Weaver v. Mississippi & Rum River Boom Co.

• Decision Date: 24 December 1881
• Citation: 28 Minn. 534
• Parties: JAMES WEAVER <I>vs.</I> MISSISSIPPI & RUM RIVER BOOM COMPANY. (1st Case.)
• Court: Minnesota Supreme Court

28 Minn. 534

JAMES WEAVER vs. MISSISSIPPI & RUM RIVER BOOM COMPANY. (1st Case.)

Supreme Court of Minnesota.

December 24, 1881.

Plaintiff, as the owner of certain land bordering on the Mississippi river, brought this action in the district court for Hennepin county, to recover damages of defendant for its wrongful acts, (1) in unlawfully taking and carrying away from such land a large quantity of stone; (2) in constructing and maintaining in the Mississippi river, and upon land of the plaintiff, stone piers, whereby a large part of the main body of the river has been diverted from its natural channel, and turned over and upon plaintiff's land, greatly damaging the same, by overflowing it and depositing upon it large quantities of sand, mud and other material, destroying thereby its agricultural value, and by washing out and tearing away large portions of the bank; and (3) in unlawfully entering upon and occupying, and continuing so to occupy, such land of plaintiff, with several million feet of logs and other material. Plaintiff also asked that defendant be enjoined from any further use of, or interference with, his land.

The answer alleges the incorporation of defendant under various acts of the legislature, (Laws 1857, Ex. Sess. c. 60; Sp. Laws, 1862, c. 86; Sp. Laws 1867, c. 134; Sp. Laws 1868, c. 120; Sp. Laws 1877, c. 175;) admits plaintiff's ownership of the land in question, denies the taking of any stone therefrom, and denies the construction and maintenance of any such piers as are complained of, or any piers causing damage to plaintiff's land. The answer further alleges that for more than fifteen years, the defendant, in performance of its duties under the acts of the legislature, has constructed and maintained booms for logs in the Mississippi river, between the mouth of Crow river and the head of Nicollet Island, including the boom which is opposite the lands of plaintiff, and which is constructed in connection with several islands, owned by defendant, situate in the channel, and is extended to the shore opposite to, and to a point about a half of a mile below, plaintiff's lands; that all piers constructed by defendant near or opposite plaintiff's lands are below

low-water mark and connected with this boom; that during the said fifteen years, defendant has yearly cared for, managed, run and navigated, within its boom limits, many millions of feet of logs owned by various owners, and that, to preserve such logs from the ordinary perils of such navigation, and from the danger of being swept and carried away by floods and freshets, requires a large number of safe and secure harbors for logs; and that the boom opposite plaintiff's lands is one of the principal of such harbors, has been so maintained and used by defendant for more than fifteen years, and, if defendant should cease to so maintain and use such boom, the safety of such logs would be greatly endangered, and the interests of all persons owning and navigating logs in said river will be greatly jeopardized. The answer also denies possession of, or entry upon, plaintiff's lands, and sets up a lease of the same from plaintiff, which expired at the time of the alleged entry.

The case was tried by Vanderburgh, J., and a jury, who found, upon the special issues submitted to them by the court, (1) that defendant took and carried away stone of the value of $75; (2) that defendant has unlawfully entered upon and occupied, and continued to occupy, the lands of plaintiff, to his damage, $500; and (3) that "a portion of the water in the main body of the Mississippi river" has "been turned over and upon the lands of said plaintiff, * * * by reason of the erection and construction" of a "dam by said defendant upon said lands, or in the Missisippi river opposite said lands," to plaintiff's damage, $70. Judgment was ordered for plaintiff, in accordance with these findings, and "enjoining the said defendant from further occupying, trespassing upon or interfering with said plaintiff's land through the operation and maintenance of the boom in question." A new trial was refused, and the defendant appealed.

Lochren, McNair & Gilfillan, for appellant.

Rea, Wooley & Kitchel, for respondent.

MITCHELL, J.^*

No principle is more fully implanted in American constitutional law than that private property shall not be taken for public use without compensation; and, in view of the fact that the government is granting so much of its prerogative franchise to private or quasi public corporations, in theory for public purposes, but often practically in part for private benefit, the exercise of which involves injury to, or the taking of, private property, there is no constitutional guaranty that requires to be more jealously guarded against encroachment than the one referred to.

The state itself cannot take private property for a public use without making compensation therefor, and consequently cannot grant such power to any one else. It cannot do so under the plea of improving the navigation of a public river any more than any other public purpose. Riparian owners upon a public watercourse did not acquire and do not hold their property burdened by any such reservation or implied right on the part of the state. Undoubtedly, like every other person, they hold their property subject to the right of the state to take it by paying for it whenever it becomes necessary for a public purpose; and it must rest in the wisdom of the legislature to determine when such necessity exists. The improvement of the navigation of a public river is a public purpose. The floating or rafting of logs upon a public stream is a legitimate use of it as a highway, and the taking of property bordering upon the Mississippi river for boom purposes, in order to improve and utilize the river for that purpose, may be a taking for public use. This court so held in Cotton v. Miss. & Rum River Boom Co., 22 Minn. 372.

But private property cannot be taken without...