Pike Rapids Power Co. v. Minneapolis, St. P. & SSMR Co.

• Decision Date: 04 November 1938
• Docket Number: No. 11200.,11200.
• Citation: 99 F.2d 902
• Parties: PIKE RAPIDS POWER CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

99 F.2d 902 (1938)

PIKE RAPIDS POWER CO. v. MINNEAPOLIS, ST. P. & S. S. M. R. CO.^*

No. 11200.

Circuit Court of Appeals, Eighth Circuit.

November 4, 1938.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James G. Nye, of Duluth, Minn. (Gillette, Nye, Harries & Montague, of Duluth, Minn., on the brief), for appellant.

Henry S. Mitchell, of Minneapolis, Minn. (James L. Hetland, of Minneapolis, Minn., and Fryberger, Fulton & Boyle, of Duluth, Minn., on the brief), for appellee.

Before SANBORN, THOMAS, and BOOTH, Circuit Judges.

THOMAS, Circuit Judge.

The appellant, plaintiff below, is a power company organized for the purpose of operating and maintaining a dam or dams across the Mississippi river in the state of Minnesota for the generation of electricity for public use. The appellee, defendant below, is a railway corporation engaged in business as a common carrier in interstate commerce. Both plaintiff and defendant corporations were organized under the laws of the state of Minnesota and both were vested with the power of eminent domain.

In the spring of 1907 the defendant began grading its railway road bed on both sides of, and the construction of a bridge across, the Mississippi river at a point a few miles down the river below the town of Pike Rapids in Morrison County, Minnesota. The plaintiff brought this suit to enjoin the defendant from proceeding with the construction of its bridge and from further trespassing upon plaintiff's property, and for damages. By appropriate allegations in its answer and in accordance with the Minnesota statutes, Mason's Minnesota Statutes 1927, § 6569, the defendant converted the action into one for condemnation.

The complaint alleged specific ownership of the land by plaintiff on both sides of the river at the point where the bridge was under construction; that plaintiff proposed to build a dam for power purposes across the river at that point; that the land had been acquired for that purpose; that an act of Congress approved June 4, 1906, 34 Stat. 209, and amended March 2, 1907, 34 Stat. 1219, had authorized the construction of the dam; that defendant with full knowledge of plaintiff's rights, purposes and intentions had unlawfully trespassed upon the premises; and that the Mississippi river is one of the public navigable rivers of the United States.

The answer admitted the acts of Congress permitting plaintiff to build its dam across the river and alleged that plaintiff had not obtained the approval of the Chief of Engineers and the Secretary of War, as required by statute, of the plans for the construction of its proposed dam; that the defendant had obtained the consent of Congress by an act approved February 1, 1907, to construct its bridge across the river, and that its plans had been properly approved. It further admitted that it had constructed a line of railway over certain lands owned by plaintiff; that plaintiff had been damaged to some extent by the taking of plaintiff's land. It alleged that defendant had constructed a temporary bridge over the river at the point described and that it intended to complete and to maintain a permanent bridge at that point as a part of its line of railway. The answer prayed that the court fix and determine the amount of damages which plaintiff was entitled to by reason of the taking of its lands and to enter judgment against defendant for such sum.

The suit was commenced in 1907. The bridge was completed and put in use the same year. The plaintiff obtained a license from the Federal Power Commission authorizing the construction of the dam in 1923. The case for various reasons not now material was not tried until 1925, and not decided by the lower court until 1938.

The bridge is supported by four piers resting upon the bed of the river below low water mark, two on either side of the center of the stream. When the dam was constructed in 1924 a short distance upstream from the bridge it developed that the tail-races of the dam diverted the current of the river in such a way as to make it necessary to reinforce the bridge piers. A question arose between the parties at that time as to which of them was liable for such damages. To avoid delays they entered into two agreements dated July 17, 1924, similar in all respects, one of which referred to the reinforcement of the two easterly piers and the other to the two on the west side of the middle of the river. By the terms of these agreements the plaintiff advanced the money, finally amounting to approximately $72,000, to pay for the work of strengthening the piers. It was further agreed that the parties would attempt to settle the following disputed matters by negotiation:

