Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1900-01-02
Bonaparte winsContinue to be the
Terminuscof Fish Travel.
DECISION BY JUDGE EICHELBERCER
The Law and sssidesee Were Against,
the Plaintifrtn tho Ronaparte Dam
Case-NIay be Taken to tho
supreme Courts
[From Saturdays Daily.l


Refused" That one word in the
opinion of Judge Eichelberger, handed
down yesterday in the celebrated Bona
parte dam case, will cause many
fisherman to sigh, yet the law and the
evidence were such that the court
could not do otherwise. Plaintiff
saved an exception as is customary
and the case may go to the supreme
court. The opinion follows:
This is an action in equity, brought
in the name of the state of Iowa, on
relation of Attorney General Remley
against the defendants, asking for the
abatement of nuisance which it is
alleged the defendants are maintaining,
bv obstructing with dam the Des
Moines river, at Bonaparte, not pro-
yided with fishway to afford free pas
sage for fish up and down said river.
The defendants admit that they are
maintaining such dam and that it is
not provided with fshway, but deny
that such dam is a nuisance or an UNI
lawful structure, for the reason, II sub
stance, that it was erected by the state
without such fishway, and by the state
sold to them in that condition and
therefore the state cannot now require
them to put in such tishway, or abate
the dam as a nuisance on account of
its not being provided with such way
for the passage of fish. That to require
them to put in such fishway would be
an impairment of their contract with
the state, and would be taking prop
erty for public use without compensa-
5 ton, and therefore, as to them-the
law requiring fishways in dams is void
under both state and federal constitu-
tions. The cause was, by agreement,
I heard in vacation, and on the trial the
following facts We're either conceded
or proven by the evidence: That the
defendants are the owners of mills and
factories at Bonaparte worth one hun
dred thousand dollars, which are part
ly furnished with power by the dam
In question; that their ancestor, Will
lam Meek, was authorized, by a special
act of the territorial legislature of
Iowa, III the year 1899. to erect dam,
across the river at Bonaparte for the
purpose of furnishing water power for
milling and manufacturing purposes,
and dam was so built by him about
that time, the license therefor was TO
continue for fifty wears; that after
wards congress granted to the state of
Z Iowa lands to be used in the improve
ment of navigation of the Des Aoines
river, which was, by it declared to be
navigable stream, and the state entered
/ upon the work of improving the nayi-
cation of the river by building dams
4 and locks, building in whole or in part
a dam at Bonaparte with lock for
shat purpose; that afterwards, in
further pursuance of such object, the
legislature granted the lands, and all
. the work then completed on said river
to the Des doines Navigation and Rail-
y road company to complete. the im-
4 proyementso of the river for navigation
purposes from its mouth to the Rae
coon river, the contract provided that
such. company should complete the
work and receive the rents and tolls
! for forty years. at the expiration of
which period all rights of the company
Z IN the locks. dams and other improve
ments should revert to the state. but
i said company failed TO comply with
Its contract, and about the year 1857
an OF its rights under the contract were
Forfeited to the state. and in 1850 the
company executed a deed releasing to
the state all its rights, including dams,
locks and improvements, among which
was the dam built by it at Bonaparte.
That prior to the building of this DAM,
I by contract with the state authorities.
William Meek relinquished his right to
maintain the dam Heretofore built by
him, in consideration ofthe right to
use the same amount, of water power
created by the new dam TO be built
by the state for the same length OF