Minn. Canal & Power Co. v. Koochiching Co.

• Citation: 107 N.W. 405,97 Minn. 429
• Court: Supreme Court of Minnesota (US)
• Decision Date: 30 March 1906
• Parties: MINNESOTA CANAL & POWER CO. v. KOOCHICHING CO. et al.

97 Minn. 429

107 N.W. 405

MINNESOTA CANAL & POWER CO.

v.KOOCHICHING CO. et al.

Supreme Court of Minnesota.

March 30, 1906.

Appeal from District Court, Itasca County; W. S. McClenahan, Judge.

Condemnation proceedings by the Minnesota Canal & Power Company against the Koochiching Company and others. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Start, C. J., and Lewis, J., dissenting.

Syllabus by the Court

On appeal from an order dismissing a petition in condemnation proceedings in which the petitioner seeks to take private property (1) to create a water power and to construct, create, and maintain a water power plant to (a) supply water power from the wheels thereof, (b) generate and distribute electricity for heat, light, and power purposes, and (2) to construct and maintain canals and waterways on which to operate canal barges and be otherwise used for purposes of navigation, held, that the power of eminent domain can be exercised by a private individual or corporation only by express legislative authority.

In proceedings to condemn private property, every reasonable doubt as to the authority must be resolved in favor of the landowner.

The statutes under which the petitioner is organized do not, as an incident to the construction of a canal and the creation of a water power, authorize a corporation to withdraw and divert the waters from public navigable lakes and streams to such an extent as to interfere with present or future navigation and by means of canals carry it over a divide and discharge it into a different drainage area, thus permanently withdrawing it from its natural course.

When the purposes stated in the petition are part public and part private, the right to proceed must be denied.

A use is not public, unless, under proper regulations, the public has the right to resort to the property for the use for which it was acquired independently of the will or caprice of the corporation in which the title of the property vests upon condemnation.

The generation of electricity by water power for distribution and sale to the general public on equal terms, subject to governmental control, is a public enterprise, and property so used is devoted to public use.

But the creation of a water power and a water power plant for the purpose of ‘supplying water power from the wheels thereof’ to the public is a private enterprise, in aid of which the power of eminent domain cannot be exercised. The nature of water power is such that, under such conditions, it cannot be used by the public to such an extent as to make the use a public use. O. H. Simonds, Durment & Moore, and Baldwin, Baldwin & Dancer, for appellant.

C. J. Rockwood and F. F. Price, for respondents.

H. J. Grannis, J. N. Searles, and Washburn, Bailey & Mitchell filed briefs by consent of court and counsel.

ELLIOTT, J.

This appeal involves the right of the appellant to condemn certain land situated on the Rainy river near Koochiching Falls in Itasca county in aid of the construction of certain canals and the creation of a water power plant at West Duluth. Upon this record we are required to determine whether the trial court was right in refusing to grant the prayer of the petitioner upon the facts as found. The petitioner states that it ‘does not desire to take, acquire, or possess any of said lands hereinafter described, nor to erect, maintain, and operate any of its works upon the same, but it desires and has determined to divert the waters of Birch Lake and its tributaries, * * * and thus prevent the waters thereof so diverted from flowing in said boundary lake and streams and through said province of Ontario in Canada over and along said lands, and to that extent only to take and injuriously affect said lands and any property and estate therein.’ The petitioner is a corporation organized under chapter 34, Gen. St. 1894, for the purposes set forth with great prolixity and some lack of clearness in its articles of incorporation. Without quoting the statement of the general nature of its business, which is set out in full in the findings of the trial court, it is sufficient to say that it is comprehensive enough to cover the enterprise in aid of which it seeks to acquire the defendants' property. In the petition and findings of the court it is said that the ‘petitioner has undertaken to create a water power and to construct, create, and maintain a water power plant at West Duluth, Minn., to supply water power from the wheels thereof and also by the use of said power to generate and distribute electricity for heat, light, and power purposes, and to construct and maintain a canal or canals or waterways, from Birch Lake to Embarrass river and through the Embarrass river to the St. Louis river and from the St. Louis river at the point stated in the said petition to West Duluth on which to operate canal barges for the transportation of various commodities, and to float, raft, run, drive, and boom logs and timber.’

