Minnesota Canal & Power Co. v. Fall Lake Boom Co.

• Decision Date: 07 August 1894
• Docket Number: 18,544 - (94)
• Parties: MINNESOTA CANAL & POWER COMPANY v. FALL LAKE BOOM COMPANY and Others
• Court: Minnesota Supreme Court

148 N.W. 561

127 Minn. 23

MINNESOTA CANAL & POWER COMPANY v. FALL LAKE BOOM COMPANY and Others

Nos. 18,544 - (94)

Supreme Court of Minnesota

August 7, 1894

Petition to the district court for Lake county for the appointment of commissioners to assess and determine the damages to be paid to the owners of certain lands necessary for the construction and maintenance of certain reservoirs and canals and the diversion of the waters of Birch lake and its tributaries into the valley of the St. Louis river and to the pipe lines and water wheels of petitioner's water power and electric plants at West Duluth. The petition was heard before Cant, J., who made findings and denied it. From the judgment entered pursuant to the order, petitioner appealed. Affirmed.

SYLLABUS

Eminent domain -- exercise of the power.

1. The power of eminent domain rests exclusively in the legislature and can be exercised only as authorized by the legislature.

Eminent domain -- taking by public service corporation.

2. Under the statutes relating to public service corporations it is the duty of the court to determine, in each particular case, whether the taking of the designated property is necessary for the purposes of the proposed enterprise, and whether such property may lawfully be taken for such purposes.

Eminent domain -- diversion of water.

3. Such corporations cannot divert water from the navigable streams of one drainage basin into those of another drainage basin, if such diversion will impair the navigability of the streams from which the water is proposed to be taken.

Eminent domain -- in aid of public use.

4. Private property can be condemned only when it can be made to subserve some public use. If the purpose for which it is sought to take private property cannot be accomplished, such taking will not subserve public purposes, is not necessary within the meaning of the statute, and is unauthorized.

Eminent domain -- burden of proof.

5. The burden of showing that such purpose can be accomplished is upon the petitioner.

Eminent domain -- finding sustained by evidence.

6. The evidence justifies the conclusion of the trial court that the purpose of the proposed enterprise cannot be accomplished without impairing the navigability of the navigable waters of the Birch lake drainage basin.

Tyler, Corneau & Eames and Butler & Mitchell, for appellant.

H. J. Grannis, J. N. Searles, J. A. P. Neal, Thomas J. Davis, Harris & Pearson, J. A. Wharton, Washburn, Bailey & Mitchell, Wilson G. Crosby, I. C. Buell, and Willson & Morgan, for respondents.

OPINION

TAYLOR, C.

The petitioner and appellant, the Minnesota Canal & Power Co., was first incorporated some 20 years ago. Its business as defined in its amended articles of incorporation, or charter, is to generate and distribute electricity for public use, to supply the public with water, and to improve navigation. To accomplish these purposes it is authorized by its charter to construct, maintain and operate dams, reservoirs, canals, power plants, transmission lines, and all other works and appliances necessary or convenient therefor; and to acquire by purchase, condemnation or otherwise, any and all property and rights in property necessary or convenient for carrying on its operations. The charter also provides that all things authorized therein and done thereunder shall be "for public use on equal terms and for a reasonable compensation, subject to the supervision and control of the state of Minnesota."

The company, in a petition filed in the district court of Lake county, states that, in order to accomplish the object for which it was organized, it desires to construct and maintain a continuous navigable waterway from Birch lake to West Duluth capable of floating logs, timber, canal boats, barges and other water craft; that, by means of such waterway, it proposes to furnish water for public use, and also to create and operate, at West Duluth, a waterpower for generating electricity for public use; and asks the court to determine that the prosecution of such enterprise and the taking of the property, easements and rights necessary for the prosecution of the same are required by the public interests, and to appoint commissioners to ascertain the damages that will be sustained by the several property owners by reason of the construction of the proposed improvements and the taking of the property, easements and rights necessary therefor. The extent and nature of the enterprise is indicated in the following excerpt from the findings of the trial court:

