66 F.2d 977 (8th Cir. 1933), 9596, United States v. Wheeler Tp.

Docket Nº:9596.
Citation:66 F.2d 977
Party Name:UNITED STATES v. WHEELER TP.
Case Date:July 20, 1933
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 977

66 F.2d 977 (8th Cir. 1933)

UNITED STATES

v.

WHEELER TP.

No. 9596.

United States Court of Appeals, Eighth Circuit.

July 20, 1933

Page 978

Donald D. Harries, Sp. Asst. U.S. Atty., of Duluth, Minn. (Lewis L. Drill, U.S. Atty., of St. Paul, Minn., and D. N. Lindeman, of Duluth, Minn., Atty. U.S. War Department, on the brief), for the United States.

I. K. Lewis, of Duluth, Minn. (John H. Hougen, of Crookston, Minn., C. E. Berkman, of Chisholm, Minn., and Lewis, Hunt & Palmer, of Duluth, Minn., on the brief), for appellee.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

STONE, Circuit Judge.

The United States and Canada entered into a Treaty to Regulate the Levels of the Lake of the Woods (July 17, 1925, 44 Stat.part. 3, p. 2108), which provided for a raise above natural levels. Under the treaty, the United States was to acquire perpetual flowage rights on land in the United States up to the level 1064 above sea datum. Congress passed acts (May 22, 1926, 44 Stat.pt. 2, p. 617, amended April 18, 1928, 45 Stat.pt. 1, p. 431) to carry into effect this acquisition provision of the treaty. Having failed to agree upon a purchase price with some owners of lands affected,

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the United States brought a condemnation proceeding, as authorized by the above acts. Among the defendants in that proceeding was Wheeler township. This township was a local unit under the Minnesota statutes with the power and duty to construct and maintain highways within the township. It bordered the southern shore of the Lake of the Woods. The condemnation petition alleged that this and other named townships 'have highways * * * which will be subjected to overflow by the raising of the level of said lake as provided in said treaty and it is hereby sought to subject said highways * * * to a perpetual easement for such overflow * * * .' This appeal is by the United States from a judgment, on verdict, for $24,045.30 for compensation to the township for injury to its roads by this taking.

Appellant presents four points upon each of which it relies for reversal of this award.

I. Navigation Flowage.-- The first of these is that the government is subject to no payment of damages because it has a right of flowage 'in aid of navigation.' The lands of the township were formerly part of a Chippewa Indian Reservation. Before they were entered for homesteads, the Act of July 1, 1898 (30 Stat. 571, 576 , provided that such lands 'shall be subject to the right of the United States to construct and maintain dams for the purpose of creating reservoirs in aid of navigation, and no claim or right of compensation shall accrue from the overflowing of said lands on account of the construction and maintenance of such dams or reservoirs * * * and in the disposal of each and every one of said tracts, * * * the provisions of this paragraph shall enter into and form a part of the contract of purchase or transfer of title.'

Appellee contends that the above and other acts (relied upon by appellant) are not applicable to these lands. We deem it unnecessary to determine the application of these acts because we are convinced that, even if applicable to these lands, they have no force here, because the flowage involved here is not 'in aid of navigation.'

Article 2 of the above treaty (44 Stat.pt. 3, pp. 2108, 2109) states that the object of regulating the lake level is to secure to the inhabitants of the two countries 'the most advantageous use of the waters thereof * * * for domestic and sanitary purposes, for navigation purposes, for fishing purposes, and for power, irrigation and reclamation purposes. ' Article 4 (page 2109) provides that the lake level shall 'ordinarily be maintained' between elevations 1056 and 1061.25 sea level datum and between these elevations the regulation shall be such as to insure 'the highest continuous uniform discharge of water from the lake. ' Article 7 (page 2110) provides for a minimum outlet discharge capacity, and requires the Dominion to provide such, either by improvement of 'existing works and dams' or by additional construction. Article 9 (page 2110) provides that each nation shall assume responsibility, in its territory, for damage which may have 'heretofore resulted * * * from the fluctuations of the level of Lake of the Woods or of the outflow therefrom.'

