St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-02-13

in Its Order in the Minneton-
ka Case-County Commissions
ers Cannot Assess Property to
Maintain a Uniform Height of
Water.
Among the five decisions handed
down by the supreme court yesterday
the one Of greatest Importance is the
reversal of the order of the lower court
in the appeal of H. M. Carpenter ct al.
from the order of the district court of
Hennepln county, allowing the county
commissioners to purchase dam for
the purpose of maintaining uniform
height of water in Lake Minnetonka,
and assess the cost upon the property
holders around the lake. The as
sessment is held to be invalid for
the reason that no provision has been
made for compromising owners for inju
ries to their lands caused by raising the
waters of the lake, pursuant to the pro-
visions OF the special lave of 1891. Where
the thigh water mark" is seems to be
the question at issue, the county COM
missioners thinking that they had fixed
the height in the proper place. Tn e
supreme courts definition of where the
"high water mark" is, is the point of an
interesting and lengthy opinion, the
idea being a very different one from
that usually held. the description of
which is given in the syllabus as fol-
lows:
In re proceeding of the Board of County
Commissioners of hennepin County to
establish and maintain uniform height of
water in L, Ike Minnetonka, i'll said county,
Herbert NJ. Carpenter ct al, appellants, VS..
Board of County Commissioners of Henne-
pin County, respondents. Order reversed.
MITCHELL j.
"High water mark" as a line between
the public and riparian owners on navi-
gable waters, where there is no ebb and
flow of the tide, is to be determined by
examining the bed and banks and aScer-
tanning where the presence and action
of the water are so common and usual
as to mark upon the soil of the bed a
character distinct from that of the
banks in respect to vegetation as we'll
as the nature of the soil.
1t is coordinate with the limit of the
bed of the water, and that only is to be
considered the bed which the water
occupies so long and continuously as to
wreSt it from vegetation and destroy its
value for agricultural purposes.
The bed does not include low lands
which, although subject to frequent
overflow, are valuable as meadows and
pastures; and the state has no right,
even in aid Of navigation, to raise the
water by artificial means SO as to injure
or destroy such lands without making
compensation.
To support special assessment for a
local Improvement the benefit for which
the land is assessed must be secured.
The assessment in this case held in
valid because no provision is made for
compensating riparian owners for in
jurieS to their land caused by raising
the waters of Lake Minnetonka pur-
suant to the provisions of Special Laws
1891, eli. 301.
The syllabi of the other decisions are
as follows:
Etenezer G. Wallace and Edwin Wallace
partners as E. q. E. Wallace, respond
entS, ys. MORRISON l.. HalloWell Jr. and
Samuel P. Snider partners as M. L. Halo
well Jr. d Co., appellants. Order reversed.
MITCHELL, j.
Reynolds vs.. Franklin. a Mimi. 80,
and subsequent cases followed as to
the measure of damages in actions Of
deceil and fraud.
Plaintiffs, being the owners of notes
executed by S., and also of other notes
executed by L., by means of false and
fraudulent representations as to the
sensations being made as to the notes of
L. induced defendants to give their
own notes in exchange for the notes Of
5. and L., the whole being one in.
diviSible transaction. But for these
false and fraudulent representations no
part of the transaction would have
been conSummated.
In an action On the notes given by de-
PENDANTS to the plaintiffs in the eX-
change, held that the damages which
defendants are entitled to on account of
the fraud are not limited to the i'm
paired value of the S. notes. but that the
measure of damages is the difference
between the amount of the notes sued
on and the actual value at the date of
the transaction of both the s. and L..
notes.
Jasper B Tarbox and Charles H. Schliek, CO.
partners as Tarbox Schliek d Co., appel
lants, VS.. Charles II. Stevenson ct al. de-
PENDANTS, james F. Jordan. garnishee,
respondent. Order reversed. CAVITY, j.
A deed of assignment by an insoivent
debtor for the benefit of his creditors,
which does not OIL its face appear to he
an assignment of all his uneXempt
property, is void on its face as against
his creditors.
| st. Paul & Duluth Railroad Company, re-
spondent, VS.. City of Duluth, appellant.
Order reversed. CAVITY, j.
| Mcclure VS.. Red Wing, % Mimi, 1874,
| followed on the point that a municipal
corporation is not liable to the owner of
private premises within its boundaries
| for failing to promote sewerage to
carry away from such premises surface
water and the water OF perennial
streams naturally coming thereon.
The owner of swamp, which is the
natural place of deposit of surface wa.
tiers and perennial streams from the
higher adjoining territory, cannot com
ton continues to deposit such waters
on such swamp by means of more storm
sewers after such sWamp has been i'm
proved.
The rule is not changed by the fact
that the municipal corporation has di-
verted such waters from natural ravines
and through such sewers deposited
them in such swamp at different points
from those at which the ravineS termi-
mate, the owner of the swamp having
adopted the change made by such diver
sion In building the rOadbed OF rail-
road across tho swamp by leaving nc
openings in the raised surface Of such
roadbed opposite the ends of the ravines
aud by putting in box culyertS across
such roadbed opposite the ends of some
of the sewers to carry off such wateeS
Second National Bank of Wincna, respond
ent VS.. Alex Donald, defendant; c.. G. Ed.
wards, garnishee; Charles E. Magraw
claimant appellant. Order reversed.
MITCHELL, J.
Held that the findings were not jus
titled by the evidence.