Minneapolis Mill Co. v. Board of Water Com'rs, Nos. 8394, 8395

Nos. 8394, 8395 | Minn. | Feb 9, 1894

Collins, J.

These cases were tried together in the court below, and, when plaintiffs rested, both actions were dismissed, upon defendant’s motion. From orders refusing new trial, appeals -were taken. Plaintiffs are corporations created in 1856 by acts of the Territorial Legislature, and authorized to build and maintain dams in the Mississippi river at the falls of St. Anthony, about ten miles above St. Paul, for the development of a water power, and for the use and sale of such power. One of these corporations, owning the shore on the east side of the river, erected a dam to the proper point in the river channel, and the other, owning the west shore, built its dam so as to connect the two, thus forming a power which has ever since been maintained and used.

In 1883 the Legislature authorized the city of St. Paul to purchase, and there was purchased, the property and franchises of a private corporation theretofore engaged in supplying said city with water. A board of water commissioners was created by the same act, and that board, a branch, of the city government, is the present defendant. By the provisions of an amendatory act (Sp. Laws 1885, ch. 110, § 5 et seq.) the board was authorized and empowered to add to its sources of supply, and to draw water from any lake or creek, and, in general, to do any act necessary in order to furnish an adequate supply of water for the use of the city. The manner in which it should acquire the right to extend its works so as to connect with any body of water deemed necessary for an increased supply, was specified, and in section 7 it was provided that "after making compensation as hereinafter provided to the owners of or the persons interested in the lands so to be taken and for damages by reason of diverting the water of any stream, creek, or body of water, said city shall have an easement therein.” In section 8, provision was made for the appointment of commissioners to assess the damages sustained by the owners of lands to be taken, or by other persons, by reason of such taking, or arising by the construction, use, and operation of the works. Under this act the defendant duly established a pumping station at Lake Baldwin, a body of water with an area less than a mile square, and by means of its pumps forced water through conduits to the city for public use. The outlet of this lake is Rice creek, and this creek empties into the Mississippi river a few miles above the dams built and maintained by appellants. Claiming that the result of this diversion of water was to greatly diminish the volume which came to the dam, and to materially affect and reduce the water power, plaintiffs brought these actions to restrain and enjoin perpetually the operation of defendant’s works at the lake, and the diversion of water therefrom.

Counsel for both parties made lengthy oral arguments, and have filed very full briefs. Many questions have been discussed which we do not regard as connected with the case, and hence we need not refer to them. There are a few well-settled principles which we regard as covering and controlling the facts before us, and a statement of these, with a construction of certain parts of the act under which defendant’s board was authorized to obtain further and other sources of water supply, will dispose of these appeals.

1. The plaintiffs are riparian owners on a navigable or public stream, and their rights as such owners are subordinate to public uses of the water in the stréam. And their rights under their charters are, equally with their rights as riparian owners, subordinate to these public uses.

2. There can be no doubt but that the public, through their representatives, have the right to apply these waters to such public uses without providing for or making compensation to riparian owners.

3. The navigation of the stream is not the only public use to which these public waters may be thus applied. The right to draw from them a supply of water for the ordinary use of cities in their vicinity is such a public use, and has always been so recognized. At the present time it is one of the most important public rights, and is daily growing in importance as population increases. The fact that the cities, through boards of commissioners or officers whose functions are to manage this branch of the municipal government, charge consumers for water used by them, as a means for paying the cost and expenses of maintaining and operating the plant, or that such consumers use the water for their domestic and such other purposes as water is ordinarily furnished by city waterworks, does not affect the real character of the use, or deprive it of its public nature.

4. In thus taking water from navigable streams or lakes for such ordinary public uses, the power of the state is not limited or controlled by the rules which obtain between riparian owners as to the diversion from, and its return to, its natural channels. Once conceding that the taking is for a public use, and the above proposition naturally follows.

Turning now to the provisions of defendant’s charter, Laws 1885, ch. 110, it will be seen that the board was not limited to public waters as the sources of its contemplated additional supplies. It was authorized to appropriate private waters for the purpose, and hence the provisions of the act which provide for the ascertaining of, and making compensation for, damages caused by a diversion of water, must be construed as applying solely to cases where the board took private property by using or diverting merely private waters. Inasmuch as the state itself could use the waters in question, as against the plaintiffs, without compensation, it would require very clear language to that effect to justify the conclusion that the Legislature intended to impose on respondent board the burden of paying plaintiffs for what, as against the public, they did not own. If the right granted by the Legislature had been exclusively to divert waters from a certain specified body of public water, such as one of the "great” ponds of Massachusetts, referred to in the cases cited from the reports of that state, so that the provisions in Laws 1885, ch. 110, relating to compensation could not apply to anything else, — to the owners of private waters, for instance,— the construction contended for by appellants, that it was intended they should be compensated in case damages resulted, might arise by implication.

Orders affirmed.

The Chief Justice did not sit.

(Opinion published 58 N. W. Rep. 33.)