The language above quoted and referred to obviously had in mind a condition existing at the time of the treaty. That condition was as follows. The outlets of the lake are in Canada. In 1898, a Canadian corporation, under Canadian governmental authority, completed a dam and control works in these outlets. This was for the sole purpose of producing power. The effect of this control was to raise the water of the lake to approximately the ordinary levels which are provided for in the treaty. This condition continued up to the time the treaty was made. It was this situation the treaty makers had in mind. It was this situation the treaty intended to perpetuate. The differences being that, instead of the lake levels being in sole control of the power company, certain levels were established and supervisory maintenance and control thereover lodged in an offical body (a 'Control Board') and that compensation to owners of land in the United States for this past and the future overflow from such raised levels was provided for. Having this setting in which the treaty was made, it seems clear that the main purpose was to continue the situation as to control for power with attendant protection of other interests from abuse of this power situation.

When we turn to the record, this becomes certain: An earlier Treaty of January 11, 1909 (36 Stat.pt. 2, pp. 2448, 2449, 2450, art. 3) provided for an International Joint Commission to deal with boundary waters generally. To that commission was referred the situation as to the Lake of the Woods. The commission made its final report to the two governments upon that situation. The recommendations in that report were accepted as the 'basis of agreement' in Treaty of 1925 (Preamble, 44 Stat.,pt. 3, p. 2108). An important witness in this case was Adolph F. Meyer, who was one of the consulting engineers of the International Joint Commission.

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He was one of the engineers who investigated and reported upon the Lake of the Woods situation. The above investigation was 'to determine the greatest aggregate benefit that would be secured from the use of the waters of the lake for all the interests that were interested therein. ' In working out the results (the water levels) it is clear-- as between navigation and power interests-- the purpose was not to provide water levels and reservoir storage for navigation purposes without harmfully affecting navigation. The purpose and reason for the raised levels was power. It was not to 'aid navigation.' Navigation came into the picture merely to the extent that the establishment and maintenance of power levels should not be harmful to navigation. This situation is shown in the evidence of Mr. Meyer, quoted in the footnote. 1 We conclude that overflows from these raised levels were not the result of dams or reservoirs constructed or maintained 'in aid of navigation' within the acts upon which appellant relies

II. Highways as Property.-- Appellant contends that these township highways are not private property within the constitutional provisions guaranteeing compensation for private property taken for public use. The trial court based its determination that the township was entitled to such compensation upon St. Louis v. Western Union Teleg. Co., 148 U.S. 92, 13 S.Ct. 485, 37 L.Ed. 380. Appellant concedes the justice of the rule and further cites Town of Bedford v. United States (C.C.A. 1) 23 F.2d 453, 56 A.L.R. 360, to the same effect. However, it contends that in Minnesota 'municipal corporations are not entitled to compensation for the taking of streets or roads; and the instant proceeding is expressly governed by the provisions of the Minnesota Constitution relating to damages in condemnation proceedings.'

The first paragraph of section 1 of the Act of May 22, 1926 (44 Stat.pt. 2, p. 617), provided that condemnations for these flowage rights should be 'in accordance with the provisions

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of the Act entitled 'An 'act to authorize condemnation of land for sites of public buildings, and for other purposes,' approved August 1, 1888' (25 Stat. 357, c. 728 (40 USCA §§ 257, 258)), which provided (section 2 (40 USCA § 258)) that the 'practice, pleadings, forms and modes of proceedings' of the state wherein the condemnation took place should be followed. The Act of April 18, 1928 (45 Stat. 431, chap. 379, § 1), amended this paragraph by inserting after the above quotation (act of 1926) the following: 'and in accordance with the constitutional provisions of the State of Minnesota which provide that private property shall...

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