Title: Minnesota - Division of Waters - Drainage and Waters
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Title: Minnesota - Division of Waters - Drainage and Waters
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Abstract: Jake Varn Collection - Minnesota - Division of Waters - Drainage and Waters (JDV Box 39)
General Note: Box 29, Folder 23 ( Water Statutes - Other States - 1900s ), Item 11
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Ch. 105 DIVISION OF WATERS 105.37

Federal laws,
Compacts between states, conservation of water supply, consent of Con-
gress, see 16 U.S.C.A. 552.
Levees and drains, grants to states for reclamation of swamp and over-
flowed lands, see 43 U.S.C.A. 982-984.
Public lands in Minnesota, drainage, see 43 U.S.C.A. 1$ 1021-1028.
Right of way through public lands for irrigation or drainage purposes,
see 43 U.S.C.A. 946.
Soil Conservation and Domestic Allotment Act, see 10 U.S.C.A. $ 590a
et seq.
Submarginal lands, retirement, see 7 U.S.C.A. 1010 et seq.
Flowage easements, see 84.158.
Goose and Mud Lake, restoration of water levels, see 84.162.
Great Lakes Basin Compact, see 1.21 et seq.
Interference with waterflow beyond state boundaries, see 84.031.
Lac Qui Parle water control project, see 84.154.
Low water mark, stipulation in civil actions, see 84.032.
Municipalities, taking water from lake, see 465.49.
Omnibus Natural Resources and Recreation Act, see 86.01 et seq.
Soil conservation, see 40.01 to 40.15.
State ownership, bed of navigable rivers, see 465.18.
Uniform water level work, see 111.74, 111.75 and 111.79.
Watershed act, see 112.34 et seq.
Library References
Waters and Water Courses =217; C.J.S. Waters 1 315.

105.37 Definitions
Subdivision 1. Unless the language or context clearly indi-
cates that a different meaning is intended, the following words
and terms, for the purposes of sections 105.37 to 105.55, shall
have the meanings subjoined to them.
Subd. 2. "Commissioner" means the commissioner of conser-
vation of the state of Minnesota.
Subd. 3. "Division" means the division of waters of the de-
partment of conservation of the state of Minnesota.
Subd. 4. "Director" means the director of the division of
waters of the department of conservation of the state of Minne-
sota. Laws 1947, c. 142, 1.
History and Source of Law
The "division of water resources Commission Note (1947). Section
and engineering" changed to "divi- 1 [ 105.37] is taken from Section 105.-
sion of waters", and powers trans- 01. The definition of "ditch" has been
ferred, see 84.081, 84.083. eliminated and definition of "commis-
sioner" has been added.
Law Review Commentaries
Power of state to control the use of Review of current legislation, Laws
Its natural resources, Dwight Wil- 1947, c. 142, now H 105.37-105.55.
liams, Jan. 1027, 11 Minn.Law Re- Dec.1948, 33 Minn.Law Review 34.
view 129; Feb. 1927, 11 Minn.Law
Review 233.















The drainage statutes, including
Laws 1907, c. 470, incorporated in this
chapter, and Laws 1905, c. 230, and
subsequent amendments, were in part
nateria, and were required to be
construed together. Wold v. Forres-
tal, 1910, 133 Minn. 00, 137 N.W. 998.
In this case the Supreme Court said:
"But we think the statute should not
be construed alone, but rather in con-
nection with the judicial and coun-
ty drainage statutes of which it forms
a part. Chapter 470 [Laws of 1925]
was but an extension of the general
drainage system of the state, and con-
ferred upon the state drainage com-
mission, a board created by the act,
authority not theretofore possessed
by the then existing drainage agen-
cies. The several statutes form one


Pt. I


complete drainage system, one consis-
tent whole; they are in pari material,
for they relate to the same subject-
matter, and should be construed to-
gether. Prior to the enactment of
chapter 470, the Legislature had tak-
en particular pains, in the other
drainage statutes, to classify bonds
given in such proceedings as official
bonds, for what purpose we need not
stop to consider, and no sound reason
can be assigned to sustain a holding
that by the omission of a like classifi-
cation in this statute there was an in-
tention on the part of the Legislature
to depart from its general policy with.
respect to such bonds, and to place
those given under the new statute up-
on a different footing from those giv-
en under the other drainage statutes."


