Big Horn Power Company v. State of Wyoming

• Decision Date: 01 June 1915
• Docket Number: 806
• Parties: BIG HORN POWER COMPANY v. STATE OF WYOMING
• Court: Wyoming Supreme Court

148 P. 1110

23 Wyo. 271

BIG HORN POWER COMPANY v. STATE OF WYOMING

No. 806

Supreme Court of Wyoming

June 1, 1915

ERROR to the District Court, Fremont County; HON. CHARLES E WINTER, Judge.

The material facts are stated in the opinion.

Affirmed.

Ben Sheldon and P. B. Coolidge, for plaintiff in error.

The plaintiff below had no sufficient interest in the subject matter of the action to maintain the suit. The action was brought in the interest of another. The evidence failed to establish allegations that the dam and superstructure is a public nuisance. Plaintiff in error constructed its dam under a permit from the state; the crest of the dam may be widened if necessary, without destroying the property. The decree of the trial court deprives plaintiff in error of its property without due compensation, contrary to the provisions of the constitution of the state and of the United States. The real party in interest is the Chicago, Burlington & Quincy Railroad Company and not the general public. The dam was constructed prior to the location of the railroad line through the canon. A railroad is not a public highway; if the things complained of were actionable, only the Railroad Company could bring the action. It is unnecessary to remove the superstructure in order to lessen the depth of the water on the crest of the dam. A nuisance is public when it affects the rights to which every citizen is entitled. (29 Cyc. 1152; City of Paris v. Comm., 4 Ky. L. R. 497.) It is such an offense as annoys the whole community in general and not merely some particular person. (Veazie v. Dromel, 50 Me. 479, 481; U. S. v. Debs, 64 F. 724-770; Doolittle v. Broome, 16 How. Prac. 512-517; Village of Cardington v. Fredericks, 21 N.E 766-767, and 46 O. S. 442; King v. Morris and E. R. Co., 18 N. J. Eq. (3 C. E. Arun.) 397-399; Moffett v. Brower, 1 Green (Iowa), 348.) A private nuisance is anything done to the hurt or detriment of the lands of another and not amounting to a trespass. (29 Cyc. 1152; Veazie v. Dromel, 50 Me. 479, 482; Chicago N. S. St. Ry. Co. v. Payne, 61 N.E. 467-468, 192 Ill. 239; Calef v. Thomas, 81 Ill. 478-480; Payne v. Kansas & A. V. R. Co., 46 F. 546-553; Cansig v. Smith, 21 Am. Dec. 89; Fox v. Buffalo Park, 47 N.Y.S. 788-790, and 21 A.D. 321; Swords v. Edgar, 59 N.Y. 28-34, and 17 Am. Rep. 295; Cropsy v. Murphy (N. Y.), 1 Hilt, 126-127; Caldwell v. Knott, 11 Tenn. (10 York) 209-210; Burditt v. Swanson, 11 Tex. 489; Ackiman v. True, 67 Am. Dec. 665, 67 N.E. 630, 175 N.Y. 353.) The remedy is action for damages. (Lee v. Vacuum Oil Co., 54 Hun, 156, 7 N.Y.S. 426; Hug v. Licht, 80 N.Y. 579, 36 Am. Dec. 654, 8 Abb. N. C. 355-359; Powell v. Bently & Gerwig Lumber Co., 34 W.Va. 804-807, 12 S.C. 1085-1086, 12 L. R. A. 53.) A public nuisance becomes a private nuisance as to the person who is specially injured thereby in the enjoyment of his lands. (Kavanaugh v. Barber, 30 N.E. 235, 131 N.Y. 211, 15 L. R. A. 689; Kissel v. Lewis O., 59 N.E. 478, 481, 156 Ind. 233.) Under these definitions the Attorney General had no authority to bring the action and the State had no right of action, for the following reasons: (a) The railroad right of way is not a public highway; (b) the governmental machinery cannot be used for private purposes; (c) because if the acts complained of constitute a nuisance, it is a private nuisance; (d) the acts complained of only affect private property. But the acts complained of do not constitute a nuisance because (a) the Power Company had a license from the State to erect the dam and its superstructure; (b) the railroad was located after the construction of the dam and superstructure. The plaintiff in error had a vested right to construct the dam. (a) It was the owner in fee of the land on both sides of the river, where the dam is located. (Griffith v. Holman, 54 L. R. A. 178.) (b) The dam was constructed under a state permit. Under this state of facts, plaintiff had the right to construct the dam and the right to use it, as constructed. (Griffith v. Holman, 54 L. R. A. 178; Dorrance v. Simons, 2 Root (Conn.) 208; Woodward v. West Side Mill Co., 43 Wash. 308, 86 P. 579; Waits v. Norfolk &c. R. C., 39 W.Va. 196, 19 S.E. 521, 45 Am. St. Rep. 894, 23 L. R. A. 674; Atty. Gen. v. Evart Browning Co., 34 Mich. 462; People v. Detroit & H. Plank Road Co., 37 Mich. 195, and 26 Am. Rep. 512.) A work which is authorized by law cannot be a nuisance. (People v. Law, 34 Bast. 494, and Danill H. and W. R. Co. v. Comm., 73 P. 29; Britler v. State, 6 Ind. 165; Patterson v. City of Duluth, 21 Minn. 493; People v. N. Y. Gaslight Co., 64 Bast. 45; York Tel. Co. v. Kiersey Com. Plea, 5 Pa. Dist. R. 366; Stoughton v. State, 5 Wis. 291.) The flow over the crest of the dam can be regulated without removing the superstructure; courts will not grant mandatory injunctions for the destruction of property, where other remedies exist. (1 High on Injunctions (4th Ed.), Sec. 2; Maghie Gold Mining Co. v. Sherman, 20 Am. & Eng. Anno. Cases, 595; 22 Cyc. 742.) The evidence shows that other remedies exist for controlling the depth of the water flowing over the dam. The execution of the decree below would result in taking private property without due process of law and without compensation, contrary to the constitution of the state and of the United States.

