Carpenter v. Bd. of Com'rs of Hennepin Cnty.

• Decision Date: 10 February 1894
• Citation: 58 N.W. 295,56 Minn. 513
• Parties: CARPENTER ET AL. v. BOARD OF COM'RS OF HENNEPIN COUNTY.
• Court: Minnesota Supreme Court

56 Minn. 513

58 N.W. 295

CARPENTER ET AL.

v.BOARD OF COM'RS OF HENNEPIN COUNTY.

Supreme Court of Minnesota.

Feb. 10, 1894.

(Syllabus by the Court.)

1. “High-water mark,” as a line between the public and riparian owners on navigable waters, where there is no ebb and flow of the tide, is to be determined by examining the bed and banks, and ascertaining where the presence and action of the water are so common and usual as to mark upon the soil of the bed a character distinct from that of the banks in respect to vegetation as well as the nature of the soil.

2. It is co-ordinate with the limit of the bed of the water, and that only is to be considered the bed which the water occupies so long and continuously as to wrest it from vegetation and destroy its value for agricultural purposes.

3. The bed does not include low lands which, although subject to frequent overflow, are valuable as meadows and pastures; and the state has no right, even in aid of navigation, to raise the water by artificial means, so as to injure or destroy such lands, without making compensation.

4. To support a special assessment for a local improvement, the benefit for which the land is assessed must be secured.

5. The assessment in this case held invalid, because no provision is made for compensating riparian owners for injuries to their lands caused by raising the waters of Lake Minnetonka, pursuant to the provisions of Sp. Laws 1891, c. 381.

Appeal from district court, Hennepin county; Frederick Hooker, Judge.

Condemnation proceedings by the board of county commissioners of Hennepin county to establish a uniform height of water in Lake Minnetonka. From the order rendered, Herbert M. Carpenter and others, landowners, appeal. Reversed.

James A. Kellogg, Benton, Roberts & Brown, and W. E. Dodge, for appellants. Frank M. Nye and Carman N. Smith, for respondent.

MITCHELL, J.

Lake Minnetonka is a large, navigable body of water, situated mainly, but not wholly, in Hennepin county. The shores of the lake are in some places somewhat steep and abrupt, and in other places low and flat, and bounded by large tracts of low land, only slightly elevated above the ordinary level of the water in the lake. These lands form no part of the bed of the lake, but are more or less subject to periodical overflow at certain seasons of the year,-during some years in times of high water caused by rains or melting snows; but they are sufficiently dry, when the water subsides, to be susceptible of valuable use as pastures and meadows. The height of the water in the lake varies in different years and at different seasons of the same year, according as the year or season of the year is wet or dry,-the difference between extreme high water and extreme low water, according to observations taken during a series of years, being something like six feet; extreme high water being 223.65, and extreme low water being 217.84, measured from an arbitrary base line. These changes in the height of the water are irregular, without fixed quantity or time, except that they occur periodically, according as the year or the season of the year is wet or dry. The rises of the water, to a sufficient height to overflow, in whole or in part, these low lands, are not infrequent, and are liable to occur any year, usually in the spring; but the water generally subsides later in the season, so as to render the lands capable of use as meadows and pastures. The outlet of the lake is Minnehaha creek, the real point of outlet being about four miles below the main body of the lake. About a mile below this point there was a mill and milldam, which had been maintained for over 20 years. The object of this dam was, apparently, to enable the owners of the mill to use the lake as a mill pond, in which to store the waters of the lake at certain seasons of the year, and draw them off at others, as required for the use of the mill. In 1891 the legislature passed an act (Sp. Laws 1891, c. 381) which, after reciting that it was necessary “for the improvement of navigation, preservation of public health and for public advantage, benefit and use,” that the waters of the lake should be maintained at a uniform height, sufficient to secure these purposes, authorized the board of county commissioners of Hennepin county to establish and maintain a uniform height of the water, “not to be above extreme high water mark of the waters of said lake.” In order to carry out the purposes of the act, the board was authorized to acquire, by gift, purchase, or condemnation, the dam already referred to, together with all the rights and easements connected with or appurtenant to the same, and the land on which the dam was situated, and such other lands adjacent thereto as might be necessary to enable the board to maintain said waters at the height so established. As will be seen, the act authorizes the acquisition only of lands on which the milldam is situated, and lands or rights in land adjacent thereto, and not of riparian lands, or rights in riparian lands, on the lake; and, of course, it makes no provision for the payment of compensation for any such riparian lands, or riparian rights. The act provides for the assessment, by appraisers appointed by the court, upon such lands in Hennepin county as they deem specially benefited by the improvement, such sum as they shall deem a just proportion of the total cost of the purchase or condemnation. Under this act, the board of county commissioners established the “uniform height” at which the waters of the lake should be maintained at 220.91, measured from the base line referred to. This is considerably above average natural low water, and below natural extreme high water in wet seasons. Of course, the effect of maintaining the water at the “uniform height” thus established would be to make such height permanent low water, except, possibly, in very dry...