105.38 Declaration of policy
In order to conserve and utilize the water resources of the
state in the best interest of the people of the state, and for the
purpose of promoting the public health, safety and welfare, it.
is hereby declared to be the policy of the state:
(1) Subject to existing rights all waters in streams and lakes
within the state which are capable of substantial beneficial pub-
lic use are public waters subject to the control of the state. The
public character of water shall not be determined exclusively by
the proprietorship of the underlying, overlying, or surrounding
land or on whether it is a body or stream of water which was
navigable in fact or susceptible of being used as a highway for
commerce at the time this state was admitted to the union. This
section is not intended to affect determination of the ownership
of the beds of lakes or streams.
(2) The state, to the extent provided by law from time to
time, shall control the appropriation and use of surface and un-
derground waters of the state.
(3) The state shall control and supervise, so far as practicable,
the construction, reconstruction, repair, removal, or abandonment
of dams, reservoirs, and all control structures in any of the pub-
lic waters of the state. Laws 1947, c. 142, 2; Laws 1957, c..
502, 1.


105.37



I. In general


DRAINAGE AND WATERS


Notes of Decisions










Ch. 105


As enacted, and prior to the 1957
amendment, this section read: "In
order to conserve and utilize the wa-
ter resources of the state in the best
interests of the people of the state,
and for the purpose of promoting the
public safety and welfare, it is here-
by declared to be the policy of the
state (1) that subject to existing
rights, all waters in streams and
lakes wholly within the state and
such portions of all boundary streams
and lakes as lie within the state,
which are capable of substantial ben-
eficial public use, shall be public wa-
ters, and shall be subject to the con-
trol of the state, (2) the state, so far


105.38


as practicable, shall control the ap-
propriation and use of surface and
underground waters of the state, and
(3) the state shall control and super-
vise, so far as practicable, the con-
struction, reconstruction, repair, re-
moval, or abandonment of dams, res-
ervoirs, and all control structures in
any of the public waters of the state."
Commission Note (1947). Section 2
[105.38] is taken from Section 111.43.
The definition of public waters has
been changed from waters navigable
in fact to waters capable of a sub-
stantial beneficial public use.


Notes of Decisions


In general I
Appropriations 7
Authority to act 2
Boundary waters 8
Compensation 4
Donations 6
Existing rights 3
Navigability 5



I. In general
Section 105.42 prohibiting the chang-
Ing of cross-section of public waters
without written permit must be read
In conjunction with other statutes of
Water Resources Law of which it is
an Integral part. State v. Kuluvar,
1963, 266 Minn. 408, 123 N.W.2d 699.
Commissioner of conservation was
justified in ordering restoration of
lake level by construction of dam
.across drainage ditch, where lowering
of lake level was detrimental to fish
life, resulted in contamination and
pollution because of increased erosion
of banks, and fields adjacent to lake,
had rendered lake unfit for bathing,
and had exposed great areas of sand
beach and shore which were growing
up to thistles. In re Lake Elysian
High Water Level, 1940, 208 Minn.
158, 293 N.W. 140.
County board would be authorized
to construct bridges in places that
they deemed necessary, and could re-


quire a right of way for a bridge over
a private channel constructed by a
landowner with the consent of the
commissioner of conservation. Op.
Atty.Gen., 377a-1, April 17, 1962.
In view of the fact that the state
is the owner of the underlying bed,
in trust for the public, of a navigable
stream, application for permit to
change the channel of the stream
should be made to the Commissioner
of Conservation consistent with the
provisions of Minnesota Statutes,
Chapter 105. Op.Atty.Gcn., 370-K,
Oct. 10, 1960.
The title of a new channel of a
navigable stream should be in the
state, and would be in fee simple and
not an easement. Id.
The legislature did not authorize
granting of leases or permits for use
of beds of navigable or public waters
below low water mark for purposes
of constructing dykes in conjunction
with mining ore to prevent seepage
of lake water into the mining pit and,
without such legislative authority, a
permit for such construction could not
be granted. Op.Atty.Gen., 311-D-5,
Jan. 3, 1947.
The Commissioner of Conservation
had veto power over other established
statutory agencies and other agencies
could not proceed to make changes as
to water level of lake or control flow
of water without consent of Conmis-


