In re Minnetonka Lake Improvement, s. 8460, 8461.

• Decision Date: 10 February 1894
• Docket Number: Nos. 8460, 8461.,s. 8460, 8461.
• Citation: 56 Minn. 513
• Parties: <I>In re</I> MINNETONKA LAKE IMPROVEMENT. HERBERT M. CARPENTER <I>et al.</I> <I>vs.</I> BOARD OF COUNTY COM'RS OF HENNEPIN COUNTY.
• Court: Minnesota Supreme Court

Page 513

56 Minn. 513

In re MINNETONKA LAKE IMPROVEMENT HERBERT M. CARPENTER et al. vs. BOARD OF COUNTY COM'RS OF HENNEPIN COUNTY.

Nos. 8460, 8461.

Supreme Court of Minnesota.

Argued January 3, 1894.

Reversed February 10, 1894.

Certiorari issued August 3, 1893, by this court, on the relation of Herbert M. Carpenter, Reuben C. Benton and the Minneapolis Trust Company, to the District Court of Hennepin County, Frederick Hooker, J., to certify and return to this court the files, record and judgment in the matter of the proceedings of the Board of

County Commissioners of the County of Hennepin to establish and maintain a uniform stage of water in Lake Minnetonka, under Sp. Laws 1891, ch. 381.

The act authorizes the County Commissioners to establish a uniform height at which the waters shall be maintained, not above high water mark, and to acquire by purchase or condemnation the dam of the Minnetonka Mill Company near the outlet of the lake. When the amount required for the purchase or condemnation is ascertained the Commissioners are to apply to the District Court for the appointment of three assessors of benefits. These assessors are to assess the amount upon the tracts and parcels of land in Hennepin County they deem to be specially benefitted; upon each piece or parcel a just proportion of the whole. Persons interested are permitted to produce evidence and be heard. When the assessment is completed it is to be filed in the court, and a time fixed for hearing and confirmation. Notice thereof is to be served by publication. The District Court is given power on the hearing to revise, correct and confirm the assessment. After confirmation a copy is to be filed with the County Auditor and the sums assessed are made a lien on the lands and are to be included in the next general tax list and like proceedings had in all respects for their collection as is provided by law for the collection of state, county and city taxes.

Commissioners were appointed and the dam acquired. The total cost of the property and the condemnation proceedings was $14,032. On April 16, 1892, assessors were appointed and they proceeded to assess the amount on the property in Hennepin County which they deemed specially benefitted. On Carpenter's land they assessed $33, on Benton's land $10, and on the land of the Minneapolis Trust Company $800, and on other parcels various amounts aggregating the $14,032 and made report to the court. Notice of hearing and for confirmation was given. The relators appeared and filed objections and opposed confirmation, but were overruled and the assessment was confirmed. At the hearing evidence was given and the whole was subsequently embodied in a case certified, signed and filed with the proceedings. No provision is made by the statute for an appeal and the relators removed the record to this court by certiorari.

Kellogg & Laybourn, Benton, Roberts & Brown and W. E. Dodge, for relators.

Frank M. Nye, County Attorney, and Carman N. Smith, for respondents.

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, ch. 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...