D. A. Preston, Attorney General (Edward T. Clark, of counsel), for defendant in error.

A railroad right of way is a public highway. (Cherokee Nation v. Railroad Co., 135 U.S. 641, 34 L.Ed. 302; Railroad Co. v. State of Ohio, 173 U.S. 285, 43 L.Ed. 702; Wisconsin Railroad Co. v. Jacobson, 179 U.S. 287, 45 L.Ed. 194; Lewis on Eminent Domain (3rd Ed.), Vol. 1, p. 511; 22 Cyc. 898; Schnitzer v. Powder Co., 160 S.W. 282; 29 Cyc. 1152.) The above cases support the right to abate, as a public nuisance, acts which endanger the operation of railroads. The Power Company had a permit to erect the dam, but not its superstructure. The approval endorsed by the State Engineer upon the map showing the completion of the dam was not for the purpose of approving the action of the Power Company in building the superstructure. An unauthorized act of a Water Commissioner is not binding on the courts. (Ryan v. Tutty, 13 Wyo. 122, 78 P. 661; Kinney on Irrigation, Vol. 3, p. 2442, 2nd Ed.; Farm Inv. Co. v. Carpenter, 9 Wyo. 110; Willey v. Decker, 11 Wyo. 496, 73 P. 210; Ryan v. Tutty, 13 Wyo. 122, 78 P. 661; Whelan v. North Platte C. & C. Co., 11 Wyo. 313, 71 P. 995.) Plaintiff merely held a permit to construct a dam thirty-five feet high. There is no evidence in the record showing that another and sufficient remedy exists to control the depth of the water flowing over the crest of the dam, other than by removing the superstructure. The railroad grade was constructed to accommodate the thirty-five foot dam. A public franchise may be regulated by the state. (Farm Inv. Co. v. Carpenter, 61 P. 258; State v. Express Co., 115 Northwestern, 623; Newton v. Mahoning Co. Comm., 100 U.S. 548, 25 L.Ed. 710; People v. Page, 39 N. Y. A. P. D. 110, 56 N. Y. State, 834, 58 N. Y. State, 239; Reaves v. Territory, 13 Okla. 396, 74 P. 951; People v. Truckee Lumber Co., 116 Cal. 379, 48 P. 374, 39 L. R. A. 581; Georgia v. Tenn. Copper Co., 206 U.S. 230; Missouri v. Illinois, 200 U.S. 496.) A menace to the safety of the public may be enjoined. (A. T. & S. F. Ry. Co. v. Spaulding, 77 P. 106, 66 L. R. A. 587, 105 Am. State Reports, 175; Atty. Gen. v. Hudson County Water Co., 76 A. 560; Atty. Gen. v. Shrewsbury Bridge Co., 21 Ch. Div. 752.)

W. E. Mullen, for defendant in error.

The Power Company violated its permit granted for the construction of a power dam and this suit was brought to require the holder of the permit to construct the dam in accordance with the terms of the permit. The state has authority to regulate structures intended for the impounding of water; but no legal remedy for the enforcement of this authority where permits are violated has been provided by statute. (Comp. Stats. 1910, Secs. 825 to 827, inclusive, and 743 to 752, inclusive.) An applicant for a permit feeling aggrieved by a ruling or decision of the State Engineer may appeal. (Comp. Stats. 1910, Sec. 723.) The State Engineer had authority to reject the original application for a permit made in this case. (Comp. Stats. 1910, Sec. 729; Whalon v. North Platte C. & C. Co., 11 Wyo. 342, 71 P. 997.) The state may sue in its own courts. (Ex parte Siebold, 100 U.S. 395; People v. St. Louis, 10 Ill. 351; People v. Truckee Lumber Co., 116 Cal. 397, 39 L. R A. 581, 48 P. 374; Hagne v. Wheeler, 157 Penn. 340, 22 L. R. A. 141; State ex. rel. McCain v. Melachan, 31 Ore. 372, 41 L. R. A. 592, 46 P. 791; Coosaw Mining Co. v. South Carolina, 144 U.S. 566; Nebraska v. Express Co., 115 N.W. 619; Ohio Oil Co. v. Indiana, 177 U.S. 199.) It may sue in its sovereign capacity and by virtue of its corporate rights. (Indiana v. Kentucky, 136 U.S. 479; State v. Portsmouth Savings Bank, 106 Ind. 435; State v. Adams Express Co., 144 Ind. 549; Adams Express Co. v. Indiana, 165 U.S. 255; Missouri v. Illinois, 180 U.S. 208; Missouri v. Illinois, 200 U.S. 496; Colorado v. Kansas, 185 U.S. 125; Colorado v. Kansas, 206 U.S. 46; Georgia v. Tenn. Iron Co., 206 U.S. 230.) The superstructure erected on this dam was a public nuisance within the settled meaning of the term. (State v. Crawford, 28 Kan. 726, 42 Am. Rep. 182; Coosaw Mining Co. v. S. C., 144 U.S. 586; State v. Ohio Oil Co., 151 Ind. 21; Augusta v. Reynolds, 122 Ga. 754, 69 L. R. A. 564, 106 Am. State Reports, 147; State v. Vandalia, 119 Mo.App. 406; State v. Col. Water Power Co., 82 S.C. 181, 63 S.E. 884, 22 L. R. A. N. S. 435; State v. Franklin F. Co., 49 N.H. 240, 6 Am. Rep. 513; Mining Debris Case, 9 Sawyer, 441, 18 F. 753.) The railroad grade was constructed...