Lamprey v. Nelson

24 Minn. 304 | Minn. | 1877

Gilpillan, C. J.

The complaint shows a cause of action, because it alleges a request by defendant to do the work, labor and services sued for, and also a promise to pay for them.

The work, labor' and services appear to have been performed by means of a dam across Snake river, and from the manner in which it is pleaded (all the steps taken to procure a license being set out and they being insufficient) it appears • Munch had no operative license from the county commissioners to build and maintain the dam.

If it were unlawful for one to construct and maintain a dam across a stream upon his own land, he could make no valid contract for the use of it. But upon a careful examination of chapter 32, Gen. Stat., we do not find that the construction and maintenance of a dam that does not obstruct the passage of logs, timber or lumber is prohibited, or that the right to construct such a dam depends on a license by the county commissioners. The license is needed to enable the party constructing and maintaining the dam to charge tolls for sluicing logs, against those with whom he has no contract ; but not to maintain the dam, nor to recover from those who employ him to sluice logs through it.

In respect to the license which the plaintiff claims that Munch had, the objection is that it was issued without notice, as required by statute, (Gen. St. c. 32, § 44,) of the intention! to apply for it. To this plaintiff answers that the license was^ in renewal of a former operative license, and might be issued: without notice.

Munch obtained, after due notice, a license for one year,, expiring April 18, 1874, and made it operative by filing the, bond approved by the commissioners, required by the statute. It does not appear that any dam was constructed during the life of that license. Before it expired Munch applied without notice for a renewal of it, and, as the complaint says, the board of commissioners “duly granted and renewed such license, and farther license to said Adolph Munch therefor, and for the purposes aforesaid, for the term of six years.” He made out a bond, and left it with the county auditor to be approved and filed, but it was lost, without having been! approved or filed, so that the second license never became ¡ operative. In the spring of 1876 Munch, discovering the; loss of the bond, applied to the board without notice to renew j or grant him license, and thereupon the board of commissioners granted him a license for six years from April 8,1876, and he thereupon filed the proper bond. It does not appear from the complaint that up to that date he had constructed any dam. This last license, which is set out in the complaint, does not purport to be a renewal of a former license, but to be an original one, there being in it no reference to any prior license nor to any existing dam. Had this license been in operation and effect a renewal, we should hold that it was a renewal .notwithstanding it is in form an original. That is, had there been an existing dam constructed under or legalized by the licenses before granted, so that we could construe it as intended to give a right to continue such dam rather than a right to construct a new one, we think it would be in operation and effect a renewal, and not an original license. But there does not appear to have been any existing dam when it was granted, and it must therefore be construed to grant just the' 'right-that it purports to; that is, the right to construct and! 'maintain a new dam, and it is therefore an original, and could only be granted upon the notice required by the statutes.

; As, however, the complaint states a cause of action in alleging the contract between Munch and defendant, the demurrer should have been overruled.

Order reversed.