Pigeon River Lumber Co. v. McDougall

• Decision Date: 05 November 1926
• Docket Number: No. 25489.,No. 25500.,25489.,25500.
• Citation: 210 N.W. 850,169 Minn. 83
• Parties: PIGEON RIVER LUMBER CO. v. McDOUGALL et al. SAME v. POPLAR LAND CO.
• Court: Minnesota Supreme Court

210 N.W. 850

169 Minn. 83

PIGEON RIVER LUMBER CO. v. McDOUGALL et al.

SAME v. POPLAR LAND CO.

No. 25489.

No. 25500.

Supreme Court of Minnesota.

November 5, 1926.

Appeal from District Court, Cook County; C. R. Magney, Judge.

Partition suits by the Pigeon River Lumber Company against Alexander Miller McDougall and others, and by the same plaintiff against the Poplar Land Company tried together. From an order refusing to modify the findings or grant a new trial, defendants appeal. Reversed.

John G. Williams and Wm. P. Harrison, both of Duluth, for appellants.

Jenswold, Jenswold & Dahle, of Duluth, for respondent.

HOLT, J.

Two actions in partition were tried together. The court found that partition in kind was to the prejudice of the owners and that the best interests of all required the lands to be sold. From the order refusing to modify the findings or grant a new trial, the defendants appeal.

The lands involved are bounded on the north by Pigeon river, except as hereinafter noted. The one action concerns two fractional government lots, less than 80 acres in area; namely, lots 1 and 3 in section 19, T. 64, R. 6, plaintiff being the owner of an undivided two-thirds, and defendants McDougall the one-third. Lot 1 borders the river for over half a mile, and at its easterly limits is what is known as the High Falls, a straight drop of 100 feet. Lot 3 adjoins on the east, is a forty in width along the river, and about a mile and a half from Pigeon Bay, Lake Superior, into which the river empties. The other action involves 2,250 acres, an undivided three-fourths of which belongs to plaintiff and the balance to the defendant, Poplar Land Company. This tract abuts the river for a distance of over four miles from the north and south center line of section 24, T. 64, R. 7, westerly to the Indian Reservation; the south half of last-named section is also a part of the 2,250 acres and adjoins the westerly line of lot 1, section 19. The north half of section 24 is owned solely by plaintiff, the river thereon taking a northeasterly course for over half a mile and then turning abruptly south, crossing the easterly line of the section at the northwest corner of lot 1, section 19. In this last course, the river for more than a mile and a half touches only land owned by plaintiff alone on the American side. Aside from the High Falls, there are two or three places where dams could be placed between the Indian Reservation on the west and lot 3 in section 19 on the east, provided dam sites and flowage rights were also had along the north or Canadian side of the river. The evidence shows that, although there are several available places for dam sites in the course of the river from the Indian Reservation east, the improvement for the development and distribution of light and power should be undertaken as one single enterprise or unit in order to succeed, and therefore the claim is made that all the land involved in each unit must be sold to bring the best price; hence the finding is sustained "that partition cannot be had without great prejudice to the respective owners thereof, and that it is to the best interests of all persons interested therein that all the lands be sold." The appeal rests on the contention that these findings are not warranted by the record.

Partition in kind is preferred to partition by sale. Hoerr v. Hoerr, 140 Minn. 223, 165 N.W. 472, 167 N.W. 735; Keyser v. Hage, 143 Minn. 447, 174 N.W. 305. It devolves on the one seeking partition by sale to prove that one in kind cannot be made without great prejudice to the several owners. The statute so contemplates and authorities so state. 30 Cyc. p. 268; East Shore Co. v. Richmond Belt Ry. Co., 172 Cal. 174, 155 N. W. 999; Hellier v. Syck, 147 Ky. 762, 145 S. W. 1110; Shorter v. Lesser, 98 Miss. 706, 54 So. 155; Kluthe v. Hammerquist, 45 S. D. 476, 188 N. W. 749; Croston v. Male, 56 W. Va. 205, 49 S. E. 136, 107 Am. St. Rep. 918; Bracken v. Everett, 95 W. Va. 550, 121 S. E. 713; Idema v. Comstock, 131 Wis. 16, 110 N. W. 786, 120 Am. St. Rep. 1027.

Tested by this rule, is the finding justified? We think not. As to the bulk of the 2,250 acres in which the defendant corporation has a one-fourth interest, there is clearly no obstacle to a fair division in kind for none of it can serve either as dam sites or for flowage. It is all of the same general character, rough, stony, unfit for cultivation except in patches, having little merchantable timber, but all having immature stands of trees, the average value being $3 per acre. We also think there should be no serious objection to a partition in kind of the fractional government subdivisions abutting the south shore line of the river over a four-mile stretch. Since it is necessary, in order to use the water power to advantage, to develop as a unit all the power of which the river is capable, all the dam sites and flowage rights available in the whole course of the river from the Indian Reservation to lot 3 in section 19 will be required. The proportionate value of dam sites and flowage rights cannot differ greatly. Both are equally necessary. The surface of the land contiguous to the river being open and visible, it is easily ascertained what area of the several government lots will be required, either for flowage or dams, and taken into account in a division in kind between the owners. The evidence makes it clear, also, that a full development of the potential water power of the river will require the use of lot 1 of section 19 in which the McDougalls have a third interest, at least the entire north part thereof bordering the river will be needed, and it can make little difference who gets the westerly, middle, or easterly third, so far as value is concerned. It does not appear that lot 3 in section 19 will be needed at all in any improvement of the water power, and no reason appears for refusing partition of that lot in kind. In determining whether or not there must be sale, the fact should be considered that no power can be developed and utilized unless the party who so undertakes also owns or controls the land needed for dams and flowage on the Canadian side of the river and the land owned exclusively by plaintiff; namely, the fractional government lots comprising the north half of section 24, above referred to. There is some testimony tending to show that plaintiff may be able to get the permission of both governments to dam the river for development purposes. This goes to show that plaintiff is the only bidder in sight, if a sale be had. If so, it will be for its interest to have the sale at a low figure and wholly to the disadvantage of its cotenant. The result would be either...