Statement of the Case.

available for manufacturing and other purposes to which the same was adapted, and by meeting those erected by the other company, and that by the erection of these dams on the opposite side of the river the plaintiff had made available the water power of the river to the extent of about fifty feet fall, leaving still unoccupied a further fall of about twenty feet; that in pursuance of its charter and in accordance with its rights as riparian owner, plaintiff in error had made contracts with different parties for the construction of mills and manufacturing establishments in convenient proximity to its water power, and for a valuable consideration had furnished and was furnishing water power to these different establishments which have use for the power, and that the same is of great value to the plaintiff; that it has reserved to itself large rents and income by leasing to other parties the right to use certain portions of the water.

And the plaintiff alleged that by reason of its ownership of the land bordering upon the river it had acquired and still owned all the riparian rights incident to the ownership of lands bordering upon the Mississippi River, which was stated to be a natural water course, in which there naturally flowed a large quantity of water derived from the river and also from numerous tributaries above, and that by reason of its riparian rights the plaintiff was entitled to have and require the natural flow of the waters of the river in the channels, both east and west in said river, adjacent to the lands at said falls without diminution or diversion of such natural flow by any person whatever.

It was further averred that one of the tributaries of the Mississippi River is a natural water course and stream known as Rice Creek, which drains waters from a large extent of territory within the State, and which are gathered together and have a natural flow or outlet through said creek into the Mississippi River, eight or ten miles above the water power of the plaintiff; that Rice Creek, in its natural course, flows through a small lake in the county of Anoka, designated as Baldwin Lake, and from thence to its connection with the Mississippi River; that the amount of water flowing in that

VOL. CLXVIII-23

Statement of the Case.

creek and lake varies with the different seasons of the year, the ordinary amount being about thirty million gallons per day.

It is then further alleged that the defendant, acting under the provisions of the act of the legislature above mentioned, approved February 10, 1881, authorizing the city of St. Paul to purchase the franchises and property of the St. Paul Water Company and creating a board of water commissioners had acquired title to a portion of the land bordering upon Baldwin Lake, and had erected thereon pumping works and machinery for the diversion of the waters of the lake into a certain other lake situated in the county of Ramsey, which other lake had a natural outlet through streams flowing into the Mississippi River below the water power of plaintiff, and that the defendant had for the greater part of the time during the two years before the commencement of this action, by means of its works on Baldwin Lake, withdrawn from that lake a quantity of water to the amount of ten million gallons per day, and that the quantity thus pumped from that lake was diverted by the defendant into a lake known as Pleasant Lake, and from thence it had been drawn by the waterworks of the defendant into the city of St. Paul, and distributed over that city and used for domestic purposes and for furnishing water for steam engines and other manufacturing purposes, and for the propulsion of elevators and other machinery, and that the waters thus used had been entirely diverted from Rice Creek and from that part of the Mississippi River above the water power of plaintiff, and no part thereof had been returned to the Mississippi River above the water power of plaintiff so as in any way or manner to be made useful to plaintiff.

The plaintiff further alleged that the defendant, although assuming to act in accordance with its charter, had not acquired the right to divert the waters naturally flowing in Rice Creek and through Baldwin Lake from their natural course, nor had defendant made compensation to plaintiff and other parties beneficially interested in the use of said water, nor had defendant made any provision for computing the

Statement of the Case.

amount of compensation due plaintiff for damages caused by diverting and withdrawing the waters of the river from their natural course; that by reason of this diversion of water the income and profits arising from the maintenance of the water power were diminishing, (to an amount stated in the complaint,) and that the damages sustained by the plaintiff by reason of the diversion amounted to the sum of $1500.

Judgment was demanded that the plaintiff should recover its damages already sustained in the sum of $1500, and that the defendant should be perpetually enjoined from interfering with or diverting the waters which would otherwise naturally flow into Lake Baldwin, so as to prevent them from flowing in the natural course to said Rice Creek and Mississippi River to the water power of said plaintiff.

