Schussler v. Board of Commissioners of Hennepin County
| Decision Date | 09 February 1897 |
| Docket Number | 10,229--(203) |
| Citation | 70 N.W. 6,67 Minn. 412 |
| Parties | PETER SCHUSSLER v. BOARD OF COMMISSIONERS OF HENNEPIN COUNTY |
| Court | Minnesota Supreme Court |
Appeal by defendant from a judgment of the district court for Hennepin county, in favor of plaintiff, entered in pursuance of the findings and order of Elliott, J. Affirmed.
Judgment affirmed.
A. H Nunn, Special Attorney for Hennepin County, for appellant.
Lake Minnetonka is a navigable body of water. Minnehaha creek is its outlet. It rises and falls with the waters of the lake and is virtually a part of the lake. The world is charged with notice that the lake is navigable, and that the waters of the creek are waters of that lake. Those buying land upon the lake buy subject to the right of the sovereign to control the waters absolutely within natural high-water mark regardless of the effect upon riparian owners. Likewise any person buying upon the outlet is charged with notice of its character. Any injury to such riparian owner is an injury of which he cannot complain. Morrill v. St. Anthony F. W. P Co., 26 Minn. 222, 2 N.W. 842; State v. Minneapolis Mill Co., 26 Minn. 231, 2 N.W. 839; Page v. Mille Lacs L. Co., 53 Minn. 492, 55 N.W. 608, 1119; Lamprey v. State, 52 Minn. 181, 53 N.W. 1139; Falls Mfg. Co. v. Oconto R. Imp. Co., 87 Wis. 134, 58 N.W. 257; Wisconsin R. Imp. Co. v. Manson, 43 Wis. 255; People v. Canal Appraisers, 73 N.Y. 443; Commonwealth v. Boston & M. R. Co., 3 Cush. 53; Treat v. Lord, 42 Me. 552; Fletcher v. Phelps, 28 Vt. 257; Gould, Waters, § 56; South Carolina v. Georgia, 93 U.S. 9. The complaint failed to allege that the construction of the dam was authorized by law, and the court finds that act was without authority. The county, therefore, is not liable for this act of its officers. Kreger v. Bismark Tp., 59 Minn. 3, 60 N.W. 675; Weltsch v. Town of Stark, 65 Minn. 5, 67 N.W. 648; Board of Commrs. v. Ball, 22 Colo. 125, 43 P. 1000; Board of Commrs. of Johnson Co. v. Hemphill, 42 N.E. 760; Town of Crandon v. Forest Co., 91 Wis. 239, 64 N.W. 847.
Young & Fish, for respondent.
The plaintiff was entitled to the natural flow of the stream. Gould, Waters, §§ 204-209, 402; St. Anthony F. W. P. Co. v. Minneapolis, 41 Minn. 270, 43 N.W. 56; Morrill v. St. Anthony F. W. P. Co., 26 Minn. 225, 2 N.W. 842; Pinney v. Luce, 44 Minn. 369, 46 N.W. 561. When an alteration in the natural conditions governing the flow is made by public authority, the same rule applies to the altered conditions. The status thus lawfully substituted becomes, in legal contemplation, the natural status. The dredging done pursuant to Sp. Laws 1873, c. 143, must be presumed to have been authorized for the general good. If it resulted in benefit to the plaintiff's grantors, their right to such benefit became vested, because they were a part of the public and helped to pay the cost. If the volume of the water in the creek was increased to their advantage, they have an unquestionable right to retain that advantage.
A municipal corporation is liable for negligence and for other torts committed by its officers. Towns and counties are liable for the improper exercise of powers which are within the general scope of their duties, but are not liable for mere neglect or failure to perform the duties imposed by law. The reason for the distinction is that the latter are involuntary organizations created by the state for its own purposes, while the former are voluntary organizations. This ground of distinction does not rest on sound principle, but upon the weight of authority. Altnow v. Town of Sibley, 30 Minn. 186, 14 N.W. 877; Snider v. St. Paul, 51 Minn. 466, 472, 53 N.W. 763. Whether a county or town is liable for damages arising from trespass or other active wrong done by its official board colore officii is an open question. Dosdall v. County of Olmsted, 30 Minn. 96, 14 N.W. 458; Gould v. Sub-District, 7 Minn. 145 (203); Bank v. Brainard, 49 Minn. 106, 51 N.W. 814.
The answer of the county is that the dam was built and maintained lawfully. Salt Lake City v. Hollister, 118 U.S. 256, 6 S.Ct. 1055; Thayer v. Boston, 19 Pick. 511.
The recovery in this action may rest upon the ground that this dam is a nuisance and that a public corporation has no right to maintain it. Dillon, Mun. Corp. § 374, note; Petersburgh v. Applegarth, 28 Grat. 321; Brayton v. Fall River, 113 Mass. 218; Harper v. Milwaukee, 30 Wis. 365; Franklin Wharf Co. v. Portland, 67 Me. 46; Hannibal v. Richards, 82 Mo. 330; Wood, Nuisance, § 742.
A. H. Nunn, for respondent, in reply.
The cases cited by counsel in support of the proposition that the municipal corporation is liable for the affirmative acts of its officers which are ultra vires are cases against municipal corporations proper, and do not apply to quasi municipalities, such as counties or towns. Mayor, etc., of Albany v. Cunliff, 2 N.Y. 165; Browning v. Board of Commrs., 44 Ind. 11; Rowland v. Gallatin, 75 Mo. 134; Spaulding v. Lowell, 23 Pick. 71; Schumaker v. St. Louis, 3 Mo.App. 297; Cuyler v. Trustees, 12 Wend. 165; Anthony v. Inhabitants, 1 Metc. (Mass.) 284.
The board of county commissioners of Hennepin county in the year 1893 erected a dam across Minnehaha creek, the natural outlet of Lake Minnetonka, and about 3 1/2 miles below said lake, under the supposed authority of Sp. Laws 1891, c. 381, for the purpose of raising and maintaining a uniform height of water in the lake, in aid of navigation. The plaintiff at the time of the erection of the dam, and for many years prior thereto, owned a piece of land about 3 1/2 miles below this dam, upon which he had erected and used a gristmill operated by the water of this stream; and, to this end, plaintiff had provided the necessary wheels, pond flumes, and raceway power, and, until interfered with by the defendant's erection of the dam, he was enabled to store and use the waters of this stream, by means of said pond and other facilities possessed by him, and whereby said mill was propelled and operated for his use and profit. The defendant erected said dam about five feet in height, and, ever since its erection, has maintained the same, whereby said stream has been obstructed and held back except at times when the stage of water in Lake Minnetonka is sufficiently high to flow over said dam. The dam so erected and maintained is five inches above the natural bed of the stream, and the sole purpose of defendant in erecting the dam and obstructing the natural flow of the stream was to hold back and retain the water in Lake Minnetonka for the purpose of increasing the volume of water therein, and maintaining a uniform quantity and stage of water in aid of navigation, the lake being an inland, navigable one.
The action is one to recover damages alleged to have been sustained by plaintiff by reason of the construction and maintenance of said dam, and for an injunction restraining and enjoining the defendant from maintaining the same so as to interrupt the natural flow of the water in the stream mentioned. The trial court, among its other findings of fact, also found:
"That the plaintiff, by reason of the construction and maintenance of the dam as above stated by the defendant, and the consequent obstruction of, and interference with, the natural and customary flow of the waters of said Minnehaha creek, has been deprived of the natural use of said waters, and is thereby subject to hindrance and great inconvenience in and about the operation of his said mill, to his damage in the sum of five hundred dollars."
And as conclusions of law:
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