Miller v. Troost

• Decision Date: 01 January 1869
• Citation: 14 Minn. 282
• Parties: HENRY MILLER and others v. OTTO TROOST and others.
• Court: Minnesota Supreme Court

Page 282

14 Minn. 282

HENRY MILLER and others

v. OTTO TROOST and others.

Supreme Court of Minnesota.

Appeal from a judgment of the district court, Winona county.

Mitchell & Yale, for appellants.

Berry & Waterman, for respondents.

GILFILLAN, C. J.

This is a controversy between the upper and lower proprietors upon the Rollingstone creek, in the county of Winona, involving the right of the latter, the defendants, to proceed under chapter 31 of the General Statutes to obtain the right to maintain a dam on their premises at such a height as to set the water back upon that part of the creek running through the premises of the former, the plaintiffs. The grantor of the plaintiffs, as early as 1863, commenced operations for the erection on his premises of a dam for the purpose of a flouring mill, which operations were continued from time to time by him, and by plaintiffs after they acquired his title, down to March 8, 1867; which operations consisted in making the necessary surveys to locate the mill and dam, and ascertain the head of water that could be obtained, the making of contracts and procuring material for the erection of the mill and dam, the excavating for and laying a stone wall intended to be for the foundation of the mill and to form part of the dam, and excavating for a tailrace; the whole amount so expended prior to March 8, 1867, being, as found by the court below, $8,500.

The defendant Troost erected on his premises, in the summer of 1866, a flouring mill, which was completed about the first of January, 1867, at an expense of $30,000, and constructed a dam at first two feet two inches high, and raised it in February, 1867, to the height of two feet eleven inches. This dam sets back the water, at its ordinary stage, so as to raise it above its ordinary level, at the place where plaintiffs have located their dam, one foot and eight inches, causing a permanent injury to them. Troost, in February, 1867, obtained the appointment of commissioners under chapter 31, General Statutes, to obtain the right to maintain his dam at its present height. Notice of the appointment and of the meeting of the commissioners was served on plaintiffs March 8, 1867. This action was brought to compel Troost to abate so much of his dam as sets back the water so as to interfere with plaintiff's water-power, and to restrain the commissioners from proceeding to assess the damages, and judgment to that effect was rendered in the court below.

The case presents two questions: First, whether chapter 31 of the General Statutes, entitled "Dams and Mills," is in conflict with the constitution; second, whether plaintiffs' was a "water-power previously improved," within section 16 of the chapter.

The object of the statute is to provide a means by which the full power existing in streams not navigable may be made available to drive machinery; and for that purpose it purports to enable one proprietor on such a stream, erecting a mill-dam on his own premises, to appropriate, upon making compensation, to some extent the property of another, either by flowage of his land or by setting back the water so as to interfere with his use of the stream.

The legislature cannot take the property of one and confer it on another for a merely private use. Wherever the power of appropriation is attempted to be exercised, the test of its validity is whether the use to which it is appropriated is a "public use" within the meaning of the constitution. Many, if not most, of the states have statutes relating to mills and...