10 Minn. 30 | Minn. | 1865
By the Court —
— This is an application by Alex Faribault and Nicolas La Croix for a writ of certiorari to the District Court for the county of Rice, to review the action of that Court in the course of certain proceedings therein under Chapter 129 of the Public Statutes, providing for the erection of mill dams and mills in certain cases.
The proceedings in the Court beloAV Avere dismissed by that tribunal. The grounds upon which this action is based, and upon which the Defendants rely in opposition to granting the writ of certiorari, are:
1. The petition fails to state that the erection and maintaining
2. The petition fails to state that the erection and maintenance of said dam will not destroy or impair the right of any person to erect and maintain a dam under the law existing at and before the passage of the law under which the petitioners proceed.
8. The petition does not state that the real estate sought to bo overflowed and damaged is not owned by the petitioners nor damaged by consent.
There is no statutory provision for an appeal in a proceeding of this character, and it is one unknown to the common law. In such case, it has heretofore been determined by this Court, a certiorari lies. Tierney vs. Dodge, 9 Minn., 166. We do not understand, however, that the Respondents deny this position.
So far as the question of the constitutionality of the law under which the proceedings originated and were conducted is concerned, although, perhaps, legitimate on a motion of this kind and suggestive in the briefs of the parties, it was not discussed at the bar, and it was distinctly understood that while for the purpose of this application the constitutionality of the law might be assumed, no final adjudication.upon that point could be made at this time, but that question would be reserved for determination when it should arise at a subsequent stage of the case. We proceed, therefore, to the objections which go to the sufficiency of the petition.
The first and second sections of the act are as follows:
“Sec. 1. When any person may be desirous of erecting and maintaining a mill dam upon his own land across any water course-not navigable, and shall deem it necessary to raise the water by means of such dam, or occupy ground for mill yard so as to damage, by overflowing or otherwise, real estate not owned by him, nor damaged by consent, he may obtain right to erect and maintain said dam by proceeding as in this act provided.
“Sec. 2. He shall present to the Judge of any Court of record in which jury trials are had in the county, or if there be no such court in the county, then in the district in which said dam or any part thereof is to be located, a petition setting forth the place as*38 near as may be where said dam is to be located, the height to which it will be raised, the purposes to which the water power will be applied, and such other facts as may be necessary to show the objects of the petition.”
The 16th Sec. of the act is as follows :
“No mill dam shall be erected or maintained under the provisions of this act to the injury of any water power previously improved.”
Sec. 25 is in the following language:
“The provisions of this act shall not apply to Olmsted county, nor destroy or impair the right of any person to erect and maintain a dam under the law heretofore and now existing.”
As the jurisdiction of the Court in cases of this character depends entirely upon statutory provision, before the jurisdiction attaches facts must be stated by the petitioners, which bring the case within the purview of the act creating or conferring the jurisdiction. The first section of the act prescribes the cases in which the right to erect and maintain a dam may be obtained. If the facts stated are such as bring the case within this section, the iurisdiction of the Court is complete, although the right to the relief sought may depend on other circumstances. The rule of statutory construction applicable to this case is well settled. There is a well known distinction between an exception in the purview of an act and a proviso. If there be an exception in the enacting clause of a statute, it must be negatived in pleading, but a proviso need not. Sedgwick on Const, and Stat. law 62; Gould's Pl. Ch. 4, Secs. 20, 1, 2, and authorities cited.
In the first section or enacting clause of this act, there is no exception. The qualifications or limitations of the right to erect and maintain a dam, insisted upon in the first and second objections, are introduced by subsequent and distinct sections of the act. While, therefore, the matters embraced in these sections, so far as they limit the right granted by the first section, may be pleaded in bar of the relief sought by the petitioners, they are not, under the rule stated, exceptions which must be negatived in the first instance.
The object of this act is two-fold. First, to grant to the owners of a mill site on a non-navigable water course, the right to improve the water power by the erection of a dam and mill on their own land, where it results in injury to the land of other persons. Second, to secure from such owners, by the same proceeding, compensation to the owners of land so injured.
The petition in this instance fully describes the several pieces of land which may be injured by the erection of the proposed dam, and states the respective owners thereof, who are other persons than the petitioners. This is all that is necessary to accomplish the object of the-law, and we think sufficiently shows that the petitioners are not the owners of the land which will be injured. When an injury is alleged to person or property, the law presumes prima facie want of consent; it need not therefore, be alleged expressly in the first instance. For these reasons we are of opinion that the petition is sufficient, and that a certiorari should issue.