"(a) The liability or responsibility of each of the parties hereto with reference to the cost of doing all of the work of strengthening the * * * piers of said bridge in accordance with said plans and specifications;

"(b) The amount of damages to which plaintiff is entitled by reason of any taking of its property as described in the complaint which may be established, including such amount, if any, as it may be entitled to receive on account of any added expense in the construction of its dam or on account of payments which it may be required to make for the strengthening of said * * * bridge piers;

"(c) The liability or responsibility of each of the parties hereto with reference to any further strengthening of the said bridge or any part or support thereof which may hereafter appear necessary and, if the questions are submitted to the Court as hereafter provided, the Court may retain jurisdiction of this cause for such time and consider such matters hereafter arising as may be necessary to determine such liability or responsibility and the amounts thereof."

In the event of failure of the parties to reach a settlement it was agreed that the foregoing questions should be determined by the court upon the trial; "and in the final determination of such rights and liabilities * * * proper credit shall be given to the plaintiff for such amounts, if any, as it may have paid hereunder * * * if it shall be determined that they should be paid or borne by defendant."

The suit was tried to the court as a condemnation proceeding, a jury being waived. Under the issues made by the pleadings as modified by the stipulation of July 17, 1924, referred to supra, two matters were presented for determination; (1) The amount of damages to which the plaintiff was entitled for the taking of its upland for a railway right-of-way and the infringement of its riparian rights appurtenant thereto on either side of the river; and (2) the question of "the liability or responsibility of each of the parties" for the cost of strengthening the bridge piers as a result of the diversion of the current of the river occasioned by the construction of the dam. Upon the trial the defendant claimed to hold an equitable title to its right-of-way on the west bank of the river, and evidence was introduced and received in support of this contention. This question affects the rights of the parties in respect to damage to the upland on the west bank of the river and in respect to the liability of the parties for the damage to the two bridge piers west of the center of the river resulting from the construction of the dam. Since the dispute thus injected into the controversy does not affect the rights of the parties east of the center of the river we shall first dispose of the questions relating to the two easterly piers and the east bank and then return to the rights of the parties west of the center of the river. We shall discuss the matters to be determined in this order for the further reason that a decision of the question relating to the easterly bridge piers will simplify the remaining issues and save repetition.

The trial court held that the plaintiff was liable for the damages to all four of the bridge piers occasioned by the construction of the dam, including the costs advanced for strengthening them, held that the defendant owned the equitable title to its right-of-way on the west bank of the river, and awarded the plaintiff $1295 damages for the taking of defendant's right-of-way on the east bank of the river. The plaintiff indicates its willingness to accept the damages awarded it for the right-of-way on the east bank and urges its appeal from the remainder of the judgment.

The record contains no bill of exceptions. In this court the appellant challenges only the sufficiency of the findings of fact of the trial court to support its conclusions of law. Two historical facts, already referred to, are thought to be of special importance. They are as follows:

On February 1, 1907, 34 Stat. 868, Congress passed an act permitting defendant to build a bridge across the Mississippi river in Morrison County, Minnesota. This act provided, "That the consent of Congress is hereby granted to the defendant to build a railway bridge across the Mississippi river at the location described supra in accordance with the provisions of the Act entitled `An Act to regulate the construction of bridges over navigable waters,' approved March twenty-third, nineteen hundred and six." This is referred to by the parties as the Soo Bridge Act, and it was pursuant to its provisions that the bridge was built.

Plaintiff's dam was constructed under a license obtained from the Federal Power Commission dated August 25, 1923, and issued pursuant to an Act of Congress approved June 10, 1920, 41 Stat. 1063, 16 U.S. C.A. § 792 et seq. The license recites that it is issued subject to the Act of Congress and to the attached rules and regulations of the Commission, Article 15 of which rules provides:

"The Licensee shall be liable for all damages occasioned to the property of others by the construction, maintenance or operation of said project works, or the works appurtenant or accessory thereto, and in no event shall the United States be liable therefor."

In the light of...