Rayson vs. Horton and another. years. He builds another house, suited for his own use, and which he in fact uses, on property for which he himself pays, so far as it is paid for at all. He witnesses and records a contract for this second lot, in which it is described as his "homestead." He now declares that his only purpose in removing from the property in question was to secure the rent therefrom, but when it becomes vacant and so remains for months he does not return to it. In fact, the only evidence tending to rebut the presumption that his removal was made animo manendi is his ex post facto professions made at the time of the trial, when circumstances had rendered his return advantageous. We do not regard these professions as in any respect sufficient to rebut the presumption, strengthened as it is by contemporary circumstances and conditions. The evidence shows very clearly to our minds that when the plaintiff removed from the premises in question he had no positive or certain intention to return, and that he consequently abandoned it as a homestead. By the Court.-Judgment reversed, and action remanded with directions to render judgment for the defendant. RAYSON, Respondent, vs. HORTON and another, Appellants. April 27-May 15, 1895. Change of venue: Appeal from municipal court: Foreclosure of lien on logs, etc. The right of a defendant, under sec. 2624, S. & B. Ann. Stats., to have the place of trial of an action pending on appeal from a justice's or municipal court changed to the county of his residence, is absolute in the case therein specified, whether the action was or was not properly brought in the county in which it was commenced; and said section is not in any respect repealed or modified by Rayson vs. Horton and another. sec. 2, ch. 139, Laws of 1891, which provides that the petition for a lien on logs, etc., shall be filed in the county in which the labor or services were performed, or, when the property has been transported to another county, the petition may be filed, and an action to foreclose the lien brought, in the county where the property is at the time of filing the petition. APPEAL from a judgment of the circuit court for Oneida. County: CHARLES V. BARDEEN, Circuit Judge. Reversed. This action was commenced in the municipal court of Oneida county, to foreclose a laborer's lien against certain railroad ties, etc., in that county, for work and labor performed thereon by the plaintiff. The defendants appeared in the action, and from a judgment rendered therein against them they appealed to the circuit court for Oneida county, and thereupon moved that court to change the place of trial of the action to Price county, on the ground that they were then, and at the time the action was commenced, residents of that county. The motion was opposed on the ground that the action was one commenced under ch. 139, Laws of 1891, entitled "An act in relation to liens on logs and lumber," and that the specific property on which a lien was claimed had been attached, and that the place of trial could not be changed for the reasons assigned. The circuit court denied the motion, and the plaintiff obtained judgment in that court, from which the defendants appealed. The cause was submitted for the appellants on the brief of Anson Green, attorney, and Levi J. Billings, of counsel, and for the respondent on that of Miller & McCormick. PINNEY, J. The statute (sec. 2624, S. & B. Ann. Stats.) makes it the duty of the circuit court to "change the place of trial of any action commenced before a justice of the peace or municipal court by process personally served, or wherein the defendant shall enter his appearance in such justice or municipal court, and pending upon appeal, to the Rayson vs. Horton and another. circuit court of the county in which the defendant resides, upon his motion made at the first term at which the action shall be noticed for trial, if it shall be shown that he was, when the action was commenced, a resident of such county." The application in this case was made in due season and upon a state of facts bringing the case clearly within the statute. This section of the statute is broader in its scope and effect than sec. 2621, which extends only to cases where the county designated in the summons or complaint "is not the proper place of trial." It secures an absolute right to a change of the place of trial in the case specified in it, whether the action was or was not properly brought in the county where it was commenced. The case of Van Kleck v. Hanchett, 51 Wis. 398, is decisive of the question involved. Whether the action is local or transitory in its nature cannot make any difference. In either case it is within the plain language of the section. Although the statute governing the action (Laws of 1891, ch. 139, sec. 2) provides that the petition for a lien shall be filed in the office of the clerk of the circuit court of the county in which the labor or services were done or performed, or, when the property has been transported to another county, that the petition may be filed, and an action to foreclose the lien brought, in the county where the property is at the time of filing the petition, the right of the defendant to a change of the place of trial upon the grounds specified in this case remains, as clearly so as if the application had been founded on alleged prejudice of the circuit judge. It is entirely clear that the provisions in the act of 1891 do not in any respect repeal or modify sec. 2624, under which the application in question was made. It was error to deny it, for which the judgment appealed from must be reversed. By the Court.