"That the waters of Birch lake, Birch river, north and south branches of the Kawishiwi river, White Iron lake, Garden lake, Farm lake and the connecting streams and waterways between Fall lake and Basswood lake are navigable waters of the state of Minnesota and of the United States; that all of said waters are tributary to Basswood lake and flow thence into and along and form a part of the boundary waters between the United States and the Dominion of Canada, along the line from Lake Superior to the Lake of the Woods, and are discharged into the Lake of the Woods and thence north, through connecting streams and lakes, into Hudson Bay. * * *

"That the aforesaid waters, tributary to Basswood lake, are in what is known as the Birch lake drainage basin, the area of which basin is something more than 1,100 square miles; that between the Birch lake drainage basin and the St. Louis river drainage basin, to the south, is a height of land, forming a natural watershed. That the waters to the north of said height of land drain into said Birch lake drainage basin, and the waters to the south thereof drain into the St. Louis river drainage basin. That the plans and purposes of the petitioner contemplate the construction of a dam across Birch river, at the outlet of Birch lake to the north, of sufficient dimensions and so designed, as to raise the waters of Birch lake twenty feet above the mean low water level thereof, and by the aid thereof and of other dams and structures, to control and reservoir a considerable portion of the waters of said Birch lake drainage basin and by means of a canal cut through the said height of land, forming the watershed between said Birch lake drainage basin and said St. Louis River drainage basin, the petitioner proposes to divert water, impounded in said Birch lake, by the aforesaid means, through said canal and the Embarrass river, a tributary of the St. Louis river, into the St. Louis river and to take said waters from the St. Louis river, above the city of Cloquet and by means of a canal, some twenty-four miles in length, to deliver said waters, by appropriate appliances, at or in the vicinity of West Duluth, in said county of St. Louis, for the purpose of generating electrical power for public use, sale and distribution."

Two previous applications by this company to acquire substantially the same rights and privileges now in question have already been considered and determined by this court and a more complete description of the purpose and scope of the enterprise will be found in the opinions in those cases. In the first case (Minnesota Canal & Power Co. v. Koochiching Co. 97 Minn. 429, 107 N.W. 405, 5 L.R.A. (N.S.) 638, 7 Ann. Cas. 1182), the application was denied, upon the ground that such an enterprise was not authorized by the statutes then in force, and upon the further ground that the petition then before the court sought to take the property, in part, for private purposes. The Revised Laws of 1905 amended the statutes, and thereafter the company amended its articles of incorporation and filed a new petition. A motion to dismiss this second application was granted by the trial court, on the ground that the petition did not state facts sufficient to authorize taking the property sought for the purpose of the enterprise. On appeal this court held (Minnesota Canal & Power Co. v. Pratt, 101 Minn. 197, 112 N.W. 395, 11 L.R.A. (N.S.) 105), that the company, under this petition and its amended charter, was entitled to exercise the power of eminent domain conferred upon public service corporations; that the statutes as amended authorized the diversion of water from one drainage basin to another, if such diversion would not interfere with navigation and was not forbidden by some state or Federal law; that the laws of Minnesota prohibited any such diversion of water which would interfere with the rights of navigation or with other public uses to which the waters were already devoted; that, as the case was before the court as upon demurrer to the petition, the allegations therein must be treated as true in determining the questions then under consideration; that the laws of Minnesota did not forbid the construction of the proposed works, if the company could prove at the hearing the following allegations of its petition: "That your petitioner's said works and the diversion of water as proposed by your petitioner will not interfere with the navigable capacity of any of said waters and will not interfere with any navigation of which they are capable, and your petitioner's works can and will be so conducted as not to interfere with such navigation or any public use thereof, but, on the contrary, so as to aid and facilitate the same and so as to increase and improve the navigable capacity of said waters;" that the Federal laws prohibited the construction of such works without first obtaining a permit therefor from the Secretary of War; and that the petitioner was not entitled to prosecute its enterprise, for the reason that it had failed to procure such permit. Thereafter the company procured such permit, inserted an allegation to that effect in its petition, and without any other substantial change therein, made the...