Meyers v. Lafayette Club
| Decision Date | 01 May 1936 |
| Docket Number | No. 30778.,30778. |
| Citation | 266 N.W. 861,197 Minn. 241 |
| Parties | MEYERS et al. v. LAFAYETTE CLUB. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; A. W. Selover, Judge.
Action by J. E. Meyers and another against the Lafayette Club, a corporation. From an order overruling its demurrer to the complaint, defendant appeals.
Reversed.
Snyder, Gale & Richards and Edmund T. Montgomery, all of Minneapolis, for appellant.
Malmberg & Nelson, Sherman W. Child, and Thompson, Hessian & Fletcher, all of Minneapolis, for respondents.
The defendant appeals from an order overruling its demurrer to the complaint. The court certified that the questions raised by the demurrer are important and doubtful.
The action is brought under the Uniform Declaratory Judgments Act (Laws 1933, c. 286). The trial court is asked to declare that the use made by the defendant of water from Lake Minnetonka, in Hennepin county, for sprinkling its golf course on a tract of land owned by it bordering on the lake, is excessive and unlawful, or, if the court finds that defendant is entitled to use some amount of the water for that purpose, that the court then determine the amount of water it may so use. There is a further general prayer for such other relief as the court may find plaintiffs entitled to.
The complaint alleges that the plaintiff Meyers owns a tract of 6 acres of land with a frontage of 628 feet on the lake, with buildings thereon, occupied by him and others during the year; that plaintiff Thompson owns an undivided one-half of part of two lots, with a frontage of 89 feet on the lake, with a small summer cottage thereon, occupied by him at intervals during the year. It is alleged, in substance, that during a number of years prior to 1935 the waters of the lake have gradually receded, so that in the fall of the year 1934 the water level had reached a low stage of 922.98 feet above sea level; that the main average high level of the water is 929.73 feet; that, as a result of this recession of the water level, strips of shore land have become uncovered and grown up with weeds, and the shores have become unsightly and unfit for pleasure and health use; that the water along the shores has become shallow and weedy; that bathing places used by plaintiffs and others have become shallow and weedy and their usefulness impaired or destroyed; that sand bars in the lake have become uncovered; that plaintiffs' property has materially decreased in value because of the lowering of the water level in the lake. It is alleged that defendant's excessive and unlawful use of the water for sprinkling its golf course has been a large contributing cause to the lowering of the water level. As to the amount of water taken from the lake, it is alleged that for several years last past the defendant, by pumping water through a pipe and into an elevated tank on its grounds for sprinkling its golf course during the three summer months of each year, has, as estimated by plaintiffs, taken 12,960,000 gallons each year. And plaintiffs, on information and belief, say the golf course is in use for more than three months each year, and that defendant uses more than the estimated amount each season. It may reasonably be inferred that the water so claimed to be taken is, in part at least, used for sprinkling lawns and for domestic purposes on defendant's property.
Lake Minnetonka is navigable water and is one of the larger lakes in this part of of the state. It is some 10 or 12 miles distant from the city of Minneapolis, and has been and is a recreation place for people residing in that city and elsewhere. The lake, as shown by public plats and records, has a total length of about 10 miles and a water area of approximately 20 square miles. The length of the shore line is difficult to measure from maps or plats, but may safely be estimated to be at least 100 miles, there being numerous bays and arms and what are known as "upper" and "lower" lakes. The shore line is all occupied, largely by summer cottages, but also with a number of fine residences. There are also several villages bordering on the lake. Most of the cottages and residences are occupied during the summertime only, but a number are occupied the whole year.
