Sanborn v. People's Ice Company
| Decision Date | 19 December 1900 |
| Docket Number | 12,239 - (93) |
| Citation | 84 N.W. 641,82 Minn. 43 |
| Parties | JOHN B. SANBORN v. PEOPLE'S ICE COMPANY |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., sustaining a demurrer to the complaint. Reversed.
Use of Public Waters.
Under the general law, all persons have the common right to enjoy the use of public waters for the ordinary purposes of life such as boating, fishing, recreation, and domestic or individual uses, including the right to take ice therefrom.
Use of Public Waters.
Such ordinary uses constitute a right held in common by the public and riparian owners.
Cutting of Ice.
The cutting and removing of ice in large quantities annually for shipment and sale for commercial purposes from public waters whereby their natural level is materially reduced, is not such a common right.
Riparian Rights.
Riparian owners, by virtue of their ownership and possession, have certain special interests in such waters not enjoyed by the public in general, the extent of which depends upon the nature of the shore land and the character and extent of the possession.
Remedy against Common Use.
If such public waters are disturbed beyond their natural condition by the general public in the exercise of the right of common usage, neither a riparian owner nor other common user has a legal remedy to prevent the same.
Remedy of Riparian Owner.
A riparian owner may, by virtue of his special interest as such, enjoin an interference with such waters which disturbs their natural condition, provided such owner is peculiarly and specially affected and damaged thereby.
Sp. Laws 1881, c. 410, is a general law in its application, and need not be specially pleaded.
Sp. Laws 1881, c. 410 -- White Bear Lake.
By the terms of this law, the waters of White Bear lake are declared to be public waters, and it is made unlawful artificially to remove any water from the same for any purpose whereby the level of such water is materially reduced.
Cutting of Ice.
Cutting and removing ice for the purpose of shipment and sale in distant markets for commercial purposes is such an artificial taking and removing of water from such lake.
Remedy of Riparian Owner -- Injunction.
A riparian owner upon the lake may, under the provisions of this act, enjoin the taking of ice therefrom if such taking results in lowering the lake below its natural condition, provided such owner is damaged thereby, and such taking is artificial.
No Remedy against Common Use.
But neither a riparian owner nor a common user of the waters of such lake is entitled to invoke the benefit of such law in cases where the taking of such water is in the exercise of a common right.
Complaint States a Cause of Action.
It appearing from the complaint in this action that the lake in question was during twelve years lowered two feet below its natural outlet, and that the acts of defendant in cutting and removing ice therefrom were sufficient to reduce the volume of water one-quarter of an inch annually, and to cause a further decrease by evaporation, held, such taking was of substantial character, and entitles the shore owner to the right of injunction to restrain the continuance thereof, and that the complaint states a cause of action.
Defect of Parties Plaintiff.
There is no defect of parties plaintiff in this action, for the reason that, as appears from the complaint, the other users of the waters were exercising the right of common usage, and that they were not specially damaged by the acts complained of.
Defect of Parties Defendant.
There is no defect of parties defendant in this action for the same reason as above stated.
John B. & E. P. Sanborn and Ross Clarke, for appellant.
The maxim "de minimis non curat lex" is never applied to the positive and wrongful invasion of property. Seneca v. Auburn, 5 Hill, 170. In an action on the case the degree of damage is wholly immaterial, and it is always enough that there is a plain violation of right and a possibility of damages. The cutting and removing of ice to the extent of seventy-five thousand tons per annum was for commercial purposes, and for private gain and profit. If such an appropriation of ice is an appropriation to public use, then if it lowers the waters it is prohibited by Sp. Laws 1881, c. 410, and is unlawful, and any citizen injured in his property rights can enjoin the act. For taking ice for commercial purposes, if injury results, an action will lie in favor of one entitled to complain. Eidemiller v. Guthrie, 42 Neb. 238; Brown v. Cunningham, 82 Iowa 512; Elliot v. Fitchburg, 10 Cush. 191; Bigelow v. Shaw, 65 Mich. 341; Mill River v. Smith, 34 Conn. 462; Flaten v. City of Moorhead, 51 Minn. 518. The complaint states facts sufficient to constitute a cause of action. Potter v. Howe, 141 Mass. 357; French v. Connecticut, 145 Mass. 261; Page v. Mille Lacs L. Co., 53 Minn. 492; Aldrich v. Wetmore, 52 Minn. 164; Cedar Lake v. Cedar Lake, 79 Wis. 297; Kimberly v. Hewitt, 79 Wis. 334; Stadler v. Grieben, 61 Wis. 500; Brickner v. Henry, 73 Wis. 229; Patten v. Kaukauna, 70 Wis. 659; Mill River v. Smith, supra; Yates v. Milwaukee, 10 Wall. 497; Haskell v. City, 108 Mass. 208; Brayton v. City, 113 Mass. 218; Higgins v. Flemington, 36 N.J.Eq. 538; Smith v. Youmans, 96 Wis. 103.
