Lamprey v. Nelson
| Citation | 24 Minn. 304 |
| Parties | Morris Lamprey v. Charles N. Nelson |
| Decision Date | 05 December 1877 |
| Court | Minnesota Supreme Court |
In this case the action was upon an account assigned to the plaintiff by Adolph Munch, for services rendered in sluicing and driving certain logs through a dam on the Snake river between the lands of the said Munch. The complaint alleged that the services were rendered by the said Adolph Munch at the instance and request of the defendant, and set out all the steps taken by Munch to procure a license from the county commissioners for the construction and maintenance of the dam between the said lands. The district court of Ramsey county Brill, J., presiding, sustained a demurrer to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action, because it appeared that the license was issued without the notice required by statute. The plaintiff thereupon appealed.
Order reversed.
Morris Lamprey, for appellant.
Bigelow Flandrau & Clark, for respondent
The complaint shows a cause of action, because it alleges a request by defendant to do the work, labor and services sued for, and also a promise to pay for them.
The work, labor and services appear to have been performed by means of a dam across Snake river, and from the manner in which it is pleaded (all the steps taken to procure a license being set out and they being insufficient) it appears Munch had no operative license from the county commissioners to build and maintain the dam.
If it were unlawful for one to construct and maintain a dam across a stream upon his own land, he could make no valid contract for the use of it. But upon a careful examination of chapter 32, Gen. Stat., we do not find that the construction and maintenance of a dam that does not obstruct the passage of logs, timber or lumber is prohibited, or that the right to construct such a dam depends on a license by the county commissioners. The license is needed to enable the party constructing and maintaining the dam to charge tolls for sluicing logs, against those with whom he has no contract; but not to maintain the dam, nor to recover from those who employ him to sluice logs through it.
In respect to the license which the plaintiff claims that Munch had, the objection is that it was issued without notice, as required by statute, (Gen. St. c. 32, § 44,) of the intention to apply for it. To this plaintiff...
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