St. Anthony Falls Water-Power Company v. Board of Water Commisioners of City of St. Paul Minneapolis
These actions were brought in a district court of the state of Minnesota, by the respective plaintiffs in error against the defendant in error, for the purpose of recovering damages for injury to their alleged rights as riparian owners and otherwise, at St. Anthony falls, on the Mississippi river, and also for a perpetual injunction enjoining the defendant in error from diverting the waters above so as to prevent them from flowing in their natural course in the Mississippi river and down to the water power of the plaintiffs in error respectively.

The plaintiff in error the St. Anthony Falls Water-Power Company was incorporated by an act of the territory of M nnesota approved on the 26th day of February, 1856. The first eight sections of the act relate to the incorporation of the company and to its internal affairs. The ninth section reads as follows:

'Sec. 9. The said corporators are hereby authorized for the purpose of the improvement of the water power above and below the falls of Saint Anthony, in the Mississippi river, to maintain the present dams and sluices, and construct and maintain dams, canals and water sluices, erect mills, buildings or other structures for the purpose of manufacturing in any of its branches, or improving any water power owned or possessed by said company, in such manner or to such extent as shall be authorized by the directors of said company, and may construct dams on the rapids above or below the falls of Saint Anthony, with side dams, sluices and all other improvements in the Mississippi river, upon the property owned or to be owned by said corporators, which may be necessary for the full enjoyment of the powers herein granted: provided, however, that said corporation shall give a free passage for all loose logs that are to be manufactured on Hennepin or Cataract islands, or between them on the falls through any dam or dams they may erect, on the west side of Nicollet or Hennepin islands, and the passage through the pond, above said dam, shall, when needed, be twenty feet wide: provided, that nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights of property of any other person or persons whatever.'

The Minneapolis Mill Company was also incorporated by an act of the legislature of the territory of Minnesota approved February 27, 1856, the ninth, eleventh, and twelfth sections of which read as follows:

'Sec. 9. The said corporators are hereby authorized, for the purpose of the improvement of the water power above and below the falls of St. Anthony in the Mississippi river to maintain the present dams and sluices, and to construct dams, canals and water sluices, erect mills, buildings, or other structures for the purpose of manufacturing in any of its branches, or improving any water power owned or possessed by said company, in such manner and to such extent as shall be authorized by the directors of said company, and may construct dams on the rapids above or below the falls of St. Anthony, with side dams, sluices and all other improvements in the Mississippi river which may be necessary for the full employment of the powers therein granted.'

'Sec. 11. This act shall take effect and be in force from and after its passage, and may be amended by any subsequent legislative assembly, in any manner not destroying or impairing the vested rights of said corporators: provided, that nothing herein contained shall be so construed as to authorize said corporation to interfere with the rights or property of any other person or persons whatever.

'Sec. 12. Provided further, that nothing contained in the act entitled an act to incorporate the St. Anthony Falls Water Power Company shall be so construed as to allow the said St. Anthony Falls Water Power Company to maintain or construct dams or sluices extending beyond the center of the channel of the Mississippi river from the western bank of Hennepin island, and said St. Anthony Falls Water Power Company are hereby restricted in the exercise of powers and privileges granted by the ninth section of said act to the space between the western bank of said island and the center of said river: provided, the said dam shall always be provided with suitable slides and sluices, so as to admit the passage of logs and timber down the Mississippi river, and that any future legislature may amend or modify this act, or the act to which this section is amendatory: and, provided further, that the Minneapolis Mill Company shall be restricted in its operations to the center of the main channel of the Mississippi river and to the property belonging to said company.'

By the second section of the act of congress approved February 26, 185  (11 Stat. 166, c. 60), authorizing the people of the territory of Minnesota to form a state constitution, etc., it was enacted 'that the said state of Minnesota shall have concurrent jurisdiction on the Mississippi and all other rivers and waters bordering on the said state of Minnesota, so far as the same shall form a common boundary to said state and any other state or states now or hereafter to be formed or bounded by the same; and said river and waters, and the navigable waters leading into the same, shall be common highways, and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost or toll therefor.'

