fraud committed on the assignor is contrary to public policy and void: Sanborn v. Doe, 92 Cal. 152; 27 Am. St. Rep. 101, and note. An assignment cannot be made of the right to recover damages for a conspiracy to monopolize the coal business of a city, and to drive the assignor out of such business, either at the common law nor under a statute authorizing the assignment of causes of action for assault and battery, or false imprisonment, or other damages to the person: Murray v. Buell, 76 Wis. 657; 20 Am. St. Rep. 92, and note.

WITHOUT

PREJUDICE.-Error

APPEAL ERROR without prejudice is no ground for a reversal of judgment: Joseph v. Smith, 39 Neb. 259; 42 Am. St. Rep. 571, and note; Genz v. State, 59 N. J. L. 488; 59 Am. St. Rep. 619; Stewart v. State, 35 Tex. Crim. Rep. 174; 60 Am. St. Rep. 35.

SMITH V. YOUMANS.

[96 WISCONSIN, 103.] WATER COURSES

WATERS AND PRESCRIPTIVE RIGHTS.-The artificial state or condition of flowing water founded upon prescription becomes a substitute for the natural condition previously existing; and from it arises a right on the part of those interested to have the new condition maintained.

RIPARIAN RIGHTS-DAM RAISING WATER IN LAKE, LOSS OF RIGHT TO REMOVE.-The owners on the shore of a lake kept above the natural level by means of a dam until the owner thereof has acquired a prescriptive right to maintain it, and until the lands of such owners have become valuable as summer resorts by reason thereof, while they have made valuable improvements relying on the continued maintenance of the dam, have an easement on their part, and may prevent the owner of the dam from lowering the level of the lake to their injury.

RIPARIAN RIGHTS–RIGHT TO ABANDON EASEMENT.— An owner may abandon his water rights and easement to maintain a lake at an artificial level, so as to escape all liability at law, for consequential damages to riparian owners around the lake, unless he is bound by law or agreement to maintain the higher level of the waters of the lake.

LANDLORD AND TENANT.-Lessees of water power and a dam, who have another dam lower down the stream, have no other or greater rights in respect to the accumulation of water, or lowering the level of the water, than their lessor possesses.

Action to restrain the owner of a dam and his lessee from lowering the level of the water in a certain lake. Judgment for plaintiffs. Defendants appealed.

Ryan & Merton and T. W. Haight, for the appellants.

C. Quarles, Quarles, Spence & Quarles, and D. S. Tullar, for the respondents.

108 PINNEY, J. It clearly appears that H. A. Youmans, the lessor of the defendant Howitt, and ancestor through whom the other defendants derived their rights to the mill power and water rights and privileges in question, acquired a right by prescription, or an easement, to maintain the waters of 109 Lake Beulah at the level to which they were finally raised, and at which they had been maintained for a period of over forty years, and consequently to set the waters of the lake back against and over and upon the lands of the riparian proprietors, the plaintiff's and others, on the lake, for the purpose of creating and maintaining the necessary power for propelling a gristmill. His millsite, dam, and appurtenances constituted the dominant estate, and the right which he acquired was an easement in the one estate, and a servitude upon the estates of other riparian owners: Wash

burn on Easements, 5. It seems to be a fair inference that such riparian owners, in view of the advantages that might or would accrue to them by raising the level of the waters of the lake by the dam in question, were induced to consent or acquiesce therein, and in the user of the dam and waters of the lake by Youmans and his predecessor in interest until their acts had ripened into an easement by prescription. The relative relations and interests of the parties which have thus originated, grown up, and become fixed by prescription, would seem to impose upon the parties reciprocal rights and duties, at least to the extent that, so long as such relative rights exist and are asserted, each party is bound in equity to abstain from doing anything to the prejudice of the other's rights, founded upon the relations thus created between them, and that they are equitably bound to deal fairly, reasonably, and justly with each other in respect thereto.

It has long been settled that the artificial state or condition of flowing water, founded upon prescription, becomes a substitute for the natural condition previously existing, and from which a right arises on the part of those interested to have the new condition maintained. The watercourse, though artificial, may have originated under such circumstances as to give rise to all the rights that riparian proprietors have in a natural and permanent stream, or have been so long used as to become a natural watercourse prescriptively; and 110 "when a riparian owner has diverted the water into an artificial channel, and continued such change for more than twenty years, he cannot restore it to its natural channel, to the injury of other proprietors along such channel, who have erected works or cultivated their lands with reference to the changed condition of the stream, or to the injury of those upon the artificial watercourse who have acquired by long user the right to enjoy the water there flowing": Gould on Waters, sec. 225, and cases there cited. It is upon this ground that when the natural outlet of Lake Beulah was closed, and so remained for over twenty years, the artificial outlet at that time opened, and since maintained during that period, became the natural outlet, with all its legal incidents and consequences. In Belknap v. Trimble, 3 Paige, 577, 605, it was held. "that the rule must be reciprocal; that the proprietor of land at the head of a stream, who changes the natural flow of water, and has continued such change for twenty years, cannot afterward be permitted to restore the flow of water to its natural state, when it will have the effect to destroy the mills of other proprietors, which have been erected in reference to such change.

