State ex rel. Trimble v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 08 January 1915
• Citation: 150 N.W. 463,28 N.D. 621
• Court: North Dakota Supreme Court
• Parties: STATE ex rel. TRIMBLE et al. v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

28 N.D. 621

150 N.W. 463

STATE ex rel.TRIMBLE et al.

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Nov. 2, 1914.

On Rehearing, Jan. 8, 1915.

Syllabus by the Court.

Mandamus will not lie at the suit of a drainage commission appointed and created under the provisions of chapter 23, Rev. Codes 1905, §§ 1818-1850, to compel a railway company to remove a bridge from an unnavigable stream, merely that a contractor, appointed by the commissioners to improve such stream in order to drain adjacent lands, may proceed with his work by navigating his dredges and flatboats along said stream and past said bridge.

A railway company which builds a bridge across an unnavigable stream must, however, accommodate itself to and provide for the undisturbed passage along said stream of all of the water which is or may be reasonably anticipated to drain therein, and this duty is a continuing duty.

On Rehearing.

A finding of fact by the trial court in a mandamus proceeding will, if supported by at least some creditable testimony, not be set aside by the Supreme Court on appeal.

Appeal from District Court, Bottineau County; Burr, Judge.

Mandamus by the State, on the relation of John H. Trimble and others, constituting the joint Board of Drain Commissioners of Bottineau and McHenry Counties, against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, a corporation, to compel the removal of a bridge from an unnavigable stream. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

This is an action in mandamus to compel the defendant to remove its bridge from the channel of the Mouse river. The relators, who are the respondents on this appeal, are members of the drainage board of Bottineau and McHenry counties. They are engaged in opening the Mouse river under the drainage laws of this state. The work of cleaning out and dredging the stream is being done by the “France Dredging & Construction Company” and by means of a steam dredge which is floated in the channel of the stream. The defendant owns a right of way 100 feet wide which crosses the said stream, and upon which in 1905 it constructed a track, and since that time has been operating its trains. At this crossing of the above river and on the above land, the defendant constructed a trestle or bridge about 1,300 feet in length. The dredge will not pass under the bridge. The plaintiffs have obtained no right to go upon the defendant's premises by purchase or condemnation and have no right of entry unless it is given them by statute or the common law. The plaintiff prosecuted these proceedings by mandamus in which, among other things, it is alleged:

“That said trestle and bridge is built upon piles and timbers driven into and sunk in the bed of said river; that said trestle and bridge so built as aforesaid is now owned, controlled, and operated by the said defendant as a part of its said line and as the means and method of crossing said river; that the said piles and timbers so placed, sunk, and driven in said river and the bed thereof constitute an obstruction to the flow of said stream, diminish its fall and current causing deposits of sediment and material in the bed thereof, and materially interferes with, obstructing, and diminishes the drainage of the territory tributary thereto by said river.”

It further alleges:

That the work of deepening the channel is “done by means of large steam dredges located and constructed on large flatboats which float in the channel of said stream, and that in connection therewith the contractors used houseboats for the boarding of their men, and steamboats to carry provisions, fuel, and supplies and to move the said dredges. That the said work began at the southern point and at a point south of the said bridge so constructed, owned, and maintained by the defendant herein. That, in the performance of said work, said dredges and boats are working north, and it is necessary to pass the said bridge and also to excavate, widen, deepen, and straighten the channel of the river at said bridge. That said work cannot be done, nor can said boats pass down said Mouse river without the removal of said bridge.”