The answer of the defendant averred that the defendant existed as a corporation and executive department of the city of St. Paul, of the State of Minnesota, under and by virtue of the acts referred to in the complaint, as approved February 10, 1881, and amended January 25, 1883, and March 4, 1885, and that the defendant, under these acts and under the charter of the city of St. Paul, exercised all of the authority of the city of St. Paul with respect to acquiring lands and franchises for and the construction of waterworks for the purpose of supplying the city of St. Paul and its inhabitants with pure water for all public purposes.

The defendant also averred that by virtue of the authority granted by the acts of the legislature, above referred to, and by the charter granted to the city of St. Paul, the defendant had secured the right of way from the city of St. Paul to said Baldwin Lake, and by the use of mains, ditches and pumps it had drawn and was drawing from that lake and was bringing to the city of St. Paul water for the use of the city and its inhabitants, and that the defendant and the city of St. Paul are the owners in fee simple of a large tract of real estate bordering on Lake Baldwin, upon which lands it had erected buildings and placed therein pumps, etc., for the purpose of drawing water from that lake for the purpose of supplying the city of St. Paul with water.

Statement of the Case.

Other averments were made not material to be here mentioned.

The defendant claimed the right to take the water from Baldwin Lake and conduct the same to the city of St. Paul for the use of said city and its inhabitants, (without making any compensation or payment therefor to the plaintiff,) by reason of the legislative authority above mentioned.

A similar answer was put in by the defendant in the case of the St. Anthony Falls Water Power Company.

Replies to these answers were put in by the plaintiffs in error taking issue on the matters of fact therein alleged.

Upon these pleadings the two actions came on for trial in the state court and were tried together. Evidence was given upon the part of the plaintiffs tending to support the allegations of the complaints, and after the plaintiffs had rested, the defendant moved that the actions should be dismissed on the ground that there was no liability on the part of the defendant to either of the plaintiffs, because the Mississippi River was a navigable river, its beds and its waters being owned by the State of Minnesota, and that the board of water commissioners, defendant herein, was a part of the city government of the city of St. Paul, authorized by the legislature to draw water from any of the lakes of the State for the purpose of supplying water to the city of St. Paul; that the defendant acted as agent of the State and in the name of the State, supplying the citizens of the State with water owned by the State, which the State had a right to use for that purpose, and that such right was paramount to the rights of any riparian owners; also on the ground that nothing but a reasonable use had been shown by the defendant as riparian owner of land on Lake Baldwin; also that plaintiff's dams are a purpresture, and that plaintiffs can have no right to the use of water obtained in that way; also that their riparian rights do not extend to the use of water on land not owned by them, or, as against the defendant, to power obtained which requires the flowage of land other than their own.

The motion to dismiss was granted in each case, to which the plaintiff in each case duly excepted.

Opinion of the Court.

A motion for a new trial was made before the trial court upon a case and exceptions, and the motion, after hearing counsel, was denied. The plaintiffs then appealed to the Supreme Court of the State from the order of the District Court denying plaintiffs' motion for a new trial and from the whole thereof. The Supreme Court affirmed the order and directed that the defendant should have judgment accordingly. Upon the affirmance of the judgments by the Supreme Court the plaintiffs obtained a writ of error in each case from this court, and the records are now before us for review.

Mr. Rome G. Brown for plaintiffs in error. Mr. Charles S. Albert was on his brief.

Mr. James E. Markham and Mr. Herman W. Phillips for defendants in error.

Mr. JUSTICE PECKHAM, after stating the case, delivered the opinion of the court.

It is claimed upon the part of the plaintiffs in error that by the decision of the court below they have been deprived of their property without due process of law. They urge that they have certain rights as riparian owners of land near St. Anthony Falls, bordering upon the Mississippi River, to the use of all the water as it would naturally flow past their land, and that this right is property; that its existence and extent are to be determined by the general law applicable to riparian owners in like situation, which right is not determined conclusively by a state court, and that being property it cannot be taken away or impaired either by other private owners or by the State, except that if the latter should require the use of any portion of the water for any public purpose it may only be taken or diverted upon due compensation being made. These rights, it is claimed, are protected by the Federal Constitution, and that as such claim was duly presented before the state tribunal, the question is now open for review by this

court.