State of North Dakota v. State of Minnesota, 10

• Decision Date: 10 December 1923
• Docket Number: No. 10,10
• Citation: 44 S.Ct. 138,68 L.Ed. 342,263 U.S. 365
• Parties: STATE OF NORTH DAKOTA v. STATE OF MINNESOTA
• Court: U.S. Supreme Court

263 U.S. 365

44 S.Ct. 138

68 L.Ed. 342

STATE OF NORTH DAKOTA

v STATE OF MINNESOTA.

No. 10.

Argued March 12 and 13, 1923.

Decided Dec. 10, 1923.

Messrs. M. H. Boutelle and John Lind, both of Minneapolis, Minn., and I. C. Pinkney, of Peoria, Ill., for the State of North Dakota.

[Argument of Counsel from pages 366-368 intentionally omitted] Messrs. M. J. Brown, of St. Paul, Minn., Charles R. Pierce, of Washington, D. C., Charles E. Houston, of Wheaton, Minn., Clifford L. Hilton and Egbert S. Oakley, both of St. Paul, Minn., and John E. Palmer, of Minneapolis, Minn., for the State of Minnesota.

[Argument of Counsel from pages 369-371 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a bill in equity exhibited by the state of North Dakota against the state of Minnesota. The bill avers that the latter state has, by constructing cut-off ditches and straightening the Mustinka river, increased the speed and volume of its flow into Lake Traverse, and thereby raised the level of the lake, causing its outlet, the Bois de Sioux river, to overflow and greatly to injure a valuable farming area in North Dakota lying on the west bank of that stream. The damage to the complainant in destruction of roads and bridges is alleged to be $5,000, and the damage to owners of the farms in destruction of crops and injury to the arable quality of their land, to be more than $1,000,000. A further allegation is that the ditch is likely at every period of high water to cause overflows as injurious as those complained of. The prayer is for an order enjoining the continued use of the ditches and a decree against the state of Minnesota for the damages sustained by the complainant state and its farmers. Minnesota in her answer admits the construction of the ditches for drainage and sanitation, but denies that they caused the overflow complained of, and avers that the flooding was due to unusual rainfall in the successive years of 1914, 1915, and 1916.

One owning land on a water course may by ditches and drains turn into it all the surface water that would naturally drain there, but he may not thus discharge into the water course more water than it has capacity to carry, and thus burden his lower neighbor with more than is reasonable. In such cases, the injured party is entitled to an injunction. Jackman v. Arlington Mills, 137 Mass. 277; McKee v. Delaware Canal Co., 125 N. Y. 353, 26 N. E. 305, 21 Am. St. Rep. 740; Noonan v. Albany, 79 N. Y. 470, 35 Am. Rep. 540; McCormick v. Horan, 81 N. Y. 86, 37 Am. Rep. 479; Merritt v. Parker, 1 N. J. Law, 460; Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; Mayor v. Appold, 42 Md. 442; Baldwin v. Ohio Tp., 70 Kan. 102, 78 Pac. 424, 67 L. R. A. 642, 109 Am. St. Rep. 414; 1 Farnham on Waters, § 488, p. 1633; Gould on Waters, § 274.

If one state by a drainage system turns into an interstate river water in excess of its capacity, and floods its banks in another state, and thus permanently and seriously injures valuable farm lands there, may the latter state have an injunction in this court?

The jurisdiction and procedure of this court in controversies between states of the Union differ from those which it pursues in suits between private parties. This grows out of the history of the creation of the power, in that it was conferred by the Constitution as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force. The jurisdiction is therefore limited generally to disputes which, between states entirely independent, might be properly the subject of diplomatic adjustment. They must be suits 'by a state for an injury to it in its capacity of quasi sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air of its domain.'

'When the states by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi sovereign interests, and the alternative to force is a suit in this court.' Georgia v. Tennessee Copper Co., 206 U. S. 230, 237, 27 Sup. Ct. 618, 619 (51 L. Ed. 1038, 11 Ann. Cas. 488).

