32 Minn. 412 | Minn. | 1884
Facts as follows are found by the court which tried this action below: The St.Louis river rises in this state and flows over 200 miles therein, forms the boundary between it and Wisconsin for about 20 miles, and then empties into Lake Superior. Upon it and its tributaries, and in the region drained thereby, lie extensive pine forests, large tracts of which, situate above the obstructions maintained by defendants in the river, as hereinafter stated, are owned by plaintiffs. This river furnishes the only practicable route by which the logs and lumber of these forests can be transported to market. Ever since its acquisition by the United States this river has been a public highway, navigable by steam-boats for 20 miles from its mouth, and for 200 miles above for row-boats, canoes, and bateaux, with the exception of two portages, one from Fond du Lac to Thompson, a distance by river of about nine miles, and the other around Knife Falls. In its natural state the river was of such capacity and character as to render it practicable to float loose logs and timber from near its source to its mouth during periods of ordinary high water, and for this purpose it was a valuable highway. From Thompson to Fond du Lac
By the terms of Sp. Laws 1872, c. 106, the defendant the Knife Falls Boom Corporation (under license from which the other defendant, the St. Louis .River Boom & Improvement Company, has proceeded) is authorized and required to construct, maintain, and keep in reasonable repair such booms in and upon the St. Louis river, within townships 49 and 50 of range 17, in Carlton county, (being the townships within which are the obstructions complained of in this action,) at such points as it may deem advisable and sufficient to secure, receive, scale, and deliver all logs that may, from time to time, come or be driven within said limits, and to receive and take the entire control and possession of all logs and timber which may be run, come, or be driven within the same, and boom, scale, and deliver them as hereafter provided. Section 3 of the chapter provides that all logs and lumber coming within the limits aforesaid, before delivery thereof to the owners, shall be scaled by the surveyor general; the expense of the sealing, not-exceeding two cents per thousand feet, to be paid •by said Knife Falls company. Seale bills of each separate mark are to be made out by the surveyor general, as logs are required to be delivered, and, when so assorted and scaled, secured in strings, brails, ■or otherwise, as the surveyor general may deem proper, they are to be delivered to the proper owner, upon reasonable request, upon paying to said company the amount of boomage and other charges authorized by the act. By section 4, as amended by Sp. Laws 1878, c. 73, the company is entitled to compensation for boomage (which in-
Beginning in 1880, the defendants have constructed piers and booms across the entire width of the St. Louis river, within the limits mentioned, by means of which they stop and hold all logs and timber floating down said river to the places where the piers and booms are situated. The defendants have also constructed, in connection with the piers and booms, assorting booms and gaps, to facilitate the assorting of logs so stopped, and the delivery of logs destined to mills within said limits to the owners thereof, and the turning of logs destined for points on the river below said limits loose in the river below said works; and such assorting works require all logs passing down the river to pass through an opening about 27 feet wide. The general plan of the assorting works is such as is in quite common use throughout the lumbering regions of the Northwest for like purposes, and no better is suggested. The capacity of the works for the rapid assorting and delivery of logs can be largely increased without altering the general plan, and without unreasonable expense, by extending the assorting booms, and widening the upper portion of the passage-way to 40 feet in width, or by making two passage-ways, or by both means; but as much or more will always depend upon the proper manning and operating the works as upon their construction and capacity.
It is not practicable to construct and operate any booms or assorts ing works on the St. Louis river within the limits mentioned, through which any considerable quantity of logs can be passed — and assorted.
Within the limits mentioned there are certain rapids, out of which defendants have blasted- and removed rock, thereby making a better channel for the passage of logs, but it was entirely feasible and practicable to float logs over them irt their natural state. The defendants claim the right to charge, and do charge and collect, and threaten to charge and collect, by detention and sale of logs, 45 cents per thousand feet for all logs passing their works, whether assorted and delivered to their owner, or allowed to pass down the river in a common mass without being assorted and delivered to their several owners;
The special relief demanded by plaintiffs is that defendants be restrained from stopping, hindering, or delaying the passage of plaintiffs’ logs down the river, and that they be required to remove the piers and other structures erected by them in the river, so as to give a free and unobstructed passage to the plaintiffs’ logs, or that they be required so to alter their works as to enable them to separate from plaintiffs’ logs such as are to stop at Knife Falls, and allow plaintiffs’ logs to pass on whenever and while the water in the river is sufficient to take them over the rapids, and before it becomes too low for that purpose, and so as not to delay the plaintiffs in getting their logs to Duluth over said rapids, or to increase the expense thereof.