in the natural flow of the stream": Washburn on Easements, *313-315. In Mathewson v. Hoffman, 77 Mich. 421, 434, the rule thus stated in Belknap v. Trimble, 3 Paige, 447, was approved: Lampman v. Milks, 21 N. Y. 505; Roberts v. Roberts, 55 N. Y. 275. It is also supported by Delaney v. Boston, 2 Har. (Del.) 489-491; Middleton v. Gregorie, 2 Rich. 631-637. In Washburn on Easements, *313-315, the learned author lays it down that "where one who owns a watercourse in which another is interested, or by the use of which another is affected, does or suffers acts to be done affecting the rights of other proprietors, whereby a state of things is created which he cannot change without materially injuring another who has been led to act by what he himself had done or permitted, the courts often apply the doctrine of estoppel; and equity, 111 and sometimes law, will interpose to prevent his causing such change to be made." In Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344, it was held that, where a diversion of the stream affects other proprietors favorably, and the party on whose land the diversion is made acquiesces in the stream running in the new channel for so long a time that new rights may be presumed to have accrued, or have accrued, in faith of the new state of the stream, the party is bound by said acquiescence, and cannot return the stream to the former channel: Ford v. Whitlock, 27 Vt. 265; Norton v. Volentine, 14 Vt. 246; 39 Am. Dec. 220.

These cases relate, it is true, to diversions of water in running streams, but we are unable to perceive any reason why the same principle is not equally applicable to changes made in the level of a lake or pond, where, by means of a dam, the natural level has been raised for hydraulic purposes. The maintenance of the higher level of waters in the lake for the period of prescription secured to the owners of the millsite an easement in their favor to keep up the water to the necessary level to furnish water power for their mill. So, on the other hand, the riparian owners above have enjoyed, without question or interruption, for the same period of time, the advantages resulting from the flooding and submersion of their lands, by which the depth of water in the lake was greatly increased, and low, boggy, swampy, and unsightly lands were flooded, so that the waters extended to the high banks, whereby their access to and from the lake was improved, and the adjacent lands, with the resulting amenities and advantages, have been rendered extremely desirable for the particular use for which they have been improved at great cost and expense, namely, for summer resorts, relying upon the continued

level of the water in the lake without change, without which they would be deprived of the greater portion of their present value. May it not be justly said that the respective tenements or estates, by the acts of their respective owners, have become each dominant, and each 112 servient to the other in respect to the respective easements and advantages thus acquired by them, and enjoyed during the usual prescriptive period?

In the case of Cedar Lake Hotel Co. v. Cedar Creek Hydraulic Co., 79 Wis. 297, this court held that one who owns land on the shores of an inland lake, which is valuable for use as a pleasure resort on account of its proximity thereto and the easy access to its waters for boating and fishing, can maintain an action to restrain other riparian proprietors from so drawing off the waters of the lake as to lower its level, and leave a wide margin of bog, covered with decaying vegetation, along its shores, making it repulsive in appearance and unhealthy in effect, and thus injurious to the plaintiff's property; and this was so held in view of the relative rights and duties of the riparian proprietors, and not because of the restrictive grant of power to the corporation, one of the defendants. It is true that this was held in relation to an attempted change in the natural level of Cedar lake, but the conclusion seems irresistible that the increased level of the lake, in view of the facts found by parity of reasoning from the adjudged cases referred to in relation to streams, must be esteemed as having the legal incidents of the natural level; certainly so long as the defendants retain and insist upon their easement to keep and maintain the dam at a height to keep up such new level in the lake. They have not and do not propose to abandon or surrender this easement. They are certainly bound to exercise their rights in a fair and reasonable manner, and as they had been accustomed to do, and not capriciously or wantonly, so as to prejudice the existing rights and interests of the plaintiffs as riparian owners. The judgment of the circuit court is in accordance, we think, with sound principles, and the doctrines recognized and enforced in such and similar cases in courts of equity.

We have no doubt but that the defendants may abandon their water rights and easements, so as to escape all liability 113 at law for consequent damages, if they are not bound by law or agreement to maintain the higher level of the waters in the lake. It was held in Mason v. Shrewsbury etc. Ry. Co., L. R. 6 Q. B. 578, that the owners of the servient estate could acquire, by the mere existence of the easement, no right, as against the owner

AM. ST. REP., VOL. LXV.—3

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