26 Minn. 229 | Minn. | 1879
The defendant is a corporation, organized and acting under a charter found in Laws 185(5, c. 145. By section 9 of the charter, the company is “authorized, for the purpose of the improvement of the water-power above and below the Falls of St. Anthony, in the - Mississippi river, to maintain the present dams and sluices, and to cons tract dams, canals and water sluices, erect mills, buildings or other structures, for the purpose of manufacturing in any of its branches, or improving any water-power owned or possessed by said company, in such-manner and to such extent as shall be, authorized by the directors of said company; and may construct dams on the rapids above or below the Falls of St. Anthony, with side-dams, sluices, and all other improvements, in the Mississippi river,which may be necessary for the full enjoyment of the powrers therein granted.” Section 12 provides that the company “shall be restricted in its operations (i. <?., under section 9) to the centre of the main channel of the Mississippi river, and to the property belonging to said company. ”
• The company is the owner in fee of land upon the westerly üank of the river, opposite which it has built and maintains a dam, extending from such bank into the river. It appears that the company has leased to different parties four mill-sites upon the dam, together with the right to use, upon and at said respective sites, the quantity of water in the leases specified — in all amounting to thirteen water-powers, (so-
The present proceeding is instituted in behalf of the state, for the purpose of collecting the personal-property tax levied, upon the thirteen water-powers. The court below was of opinion that the state was entitled to judgment against the defendant for the amount' of the tax, but, upon the application of the defendant, the case has been certified here for our opinion in the premises. - The question presented is, were these thirteen water-powers properly taxed to the- defendant as personal property ?
In the recently decided ease of Morrill v. St. Anthony Falls Water-Power Co., ante, p. 222, we had occasion to consider the question of the rights of riparian proprietors upon the Mississippi river. The general rule arrived at was that a .riparian owner may use the waters of a navigable stream adjoining his land, for any purpose, for his own advantage, so long as he does not impede navigation, and in the absence of any counter claim by the state or the United States. As the riparian owner has this right to the use of the water, he has a right to enjoy it and make it available; otherwise, his right would be a worthless abstraction. He majq therefore,subject to the limitations of the general rule before stated, use the bed of the stream, if necessary or convenient to the enjoyment of his right to the use of the water. He may erect dams there, and such other.structures as will promote and-facilitate the enjoyment of -this right. For these purposes
It follows from what we have said that the defendant’s right to the use of the water is, for all purposes of taxation, real property and not personal, for our tax law provides that "real property, for the purposes of taxation, shall be construed to include the land itself, ® * * * and all rights and privileges belonging or anywise appertaining thereto.” The leased water-powers which are sought to be taxed as