DIVISION OF WATERS


History and Source of Law












sioner of Conservation. Op.Atty.Gen.,
273-A-23, July 28, 1944.
The Commissioner of Conservation
had authority to approve and to in-
itiate proceedings for construction of
project for purpose of maintaining
uniform water level of lake. Op.Atty.
Gen., 273-A-14, Sept. 13, 1938.
Question whether Commissioner
should institute proceedings under
t 111.43-111.64 (now repealed), was
within Commissioner's discretion,
such proceedings being of a civil na-
ture and could be instituted on com-
plaint of any proper person or on
Commissioner's own initiative. Op.
Atty.Gen.193S, No. 99, p. 210.
A public drainage ditch was not a
"navigable stream or water course"
within 111.43-111.63 (now repealed)
and such sections should not be con-
strued as applying to making of im-
provements to such ditches, such as
excavating them to their original
depth andi width and clearing and
grubbing brush and trees on ditch
right of way, unless the ditch consti-
tuted an inlet or outlet of a naviga-
ble body of water or unless a naviga-
ble stream or or body of water coming
within the provisions of such statute
constituted a part of the drainage
system or was so connected with such
drainage system as to cause "the
course, current or cross-section" of
such navigable stream or body of wa-
ter to be changed or diminished by
such an excavation or improvement
of the drainage system. Op.Atty.Gen.
1938, No. 00, p. 209.
Commissioner of Conservation had
authority to reconstruct, repair, re-
move and abandon dams, reservoirs
and other control structures within
conservation project area, and where
Commissioner found after hearing
that control structures existing in the
project area were not adequate to
control flood conditions, appropriate
proceedings could be instituted under
111.43-111.03 (now repealed), either
by application to interested persons
or on Commissioner's own initiative.
Op.Atty.Gen.1938, No. 94, p. 205.

2. Authority to act
Whether a lake could be "lowered"
or "drained" in any given case de-


Pt. 1


pends on statutory authority proper-
ly invoked and exercised. In re Lake
Elysian High Water Level, 1940, 208
Minn. 158 203 N.W. 140.
Neither the commission of conser-
vation or any of his agents, had any
authority to go upon private lands
and summarily remove obstruction
in waterway. Op.Atty.Gen., 211-D-7,
June 4, 1940.
Even assuming that the character
and extent of the damage caused by
a beaver constituted a public nui-
sance, neither commissioner of con-
servation nor any of his officers or
agents has authority to take any
summary action to abate such nui-
sance. Id.

3. Existing rights
Where the purpose of the construc-
tion of county ditch, for which bene-
fited lands were assessed for drainage
benefits, was to more effectually drain
slough lands and control sudden rises
and floods overflowing lowlands ad-
jacent to shores of lake, assessed
landowners' rights were limited to
the benefits accruing within engi-
neer's report which was the basis on
which ditch was established and the
assessments for its costs levied, and
subsequent erosion of the lake outlet
whereby natural water level was
much lowered could not be claimed to
be a barrier against the state in seek-
ing restoration of the lake level to its
natural and normal height. In re
Lake Elysian High Water Level, 1940,
208 Minn. 158, 293 N.W. 140.
Long delay, between time of estab-
lishment of ditch to drain lowlands
and to control sudden rises and floods
and proceedings by state commission-
er of conservation to restore lake
level which had been lowered because
of erosion of ditch, did not limit
state's right to so proceed, since no
prescriptive right can be obtained
against the state, In absence of any
statutory time limit within which it
may act. Id.
Where drainage ditch was estab-
lished and constructed, a new status
was thereby created for the lands af-
fected and lands assessed for benefits,
and such new status became a prop-


105.38


DRAINAGE AND WATERS










Ch. 105


DIVISION OF WATERS


erty right appurtenant to such lands
and was not to be taken or impaired
even through governmental action,
except by due process of law. Op.
Atty.Gen., 002-B, Feb. 21, 1952.