Section 2, art. 2, of the constitution of Minnesota, has the same provision for the jurisdiction of the state over the Mississippi and other rivers and waters bordering on the state as is provided for in section 2 of the above act of congress.

The complaints in the two cases are substantially similar, the two companies owning on different sides of the Mississippi river at about the same point, and the complaint in the case of the Minneapolis Mill Company contained the following, among other, allegations: It alleged the incorporation of the plaintiff in error, under the acts above mentioned, and also the incorporation of the defendant pursuant to an act of the legislature of the state of Minnesota approved February 10, 1881, which has been amended by various acts supplemental thereto.

Plaintiff further alleged that pursuant to the provisions of its charter it acquired large tracts of land bordering upon the Mississippi river, and on the southwesterly bank thereof, lying within the present limits of the city of Minneapolis and county of Hennepin, and that by reason of the fall in said river at that point, which amounts to some seventy feet in the course of a thousand feet, there was created a natural water power of great extent and value; that the plaintiff, pursuant to the provisions of its charter and in accordance with the natural right inherent in the ownership of lands abutting upon the waters of said river, constructed dams and water sluices at great expense, for the purpose of making the water power available for manufacturing and other purposes to which the same was adapted, and by meeting those erected by the other company, and that by the erection of these dams on the opposite side of the river the plaintiff had made available the water power of the river to the extent of about 50 feet fall, leaving still unoccupied a further fall of about 20 feet; that in pursuance of its charter, and in accordance with its rights as riparian owner, plaintiff in error had made contracts with different parties for the construction of mills and manufacturing establishments in convenient proximity to its water power, and for a valuable consideration had furnished and was furnishing water power to these different establishments which have use for the power, and that the same is of great value to the plaintiff; that it has reserved to itself large rents and income by leasing to other parties the right to use certain portions of the water.

And the plaintiff alleged that by reason of its ownership of the land bordering upon the river it had acquired and still owned all the riparian rights incident to the ownership of lands bordering upon the Mississippi river, which was stated to be a natural water course, in which there naturally flowed a large quantity of water derived from the river and also from numerous tributaries above, and that by reason of its riparian rights the plaintiff was entitled to have and require the natural flow of the waters of the river in the channels, both east and west in said river, adjacent to the lands at said falls, without diminution or diversion of such natural flow by any person whatever.

It was further averred that one of the tributaries of the Mississippi river is a natural water course and stream known as Rice creek, which drains waters fr m a large extent of territory within the state, and which are gathered together and have a natural flow or outlet through said creek into the Mississippi river, 8 or 10 miles above the water power of the plaintiff; that Rice creek, in its natural course, flows through a small lake in the county of Anoka, designated as Baldwin lake, and from thence to its connection with the Mississippi river; that the amount of water flowing in that creek and lake varies with the different seasons of the year, the ordinary amount being about 30,000,000 gallons per day.

It is then further alleged that the defendant, acting under the provisions of the act of the legislature above mentioned, approved February 10, 1881, authorizing the city of St. Paul to purchase the franchises and property of the St. Paul Water Company, and creating a board of water commissioners, had acquired title to a portion of the land bordering upon Baldwin lake, and had erected thereon pumping works and machinery for the diversion of the waters of the lake into a certain other lake situated in the county of Ramsey, which other lake had a natural outlet through streams flowing into the Mississippi river below the water power of plaintiff, and that the defendant had for the greater part of the time during the two years before the commencement of this action, by means of its works on Baldwin lake, withdrawn from that lake a quantity of water to the amount of 10,000,000 gallons per day, and that the quantity thus pumped from that lake was diverted by the defendant into a lake known as Pleasant lake, and from thence it had been drawn by the waterworks of the defendant into the city of St. Paul, and distributed over that city and used for domestic purposes and for furnishing water for steam engines and other manufacturing purposes, and for the propulsion of elevators and other machinery, and that the waters thus used had been entirely diverted from Rice creek and from that part of the Mississippi river above the water power of plaintiff, and no part thereof had been returned to the Mississippi river above the water power of plaintiff so as in any way or manner to be made useful to plaintiff.

