Morrill v. Saint Anthony Falls Water-Power Co.
| Citation | 2 N.W. 842,26 Minn. 222 |
| Parties | Ashley C. Morrill and others v. Saint Anthony Falls Water-Power Company |
| Decision Date | 17 October 1879 |
| Court | Supreme Court of Minnesota (US) |
Appeal by defendant from a judgment of the district court for Hennepin county, Vanderburgh, J., presiding. The case was argued at the October term, 1878, and a reargument was ordered, which was had at the April term, 1879.
Judgment affirmed.
Benton & Benton, for appellant.
Shaw & Levi and Lochren, McNair & Gilfillan, for respondents.
Nicollet Island, above the Falls of St. Anthony, divides the Mississippi river into two channels -- one, much the larger flowing on the west side, and the other flowing on the east side of the island. Hennepin Island lies between these two channels, just below Nicollet Island, and extends down to and below the falls. Cataract Island is just below the falls, in the eastern part of the west channel, and near Hennepin Island. Plaintiffs are the owners of Cataract Island and the lower part of Hennepin Island. Defendant is the owner of the upper part of Hennepin Island. That island was granted by patent of the United States to one Ira Kingsley, from whom these parties claim title. The persons from whom defendant immediately claims its title had constructed a dam from a point near the head of Hennepin Island across the east channel of the river, and also a dam from the head of Hennepin to the foot of Nicollet Island, so as to prevent the flow of water between them, which they used until the construction of the present dam, in the year 1856.
In February, 1856, (Laws 1856, c. 137,) the legislature of the territory of Minnesota incorporated the defendant, and authorized it (sec. 9) "to maintain the [then] present dams and sluices, and construct and maintain 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 * * * 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, upon the property owned, or to be owned, by said corporation which may be necessary for the full enjoyment of the powers herein granted: * * * provided, that nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights or property of any other person or persons whatever." Subsequent to the passage of this act, the present dam of defendant was constructed. The effect of this dam is to diminish, especially in low water, the amount of water which would naturally flow along the west bank of plaintiffs' property. This bank is valuable for mill-sites, the powers being furnished by the water flowing along the bank. The plaintiffs' mill is propelled by this water. The river is not navigable in fact at the falls, nor at or near the premises in question, but is available and of great value for water-powers. The question in the case is as to the right of defendant to maintain its dam in such a manner as to interfere with this flow of water, to the injury of plaintiffs.
It is evident that defendant cannot, by virtue merely of its rights as riparian owner, stop the water which would naturally flow past the land of plaintiffs, so as to interfere with any use which they, as riparian owners, have the right to make of it.
The defendant makes, in substance, these propositions:
First. The Mississippi river is a navigable stream, the government owning the bed of the stream, and the owners of the banks owning only, at farthest, to low-water mark.
Second . If there be any riparian rights in such a stream, they are such only as relate to or are connected with navigation, giving to the owner only means of access from his own land to the river, for purposes of navigation.
Third. The exclusive right to any water-power is in the owner of the soil over which the stream flows -- in this case the government -- and in such power the owner of the banks has no property.
Fourth. The government, by the act incorporating the defendant, vested in it the right to the water-power, and the right to make it available by constructing such dams, etc., as it might see fit; and, the dam being lawful, the plaintiffs, who have no property in the water-power in the river opposite their land, cannot complain if the dam interrupts such power.
We shall consider, first, the proposition that the charter authorizes defendant to appropriate the water-power, as well opposite the plaintiffs' property as opposite the defendant's. If the proviso we have quoted had been omitted, still it is not clear that a proper construction of the act would give defendant the authority claimed. A legislative grant is construed strictly; where two interpretations may reasonably be put upon it, that least favorable to the grantee must prevail. The intention of the legislature to vest any right claimed must be clearly expressed, or appear by necessary implication. Upon the language of the act, (without the proviso,) it may certainly be doubted that the legislature intended to give authority to defendant to construct dams, etc., except for "improving any water-power owned or possessed by said company." The proviso removes any doubt that might otherwise exist. It is: "Nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights or property of any other person or persons whatever."
It may be suggested that the "rights or property" here mentioned were such as persons might possess as against the state, and with which the state had no power to interfere. We do not intend to discuss the question whether riparian owners have rights in navigable waters, absolute as against the state, and which the state cannot take away without making compensation. That they have rights absolute as to every one unless the state, is undoubted, and the proviso was inserted to save those rights. In Lyon v. Fishmongers' Co., 1 L. R. App. Cas. 662, the powers conferred by the "Thames conservancy act" on the "conservators of the Thames" were as full as the rights and privileges vested in this defendant by its charter, and the clause saving rights of others was of "any claim, privilege, franchise, exemption or immunity which any owner or occupier of any lands, tenements or hereditaments on the banks of the river, including the banks thereof, or of any aits or islands in the river, is now by law entitled." This was held to protect the ordinary riparian rights of an owner on the banks.
It is now settled by the decisions of the court of last resort that under the acts of congress providing for the survey and sale of the public lands, the patentees of lands bordering on the Mississippi river and its tributaries take only to the stream -- at furthest, to low-water mark -- leaving the title to the bed of the stream below low-water mark in the government. Those streams, below low-water mark, stand, therefore, in respect to the rights of the government and individuals in them, the same as tidal rivers. The rights of riparian owners are the same in both.
Owners of lands bordering on navigable rivers and lakes --...
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