corner of concrete wall of marine railway turbine shed and 64.5 feet southeast of southeast corner of operator's cottage. Elevation 109.58 feet. It appears, however, that the Improvement Company never made use of the legislative authority to raise the water 6 inches above the old watermark, but always observed 1 foot 6 inches on the gage as the upper limit. The low water established for the dam from May 1 to November 1 was 0 feet 0 inches on the gage. The low water limit for the winter season from November 1 to May 1 was fixed at natural run or approximately 2 feet below the 0 on the gage. The 0 on the gage is at elevation 105.76 feet. There is a suggestion in the record that the Three Lakes Canal and Transportation Company, Ltd., had obtained a charter from the legislature of the state authorizing it to construct the canal and to lower the water surface of Maple Lake. A search of the session laws, however, fails to show that any such authorization was ever given. Maple Lake has not only become extremely shallow by drainage through the canal but has also been reduced in size. It is now shallow, muddy, weedy, and unattractive. Its average depth has been variously estimated to be from 1 foot to 5 feet, although there appears to be a small area in the lake which has a greater depth. Before the construction of the canal the lake seems to have been a beautiful body of water surrounded by a good growth of timber and having for the most part sandy beaches. There are no cottages on the lake except those of Mrs. William J. Neu. However, the area of the lake bed rendered dry enough by the drainage has a growth of white birch, poplar, and pine. This is particularly true of the exposed bed lying between the present water's edge and the lands owned by Mrs. William J. Neu and Mrs. G. R. Duer. If the lake should be restored to its former elevation this timber will be destroyed. All persons who appeared at the hearing expressed themselves as being in favor of the restoration of the lake to its former elevation except Mrs. Neu, Mrs. Duer, and her daughter, Mrs. Frank Olkowski. Mrs. William J. Neu owns government lot 2 and all of lot 8 lying east of the canal, section 6, township 38 north, There are three range 11 east, containing about 56 acres. cottages on this land constructed on high ground. Mrs. Neu acquired this land January 18, 1923. Mrs. G.R. Duer is the owner of lot 3, section 6, township 38 north, range 11 east, which was deeded to her by her father. The land was acquired by her father prior to the construction of the canal. There are no improvements on this land. Mrs. Duer claims title to several islands and other low lands which before drainage were part of the submerged bed of Maple Lake. This land contains a growth of pine, birch, and poplar which would be inundated if the lake is raised to the level which obtained prior to the construction of the canal. Mrs. Duer objects to the restoration of the lake to its former level because it would entail the loss of land and the destruction of timber. On January 9, 1932 the Three Lakes Canal and Transportation Company, Ltd., conveyed to the town of Three Lakes the strip of land upon which the canal and its banks are located. A restoration of Maple Lake to its former level would greatly increase the usefulness of the lake and its shores and enhance the value of shore lots. The question arises whether the artificial condition of the lake level by lapse of time has become the natural condition whereby there is created a right in the public and in the riparian proprietors to have the artificial condition continued. So far as the respondents Neu and Duer are concerned the problem resolves itself to the simple question of who is the proprietor of the land which prior to the construction of the canal constituted the bed of Maple Lake. The construction of the canal was clearly unlawful. It was held in State v. Adelmeyer, 221 Wis. 246, 256, that no person, whether he be a riparian owner or not, may destroy or impair navigable water. Title to the bed of a navigable lake is vested in the State in trust for public purposes. Doemel v. Jantz, 180 Wis. 225. In Ne-pee-nauk Club v. Wilson, 96 Wis. 290, it was said: It is well settled in this state that grants by the United States of lands bounded by a meandered lake or other permanent body of water convey title only to the natural shore of the body of water, while the title to the land which is under the water is in the state. Diedrich v. N. W. U. R. Co., 42 Wis. 248. In Illinois Steel Co. v. Bilot, 109 Wis. 418, the court said: A government patent of land bordering on a lake or pond, regardless of the boundaries thereof, according to the government survey, does not convey title to the lands below the line of ordinary high-water mark. In Mendota Club v. Anderson, et al., 101 Wis. 479, the court said: *** obviously insofar as the patent conveyed such portions of the lake, it was issued by