State v. Beardsley

• Decision Date: 16 May 1899
• Citation: 108 Iowa 396,79 N.W. 138
• Parties: STATE v. BEARDSLEY.
• Court: Iowa Supreme Court

108 Iowa 396

79 N.W. 138

STATE

v.BEARDSLEY.

Supreme Court of Iowa.

May 16, 1899.

Appeal from district court, Mahaska county; A. R. Dewey, Judge.

The defendant is the owner of about 100 acres of land, through which flows Skunk river. The defendant is now, and has been for some years, maintaining a dam across said river, on his premises, in a way to obstruct the free passage of fish up and down said river; and he has neglected, and still neglects and refuses, to construct and maintain over or across said dam a fishway for the passage of fish up and down said river. This action is brought to have a dam adjudged a nuisance and have the same abated. The issues present several propositions, which will be noticed in the proper connection. The district court gave judgment for defendant, and the state appealed. Reversed.Milton Remley, Atty. Gen., James Carroll, B. W. Preston, and J. F. & W. R. Lacey, for the State.

L. C. Blanchard, for appellee.

GRANGER, J.

1. The action was commenced in September, 1895, by the filing of the petition, with “Carroll, Lacey, and Preston, attorneys for plaintiff.” The answer was filed October 1, 1895, and one division of it is that “the parties commencing this action have no right or authority to commence or prosecute this action, that they have no power or authority to represent the state, and that this action can only be prosecuted by the attorney general or other proper state officers.” The point is now urged in argument. It is not doubted that the state is the proper party; the controversy being as to the attorneys who first appeared for the state,--the thought being that the attorneys are the parties prosecuting. The question, it seems to us, must turn on whether the attorneys have authority to appear, as such, for the state; and whether they have such authority or not is a question of fact, for, as the averment is in the answer, in the nature of an affirmative defense or plea, it is denied by operation of law, and, before the suit could be abated for want of such authority, the fact must be made to appear, and no further attention seems to have been given the question. We must say, however, that it is doubtful if a suit could be abated, or even delayed, by such a presentation of the question of the authority of the attorneys to bring suit in the name of a party, because of a specific provision of the Code of 1873, under the provisions of which this proceeding was commenced and tried. Section 214 of that Code is as follows: “The court may on motion for either party and on the showing of reasonable grounds therefor, require the attorney for the adverse party or for any one of the several adverse parties, to produce, or prove by his own oath or otherwise, the authority under which he appears, and, until he does so, may still all proceedings by him on behalf of the parties for whom he assumes to appear.” We think this statute is designed as the exclusive method of testing the authority of attorneys to appear in behalf of clients. It is also to be said that the attorney general afterwards appeared in the case and is now of counsel for the state.

2. The following are provisions of chapter 188, Laws 17th Gen. Assem.: “The owner or owners of any dam or obstruction across any river or stream, creek, pond, lake or water course in this state, shall, within a reasonable time, erect, construct and maintain, over or across said dam or obstruction, a fishway of suitable capacity and facility to afford a free passage for fish up and down and through said water course when the water of said stream is running over the dam.” “Any dam or obstruction mentioned in section 1 of this act, not provided with such a fishway within a reasonable time after the taking effect of this act, is hereby declared a nuisance, and may be abated accordingly.” It is said by appellee that the defendant and his grantors have owned the land and maintained the dam for more than 23 years, and that the act above quoted is unconstitutional, in that it deprives the defendant of his property without process of law, and also because private property is taken for public use without just compensation. The question of the constitutionality of such laws is not a new one in this country. It may be conceded that the authorities on the question are not without conflict. Whether or not the law contravenes either provision of the constitution depends on whether the acquisition of rights by the purchase of the land and the erection of the dam was without a reservation by the public to legislate in respect to the preservation of fish by the passage of such a law. The rights of the riparian owner on unnavigable streams is a subject that has been much considered by the courts, and in some respects the conclusions are harmonious, such as to the use of the water, and the exclusive right to take fish from the stream on his own land; it being the law that such an owner, if owning on both sides, has title to the banks and the bed of the stream, and, if the stream is the boundary, then to the center thread of the stream. It is well-settled law that one riparian owner has not the right to so use the stream as to unreasonably deprive other riparian owners of rights common to all. It has ever been the law that riparian owners, when taking title from the public, do so with limitations in the public interests. They do not own the stream, but, by virtue of ownership of the soil, have the right to use the water passing over or through it, with limitations on such use. These limitations are to protect what have always been regarded as public rights or interests. Streams flowing through the country are not alone the heritage of riparian owners. They pass over and along our public highways, and through our cities and towns, where the general public have access to them, and have rights in relation thereto that no one would think of questioning. These rights so pertain to the public health, convenience, and comfort, that the cause of their loss by personal interference would amount to a public nuisance. Fish and game are so related to the public welfare that they have, time out of mind, been the subjects of legal control, and their preservation has been very generally a matter of legislative concern. Chapter 15 of title 12 of our present Code is a practical illustration of legislative thought on the subjects of fish and game,--as to the public interest therein and their utility. These laws, if enforced, are of manifest abridgement of otherwise legal rights of the owners of the soil in taking fish and game thereon, and, except perhaps as to specific details, they meet with universal approval. These considerations are valuable in considering the inherent right of the owner of the soil to so use it as to impair such a public interest. In Com. v. Essex Co., 13 Gray, 247, Chief Justice Shaw used this language: “It seems to be well settled that the obstruction of the passage of the annual migratory fish through the waters and streams of the commonwealth is not an indictable offense at common law; but the right to have these fish pass up the rivers and streams, to the head waters thereof, is a public right, and subject to regulation by the legislature.” Because of the court from which it emanates, we copy from an opinion by the supreme court of the United States in Holyoke Co. v. Lyman, 15 Wall. 500, as follows: “Rivers though not navigable even for boats or rafts, and even smaller streams of water, may be,...