In accord with this principle, this court has entertained a suit by one state to enjoin the deposit by another state, in an interstate stream, of drainage containing noxious typhoid germs because dangerous to the health of the inhabitants of the former. Missouri v. Illinois, 180 U. S. 208, 241, 21 Sup. Ct. 331, 45 L. Ed. 497; Id., 200 U. S. 496, 518, 26 Sup. Ct. 268, 50 L. Ed. 572. It has assumed jurisdiction to hear and determine a bill to restrain one state from a diversion of water from an interstate stream by which the lands of a state lower down on the stream may be deprived of the use of its water for irrigation in alleged violation of the right of the lower state. Kansas v. Colorado, 185 U. S. 125, 141, 143, 22 Sup. Ct. 552, 46 L. Ed. 838; Id., 206 U. S. 46, 95, 27 Sup. Ct. 655, 51 L. Ed. 956. In Wyoming v. Colorado, 259 U. S. 419, 464, 42 Sup. Ct. 594, it granted relief to one state to prevent another from diverting water from an interstate stream to the injury of rights acquired through prior appropriations of the water by landowners of the former state under the doctrine of appropriation recognized and administered in both states. In Georgia v. Tennessee Copper Co., supra, it enjoined in behalf of a state the generation and spread of noxious fumes by a factory in another state, because it was a public nuisance in destroying crops and forests within the borders of the former state. In Pennsylvania v. West Virginia, 262 U. S. 553, 592, 43 Sup. Ct. 658, 67 L. Ed. 1117, at the suit of one state, this court has enjoined another state from enforcing its statute by which the flow of natural gas in interstate commerce from the latter state was forbidden, to the threatened loss and suffering of the people of the suing state who had become dependent for comfort and health upon its use. It needs no argument, in the light of these authorities, to reach the conclusion that, where one state by a change in its method of draining water from lands within its border increases the flow into an interstate stream, so that its natural capacity is greatly exceeded and the water is thrown upon the farms of another state, the latter state has such an interest as quasi sovereign in the comfort, health, and prosperity of her farm owners that resort may be had to this court for relief. It is the creation of a public nuisance of simple type for which a state may properly ask an injunction.

In such action by one state against another the burden on the complainant state of sustaining the allegations of its complaint is much greater than that imposed upon a complainant in an ordinary suit between private parties.

'Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one state at the suit of another, the * * * invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.' New York v. New Jersey, 256 U. S. 296, 41 Sup. Ct. 492, 65 L. Ed. 937; Missouri v. Illinois, 200 U. S. 496, 521, 26 Sup. Ct. 268, 50 L. Ed. 572.

North Dakota, in addition to an injunction, seeks a decree against Minnesota for damages of $5,000 for itself and of $1,000,000 for its inhabitants whose farms were injured and whose crops were lost. It is difficult to see how we can grant a decree in favor of North Dakota for the benefit of individuals against the state of Minnesota in view of the Eleventh Amendment to the Constitution, which forbids the extension of the judicial power of the United States to any suit in law or equity prosecuted against any one of the United States by citizens of another state or by citizens and subjects of a foreign state. The evidence discloses that nearly all the Dakota farm owners, whose crops, lands, and property were injured in these floods, contributed to a fund which has been used to aid the preparation and prosecution of this cause. It further appears that each contributor expects to share in the benefit of the decree for damages here sought in proportion to the amount of his loss. Indeed, it is inconceivable that North Dakota is prosecuting this damage feature of its suit without intending to pay over what it thus recovers to those entitled. The question of the power of this court in such a case was very fully considered in New Hampshire v. Louisiana, 108 U. S. 76, 2 Sup. Ct. 176, 27 L. Ed. 656. There citizens of one state held bonds of another state, payment of which was in default. The holders assigned the bonds to their state, which as assignee brought an action in this court to recover a decree for the amount due against the obligee in the bonds. The law of the suing state authorizing the suit provided that on recovery the money should be turned over to the assignors, less the expenses of the litigation. Recovery was held to be forbidden by the Eleventh Amendment and the bill was dismissed. It was argued that as a sovereign the state might press the claims of its citizens against another state, but it was answered by this court that such right of sovereignty was parted with by virtue of the original Constitution in which as a substitute therefor, citizens of one state were permitted to sue another state in their own names, and that when the Eleventh Amendment took away this individual right, it did not restore the privilege of state sovereignty to press such claims. The right of a state as parens patriae to bring suit to protect the general comfort, health, or property rights of its inhabitants threatened by the proposed or continued action of another state by prayer for injunction is to be differentiated from its lost power as a sovereign to present and enforce...