Stenberg v. County of Blue Earth

Jaggard, J.

The plaintiff and appellant sought to enjoin the construction of a permánent dam across the natural outlet of Jackson lake in Blue Earth county. The county commissioners had begun to make the dam pursuant to chapter 104 of the Laws of 1907 (R. L. Supp. 1909, § 434-2), providing that the county board in any one year may appropriate. not to exceed $300 for erecting or maintaining sufficient dams or embankments upon or along the shores of the *120 lake to keep and maintain the water in the lake at its natural and usual height and level. (The italics are ours.) The lake in question was shallow, about two and one-fourth miles long and one-fourth mile in width, and surrounded by a large farming country, including the land belonging to plaintiff. The plaintiff insists that, if the dam were constructed, it would raise the water in the lake to a permanent level some eighteen inches to two feet above the natural level, to the injury of her land and the destruction of a large part of it for agricultural purposes. The trial court held that plaintiff was not entitled to the relief asked for. This appeal was taken from its order denying plaintiff’s motion for a new trial.

Plaintiff, as a riparian owner, has shown such an interest in the controversy as to entitle her to a judicial determination of the questions raised, but has not shown a right to the relief sought. The law was constitutional. The controversy is primarily determined by the general law of waters. No riparian owner has a right to complain of improvements by the public whereby the water is maintained in the condition which nature has given it. “Aqua currit, et debet currere ut eurrere solabat.” Farnham, Waters, p. 1765. And see volume 1, c. 6. The law justified the maintenance of the lake at its natural and usual height and level. That height, necessarily more or less marked “upon the soil of the bed [of the lake, has] a character distinct from that of the banks in respect to vegetation as well as respects the nature of the soil itself.” Damages consequent thereon to riparian owners was damnum absque injuria, for which they were entitled to no compensation. Mitchell, J., in Re Lake Minnetonka Improvement, 56 Minn. 513 , 58 N. W. 295 , 45 Am. St. 494.

The question then arises whether the facts showed such a case, or one in which low lands, although occasionally overflowed, belonged to the riparian' owner, and could not be taken without due compensation. The trial court expressly found that the natural outlet of the lake had been for many years interfered with, sometimes lowered, sometimes raised; that the proposed dam will raise the water in the lake some eighteen inches, or to its usual stage, and that the facts brought the ease within the limits assigned to the *121 Minnetonka Improvement case. These facts were .vigorously contested. There was much and cogent evidence tending to sustain plaintiff’s contention. The matter is one of grave doubt. There was, however, evidence tending to sustain the findings of the trial court. The soil in the bottom of the lake was a fine mulch silt. It was sandy along some of the shores. A surveyor described this, shore “as a sandy beach.” But parts of the shores of many lakes in this state during dry periods have been used for gardens, pastures, and the like. This fact does not prevent the state from restoring" the natural level, any more than the building of piers on the Mississippi at its low stage prevents public authorities from increasing-the height of the level of the water by discharging accumulated water from its reservoirs. The rule laid down in the Minnetonka case is not reasonably to be construed as limiting the right of the-public to increase the level of the body of water to cases wherein the water mark made by vegetation appears everywhere on the shore line. Indeed, the character of the vegetation itself may constitute at water mark.

We conclude that, within the familiar rule on this subject, thef finding’s of the trial court must be affirmed.