Valentine v. Berrien Springs Water Power Co.

• Decision Date: 25 September 1901
• Citation: 128 Mich. 280,87 N.W. 370
• Court: Michigan Supreme Court
• Parties: VALENTINE, Pros. Atty., ex rel. DUDLEY v. BERRIEN SPRINGS WATER POWER CO. BERRIEN SPRINGS WATER POWER CO. v. HOFFMAN et al.

87 N.W. 370

128 Mich. 280

VALENTINE, Pros. Atty., ex rel. DUDLEY v. BERRIEN SPRINGS WATER POWER CO.

BERRIEN SPRINGS WATER POWER CO. v. HOFFMAN et al.

Supreme Court of Michigan

September 25, 1901

Error to circuit court, Berrien county; Erastus Peck, Judge.

Appeal from circuit court, Berrien county, in chancery; Erastus Peck, Judge.

Quo warranto by George M. Valentine, prosecuting attorney, on the relation of Gus M. Dudley, against the Berrien Springs Water Power Company, to determine the validity of a franchise and bill by the Berrien Springs Water Power Company against John U. Hoffman, impleaded with Charles A. Chapin and others. From judgment in favor of relator in the former suit, the respondent brings error, and in the latter suit complainant appeals. Reversed.

Fred A. Baker (Fred P. Delafield and O'Hara &amp O'Hara, of counsel), for respondent and appellant.

M. L Howell and G. M. Valentine, for relator and appellee.

Fred A. Baker (Fred P. Delafield and O'Hara &amp O'Hara, of counsel), for complainant and appellant.

Sam H. Kelley and M. L. Howell (Lawrence C. Fyfe, of counsel), for defendants and appellees.

LONG J.

On the 3d day of January, 1895, the board of supervisors of the county of Berrien granted the respondent, the Berrien Springs Water Power Company, a franchise to build a dam across St. Joseph river at Berrien Springs. The principal case here is an information in the nature of a quo warranto to determine the validity of this franchise. The information was filed in the circuit court of that county on April 30, 1900. It alleges a usurpation of the franchise by the respondent, and that 'said company claims the right to build, and is about to build, said dam.' The first plea of respondent sets forth the action and proceedings of the board of supervisors making the grant exactly as it appears of record on the journal of the board. The dam was to have a height of 16 feet. The second plea sets forth the record of the proceedings of that board supplementary to and amendatory of the original grant, increasing the height of the dam to 20 feet. The relator filed a demurrer to these pleas containing 26 special causes of demurrer to the effect that both the original and supplementary grants are illegal and void. The case was heard on demurrer before Judge Peck of the Jackson circuit, who sustained the demurrers, and entered judgment of ouster. The respondent brings error. In the case of Berrien Springs Water Power Company against John U. Hoffman and others the bill was filed to protect the complainant in the enjoyment of the franchise granted by the said board of supervisors. Defendant Hoffman filed a demurrer to this bill. The demurrer raised the question whether the grant by the board of supervisors is legal and valid, and also the question whether, under the facts stated in the bill, the complainant is entitled to any equitable relief against the defendants. The case was heard in the court below on the demurrer with the quo warranto proceedings, most of the questions being the same in both cases. In the chancery case the court also sustained the demurrer. The complainant appeals from that decree. The two cases will be discussed here together.

The court below held substantially: (1) That the statute under which the Berrien Springs Water Power Company was organized does not apply to navigable rivers, and that St. Joseph river is navigable. (2) That, if the statute be given the scope claimed for it be the complainant, viz. to authorize a corporation organized under it to dam a navigable river, and furnish the water to other persons or companies on such rental as might be agreed upon by and between it and those desiring to obtain the water, the law would be unconstitutional, as it provides no protection and safeguard for those who might thereafter desire to navigate the river, no method of determining the proper charges to be made for water, and no limitation beyond which complainant might extend its charges. (3) That the board of supervisors did not acquire jurisdiction to grant leave to construct a 20-foot dam, because notice of the application for such construction was not published as the law requires. (4) That no individual or company, even if authorized by the state, could construct the dam until empowered to do so by the United States.