As a conclusion of law the trial court found that plaintiffs were not entitled to the relief demanded, but that defendants were entitled to judgment against plaintiffs for costs.
While, in our view of the law of this case, some portion of the foregoing findings may not be necessary to the proper consideration and determination of the substantial questions involved, we have thought best to present them, in order that it might fully appear what state of facts was before us.
It may be conceded In this case, as it was by Mr. Justice Miller, speaking for the federal supreme court, in Pound v. Turck, 95 U. S. 459, 462, in reference to the Chippewa river, that the St. Louis is a “navigable river of the United States,” and as such protected by our congressional enabling act, and by the constitution and laws of this state, which make rivers of that character “common highways, and forever free, as well to the inhabitants of said state” (of Minnesota) “as to all other citizens of the United States, without any tax, duty, impost, or toll therefor.” But the findings of the trial court show that its navigability in those parts obstructed by defendants’ works, is, in fact, a navigability, or, more properly, a mere floatability, for. loose logs only. As respects the navigation of the river, the plaintiffs’
Where a stream, as the St. Louis, is of such a character that logs can only be floated in it loose, the logs of different owners will unavoidably become intermingled. This intermingling is inseparable from the use of the stream. The right to float logs in a stream of course implies the right to take them out; and when the logs of different owners, A, B, and C, are thus intermingled, there appears to be no practicable way for A to separate his from B’s and C’s, in order to take them out, except by stopping the whole mass. If this cannot be done, then A’s right of floatage is of little or no value. Yet A’s right to use the common highway is equal, to that of B or C, and if his interest requires that his logs should be taken out at a point above the places where B’s or C’s interest requires that theirs should be 'taken out, respectively, he must have a reasonable right to stop the mass for that purpose; a reasonable right — that is to say, a right reasonable as between him and B and C, and others using the river for like purposes. Watts v. Tittabawassee Boom Co., 52 Mich. 203.
Now it appears that there is a large number of persons (there are 14 plaintiffs in this case) owning standing timber upon the upper waters of the St. Louis and upon its tributaries, who must float their logs to market down the St. Louis, some to Fond du Lac, Duluth, or Superior, and some to Cloquet, or other points above and near Knife Biver Falls. The interest of the latter requires that their logs should be stopped before passing Knife Biver Falls; the interest of the former, that their logs should be allowed to run over them without interruption. In this conflict, who is to determiné how the right of float-age upon this common highway shall be enjoyed? Who is to fix upon the just and proper compromise of these conflicting interests ? Obviously, the legislature, — that department of government which, in
But it is contended that the legislature is prohibited by our enabling' act and state constitution from interfering or authorizing interference, with the free and unobstructed navigation of the St. Louis river.. Conceding, as we have, that the enabling act and- the constitution are applicable to the St. Louis river, they provide in substance that it. shall be a “common highway, and forever free, * * * without, any tax, duty, impost, or toll therefor.” Keeping constantly in mind the capital fact that the present controversy relates solely to the floating of loose logs, (the only kind of navigation of which the stream is-susceptible,) let us see what the legislature has attempted to do; premising, at the outset, that the presumption in favor of the validity of legislation requires us to assume that if the legislature had the. power to pass the special act under which defendants justify, the state of facts before it was such as to warrant its particular provisions. Referring to our previous abstract, and to the act itself, for details, it is enough to say here that those parts of the act which
Now the effect of all this is to constitute the Knife Falls Boom Company a public agent, a quasi public corporation, (like a railway company,) a representative of the state charged with the functions -of (so to speak) administering the navigation or floatage of the St. Louis river within certain limits, and of controlling and directing the *use of the river for the common advantage, and with reference to the common necessity, of those concerned in floating logs thereon. Cohn v. Wausau Boom Co. 47 Wis. 314. Notwithstanding this control, the river remains a common highway; any person who desires can float his logs in it. If the enabling act and our constitution use the words “forever free as well to the inhabitants of said state as to all other citizens of the United States” as meaning that such inhabitants and citizens cannot be deprived of the use of the river, (which would appear to be about the same as making it a common highway,) the act under consideration does not deprive them of such use or attempt to do so. What is done is not to deprive them of the use of the river, or exclude them from the common highway, but to regulate the use of the same for the common benefit. The act does not assume to ■declare that any person shall not use the river, but regulates the manner of use according to what the legislature in its discretion has regarded as the necessity of the case. The legislature is to be credited with the presumption that this will, on the whole, facilitate the use of the river, and, in a just as well as authorized sense, improve it, for the purpose of floating logs.