Durment & Moore, for respondent.
The waters of our lakes are receding constantly, even in those not being used as ice fields. This court has judicially recognized that fact in Lamprey v. State, 52 Minn. 181, 191. The complaint must show damage to plaintiff resulting from the acts of defendant, in order to state a cause of action. The complaint alleges that the water of the lake has fallen two feet, and sets forth certain alleged damages resulting. But a mathematical computation shows that the amount of water removed by defendant in twelve years, if all had been removed at one time and not replaced by any additions of water from other sources, would have reduced the level of the lake less than three and one-third inches. There is no allegation that any appreciable part of the alleged damage would have resulted from lowering the lake three and one-third inches.
The waters of the lake are public waters, and belong to the state in its sovereign capacity. Laws 1897, c. 257. Plaintiff has no property right in the water, nor any right to have it wash his land. The state may lower the water of the lake, drain it, or raise it to high water mark, without making compensation to the riparian owner. Minneapolis Mill Co. v. Board of Water Commrs., 56 Minn. 485, 488; In re Minnetonka Lake Imp. Co., 56 Minn. 513; Laws 1897, c. 88; Gniadck v. N.W. Imp. & Boom Co., 73 Minn. 87; Red River R. Mills v. Wright, 30 Minn. 249, 253. The title of the state to the lake (its bed and water) is of the same sort as that which it has to game and fish. The state owns it in its sovereign capacity, in trust for the common use of all people. Consequently, the public have the same rights in the waters of the lake (so far as unrestrained by statute) as they would have in game if not restricted by statutory provisions, and therefore defendant has a right, so long as the state does not interfere, to take ice from the lake. Laws 1897, c. 257; Lamprey v. State, supra; State v. Rodman, 58 Minn. 393, 400. Courts very generally treat water, oil, and natural gas as being, in a great measure, of the same nature as wild game, and the public and the state as having substantially the same rights in them. In the cases involving the right to take natural gas and oil the courts have held that one (committing no trespass, and being restrained by no statutory provision) lawfully might draw from the common source of supply -- might lawfully leave his neighbor's land "high and dry," though it formerly bordered (on its underside) on a lake of oil and gas. Peoples v. Tyner, 131 Ind. 277; Townsend v. State, 147 Ind. 624, 628; Westmoreland v. DeWitt, 130 Pa. St. 235, 247. The taking of ice is a public use, and every one is entitled to take ice in public waters as of common right so long as no trespass is committed in the taking, unless forbidden by statute. G.S. 1894, § 6640; Lamprey v. State, supra; Gould, Waters (2d Ed.) § 191; 9 Am. & Eng. Enc. 859; Inhabitants v. Stoddard, 7 Allen, 158, 170; Hittinger v. Eames, 121 Mass. 539, 546; Gage v. Steinkrauss, 131 Mass. 222; Peoples v. Davenport, 149 Mass. 322; Hickey v. Hazard, 3 Mo.App. 480; Wood v. Fowler, 26 Kan. 682, 689; Woodman v. Pitman, 79 Me. 456, 458.
Defendant being entitled of common right to take ice from the lake, the taking is lawful. If the taking damages plaintiff, it is damnum absque injuria. A landowner's riparian rights are subject to the rights of the public to use the waters for lawful purposes, and one making such use of the waters, in the absence of negligence, is not liable for damages resulting to the riparian estate from such use. Doucette v. Little Falls Imp. & Nav. Co., 71 Minn. 206; Coyne v. Mississippi & R.R. Boom Co., 72 Minn. 533.
The state alone can prosecute such an action as this. The remedy for an unreasonable use is by indictment. Inhabitants v. Stoddard, supra. No injury peculiar to plaintiff is shown, but an injury to him in common with other riparian owners. Every citizen has a like right of access as to the waters, from his own land or the public highway. Swanson v. Mississippi & R.R. Boom Co., 42 Minn. 532; Shaubut v. St. Paul & S.C.R. Co., 21 Minn. 502; Barnum v. Minnesota Transfer Ry. Co., 33 Minn. 365; Fay v. Salem, 111 Mass. 27.
The action cannot be sustained upon the ground that the defendant is making an unreasonable use of the water, because: (1) The complaint does not allege that defendant...
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