A careful study of the petition convinces us that the primary object of the enterprise is the creation of the water power plant, and that the canal is merely in aid thereof, although, incidentally, it may be used for purposes of navigation. The enterprise, as described in detail, provides for the taking of water in large quantities from navigable streams and public lakes, carrying it by means of canals over the divide which separates different water courses, and thus permanently diverting it from its natural course. The waters of the Birch Lake drainage area of 1,103 square miles flow naturally north through the Birch river, the Kawishiwa rivers, White Iron Lake, Fall Lake, Newton Lake, and the streams connecting them into Basswood Lake, which is one of the boundary waters between Canada and the United States. Thence it passes through certain waters on the boundary and through Canadian territory for about 25 miles into other boundary waters between the two countries, including Rainy river, to the Lake of the Woods. The appellant's enterprise contemplates the building of dams across the outlet of Birch Lake and the Kawishiwa rivers in such a way as to make Birch Lake a storage reservoir in which to store the surplus waters of its drainage area. It then proposes to cut a canal from Birch Lake into the Embarrass river, and thus make a water communication between Birch Lake and the St. Louis river. Another canal is to be cut from a point on the St. Louis river about 75 miles below the point where the Embarrass river empties into it, to the St. Louis Bay near Duluth. A dam at the head of the upper canal at Birch Lake and a gate at the head of the lower canal at the St. Louis river will regulate the flow of the waters in the canals in such manner as to let 600 cubic feet of water per second flow through the upper canal into the St. Louis river and a somewhat smaller amount through the lower canal from the St. Louis river into the St. Louis Bay.

Birch Lake and the streams which flow into it, the North and South Kawishiwa rivers, White Iron Lake, Farm Lake, Newton Lake, and the waters connecting the same, lie wholly within the state of Minnesota. Each of these lakes is capable of floating small steamboats and tugs and being used for the transportation of logs and other commodities. The streams connecting the lakes are not capable of being used by boats or transporting merchandise, because between each of the lakes there are rapids over which boats cannot pass. In times of high water logs or timbers pass down over these rapids, but in ordinary and low stages of water they cannot pass over the rapids without the aid of the head furnished by dams above the rapids. None of these waters within the state have ever been used for any navigation or commerce except the floating and flowing of logs and timber, which have been towed across the lakes and then sent down over the connecting streams and over the rapids ordinarily by the use of dams. A considerable commerce has been carried on over Birch Lake and Birch river, and two dams have been constructed to aid in driving logs, one at the outlet of Birch Lake, called a ‘clerking’ or ‘sluicing’ dam, and one at the foot of the river, near Fall Lake, called the ‘roll dam.’ The latter was constructed for the purpose of preventing the logs from being bruised and jammed in making the descent of the steep rapids at that point. Steamboats have been used for towing logs on Birch Lake, White Iron Lake, Garden Lake, and Fall Lake. Steamboats have been also in regular use for the past 10 years for general commerce upon certain of the boundary lakes and rivers which form a part of the chain of waters involved herein.

The minimum flow of water from Birch Lake to the Kawishiwa rivers at any time in the course of the year is about 210 cubic feet per second, and the average flow in the course of the year is 980 cubic feet per second. The area of the watershed from which the appellant's enterprise would impound its waters is 6 per cent. of the area of the watershed tributary to Koochiching Falls. The trial court finds that it is impossible to determine, except by the actual operation of the appellant's works, to what extent the diversion or withholding of 600 cubic feet per second of the waters from the Birch Lake area would lower the level of the waters throughout the chain of lakes and rivers referred to. Up to the present time, no foreign or interstate commerce of any kind has been carried on over the waters referred to, which lie wholly within the state of Minnesota. The country between Rainy Lake and Birch Lake is for the most part new and unsettled, but there has been sufficient travel along the waterway by rowboat and canoe to create and keep well-beaten portages along the different rapids. The respondent Backus and his associates own land on both sides of the Rainy river, and contemplate the construction of a dam and mills at Koochiching Falls for...