-The judgment of the circuit court is reversed, and the cause is remanded with directions to grant the defendants' application for a change of place of trial. VOL. 90-24 Green Bay & Mississippi Canal Co. vs. Kaukauna Water Power Co. GREEN BAY & MISSISSIPPI CANAL COMPANY, Respondent, vs. GREEN BAY & MISSISSIPPI CANAL COMPANY, Respondent, vs. GREEN BAY & MISSISSIPPI CANAL COMPANY, Respondent, vs. December 22, 1894-June 20, 1895. Waters: Dams: Riparian rights: Improvement of navigation: Surplus water: Use for power: Diversion: Prescription: Judgment on appeal. 1. As a general rule, the owner of a dam and the water power created by it must return the water to the stream in such a manner and at such a place as not to deprive lower riparian owners of its use as it has been accustomed to flow past their lands. 2. The right of the state to improve the Fox river for the purpose of aiding its navigation was superior to the rights of riparian owners, and it might take and divert, absolutely and without compensation, so much of the water as might be required for that purpose. 3. The state could not lawfully make a dam or any other improvement in the Fox river for the sole purpose of creating a water power to be leased for manufacturing purposes, if such improvement would work injury to a lower riparian owner; but where a dam was made by or under the authority of the state for the bona fide purpose of aiding navigation, and incidentally there was a surplus of water available for power, such power might be leased or sold to private individuals. 4. The surplus water of a dam lawfully built in the Fox river to feed a canal around rapids in aid of navigation, although under a statute (Laws of 1848, p. 62, sec. 16) providing that the water power should belong to the state, cannot be diverted from its natural channel to the injury of lower riparian owners, by the state or its grantees, through the canal and sluiceways therefrom. 5. The diversion of an inconsiderable portion of such water for twenty years was not sufficient to establish a right by prescription. 6. The specific place and the precise manner in which the water must be returned to the stream are not determined on the appeal in this case, no such issue having been made or adjudged in the trial court, and the record furnishing no data for the determination of those matters. Green Bay & Mississippi Canal Co. vs. Kaukauna Water Power Co. APPEALS from a judgment of the superior court of Milwaukee county: R. N. AUSTIN, Judge. Reversed. In 1846 Congress granted to the state of Wisconsin, when it should become a state, certain lands to be used in improving the navigation of the Fox and Wisconsin rivers. In 1848 the state accepted the grant, and placed the construction, maintenance, and operation of such improvement under control of a board of public works. Sec. 15 of the act (Laws of 1848, p. 61) provided: "In the construction of such improvements, the said board shall have power 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 shall in their judgment be necessary." This board of public works entered upon the work of improving the navigation of those streams. In 1853 the legislature incorporated the Fox & Wisconsin Improvement Company, and granted to it all the works of improvement, land, and property of the state connected therewith, on condition that it should prosecute the work of improvement with vigor. The property owned by the state and granted to the improvement company consisted in an easement in the lands occupied by the canal, dams, and ponds, and the water powers incidentally created by the dams. The water powers which the state owned and transferred to the improvement company were such as the state owned by virtue of sec. 16 of the act of 1848 (p. 62), which provided: "Whenever a water power shall be created by reason of any dam or other improvement made on any of said rivers, such water power shall belong to the state." The state did not take or own real estate below its dams, except what was taken for and occupied by the canal. In 1866 all the title and interests of the improvement company in all the works of improvement, lands, and property, including the water powers created by the improvements, were sold under a judgment of foreclosure and sale under a |