W. Point Water Power & Land Imp. Co. v. State

• Decision Date: 04 February 1896
• Parties: WEST POINT WATER POWER & LAND IMP. CO. v. STATE EX REL. MOODIE, COUNTY ATTORNEY.
• Court: Nebraska Supreme Court

49 Neb. 218

66 N.W. 6

WEST POINT WATER POWER & LAND IMP. CO.

v.STATE EX REL. MOODIE, COUNTY ATTORNEY.

Supreme Court of Nebraska.

Feb. 4, 1896.

Syllabus by the Court.

1. Persons erecting and maintaining dams for milling purposes, in the streams of this state, do so with the implied obligation to maintain adequate fishways for the passage of fish from the lower to the higher level of such streams and their tributaries.

2. The reserved powers of the state, including the police power, are inalienable, and cannot be surrendered or bartered away by the legislature.

3. The preservation of the fish in the streams of the state is a proper function of government.

4. The duty enjoined upon the owner of milldams to construct and maintain fishways (see Cr. Code, § 87a) is designed to promote the public welfare, and may be enforced by mandamus, on the relation of the county attorneys of the several counties.

Error to district court, Cuming county; Norris, Judge.

Petition, on the relation of P. M. Moodie, county attorney, against the West Point Water Power & Land Improvement Company for mandamus. A demurrer to the answer was sustained, and a peremptory writ awarded, and respondent brings error. Affirmed.J. C. Crawford and M. McLaughlin, for plaintiff in error.

P. M. Moodie, in pro. per.

POST, C. J.

This was an application for a writ of mandamus to the district court for Cuming county, on the relation of P. M. Moodie, as county attorney, to require the respondent therein, plaintiff in error, to construct a suitable fishway whereby fish may readily pass over or around a dam maintained by said respondent in the Elkhorn river. An answer was filed by the respondent, in which is contained the following admission: “It admits that the respondent owns and maintains a milldam across said Elkhorn river, at or near the city of West Point, and within said county of Cuming, and that the said respondent has never provided, and has not at the present time, a suitable fishway, nor any fishway whatever, whereby fish may pass over or around said milldam.” The other allegations of the answer are, in substance, that the land upon which said dam is situated is private property; that the construction of said dam was authorized by the territorial legislature in the year 1867; that the respondent has acquired the right to maintain it, as at present constructed, by adverse user; that the Elkhorn river is a private, unnavigable stream, and to require the respondent to construct a fishway would be to damage its property, within the prohibition of the state constitution. To this answer a demurrer was interposed by the relator, and sustained by the court. The respondent refusing to plead further, a peremptory writ of mandamus was awarded against it, in accordance with the prayer of the petition, and the cause removed into this court for review by the respondent.

The provision of the statute relating to the subject involved is found in section 1 of the act amendatory of prior acts, approved April 4, 1887 (see Cr. Code, § 87a), viz.: “It shall also be unlawful for any person, association of persons, or corporation to place or establish any obstruction across any stream of water in this state that shall preventthe free passage of fish along said stream: provided, that all persons, associations of persons, or corporations erecting, owning, or maintaining a milldam across any stream in this state, shall at his or its own expense, construct and at all times maintain, subject to the approval of the fish commission, a suitable and substantial fishway whereby all fish passing along said stream can readily pass over or around said dam. Public waters within the meaning of this section shall embrace all lakes, ponds, rivers, creeks, bayous and streams except private artificial ponds or ponds subject to the exclusive dominion of a single ownership.” Sess. Laws 1887, p. 662, c. 107, § 1. The courts of the country have frequently been called upon to give effect to acts of this character, and have, it is believed, in every instance sustained the power of the legislature over the subject. See Hooker v. Cummings, 20 Johns. 90; Town of Stoughton v. Baker, 4 Mass. 522;Burnham v. Webster, 5 Mass. 266; Com. v. McCurdy, Id. 324; Nickerson v. Brackett, 10 Mass. 212;Com. v. Chapin, 5 Pick. 199;Vinton v. Welsh, 9 Pick. 92;Com. v. Essex Co., 13 Gray, 248;Cottrill v. Myrick, 12 Me. 229; Weller v. Snover, 42 N. J. Law, 341; Parker v. People, 111 Ill. 581;Holyoke Co. v. Lyman, 15 Wall. 500. In the case last cited, which involved a statute of Massachusetts, after which ours appears to have been modeled, the subject was considered in all its phases, resulting in the conclusion that, while a grant authorizing the use of the water of a stream for mill purposes is a vested right, such right is subject to legislative control, and that one erecting a dam in a stream annually frequented by fish, does so under the implied obligation to maintain sufficient openings to permit the passage of fish at all proper seasons. In that case Mr. Justice Clifford, after citing with approval the opinion of Chief Justice Shaw in Com. v. Essex Co., supra, says: “From the...