Cotton v. Mississippi & Rum River Boom Company

Decision Date29 January 1876
Citation22 Minn. 372
PartiesSarah Jane Cotton v. Mississippi & Rum River Boom Company
CourtMinnesota Supreme Court

Appeal by plaintiff from an order of the district court for Hennepin county, Vanderburgh, J., presiding, modifying an injunction.

The order modifying the injunction is affirmed.

Atwater & Babcock, for appellant.

Lochren McNair & Gilfillan, for respondent.

OPINION

Berry J. [1]

The plaintiff, claiming to be owner of certain land bordering on the Mississippi river, obtained judgment for an injunction forbidding the defendant, its officers, etc., from entering upon, or in any manner interfering with, or using said land and from using its boom, so as to interfere with, affect, or damage the same. Subsequently the plaintiff procured an order requiring defendant to show cause why it should not be punished for contempt in disobeying the writ of injunction. Defendant, upon the hearing of the order to show cause, made a motion for the modification of the writ of injunction, so as to exclude from its operation a strip of plaintiff's said land, as to which it was charged that the writ had been disobeyed. The modification was asked for upon the ground that since the granting of the injunction, and before the writ of injunction was issued, the defendant had, by condemnation proceedings under its charter, acquired the right to occupy, use and enjoy said strip of land for boom purposes.

It is admitted that these proceedings were taken and completed in accordance with the requirements of the charter, but the plaintiff claims that they do not entitle the defendant to occupy, use and enjoy the strip of land in question. Defendant's original charter is found in Laws 1857, Ex. Sess. ch. 60, the first section of which constitutes the persons therein named "a body corporate * * * for the period of fifteen years." The charter was amended by Sp. Laws 1862, ch. 86, and by Sp. Laws 1867, ch. 134. By § 17, of the latter chapter, § 1 of the original charter was amended by striking out the words "for the period of fifteen years," so as to leave the defendant's term of corporate existence unlimited as to time. Section 18 of the original charter was also amended by § 13 of the act of 1867, the effect of the amendment being to change the form of proceedings for condemnation. In making these amendments the legislature did not, as plaintiff contends, exceed its authority, since neither of the amendments falls within that provision of our constitution which prohibits the formation of corporations under special acts.

The plaintiff further argues that Sp. Laws 1867, ch. 134, § 13, which is the authority under which the proceedings to condemn were had, is unconstitutional because the taking of land for boom purposes is not a taking for public use. This point is so little insisted on that it may be dismissed with the remark that the Mississippi river is, among other things, a public highway for the running of logs, and that a boom may properly be regarded as an improvement of the highway, an improvement the purpose and effect of which are to render the highway more available and valuable for the running of logs. The taking of private property for the making of an improvement of this kind certainly may be a taking for public use.

Section 4, art. 10, of our constitution, declaring that "lands may be taken for public way for the purpose of granting to any corporation...

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