140 Minn. 233 | Minn. | 1918
This is a proceeding to establish a judicial ditch for the purpose of draining Minnesota lake, a meandered body of water covering about 2,000 acres in Faribault and Blue Earth counties.
The preliminary hearing was held on March 27, 1916, at which time the engineer and viewers were appointed, but they did not make their reports until the following November. Notice of the hearing to consider these reports was given on December 4, 1916; the hearing was held on December 27, 1916; and an order establishing the ditch was made on December 29, 1916, and filed on the following day.
Upon an application on behalf of 134 persons who were opposed to the construction of the ditch, the court, on January 18, 1917, issued
At the rehearing, a large amount of evidence was submitted, and, at the conclusion of the evidence, the objectors moved that the proceeding to establish the ditch be dismissed upon two grounds: (1) That the incorporated village of Minnesota Lake abuts upon the lake and is a riparian owner, thereon and has never voted in favor of the drainage of the lake; (2) “that the evidence is wholly insufficient to establish the allegations of the petition or sustain the proceedings here in question or warrant the establishment of the ditch in question.” The court granted this motion and dismissed the entire proceeding. The petitioners appealed from the order of dismissal.
Relying upon State v. Anding, 132 Minn. 36, 155 N. W. 1048, the petitioners contend that the court had no power to vacate the order establishing the ditch, and that the order of April 12, 1917, granting a. rehearing was of no force or effect for lack of power to make it. We are unable to sustain this contention. It is true that the case cited
Sections 7746 and 7786, G. S. 1913, apply to the district court and enlarge, define and regulate the inherent power of that court to control 'and correct the proceedings had before it and to amend or set aside its orders and judgments; but these sections do not apply to the board of county commissioners nor confer any authority upon such boards. Section 7786 provides: “The court in its discretion * * * may relieve a party from any judgment, order or other proceeding taken against him -through his mistake, inadvertence, or excusable neglect; or may for good cause shown, modify or set aside its judgments, orders, or proceedings, whether made in or out of term, and may supply any omission in any proceeding, or in the record, or by amendment conform any proceeding to the statute under which it was taken.” The purpose of this statute is to further justice, and it must be liberally construed to enable the court to determine the rights of parties upon the merits. Waller v. Waller, 102 Minn. 405, 113 N. W. 1013. It applies to all sorts of actions and proceedings. 2 Dunnell, Minn. Dig. § 5011, and cases there cited. The industry of counsel has found no case holding that it does not apply to special statutory proceedings as well as to ordinary actions. In re Judicial Ditch No. 52, 131 Minn. 372, 374, 155 N. W. 626, the court referring to sections 7746 and 7786, said, “We have no doubt that they apply to the ordinary procedure in ditch proceedings and other special proceedings, as well as to actions which proceed according to the course of the common law.”
Recognizing that these sections have already been construed to apply to special statutory proceedings, the petitioners take the position that they apply only to those matters of procedure which precede the rendition of the final judgment in such proceedings, but do not apply to such final
Section 5523, G. S. 1913, as amended by section 1 of chapter 300,-p. 426, of the Laws of 1915 provides: “No meandered lake upon which any city or village'is now a riparian owner shall be drained or lowered unless by the approval of a majority vote of the legal voters of said city or village at any annual or special election held for such purpose.”
It is admitted that the lake sought to be drained is a meandered lake; that the incorporated village of Minnesota Lake borders upon the lake; that two streets of the village extend to the lake and have been in constant use for more than 20 years, and that the voters of the village have never authorized or approved the draining of the lake. ^The petitioners concede these facts, but contend that the village is not a riparian owner on the lake, for the reason that it has only an easement in the streets which reach the lake and does not own the fee of any land which borders on the lake. They insist that in order to be a riparian owner the village must own the fee to a portion of the lake shore. They state in their brief: “The precise question then is, ‘What is a riparian owner?’ The status of the village and its claim is undisputed, in fact, stipulated. The village is not, and does not claim to. be, the fee owner of any land bordering on the lake.. Its claim, and its only claim, is by the right of an easement in a street or streets. If then, a riparian owner is only a fee owner, the village is not a riparian owner. If an easement constitutes riparian ownership, the village is a riparian owner.” In addition
In the Hanford ease, supra, the court held that the railway company acquired riparian rights by its condemnation proceedings, even if it acquired only an easement in its right of way.
