State v. Bentley

71 N.W.2d 780, 245 Minn. 334, 1955 Minn. LEXIS 653
CourtSupreme Court of Minnesota
DecidedJuly 29, 1955
DocketNos. 36,201, 36,202
StatusPublished
Cited by6 cases

This text of 71 N.W.2d 780 (State v. Bentley) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bentley, 71 N.W.2d 780, 245 Minn. 334, 1955 Minn. LEXIS 653 (Mich. 1955).

Opinion

Nelson, Justice.

Condemnation proceedings here involved were instituted in Big Stone county by the attorney general of the state of Minnesota to acquire necessary land for the construction of a dike, dam, and control works at the foot of Big Stone Lake and a diversion channel to divert the Whetstone River into Big Stone Lake. These proceedings were instituted in the year 1935 pursuant to L. 1935, c. 51, and [335]*335Ex. Sess. L. 1935-1936, e. 101. Another proceeding was instituted in Lac qui Parle county; a dam was also constructed below Marsh Lake and another below Lac qui Parle Lake on the Minnesota River. The project on Big Stone Lake was completed and placed into operation on April 13, 1937. No final certificate, however, has been filed in the above-described condemnation proceeding.

Petitions in intervention were filed by the Big Stone Canning Company, Margaret Y. Kraus, and Edwin C. Kraus, the appellants herein, together with like petitions by Arthur Gerhardt, as administrator, Julius Christensen, Julia A. Fey, John de Neui, and Max Schmeichel. These causes were consolidated and tried together, and the trial court made identical findings of fact and conclusions of law in each case. These proceedings are enlargements of the original 1935 petition.

The Big Stone Canning Company and others were involved in the four appeals in State, by Peterson, v. Bentley, 216 Mitin, 146, 12 N. W. (2d) 347. The petitioners in intervention, Big Stone Canning Compány, Margaret V. Kraus, and Edwin C. Kraus, had not been made parties to the condemnation proceeding; they contend, however, that their lands were actually taken for the benefit and the use of the state of Minnesota and were taken without due compensation for the reason that the state of Minnesota by completing and putting into effect “F. A. 1-Big Stone-Whetstone Project” appropriated petitioners’ premises as a reservoir for the impounding of waters and as a result have actually flooded the same; that the surface waters that normally accumulate on their premises are unable to drain and flow from said lands by reason of the creation of the state’s project; that their premises have further been damaged by the seepage of waters from the reservoir created thereby, and as a direct result at least one-third of their lands have been rendered unfit for any purpose whatsoever and have so been taken by the state of Minnesota for all the purposes of the state’s project; that the remainder of their lands, because of said facts, have been greatly damaged and diminished in value; and that the petitioners, appellants herein, are therefore entitled to have the lands so taken assessed [336]*336as to. benefits and damages by the proper course of procedure in condemnation proceedings.

Pursuant to the decision of this court in State, by Peterson, v. Anderson, 220 Minn. 139, 19 N. W. (2d) 70, the state was granted the right to answer in each case; following consolidation of the cases and trial, findings of fact, conclusions of law, and order for judgment were entered by the trial court, denying relief to the petitioners upon the ground that no additional, or greater, amount of water flows past or upon petitioners’ land by reason of the construction and operation of any of the projects mentioned in the proceedings, that petitioners’ land would have been damaged in substantially the same manner in a state of nature, and that therefore none of the petitioners’ land has been taken, damaged, or destroyed by the state of Minnesota. The petitions of the interveners were accordingly denied and dismissals entered with order for judgment accordingly. Big Stone Canning Company and Margaret V. and Edwin C. Kraus appeal.

The lands belonging to the Big Stone Canning Company involved herein are located in sections 16, 21, and 22 in township 121 N, range 16 W of the fifth principal meridian, Big Stone county, Minnesota, comprising approximately 334.71 acres. The lands of Edwin C. Kraus and Margaret V. Kraus are located in sections 16 and 21, same township, range, and county, comprising 111 acres of land.

The Whetstone project made changes to the Whetstone River, Big Stone Lake, and the Minnesota River. A limited description of the construction, operation, and maintenance of this flood control project is as follows: A dike was erected along the shore line at the foot of Big Stone Lake to an elevation of 976, a rise of ten feet from the low elevation that existed in a state of nature of 966. This project caused a diversion of the flow of the water of the Whetstone River, which formerly had its confluence with the Minnesota River at a point slightly over two miles below the foot of the lake, into Big Stone Lake by a diversion channel 180 feet in width. This diversion begins at a point where the Whetstone River comes out [337]*337of the hills on the South Dakota side and continues to the confluence ■with the Minnesota River just south of the Chicago, Milwaukee, St. Paul & Pacific Railway bridge over the river, a short distance downstream from the foot of Big Stone Lake, except for a two-foot culvert, which permits some water to go down the old channel of the Whetstone River. This diversion project enlarged the drainage area of Big Stone Lake, which in a state of nature was approximately 610 square miles, to 1,020 square miles.

The Minnesota River channel was widened and deepened starting from the foot of Big Stone Lake and running approximately one mile downstream to what was known as the old mill dam, where the Chicago, Milwaukee, St. Paul & Pacific spur track to Big Stone City crosses over the river. This increased the capacity of the channel for that distance, which was formerly 250 cubic feet per second, to approximately 1,000 cubic feet per second. As a result, for this distance the fall in the river channel is made more rapid than the fall downstream from the mill dam.

A control dam was erected across the Minnesota River just downstream from the confluence of the new diversion channel of the Whetstone River and the Minnesota River, thereby forcing the water of the diverted Whetstone up into Big Stone Lake. The control dam was built of concrete construction, and the over-all width of the spillway section of the dam is 105 feet, with a weir having a crest elevation of 966. Three movable gates were installed in the weir which can be lifted so as to permit water to pass through the resulting openings with a capacity of 750 cubic feet per second. The ground elevation of the river channel at the place where the dam was constructed was lowered approximately two feet so that water can be drained from the lake at a lower stage than it could in a state of nature. Provision is made in the upright sections of the dam in the weir slots for placing stop logs, these slots extending from the top of the weir to the floor of the spillway. The elevation of the top of the dam is 975. Extending in both directions from the dam structure are earthen dikes. The elevation of these dikes is 975 at the dam and for a very short distance of approximately 60 feet on either [338]*338side. There is a rise to an elevation of 979, and this elevation extends until it reaches the higher ground on both the South Dakota and Minnesota sides of the Minnesota valley. The dike extending to the South Dakota side of the valley from the control works runs immediately along the southerly and easterly bank of the diversion channel. This enables the state of Minnesota, by virtue of this project, to maintain and control the water elevation in Big Stone Lake to a maximum high of 975.

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Cite This Page — Counsel Stack

Bluebook (online)
71 N.W.2d 780, 245 Minn. 334, 1955 Minn. LEXIS 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bentley-minn-1955.