Hagerla v. Mississippi River Power Co.

• Decision Date: 03 February 1913
• Docket Number: 277.
• Citation: 202 F. 776
• Parties: HAGERLA v. MISSISSIPPI RIVER POWER CO.
• Court: U.S. District Court — Southern District of Iowa

202 F. 776

HAGERLA v. MISSISSIPPI RIVER POWER CO.

No. 277.

United States District Court, S.D. Iowa, Eastern Division.

February 3, 1913

[Copyrighted Material Omitted]

Felix T. Hughes, of Keokuk, Iowa, and Ernest McCoid, of Keokuk Iowa, for complainant.

W. E Blake, of Burlington, Iowa, George B. Stewart, of Ft. Madison, Iowa, J. O. Boyd, of Keokuk, Iowa, and Hazen I. Sawyer, of Keokuk, Iowa, for defendant.

SMITH McPHERSON, District Judge.

This case presents the question as to whether the above-named Power Company, in constructing a dam across the Mississippi river, has the power of eminent domain. The case was set down by Hagerla for hearing on bill and answer. The rule in such a case is:

(1) All facts well pleaded in the bill and not denied must be taken as true. Allegations denied are taken as untrue.

(2) Affirmative recitals pleaded in the answer and germane to the bill will be taken as true.

(3) Mere conclusions, either of fact or law, whether in the bill or answer, will be disregarded.

(4) Facts of which courts take judicial notice will be considered, although not pleaded by either party.

The Keokuk & Hamilton Water Power Company, a corporation created under the laws of Illinois, was empowered to develop and utilize the water power of the Des Moines rapids in the Mississippi river, with power to construct a dam and other improvements as may be necessary to create and utilize such water power and to rent and sell power, and to carry on and conduct all business enterprises by which water power and its products may be directly or indirectly used. That company was licensed and authorized to do business in Iowa. Later on the Congress of the United States enacted a statute entitled:

'An act granting to the Keokuk & Hamilton Water Power Company rights to construct and maintain for the improvement of navigation and development of water power a dam across the Mississippi river.'

This act was approved February 9, 1905 (33 Stat. 712, c. 566).

Section 1 provides:

'That the assent of Congress is hereby given to the Keokuk & Hamilton Water Power Company, * * * its successors, and assigns, to erect * * * a dam * * * across the Mississippi river at * * * the foot of the Des Moines rapids, from Keokuk, Iowa, to Hamilton, Illinois, and to construct, operate and maintain power stations * * * in connection with the said dam, with suitable accessories for the development of water power, and the generation, use, and transmission * * * of electric energy. * * * '

The statute provides that, in lieu of the three locks and the dry dock now owned by the government, the company shall build, in connection with the dam, at places designated by the Secretary of War, a lock and dry dock to accommodate the traffic on the river. The Secretary of War was empowered to approve the plans for the dam, lock, dry dock, and appurtenant works, and all said works should be constructed under the supervision of an army officer designated by the Secretary of War.

The company was required to pay all persons for lands thus taken, overflowed, or damaged by the construction and operation of the said works, and the general government was not to be liable for any damages or for any part of the costs of said works. But when completed to the satisfaction of the Secretary of War, the United States should have the ownership and control of the lock, dry dock, and appurtenances, and operate and maintain the same. The company was further required to provide, in connection with said improvements, a suitable power plant for operating and lighting the lock, dry dock, and appurtenances, under specifications approved by the Secretary of War. The company was required to commence said improvements within five years from the date of the approval of the statute, and complete the same within ten years from said date. The Keokuk & Hamilton Water Power Company commenced the construction of said improvements on January 8, 1910.

The Des Moines rapids of the Mississippi river are 11 1/2 miles in length, with a fall of 22.68 feet, by reason whereof there can be no navigation on the river in low or ordinary stages of the water. In the interest of navigation, more than 30 years ago, after an expenditure of many millions of dollars, the government completed a canal on the Iowa side around said rapids, with a depth of 5 feet, and in which there is a dry dock and three locks. But such canal and locks have long since become inadequate for the navigation and for the commerce. The government is put to an annual expense of a large sum for the operation and maintenance of said canal and dry dock and the three locks. When the dam in question is completed, the government canal, locks, and dry dock will be submerged in water and rendered useless.