In Village of Wayzata v. Great Northern Ry. Co. 50 Minn. 438, 52 N. W. 913, the court say: “Where the grant or dedication to the public is for the purpose of passage, and goes to the water, the conclusion— there being no indication of a contrary intention — is inevitable that the grant or dedication was intended to enable the public to "get to the water for the better enjoyment of the public right of navigation.”
In Barney v. Keokuk, 94 U. S. 324, 24 L. ed. 224, the Supreme Court of the United States say: “Although it should be conceded that the title of the plaintiff attached to the ground reclaimed and filled in by the city outside of the original highwater, it was a bare legal title, subject to the public easement and use, not only for street purposes, but for the purposes of wharves, landings and levees. A street bordering on the river, as this did, according to the plan of the town adopted by the decree of partition, must be regarded as intended to be used for the purposes of access to the river, and the usual accommodations of navigation in such a connection. * * * The principles laid down in all the later cases apply as well where the title of the soil is in the adjacent proprietor as where it is in the eity or a third party. And, as before remarked, we can perceive no well founded difference in principle between the one and the other as to-the rights of .the public.” This doctrine is reiterated by the same court in Potomac Steamboat Co. v. Upper Potomac Steamboat Co. 109 U. S. 672, 3 Sup. Ct. 445, 4 Sup. Ct. 15, 27 L. ed. 1070, and the court adds: “It never was questioned that, as
In Godfrey v. City of Alton, 12 Ill. 29, 52 Am. Dec. 476, the Illinois court say:
“Where an easement is granted to tbe public, upon tbe margin of a navigable stream, the right to use and treat it as a landing is undoubted. Having dedicated tbe banks of tbe river, this united the.two easements, each of which was essential to the full enjoyment of the other.”
In Balliet v. The Commonwealth, 17 Pa. St. 509, 55 Am. Dec. 581, the Pennsylvania court say: “When one road commences or terminates at another road, it is intended to furnish a passage from and to that other; and the same rule applies to a road terminating at a navigable river. This road terminating at such a river, is intended as a means of public communication between the river and the county adjoining.”
To the same effect see Backus v. City of Detroit, 49 Mich. 110, 13 N.W. 380, 43 Am. Rep. 447; Village of Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 50 L. R. A. 836, 74 Am. St. 859; M’Closkey v. Pacific Coast Co. 160 Fed. 794, 87 C. C. A. 568, 22 L. R. A. (N. S.) 673; City of Buffalo v. Delaware, L. & W. Ry. Co. 190 N. Y. 84, 82 N. E. 513, 16 L.R.A. (N.S.) 506; McMurray v. Mayor of Baltimore, 54 Md. 103; Chlopeck Fish Co. v. City of Seattle, 64 Wash. 315, 117 Pac. 232; Rowan’s Exrs. v. Town of Portland, 47 Ky. 232; 3 Dillon, Municipal Corp. (5th ed.) § 1136; Tiedeman, Municipal Corp. § 224; 1 lamum, Waters, § 144a.
The fact that the streets of the village extended to the lake gave the public the right to use the termini of the streets as a landing place in going to and from the lake; and to this extent at least, the village, as the representative of the public, possesses riparian rights; and this is sufficient to make it a riparian owner within the meaning of the statute.
The petitioners, claim that Minnesota lake, although meandered by the government surveyors, ceased to be a meandered lake for the reason that it dried up during the unusually dry seasons prior to 1900. But the lake again filled up from natural causes in 1902, and has remained substantially in its original condition ever since. The lake did not lose its character as a meandered lake by a mere temporary recession of its
The petitioners contend that Troska, who made the application for a rehearing on behalf of himself and 133 others named in the proceeding, was estopped from applying for a rehearing for the reason that he’ was a witness at the original hearing on December 27. The record contains his name in the list of witnesses, but does not disclose whether he appeared voluntarily or in response to a subpoena, and does not contain any of his testimony. Whatever effect this appearance might have as a waiver of jurisdictional defects, we find no sufficient ground for saying that he was estopped from appealing to the discretionary power of the court for relief from the order made as the result of that hearing.
As'the conclusion that the village is a riparian owner necessarily disposes of the present case, it is not necessary to consider other questions sought to be raised, although the evidence to the effect that the lake is of beneficial public use is doubtless sufficient to sustain the order of the district court if based solely upon that- ground.
Order affirmed.