The defendant, Lafayette Club, is a membership corporation. It has no capital stock and is not operated for profit or for commercial purposes. The members, some 700 in number, pay annual dues for the upkeep of the club. The membership is limited to a fixed number. The club owns a tract of 51 acres bordering on Lake Minnetonka. On this property it has a large clubhouse, several cottages, and other buildings for the use of its members. There are lawns and grounds around the buildings. Part of the grounds are prepared and used as a golf course. How large this golf course is does not appear. It is referred to in the complaint as "an extensive and very well kept up golf course." The purpose for which defendant is organized is to conduct a club or society for social enjoyment, mental and physical culture, and to acquire and own a clubhouse and appropriate grounds in connection therewith. See Lafayette Club v. Roberts (Minn.) 265 N.W. 802. It does not operate a public golf course. Its grounds, buildings, and golf course are for the use of its members only. A member may bring a guest, and, if the guest uses the golf course, the member is charged a small greens fee therefor. In effect, each member is an owner in common of his proportionate share of the club property. The property is used in the summertime for the pleasure and recreation of the members, for the same essential purposes as summer cottages and country homes around this lake are used by the owners thereof.
It is common knowledge that, because of deficiency in precipitation and dry and hot summers causing excessive evaporation, all lakes in the southern part of this state, including the Lake Minnetonka area, suffered great lowering of their water levels during the several years prior to 1935. There were exceptions where lakes were fed by constantly running streams, but most of the smaller streams also dried up. Many lakes practically dried up. Lake Minnetonka does not appear to have any river or stream with a constant flow coming into it. In wet years, or years of ordinary precipitation, no doubt water comes into the lake from surrounding lands through draws, small inlets, and surrounding hillsides, but in very dry seasons such inflow of water practically ceases. The limit of low water in the lakes mentioned appears to have been reached in the summer and fall of 1934. In that year there were extreme drought conditions and great loss of crops on that account in this state. In 1935 there was more abundant precipitation, and lake levels generally rose to a small extent. So far this year there has been an excess of precipitation to some extent. It is well known that dry years and wet years come and go in cycles in this state. Extremely dry years such as came up to and including 1934 are usually followed by a series of wet years, with precipitation above normal, when lakes and sloughs are filled to overflowing and drainage work is undertaken to relieve farm lands. There are some general causes which, to some extent, may have permanently lowered water levels in lakes and rivers in the Lake Minnetonka area and generally throughout the southern half of this state. These causes are the cutting down of the large areas of native timber, the extensive drainage of small lakes, ponds, and sloughs, which were storage basins and feeders of larger lakes and streams, and the cultivation of drained land and other lands which before had furnished runoff water for the lakes.
Plaintiffs, as noted, present the figures as to the water level of Lake Minnetonka in the fall of the year 1934, and the "main average high water elevation" of the lake. What is meant by "main average high water elevation" is not very clear. How this was arrived at, or over what period of years the calculation was made, does not appear. The average high-water elevation, because of conditions already stated, is bound to change as time goes on, irrespective of the amount of water that may be taken out for sprinkling or other purposes by the hundreds of riparian owners. It is alleged in the complaint that there has been a dam constructed at the lake outlet, which is Minnehaha creek, running into the Mississippi river. If we understand the purpose of this dam, it is to hold back the water in the lake at a higher level than if the natural outlet was not obstructed by the dam. More important, however, is the fact that one cannot arrive at any basis for measuring the effect of the taking of water from the lake for sprinkling or other purposes by this defendant, or by all the riparian owners, by comparing the extreme low-water level, under drought conditions in 1934, with the average high-water level. If the plaintiffs had presented figures to show the average low-water level of the lake over a sufficient length of time prior to the use of any of the water by defendant for sprinkling purposes, such figures might have had some slight bearing upon the question of the effect of defendant's use of the water.
It is interesting to read what was said by this court in the case of In re Minnetonka Lake Improvement, 56 Minn. 513, 58 N.W. 295, 45 Am.St.Rep. 494, as to description of the lake and surroundings in 1894, and the difference between extreme high-water and extreme low-water levels prior to that time, and as to the changes in water level being irregular, except that they occur periodically according as the years or seasons are wet or dry. We quote: ...
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