Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1899-11-13
.BONAPAR|E DAN CASE
The Famous Case to Come Before
Judge Eichelberger's Court at
Ottumwa.
Likely That Hearing Will Occur
This Week-History Of the
Case.
---
sportsmen Of the State Interested in
Outcome-subject of Much
Litigation.
Special to Times.Rennhiican.

Des Moines, Nov. l3.-The Bonaparte
Dam case will be tried this week in OF
tumwa before Judge Eichelberger. 1t
IS set for trial on Wednesday. The
sportsmen of the state have taken a
great interest in this case and have
really made the fight for the removal of
this obstruction in the Des NIoines river
at Bonaparte, which prevents the fish
from coming above that point to any
great extent. Two years ago the Iowa
state Sportsmen Association retained
Mr.. w. l.. Read to investigate the legal
phases of the question and advise as to
whether anything could be done
through the medium of the courts to
remove the dam. Mr. Read has devot-
ed a great deal of study to the matter
and has become convinced that the
courts will afford the necessary relief.
He has all the time advised
against any appropriation in the
legislature to pay the Meeks
for the dam. He, believes there
IS no use of it and that they are not en-
titled to anything and that the courts
will so hold The case is probably not
| generally understood outside of few
persons who have taken an active in
terest in it, At my request Mr. Read
| prepared the following statement of
the case, which is entirely fair to both
sides and presents the issues as made
UP by both parties
A dam across a Dac Moipas rtx
Bonaparte, in Van Buren county, was
| constructed with locks by the Des
Moines Navigation Company in fur
therance of plans for the Improvement
of the navigation Of the Des Moines
river under an act of congress donating
| 10 the state of Iowa certain lands for
that purpose. etc. The project having
been abandoned the state of Iowa, by
commissioners appointed for that pur-
pose, and under an act of the general
| assembly so authorizing, sold and con-
veyed the dam at Bonaparte to Robert
| Meek. Isaiah Meek and Joseph Meek
for consideration of 5000, together
with the abutting land on both sides of
the river The deed from the state to
/ the Meeks contained provision as fol-
5flows:
1 "The parties of the second part con-
sent and agree on their part
| that thair heirs and assigns
| Will forever keep said locks and
dam at Bonaparte in good repair so
/ long as said water power shall be used
by them or their assigns; that they at
all reasonable times, Will pass boats
through said locks and charge only
such tolls as may be agreed on between
them and said commissioners, not ex-
lceedirg the maximum rates described
| IN the contract between the state and
| the Des Moines Navigation Company 2
The deed purports to convey only
such right, title and Interest as the
Estate of Iowa had in and to the dam,
the granting part being as follows:
Sell and convey to said parties of the
second part. their heirs and assigns, all
4 the interest of the state Of Iowa as
4 aforesaid in and 10 said locks and dam
1 at Bonaparte and the land opposite
/ thereto and the water thereto belong
ing
1 AS has been stated. the dam at the
time of the sale contained locks. Sub
sequently, however. the Meeks. in re-
building or repairing did so 50 as TO re-
move the locks. and the dam as now
Iconstructed is without locks.
In 1854 the general assembly Of the
state enacted a statute requiring the
Owners of all dams to construct fish
ways therein at their own expense.
Some effort was made under this stat
| Lutte TO compel the owners Of the dam to
put in a. fishway and litigation ersued,
but did not proceed to final Judgment
| There was also a criminal prosecution
| brought against Meeks for a violation
| Of the provisions of the act of 1854
1 which in terms subjected Offending par
| ties to a fine upon conviction before a
| Justice of the peace. That act, it will
| be noticed required the owners of
| dams. within reasonable time after
| the approval Of the act. TO construct
| fishways. and the criminal prosecution
| was because Ola failure so 10 do. The
act of 1854, as well as the statutes now
| embodied in the present code. provides
| that all dams constructed or main
| tanned without fishways, as therein
provided, are public nuisances, and
may be abated as such. The present
action brought in the name of the state
| of Iowa in the relation of the attorney
general is for the purpose of abating
the dam at Bonaparte as a nuisance
| under the statute for that it is main
| tained without fishway. The defend
ants, on their part, assert that the
| transaction whereby their ancestors ac-
| quired from the state of Iowa the dam
constitutes contract with the state,
| the obligations whereof will be impaired
| if they are required to construct fish
ways, and hence is unconstitutional,
and that it is further unconstitutional
| in that it is a deprivation of property
without making due compensation
| therefor. The claim on the part of the
state. resting upon the authority of the
| State vs.. Beardsley, decided in the May
term. 1899 of the said court is that the
statute in question is in the exercise of
the police powers of the state and hence
is not vulnerable to the objection of un-
constitutionality; that the title to and
right to maintain the dam at Bona
parte is held like all other property and
contracts within the state subject to
the exercise of police powers; that the
contract if it be contract. does not in
terms provide for any exceptions from
police regulations, and that, even if it
did, the state is without power to bar
xain away or surrender its police pow