The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-12-20

public waters for the ordinary purposes
Of life, such as boating, fishing, recrea-
ton and domestic or individual uses, in
Guiding the right to take ice therefrom.
Such ordinary uses constitute a right
held in common by the public and ripar-
ian owners.
QUANTITIES annually for shipment and sale
for commercial purposes from public wa
ters whereby their natural level is mate
rally reduced is not such a common
right.
Riparian owners by virtue of their
ownership and possession have certain
special interest in such waters not enjoy
ed 10y the PUBIC in general, the extent
of which depends upon the nature Of the
shore land and the character and extent
of the possession.
If such pubic waters are disturbed be-
yond their natural condition by the gen
eral public in the exercise of the right
OF common usage, neither a riparian own
er nor other common user, has a legal
remedy to prevent the same.
A riparian owner may, by virtue of his
special interest as such, enjoin an inter-
ference with such waters which distuIhs
their natural condition, provided such
owner is peculiarly and specially affected
and damaged thereby.
Chapter 40, Special Laws of 1881, is
general law in it's application and need
not be specially pleaded.
BY the terms of this law the waters
of White Bear lake are declared to be
public waters, and it IS made unlawful
10 ditIllcldlly remove any water from the
same for any purpose whereby the level
of such water is materially reduced.
Cutting ard removing ice for the pur-
pose OF Shipment and sale in distant mar
ketS for commercial purposes is such an
artificial taking and removing of water
from such lake.
A riparian owner upon the lake may
under the provisions of this act enjoin
the taking of ice therefrem if such tax
ing results in lowering the lake below its
natural condition, provided such owner
is damaged thereby and such taking is
artificial.
But neither a riparian owner nor a
common user of the waters of such la Ike,
is entitled to invoke the benefit of such
law III cases where the taking of such
water is in the exercise of a common
right.
1t appearing from the complaint in this
action, that the lake in question was
during twelve years lowered two feet be-
low its natural outlet, and that the acts
of defendant in cutting and removing ice
therefrom. was sufficient to reduce the
volume OF water one-quarter of an inch
annually, held Such taking was of sub
! Stantial character and entities the shore
I owner to the right of-injunction to re-
strain the continuance thereof, and that
the complaint states cause of action
There is no defect of parties plaintiff
| In this action for the reason that as ap-
pears from the complaint, the other us
ers OF the waters were exercising the
right of common usage and that they
were not specially damaged by the acts
complained OF.
There is no defect of parties defendant
IN this action for the same reason as
above stated
THF, MINORITY OPINION.
Justices Lovely and Brown, who are
in the minority. hold that the right to
take ice for sale is included in the COM
| mon right of the public to the lakes and
streams of the state, the title of which
is in the commonwealth. Lamprey vs.
State is quoted to the effect that to
| hand over all these lakes to private owls
ership under an old or narrow test of
naVigability, would be q great wrong to
the public for all time to come. The nil
nority adds: I'VE seriously anticipate
this wrong as a result of this decision
That the right to take ice from such
waters is individual or personal, and
that the riparian owner has special and
exclusive rights in such waters meas
ured and fixed by the character of his
improvements on the shore property,
the minority regard as unusual, fall
lacious and inimical to the public good.