The petition therefore prayed that the defendants be compelled to remove the bridge at its own expense. The facts in the case which are found by the trial court, and which seem to be conceded by both parties, are as follows: The Mouse river enters the United States from Canada, and after running south turns north and re-enters Canada, and its waters finally reach Hudson Bay. It is a natural water course, furnishing natural drainage for portions of Bottineau and McHenry counties. It is nonnavigable, but runs the entire year. Its normal depth in the bed of the stream is from one to six feet. It is winding, runs through a level country, and is not subject to sudden freshets or increase of volume, and its current is about a quarter of a mile per hour. The bridge was constructed by the railway company in 1905, and rests upon piles driven into the river or its adjacent banks. All of the land upon which the bridge is constructed and all of the land on which it bridges the river is owned in fee by the railway company. The bridge consists of piling and a superstructure which consists of stringers laid on caps on the top of piles, which said stringers support the ties, rails, and other materials and substances which may be called the superstructure and constitutes the roadway proper. That the piles forming the support of the superstructure are set in rows of five each, the rows being 14 feet and 6 inches apart. They are driven 22 feet into the ground. The greatest depth of water in the stream under the bridge is approximately 4 feet; the stream under the bridge is approximately 125 feet wide. It is 11 1/2 feet from the surface of the water to the bottom of the superstructure. The bridge and trestle is 199 feet and 9 inches long. One hundred feet of it must be removed to permit the dredge to pass through. Six rows of piling will have to be taken out. The estimated cost of the drainage improvement will be $141,827.84. The estimated benefits are $342,539.44. The improvement will restore to cultivation approximately 125,000 acres of land which are practically valueless for want of drainage. This land, when drained, will be worth from $50 to $100 per acre. The work contemplates only draining such land as naturally drains into the Mouse river, and the sole and only purpose of such work and improvement is to create and maintain such a current in the stream as will promptly carry off the water naturally draining therein. The drainage board contracted with the France Dredging & Construction Company for doing the work in accordance with the plans and specifications of the engineer. The proposed drain is 42 miles long. The work is being done by means of a large steam dredge located on flatboats which float in the channel of the stream. Work was commenced south of the bridge, and the contractors are working north. It will be necessary to pass defendant's bridge to complete their work north of it under their contract if this method is pursued; this method being the only practicable and least expensive one taking into consideration the magnitude of the work. The earth excavation from defendant's roadway and under its bridge can be had at an expense of $500 by using men on small boats or wading in the channel. The six rows of piling in the channel and the sawed off piles can be removed and other piling put in which will conform to the engineer's requirements at an expense of $700. The superstructure can be removed and replaced upon the piling for $800. The dredge can be moved from one side of the bridge to the other after taking down and removing the superstructure as well as the pilings and support. It would cost about $5,000 to take the dredge apart and remove it to the north side.

The superstructure of the bridge has never obstructed the natural water flow. It is supported by 87 rows of piling, which leave a large opening underneath so that all the water in the river has always passed under it without interference other than by the rows of piling. The additional flowage resulting from the proposed improvement will flow under the superstructure without interference therefrom. The defendant has now six rows of piling upon the 100-foot strip which will constitute the proposed new channel, which have been cut off about the surface of the water. It will cost the drainage board about $50 to remove this abandoned piling which constitutes an obstruction to the opening of the channel as provided in the engineer's plan. Its removal is necessary to obtain the flow which the plans contemplate.

These facts seem to be conceded. The only facts, indeed, which seem to be in dispute, are those covered by the fifth finding of the trial court, which is as follows:

“That said trestle and bridge, including the piles and other timbers thereof, sunk, driven, or extending into or through the water and into the bed of the Mouse river, constitute, are now, and have been, since their construction, an obstruction and obstacle to the flow of said stream, and by reason thereof have impeded and diminished the natural drainage accomplished thereby; that they retard and restrain the ice in the spring of the year, and by reason whereof there is deposited considerable amounts of dirt, silt, and débris in the bed of said stream, thereby further obstructing the flow thereof and impairing its usefulness for drainage purposes.”

Watson & Young, of Fargo, and Geo. A. Kingsley, of Minneapolis, Minn., for appellant. Bangs & Robbins, of Grand Forks, for respondents.

BRUCE, J. (after stating the facts as above).

[1] We have carefully examined the evidence as to the fifth finding, and are fully satisfied that the obstruction furnished by the bridge is negligible. T. R. Atkinson, the State Engineer who made the original survey and who...