mistake, or without authority, and hence was inoperative and void. [1] It follows that unless Mrs. Neu or Mrs. Duer is the owner of the land which was submerged by the waters of Maple Lake prior to drainage they can raise no valid objections to the reflooding of this land. It does not appear that the State of Wisconsin has made any conveyance of the strip of land around Maple Lake which was, prior to 1904, submerged by the waters of the lake. Neither can the state have lost title to such land by adverse possession, since it is provided in section 330.10, Statutes: * * * but no person can obtain a title to real property belonging to the state by adverse possession, prescription or user unless such adverse possession, prescription or user shall have been continued uninterruptedly for more than forty years. The restoration of Maple Lake to the level which obtained prior to the illegal drainage thereof does not seem to involve the invasion of any property rights of riparian proprietors. The commission more particularly finds that the normal and lawful level of Maple Lake is at approximately elevation 115.45 feet, Public Service Commission datum. The precise elevation will be determined if and when an application is filed with the commission for permission to construct a dam in the navigation canal for the purpose of restoring Maple Lake to its normal level. [2-R-1010] Application of Henry A. Scandrett, Walter J. Cummings, and George I. Haight, Trustees of the Property of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, to Discontinue Trains 734-35 and 30-721 Between Berlin and Oshkosh Decided September 28, 1939 APPLICATION of Chicago, Milwaukee, St. Paul & Pacific Railroad Company for authority to discontinue operation of certain trains between Berlin and Oshkosh, granted, upon a finding by the commission that the proposed discontinuance of this service is consistent with the furnishing of reasonably adequate service in view of substituted passenger and mail service provisions. OPINION AND ORDER On July 14, 1939 the trustees of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company filed a petition with this commission for authority to discontinue the operation of its trains numbers 734-35 and 30-721 between Berlin and Oshkosh. Hearing was held August 22, 1939 at Oshkosh before Examiner C. V. Olson. Appearances: Chicago, Milwaukee, St. Paul & Pacific Railroad Com- Bender, Trump & McIntyre, attorneys, by Rodger City of Oshkosh by Harry Meyers, city attorney. Earl Oaks. Oshkosh Chamber of Commerce by E. J. Balda. Village of Pickett by J. S. Shea, Pickett. OPINION The Chicago, Milwaukee, St. Paul & Pacific Railroad Company now operates a train out of Milwaukee at 5:20 p.m. which passes through Horicon, Waupun, and Ripon, arriving in Berlin at 8:55 p.m. From Berlin the train backs up 12 miles to Ripon and then proceeds 20 miles to Oshkosh, arriving there at 10 p.m. In the morning the train leaves Oshkosh at 5:10 a.m., goes to Ripon and then backs up to Berlin, arriving there at 6:35 a.m. The train then leaves Berlin at 6:45 a.m., passes through Ripon, Waupun, and Horicon and arrives in Milwaukee at 9:45 a.m. A witness for the railroad company testified that the application to discontinue service between Berlin and Oshkosh has been made because of the losses which are being sustained by the operation of this train in both directions. The testimony indicates that for 1938 the BerlinOshkosh trains 734-35 and 30-721 operated 19,872 train miles and carried an average number of passengers per trip of 1; that the passenger revenue for this period was $266, mail $3,424, express $484, and all other $12, making a total of $4,186, and the expense for this period was $12,519, making a net loss of $8,333. It was indicated that for the 5-month period of 1939, from January to May inclusive, these trains operated a total of 8,256 miles, carrying an average number of passengers per trip of 1; that the passenger revenue for this period was $99, mail $1,418, express $199, and all other $5, making a total of $1,721, and that the expense for this period was $5,202, making a net loss of $3,481. A witness for the company stated that the Gray-Diamond Line operates a motorbus between Oshkosh, Berlin, Green Lake, Ripon, and Fond du Lac with two round trips in the territory each day. This bus company has now on file an application to render service as a common motor carrier of passengers to Oshkosh, Fisk, Pickett, and Ripon, which is contingent upon the commission's granting authority to the Chicago, Milwaukee, St. Paul & Pacific Railroad Company to abandon service between Oshkosh and Berlin. The proposed operations will take care of the passenger traffic and express that was formerly handled by these trains. The United States mails will be handled on a star route and the service will be better in the evening than it is by train now because the mail will get into Oshkosh early enough |