The plaintiff further alleged that the defendant, although assuming to act in accordance with its charter, had not acquired the right to divert the waters naturally flowing in Rice creek and through Baldwin lake from their natural course, nor had defendant made compensation to plaintiff and other parties beneficially interested in the use of said water, nor had defendant made any provision for computing the amount of compensation due plaintiff for damages caused by diverting and withdrawing the waters of the river from their natural course; that by reason of this diversion of water the income and profits arising from the maintenance of the water power were diminishing (to an amount stated in the complaint), and that the damages sustained by the plaintiff by reason of the diversion amounted to the sum of $1,500.

Judgment was demanded that the plaintiff should recover its damages already sustained in the sum of $1,500, and that the defendant should be perpetually enjoined from interfering with or diverting the waters which would from this court, and the records are now before so as to prevent them from flowing in the natural course to said Rice creek and Mississippi river to the water power of said plaintiff.

The answer of the defendant averred that the defendant existed as a corporation and executive department of the city of St. Paul, of the state of Minnesota, under and by virtue of the acts referred to in the complaint, as approved February 10, 1881, and amended January 25, 1883, and March 4, 1885, and that the defendant, under these acts and under the charter of the city of St. Paul, exercised all of the authority of the city of St. Paul with respect to acquiring lands and franchises for and the construction of waterworks for the purpose of supplying the city of St. Paul and its inhabitants with pure water for all public purposes.

The defendant also averred that by virtue of the authority granted by the acts of the legislature, above referred to, and by the charter granted to the city of St. Paul, the defendant had secured the right of way from the city of St. Paul to said Baldwin lake, and by the use of mains, ditches, and pumps it had drawn and was drawing from that lake and was bringing to the city of St. Paul water for the use of the city and its inhabitants, and that the defendant and the city of St. Paul are the owners in fee simple of a large tract of real estate bordering on Lake Baldwin, upon which lands it had erected buildings and placed therein pumps, etc., for the purpose of drawing water from that lake for the purpose of supplying the city of St. Paul with water.

Other averments were made not material to be here mentioned.

The defendant claimed a right to take the water from Baldwin lake and conduct the same to the city of St. Paul for the use of said city and its inhabitants (without making any compensation or payment therefor to the plaintiff) by reason of the legislative authority above mentioned.

A similar answer was put in by the defendant in the case of the St. Anthony Falls Water-Power Company.

Replies to these answers were put in by the plaintiffs in error, taking issue on the matters of fact therein alleged.

Upon these pleadings the two actions came on for trial in the state court and were tried together. Evidence was given upon the part of the plaintiffs tending to support the allegations of the complaints, and, after the plaintiffs had rested, the defendant moved that the actions should be dismissed on the ground that there was no liability on the part of the defendant to either of the plaintiffs, because the Mississippi river was a navigable river, its beds and its waters being owned by the state of Minnesota, and that the board of water commissioners, defendant herein, was a part of the city government of the city of St. Paul, authorized by the legislature to draw water from any of the lakes of the state for the purpose of supplying water to the city of St. Paul; that the defendant acted as agent of the state and in the name of the state, supplying the citizens of the state with water owned by the state, which the state had a right to use for that purpose, and that such right was paramount to the rights of any riparian owners; also on the ground that nothing but a reasonable use had been shown by the defendant as riparian owner of land on Lake Baldwin; also that plaintiffs' dams are a purpresture, and that plaintiffs can have no right to the use of water obtained in that way; also that their riparian rights do not extend to the use of water on land not owned by them, or, as against the defendant, to power obtained which requires the flowage of land other than their own.

The motion to dismiss was granted in each case, to which the plaintiff in each case duly excepted.

A motion for a new trial was made before the trial court upon a case and exceptions, and the motion, after hearing counsel, was denied. The plaintiffs then appealed to the supreme court of the state from the order of the district court denying plaintiffs' motion for a new trial and from the whole thereof. The supreme court affirmed the order, and directed that the defendant should have judgment accordingly. Upon the affirmance of the judgments by the supreme court the plaintiffs obtained a writ of error in each case fromt his court, and the records are now before us for review.

Rome G. Brown and Charles S. Albert, for plaintiffs in error.

James E. Markham and H. W. Phillips, for defendant in error.

Mr. Justice PECKHAM, after stating the facts in the foregoing language, delivered the opinion of the court. 

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