The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1906-03-30
Supreme Court
CANNOT CONDEMN
PRIVATE PROPERTY
DECISION AGAINST MINNESOTA
...s, POWER COMPANY.
Lower Court in Dismlssing Petition
in Condemnation in Which Koochi-
ching Company Was Defendant.

The Judgment of the lower court in
!dismissing, petition in condemnation
in which the Minnesota Canal and Power
company sought to take property
claimed by the Koochiching company ct
al, defendants and respondents, has
been affirmed by the Minnesota SUI
premee court. The order stands despite
the dissenting opinions of Judges Lewis
and Start. r's.' 49,. ss@'~.
The question in the hare, fought legal
Minnesota canal and power companies
has attracted the attention thruout the
state and the decision is highly impor-
tant. The Koochiching company as
serted that the project of the plaintiff
would divert the course Of water it de-,
manded for power. This encroachment,
it was argued, would endanger the
Koochiching company. .
The syllabus in the case is as fol-
The Minnesota Canal and Power company, appel.
liant, VS.. the Koochiching company ct al, de-
fendants; the Koochiching company ct AL, re-
spondents. s.>
Syllabus: On appeal from an order dismissing
petition In condemnation proceedings in which
the petitioner seeks to take private property
F1fst-Io create water power and to
struct, create and maintain a waterpower plant
to (a) supply water power from the wheels
for heat, light and power purposes; and .
Second-To construct and maintain canals and
waterways on which to operate canal barges and
be otherwise used for purposes Of navigation.
Held: (1) That the power of eminent domain
can be exercised by private individual or
corporation only by express legislative authority,
(Z) IN proceedings to condemn private property
every reasonable doubt as to the authority must
be resolved in favor Of the land owner; ~ that
the statutes under which the petitioner is Or
ganlzed DO not, as an incident to the construc-
ton of a canal and the creation OF q water
power, authorize corporation to withdraw and
divert the waters from public navigable lakes
and streams to such extent as to interfere
with present or future navigation and by means
OF canals carry it over divide and discharge
1t into a different drainage area thus perme
nently withdrawing it from its natural course.
~ when the purposes stated in the petition are
part public. and part private, the right to pro-
ceed must be denied; (5) a use is not public,
the right to resort to the property for the use
for which it acquired independently of
the will or caprice Of the corpora ton IN which
the title OF the property vests upon condemna-
ton; (e) the generation Of electricity by water
power for distribution and sale to the general
public on equal terms, subject to governmental
control, Is public enterprise and property SO
used is devoted to- public use; a. but the
creation OF water power and a waterpower
plant for the purpose of Supplying water power
from the wheels thereof to the public Is a
private enterprise in aid OF which the power
nature Of water power Is such that Under such
conditions 1t cannot be used by the public TO
such an extent as to make the use a public Use
Judgment and order affirmed. Elliott j.
Lewis. j.. and Start. @. J.,
NJ: Fred, appellant, vs.. A. Bramen and Mary
Bramen. his wife, respondents.
l. syllabus; Prior to March i ;. 1905, when the
revised laws Of 1905 went into effect process of
garnishment reached money owing by the gar
n1shee which derived from the sale Of
the homestead Of defendants, and which defend
ants intended at the time Of the service OF
garn1shee summons to use in the purchase Of an
other homestead within one year from the time
the premises were sold.
| Order reversed. -JaRgard7 T.
| Lewis, j.. dssents. -,
! John Rants, respondent, vs. Supreme Tent,
| Knights of the Maccabees Of the World, ap-
| pellant.
Syllabus Where, in an action to recover on
! life insurance policy, the court charged that
the statements Of deceased as to his health was
| warranty, 1t Is competent for the Jury to coll
slider the admissions Of the officers Of the insur-
J ance order as to the cause Of DEATH In this
case the evidence is held sufficient to justify
the jury's verdict for the beneficiary.
An insurance order as a defendant in suit
to enforce lfe-insurance policy, can complain
| only of such errors on the part Of the trial
court ir charging that statements concerning
health made in an application were representa-
lions OF good faith and honest Judgment and not
"oi1AHtieS VI Acluai Iact, as were covered In It's
exceptions in the trial court, and its assign.
| ments of error upon appeal.
In this case the issues were framed, the case
was tried and except the statement as to the
! health Of deceased, the court charged the jury
! on the theory that such statements were repre-
sensations. The only exception taken at trial
i and the only specific part Of the charge assigned
as error on appeal. is based on the refusal OF
; the court to charge the jury, at request of the
insurer, that the statement by the applicant az
to the good health Of his mother was war
| ranty. 1t is held that the applicant did not
insure the conformity Of his opinion with actual
fact, but warranted only his bona fde beliei
and good judgment; that the charge Of the court
correct, and that the testimony justified the
verdict of the jury against the insured. Rupert
VS.. Supreme Court, etc., 1o2 N. W., 715, fol
lowed and applied.
1 This, appeal involves only the suffciency o.
the evidence to justify the verdict with respec
! to all other statements in the application in
Guiding the denial Of advice to change residence
That testimony Is held sufficient, especially Ii
view Of the circumstances attending the execu
ton Of the application.
| Order affirmed. . -Jaggard J.
Continental Insurance company, appellant, vs.
pauy, respondent.
I Syllabus In action against a railrGa,
company for damages caused by IRE from a loco
motive, general statutes 1884, section 27OO, throw
the burden Of proof upon the defendant to rebu
the presumption Of actionable negligence on it
part, upon proof by the plaintiff that a fir
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