The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1901-03-30
IMPORTANT SUIT DECIDED
POWER COMPANY'S RIGHT TO USE
OF WATER is Az
FIRMED
LOWER COURT IS UPHELD
Supreme Tribunal Passes ON Case
of Eastman Against st. Anthony
Falls Water Power
COmpaE:.

nepn county, in the case of the Mime.
sofa Loan and Trust company as trustee,
and w. w. Eastman against the st,
Anthony Falls Water Power company
end the Minneapolis Mill company The
case is one of great Importance to the
different interests now seeking to control
| the water power in the Mississis pi- river
below the falls.
The case, which is decided in favor of
the defendants, originated in 1899, and in
volVed what is now called the 'loWer
dam. Owners of the ''Hedderly tract
on the west side of the river below the
dam, asked for an Injunction on the
ground OF threatened injury to their
water power. 1t was alleged that there
was natural but un1eVeloped water
power appurtenant to the plaintiff land,
and that the right of the pla intiffS to the
| use of such natural water power consti-
| tuted almost the sole and entire value
| of their property If deprived of the
water power, it was represented, they
would sustain great and irreparab,e
| damage and by reason Of the struc-
| lures of the defendants the water did
not come in sufficient quantity or force
| along, to or upon plaintiffs land"
The supreme court holds that "a lower
proprietor cannot maintain an action to
abate and enjoin the maintenance of the
improvements of an upper proprietor,
mJure and destroy a water power APP
| purtenant to the land of such lower
| proprietor. when it appears that his as
| serted water power is, in fact valueless
and not capable of beneficial develop
| ment, and in consequence una improve
ments of the upper proprietor do not APP
preciably or sensibly injure his sutstan-
| tial rights
The court holds that the water power
RAJ ri &c nj
ueless and that the owners of the dam
| were only making reasC nable use of
| the water. The dam, which cost $780,
! OO0, has for years furnished the motive
| power for the street railway company
| The syllabus is as follows:
| The Minnesota Loan & Trust Company
as Trustees, and W. w. Eastman. an
pellantS, VS.. The st. Anthony + ais W a.
ter Power Company and Minneapolis
Mill Company, respondents.
Plalntlns are lower ana defendant up
| per proprletOrS of lands bordering and
aDuttlng upon the Mississippi river at
| Minneapolis; defendants as sach upper
propretors own a valuable water power
privilege and heretofore improved the
same by the construction of a dam
across the river, anu tie erection Oh d
power house, head gates, tail races and
SluiceS and supplying and equipping the
power house with necessary hydraulic
machinery. Plaintiffs as lower proprle-
tors claim to have a valuable water DOW
CT dppuJenant their lana, ana on the
theory and contention that the improve
mentS of defendants wholly destroy the
same by a diversion of the natural chan
| mel and course of the river, brought this
action to abate and enjOin the further
maintenance of defendants improve
ment; and that defendants by their
structure and improvements have and are
making but a reasonable use OF the wa
terS of the river, are sustained by the
| evidence.
The rights of riparian propretors to the
waters of a running stream are acorrela--
tive and equal, each being entitled to the
| reasonable use thereof.
What constitutes a reasonable use of
the waters Of such stream is ques-
ton of fact to be determined in the
/ usual way. In doing so the effect of the
use upon the interests of all parties, the
injury to one and the benefit to the
other and all circumstances affecting
their rights and interests, are to be con-
sidered.
A lower proprietor cannot maintain an
action to abate and enjoin the mainten-
|, ance of the improvements OF an upper
proprietor upon the theory that such
! improvements injure and destroy wa
| ter power appurtenant to the land OF
| such lower proprietor, when 1t appears
| that his asserted water power is in fact
| Vaiueless and not capable of -oenehclal
development, and in consequence the i'm
provements of the upper proprietor DO
| not appreciably or sensibly injure his
substantial rights. Order affirmed.
Brown. j.
Judge Lewis has handed down the fol-
| lowing decision, which is of interest to
the residents of ST. Paul:
! I4umbermen's Insurance company ct al,
| appellants, VS.. City of St. Paul ct al.
In condemnation proceedings the city
| of st. Paul. having condemned certain
| pl emSeS for SeWe, purposes In conteHlpia-
ton of an extensive sewer system, ana
| having paid the amount of the award to
| the estate originally owning the land.
Held: In an action by certain mortgages
| of the premises at the time the award
| was made.
The description of the easement con-
| demned, having been correctly set out in
| the original notice, and the board Of
! public works having acquired jurisdiction
! to make the award, 1t is lmmater1al IN
| view of the courts findings, that the
! description was defective in the notice Of
! confirmation.
! propriated money to the sewer bond fund
! to meet the expenses OF the award, and
! caused notice to be published to the
! effect that the money was ready for the
! rightful owner, and then an ordinance
! directed the money to be paid to the cs-
| tate of the original owner. Held, that
! the passage OF the resolution and the
! publishing of the notice did not start
| the statute of limitations in motion as to
| plaintiffs, who claimed to be entitled to
| the fund as mortgages. Held, also that
! the statute began to run, as to plaintiffs,
| from the passage CT the ordinance.
| The plaintiffs were not estopped from
! asserting claim to the money, by the
| fact that at the time the mortgages were
! executed the cu1vert sought to be con-
| demned rs a sewer, had already been
constructed. and from the fact that they
made no claim to the fund until about
the time Of the commencement of this
action. The proceedings in condemna-
! ton of the easement were in rem and
! plaintiffs We're entitled TO stand upon
! their strict legal rights and recover the
! money, if within the statutory period
| Where a cause is tried before the court
without a jury and the conclusions of law
a. q not supported by the findings of fact
held. following Farnham VS.. Thompson,
/ "a Mimi. $50, thai the trial court may be
called upon to modify it's conclusions of
law in conformity to the facts, upon a
motion for new trial. and the defeated
! party may appeal from an order deny
ing a new trial and refusing to modify
the conclusions of law But in such
cases, where the order of the trial court
! is reversed, the respondent may apply
! for new ttial if it appear that the claim
WAS made in good faith. that the facts
! found were not supported by the evidence.
! Order reversed with directions to the
! trial court to modify IT'S conclusions OF
! law, and to order Judgment for the
! plaintiffs as their interests may appear
{ with leave however to respondent to APP
ply for new trial.
Lewis, j
W.n. Their Money Pack.
| Rogers Bros commission merchants
! with headquarters at South ST Paul
! have comm enced suit in the District g llrt
! to recover $500 fromAlhert Bagemiel be-
IL