4. Compensation
The right to appropriate for public
use portions of a navigable lake with-
out compensation to riparian owners
discussed. Op.Atty.Gen.1042, No. 14,
p. 41.
The rights of riparian owners in-
cluding right of access to navigable
waters could be taken by the state
without compensation, that was the
state could appropriate the water
which might naturally flow past a
riparian owner for the general bene-
ficial use of the public without com-
pensation to the riparian owner. Op.
Atty.Gen., 273-B-4, May 20, 1941.

5. Navigability
Minnehaha creek was a navigable
stream and should be treated as such
by administrative agencies until the
courts held differently. Op.Atty.Gen.,
273-A-14, June 29, 1945.

0. Donations
Where county dug a deep well and
operated a pumping station to pump
large quantities of water into a lake
lying wholly within the county as a
community project, it could receive
donations to be used toward expense


105.39


of the work. Op.Atty.Gcn.1040, No.
173, p. 222.

7. Appropriations
A county board could make appro-
priations for purpose of digging a
deep well and for maintaining a
pumping station to pump large quan-
tities of water into a lake lying whol-
ly within the county, without the con-
sent of the Commissioner of Conser-
vation and without any other pro-
ceeding. Op.Atty.Gen.1940, No. 173,
p. 222.

8. Boundary waters
In absence of any action by Con-
gress, power to regulate international
boundary waters reposes in state.
State v. Kuluvar, 1963, 266 Minn. 408,
123 N.W.2d 699.
Congress may elect to occupy field
of regulation of international bounda-
ry waters concurrently with state, and
in such instances state regulations are
valid except where they conflict with
federal authority. Id.
Where a conflict is claimed between
congressional action and state regula-
tions of international boundary wa-
ters and conflict is not clear, any
doubt should be resolved in favor of
dominant federal authority. Id.
Treaty governing control of Rainy
Lake by International Joint Commis-
sion does not expressly or impliedly
exclude state jurisdiction over such
waters. Id.


105.39 Authority and powers of commissioner
Subdivision 1. Water conservation program. The com-
missioner shall devise and develop a general water resources con-
servation program for the state. The program shall contem-
plate the conservation, allocation, and development of all the wa-
ters of the state, surface and underground, for the best interests
of the people. The commissioner shall be guided by such program
in the issuance of permits for the use and appropriation of the wa-
ters of the state and the construction, reconstruction, repair, re-
moval, or abandonment of dams, reservoirs and other control .
structures, as provided by sections 105.37 to 105.55.
Subd. 2. Surveys and investigations. The commissioner is au-
thorized to cause to be made all such surveys, maps, investigations


_ _~I ~ I~WY1_I~__~ _I__









105.39


DRAINAGE AND WATERS


and studies of the water resources and topography of the state as
he may deem necessary to provide the information to formulate a
program and carry out the provisions of sections 105.37 to 105.55.
Subd. 3. Administration over waters and water power. The
commissioner shall have administration over the use, allocation
and control of public waters, the establishment, maintenance and
control of lake levels and water storage reservoirs, and the deter-
mination of the natural ordinary high water level of any public
waters.
Subd. 4. Power to acquire property; eminent domain. The
commissioner shall have the power to acquire title to any private
property for any authorized purpose by purchase or by the exer-
cise of the right of eminent domain; and the use of such property
in the furtherance of lawful projects under sections 105.37 to 105.-
55 is hereby declared to be a public purpose. On request by the
commissioner, the attorney general shall proceed to acquire the
necessary title to private property for such use under the provi-
sions of Minnesota Statutes 1945, Chapter 117.
Subd. 5. Contracts. The commissioner is authorized to
approve contracts for all works under sections 105.37 to 105.55, to
change the plans thereof when necessary, and to supervise, con-
trol, and accept the same when complete. He is further authoriz-
ed to cause the same, together with expenses incurred in connec-
tion therewith, to be paid for out of any funds made available to
the use of the commissioner. Laws 1947, c. 142, 3.