The dam will have a length of 4,278 feet, or practically four-fifths of a mile. The base of the dam will be 42 feet wide, and the top 29 feet wide, with a height of 53 feet. In the dam are 119 arches, in which are as many spillways and gates, the use of which are to provide a constant level of water above the dam. At the foot of the rapids on the Iowa side is the city of Keokuk, opposite which is the city of Hamilton, Ill. In the dam will be a lock 400 feet in length and 110 feet in width, inside measurements, with a lift of 40 feet, through which all boats can be carried to or from the river below and the water above as formed by the dam. The dam will back the water up, or form a pool, as far to the north as the city of Burlington, something like 60 miles distant. Between the thread of the river and the Iowa shore there is to be a power house built in the bed of the river. The foundation of this power house is 26 feet deep in the rock bed, 1,800 feet in length, and 266 feet in width. The power house itself will be 1,718 feet long, 135 feet wide, and 144 feet high. On the Iowa side there is to be a dry dock of sufficient capacity to dock any river vessel therein, so that the water can be drawn off and vessels repaired. The river at the point in question runs from north to south. The dam proper extends from the Illinois shore to the northeast corner of the power house; the power house lengthwise being from north to south. Between the southwest corner of the power house and the Iowa shore is the dry dock, and adjoining on the west of the dry dock is the Iowa shore. Protection is given against floating ice and driftwood from getting into the turbines. The dam and the locks, power house and dry dock, arches and spillways, as well as foundations, are all to be built of concrete formed from crushed rock, sand, water, and cement, and, when completed, all said improvements and structures will comprise one structure of solid concrete from the Illinois to the Iowa shore. The power house is to be equipped with 30 turbines each furnishing 10,000 horse power at the works, the revolutions of which will be 57.7 per minute, with an efficiency of 86 per cent.

After the Keokuk & Hamilton Company had proceeded with the work until February, 1911, it assigned and conveyed its rights to the Mississippi River Power Company, a corporation created and existing under the laws of the state of Maine. That company is still prosecuting the work, which will be completed within a few months. It has already entered into a contract for the furnishing of 60,000 horse power of electric energy for a term of 99 years, to be delivered to parties in the city of St. Louis, approximately 135 miles distant. It proposes to furnish the remainder of the power to parties at cities in the states of Iowa, Illinois, and Missouri, but it does not propose to use any of this power for its own uses other than in the operation of its power house in connection with the power for lighting the same and for operating the locks and the dry dock. The capacity of the dam at the points of delivery at St. Louis and elsewhere will equal at least 200,000 horse power.

Hagerla, a citizen of Iowa, owns, on the bottoms on the Iowa side of the river, 35 miles distant from the dam, 220 acres of land, a part of which all the time, and at times the whole thereof, will be submerged by reason of the pool formed by the dam and gates. The Power Company has bought and paid for, at an expense of more than $1,000,000, more than 600 farms; all to be thus submerged, with the exception of Hagerla's and six others. Hagerla and the company were unable to agree as to the valuation to be placed on his land. Thereupon the Power Company, under title 10 of chapter 3 of the Iowa Code, 1897, filed its petition praying for the appointment of a commission, or jury of six men, to fix the valuation of Hagerla's land. Hagerla was given timely notice of the time and place of hearing. This proceeding resulted in an award in favor of Hagerla of $7,816.60. From that award Hagerla appealed to the district court of Lee county, Iowa, asking that the award be increased to $20,000. The company at once deposited with the sheriff of the county the amount of the award and the costs. In the district court of Lee county, Hagerla filed a pleading, coupled with which was a cross-bill in equity, by which he challenged the constitutional right of the Power Company to thus take his land for any sum. Thereupon the company, a defendant as to said cross-bill, obtained an order to remove the case to this court. Thereafter Hagerla filed a motion in this court to remand the case to the state court, and that motion was denied.

Thereafter Hagerla filed a stipulation as to pleading, and then filed an elaborate bill of complaint in equity asking that the Power Company be enjoined from overflowing his land, and, coupled with the prayer, prays for a writ of injunction on final hearing, and for general equitable relief. Later Hagerla filed a motion to...