The -provision allowing boomage charges is not an infringement -of that portion of the enabling act and of our state constitution which
The plaintiffs contend that they should not be compelled to pay boomage, because they derive no benefit from defendants’ works; that as to them such works are not improvements facilitating the use of the river. And the trial court finds that no boom or booms, or other obstructions, in the St. Louis, within the limits mentioned in the act, can be of any aid, service, or assistance to the plaintiffs, or others, who desire to run their logs to any point below such limits; but will, under any and all ordinary circumstances, -operate as a detriment by delaying their logs. It may be true that if the plaintiffs could have the exclusive use of the river, their logs would reach them with less delay than the defendants’ works will permit. In such circumstances it would be true that the works would be of no advantage.
On the whole, this is an improvement of the river for the benefit of all concerned in its use, and one for which it is therefore competent for the legislature to require those using the river to make compensation. The fact that in a particular instance the works may be of no advantage to a particular person, or that he would be better off without them, does not affect this general proposition. If a lock, by which slack-water navigation of a public river is secured so that it can be ascended with greater facility, is of no advantage to one simply desiring to descend the river, it would not be contended that it was improper or incompetent to require such person to pay for using the lock which had been authorized and constructed for the general benefit- — the advantage of the public on the whole. This illustration, as well as that drawn from the operation of the pilot laws by Mr. Justice Miller in Duluth Lumber Co. v. St. Louis Boom Co., supra, is in point in the ease which might be presented, if, at a given time, no logs were running in the St. Louis except such as were destined to points below defendants’ works. Notwithstanding a particular in
It is, perhaps, possible that there might be legislation (similar to that involved in this case) so outrageously and palpably extreme as to justify a court in pronouncing it in excess of legislative authority; but this state of things is not to be presumed; and though the act under consideration -may be imperfect and susceptible of impirovement, we discover in it no evidence of such excess of legislative authority.
From what we have said it follows that, in our opinion, the special act under which the defendants justify is valid, and that it authorizes defendants to take charge and control of plaintiffs’ logs, and to charge boomage accordingly. Very similar legislation appears to have been had in other instances in this state, and in Michigan and Wisconsin, where it has borne the test of judicial investigation.
This disposes of the principal questions in the case. One or two minor points remain. The trial court finds that the capacity of the defendants’ works can be enlarged without any change in their general pilan, and without unreasonable expense, by extending the booms and enlarging or doubling the passage-way, but adds that as much or more will always depiend upion the proper manning and operating the works as upon their construction and capacity. If the act under which defendants are proceeding, though within the scope of legislative authority, is imperfect or defective in its details, or for want of details; if it operates unfairly, or if the charges which it allows are excessive, — further legislation may be appilied for; and if the application is shown to be just and reasonable, we are to presume that it wili be granted. State v. Iron Cliffs Co., 20 N. W. Rep. (Mich.) 493. If defendants neglect or refuse to perform any duty cast upion them by the act, they may be proceeded against for a forfeiture of franchises; or if any one suffers special injuries from such misconduct, he has his action for damages. Black River Imp. Co. v. La Crosse B. &
Judgment affirmed.