History and Source of Law
Commission Note (1947). Section 3
[ 103.39] is taken from Sections 111.-
45, 105.03 and a part of 105.05.

Notes of Decisions


In general 2
Validity of prior laws I


I. Validity of prior laws
Laws 1897, c. 318, entitled "An act
to create a board of state drainage
commissioners and prescribe its du-
ties," which, among other things, im-
posed obligations on the board of
county commissioners of the proper
county to repair a state ditch, was
not obnoxious to the constitutional
limitation providing that no act shall
embrace more than one subject,


which shall be expressed in the title.
Gaare v. Board of Com'rs of Clay
County, 1902, 90 Minn. 530, 97 N.W.
422.
Laws 1887, c. 97, providing for the
drainage of wet and swampy lands
in the interest of the public health,
convenience and welfare, was valid
as a proper exercise of the police
power. In re IIegne-HIendrum Ditch
No. 1, 1900, 80 MIinn. 58, 82 N.W. 1094.

2. In general
The authority granted the commis-
sioner of conservation to refuse per-


Pt. 1








Ch. 105 DIVISION OF WATERS 105.40
mission to place fill upon public wa- unlawfully placed thereupon. Op.
ters of the state carries the implied Atty.Gcn., 273c-6, May 3, 1961.
authority to order the removal of fill

105.40 Director; qualifications, duties
Subdivision 1. The director of the division of waters of the de-
partment of conservation shall be a registered professional
engineer, skilled in hydraulics. Under the direction of the com-
missioner, he shall make the surveys and engineering investiga-
tions required by sections 105.37 to 105.55 and perform the follow-
ing duties.
Subd. 2. A complete copy of all preliminary and final
engineers' maps, plans and reports on all public ditches hereaft-
er initiated in the state shall be filed in the office of the director by
the respective county auditors or clerks of district court, and the
director shall report thereon to the county boards of commission-
ers or judges of the district court, as required by the county and
judicial ditch laws of this state.
Subd. 3. Upon request by any county board or judge of the
district court or engineer on any public ditch, the director shall ad-
vise them relative to any engineering questions or problems aris-
ing in connection with any public ditch.
Subd. 4. When any field survey or investigation of any public
ditch is deemed necessary by the director or is requested in writ-
ing by the county board or district judge, the director may make
the same. If the field survey or investigation be made at the re-
quest of the board or judge, the expense thereof shall be reported
to the board or court and paid by the county as are other ditch ex-
penses.
Subd. 5. The director is authorized to prepare and publish
run-off data and information as to the capacity of tile drains and
open ditches within the state together with forms of specifica-
tions for drain tile, open ditches and ditch construction and stand-
ard procedural forms for public ditch proceedings, and to furnish
the same to engineers and public officials for their advice and in-
formation.
Subd. 6. The director is authorized to investigate the methods
employed in the manufacture of drain tile and the causes of any
failures thereof, and to conduct research and experimentation for
the purpose of improving the quality of drain tile. He may make
inspections and tests of manufacturing processes and materials
used and the resultant product in any manufacturing plant in the
state where drain tile is made and sold to the general public. The