We think the court was in error in sustaining these demurrers. Section 4, art. 18, of the constitution of this state, provides: 'No navigable stream in this state shall be either bridged or dammed without authority from the board of supervisors of the proper county under the provisions of law. No such law shall prejudice the right of individuals to the free navigation of such streams or preclude the state from further improvement of the navigation of such streams.' The legislature, by Act No. 156, Laws 1851, provides that boards of supervisors should have power within their respective counties to permit or prohibit the construction or maintenance of any dam or bridge over or across any navigable stream. Section 21 of this act was amended at the same session, and section 22 was amended by Act No. 129 at the session of 1873. The act, as amended, will be found in the margin. ^[1] It is contended by counsel for the water power company that the characteristic features of the constitutional provisions and of this legislation are: (1) That under the constitution a franchise to dam or bridge a navigable river cannot be granted by the legislature except with the consent and approval of the board of supervisors of the proper county; such consent and approval to be given under such statutory regulations as the legislature may prescribe. (2) That the provision of the constitution that 'no such law shall prejudice the right of individuals to the free navigation of such streams' does not mean that the navigability of the streams may not be obstructed by bridges without draws or dams without locks; that all it means is that no exclusive rights to navigate the streams shall be granted, and that, so far as they are navigable, they shall be public highways, open to use by all the world. (3) That the statutory regulations make no distinction between persons, or between persons and corporations, or between corporations; that boards of supervisors are given power to grant franchises to bridge or dam any navigable river to any person whosoever or to any corporation whatsoever; that a grant can be made to any corporation, and if it has no use for the franchise under its corporate powers or business it may assign and transfer the grant to some person or corporation that has use for it; that private corporations can be organized in Michigan only under general laws, the policy of the state being to give every one an equal right to have and enjoy corporate franchises; that this policy is so clearly expressed in the constitution, and has been so thoroughly sustained by the supreme court of the state, that there is no occasion to cite authorities in its support. (4) That the statutory regulations do make an important distinction between navigable rivers. If the stream is not capable of being navigated with a vessel of 15 tons burden, no public notice or public hearing is necessary when a grant is made by the supervisors to build a bridge across it either with or without a draw; in other words, that such a stream may have a barrier built across it in the shape of a bridge without any public hearing before the board of supervisors.

In Shepard v. Gates, 50 Mich. 497, 15 N.W. 879, Mr. Justice Campbell, speaking of this statute and of the constitutional provision in relation to this subject, said: 'The objection that no authority had been given by the board of supervisors to build the bridge would have required attention if it did not appear that this branch of the Au Gres was only used for floating logs, and does not appear to have been adapted, in its natural condition to any valuable boat or vessel navigation. The clause in the constitution providing that 'no navigable stream in this state shall be either bridged or dammed without authority from the board of supervisors of the proper county, under the provisions of law,' has been understood as adopted in furtherance of the policy of the ordinance of 1787, which stipulated that 'the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free,' etc. Ordinance 1787, art. 4. That has been considered as referring to navigation in its proper sense by some sort of boats used as means of carriage. At the date of the ordinance the largest part of the carrying trade of the Northwest was conducted in moderate-sized boats, and the cargoes, and sometimes the boats themselves, were taken across the portages or carrying places dividing one stream or stretch of navigable waters from another. The legislature of 1851 so construed the constitution by confining the necessity of special leave from the supervisors for constructing bridges to streams navigable by boats or vessels of fifteen tons burden or more, while the supervisors were authorized to make general regulation in regard to shallower streams. Act No. 156 of 1851, �� 23, 24. In the absence of anything appearing to the contrary, we do not think that a bridge which does not interfere with convenient floatage can be regarded as having been built illegally in completing this highway.' The Berrien Springs Water Power Company was incorporated under Act No. 202, Pub. Acts 1887. This act granted the right to organize water power companies, giving such corporations the right to all the franchises and powers conferred by the act, or by the general provisions of the statutes relating to corporations. The articles of association...