Ottumwa semi-weekly courier. [volume] (Ottumwa, Iowa) 1899-1903, 1900-01-02

removed by the state and replaced un-
der such contract, be being given the
use OF The power for his mills. In 1861
the state discontinued the plan of the
further Improvement of the river, and
by an act of the legislature, authorized
the sale by commissioners appointed
| therefore of all of its rights in the
dams, locks and Improvements therefor
made in said river, together with the
tract of land on either side which had
| been acquired in connection with the
building of locks. dams, etc., together
| with all its interest in the water power
created by such dams and improve
, ments. subject to the conditions eN-
pressed in the act authorizing such
sale; in pursuance of which such COM
missioners so appointed, sold and con-
yeyed by deed to the defendants an
cestcrs the Bonaparte dam and land
adjoining on either side of the river
The act authorizing such sale provid-
ed that such commissioners should con-
ver' in the name of the state without
warranty, and that such conveyance
should contain a covenant on the part
OF the purchaser to forever keep the
locks and dams in good repair and at
all reasonable times pass boats through
said locks at reasonable toll. On Oct.
81, 1861. pursuant to the authority, the
commissioners so appointed executed
on behalf of the state deed to Robert
Meek. Isaiah Meek and Joseph Meek,
| conveying to them the Bonaparte dam
on the conditions and with the cove
nanrs required by the act aforesaid,
including the land on both sides of
the river and the water power, and
they Immediately took possession and
the present defendants are their sue
cessors by inheritance and assignment;
and some of the mills have ever, since
been wholly operated by such water
power, and others partially so. That
the ancestors and grantors' of defend
ants did keep such dam and locks in
repair and passed boats through the
locks whenever required so long as
boats continued to run on the, river,
but since they ceased TO attempt its
navigation, and congress declared the
stream unnavigable; and. especially
since the act of the legislature, APP
proved March %, 1866, repeating all
laws requiring locks to be constructed
and maintained in dams or draws in
bridges across or over the Des Aoines
river, The locks have not been kept up.
In recent years a crib dam has been
built below the old dam, which had
given way in places, and sagged in 9th
ers at 4 distance of from two to ten
feet below the old dam, and the inter
vening space has been filled in with
rock and earth. This crib was built to
strengthen the old dam and is of the
same heighth, or substantially so, as
the old one originally was, the ice GO
ing out in the spring during the years
the old dam has stood having carried
away a few inches of the crest, of the
original dam. The crib is continuous
from one shore to the other and tied
| to the old dam. and both are covered
with planling extending from the up
per side of the old to the lower side of
the new, making substantially one
structure. 1t is, shown that fishways,
such as are in use in other dams in the
state could be put in this dam at an
expense of about $500, by building a
chute from the crest of the dam ex-
tending about fifty feet down stream,
letting the upper end into the crest OF
the dam three or four inches.
4 The evidence further shows that the
ice goes over this damwith great. force,
breaking off and carrying away each
l SSoA q SASseS luaHNlt,y VI tue UulilpiIS
plank, and at times carrying away dhea-
w cribs filled with stone which had
been put in to protect the dam, and the
opinion is expressed by number of
witnesses who are familiar with the
force of the ice at this dam that the
tish-way proposed to be put in by the
state cannot be made to resist. the ice
and will be carried out every year, 1t
was shown, however, that fish-ways of
the same character as the one proposed
to be put in this dam had been in use
4 for several years in dams in the Des
Moines and other rivers of the state
and none had ever been carried away
by the ice. Opinions We're given on
the one hand that these tishways tend
ed to weaken the dam, and on the other
that they strengthen it.
| On the facts in evidence the defend
ants commended that, as the state itself
/ had built the dam without a fishway,
land had. by contract, conveyed it to
their ancestor and grantor in that con-
dition, any attempt now to compel
them TO change or alter it by putting
in a fishway would be violation Of
| the obligations of the contract made by
the state, and would be taking private
1 property for public use without com
pensa,ion; hence The law requiring
such fishway in dams. was, as to this
particular dam at least, demonstrations
al and void under both the state and
federal constitutions, which forbid the
passage of laws impairing the obliga-
ton of contracts or taking private
property for public use without com
pensation. The states answer to this
| contention was, that law requiring
fshways in dams was police regula-
ton" and that its exercise of a po-
llice regulation in any given case was
not a violation of these constitutional
provisions even though its effect might
Ibe to add burdens TO or even destroy
| private property; that such right to
1pass and enforce police regulations was
inherent in the state and could not be
bargained away by contract or sur
rendered by grant, and any attempt
on the part of the legislature would be
void. hence there could be no violation
of such illegal contract. 1t was also
commended by the state that the con
tract did not interms except this dam
from the general laws in reference to
tishways, and that such exception
could not be implied as against the
| state.
| 1t it too well settled to admit of f,lr-