rrrs








105.40


DRAINAGE AND WATERS


director, or his authorized representative, shall have free access
to all such manufacturing plants for the purpose of such inspec-
tions and tests, and the results thereof shall be made public for the
information of officials concerned in public ditch proceedings, tile
manufacturers and others interested in the use of drain tile.
Subd. 7. The director shall perform such engineering work as
may be requested by the state water policy board, and shall appear
in all hearings and proceedings before the state water policy
board affecting waters within the state.
Subd. 8. The director shall cooperate with all agencies and de-
partments of the state and federal government relating to projects
or works of improvement affecting waters within the state and
shall make recommendations to the agencies involved and to the
governor as to the desirability, feasibility and practicability of
such proposed projects and works of improvement.
Subd. 9. The director is authorized to purchase such
technical and scientific equipment as may be necessary to per-
form the functions and discharge the duties of his office.
Subd. 10. No contract or agreement shall be made
by any department or agency of the state or any municipality
with the United States or any agency or department thereof, for
the collection of basic data pertaining to surface or ground wa-
ters of the state without first securing the written approval of
the director.
Subd. 11. The director is authorized to formulate rules and
regulations so as to standardize the forms and sizes of maps,
plats, drawings and specifications in public drainage proceedings
and proceedings and undertakings pertaining to public waters of
the state.
Subd. 12. All moneys appropriated to the commissioner of
conservation or the department of conservation for the use of
the division of waters or the director thereof, to conduct hydro-
logic studies, shall remain available until expended.
Subd. 13. The director may appear for the state in any mat-
ter or proceeding affecting waters within the state, including
boundary waters, for the purpose of furnishing hydrologic and
hydraulic engineering advice and information in connection
therewith.
Subd. 14. The director, with the approval of the commission-
er, may make cooperative agreements with and cooperate with
any person, corporation or governmental authority for the pur-
pose of effectuating the provisions of this section. Laws 1947,
c. 142, 4; Laws 1955, c. 771, 1.


Pt. 1










Ch. 105


The "division of water resources
and engineering" was changed to "di-
vision of waters", and the powers
transferred in 1949, see f 84.081, 84.-
OS3.


The provisions of subds. 7-13 were
added by the 1955 amendment.

Notes of Decisions


In general I
Dams 4
Drainage 2
Meandered lakes, drainage of 3


I. In general
The Commissioner of Conservation
could by written order filed in his
office delegate to the director of any
division of the department any of
the powers and duties vested in or
imposed on the Commissioner which
could be exercised or performed by
the respective directors in their own
names or in the name of the Com-
missioner as the Commissioner might
direct. Op.Atty.Gen.1938, No. 95, p.
207.
2., Drainage
The rule that by reasonable drain-
age works on his own premises, a
landowner might dispose of surface
water as best he could, so long as
he did not unreasonably injure his
neighbor, applied only to private
rights and the exercise thereof, and
had no application to a public drain-
age proceeding wherein the statute
required compensation to all who suf-
fered damage. Under this rule, the
owner of realty was entitled to com-
pensation for damages for surface
water which was drained onto his
realty by ditch established by town
board of township in public drainage
proceeding. Sheehan v. Flynn, 1895,
59 Minn. 430, 61 N.W. 462, 20 L.R.A.
632; In re Town Ditch No. 1 of
Pleasant Mount Tp., Blue Earth
County, 1941, 208 Minn. 506, 295 N.W.
47.
Statutory provisions governing
ditch proceedings were required to


105.40


Commission Note (1947). Section
4 [ 105.40] is taken from Sections
105.03, 105.04, 105.00, 105.07 and 105.-
10. It has been materially shortened
as to detail.


be strictly followed. State v. Oldre,
1930, 179 Minn. 566, 220 N.W. 878.
A ditch which only avoided erosion
to a highway was not a "drainage
project" within the drainage statute.
Town of Vivian v. Dunbar, 1925, 102
Minn. 491, 203 N.W. 431.
The power to organize drainage dis-
tricts was referable to the same
source as the drainage power gen-
erally. In re Red Lake Drainage
and Conservancy Dist., 1923, 154
Minn. 442, 192 N.W. 184.
Drainage proceedings were purely
statutory and their validity depends
upon a strict compliance with the
provisions of the statute by which
they were regulated and controlled.
State v. Nelson, 1920, 145 Minn. 31,
170 N.W. 181.
3. Meandered lakes, drainage of
SThe drainage of a meandered lake
was forbidden by Gen.St.1913, j
8949, unless it was of a class author-
ized to be drained by section 5523,
as amended by Laws 1915, c. 300, re-
lating to meandered lakes normally
shallow and of a marshy character.
State ex rel. Westergaard v. District
Court of Stearns County, 1919, 144
Minn. 78,174 N.W. 522.
Evidence held to show that Crow
Lake, In Stearns county, was not
within class of lakes authorized to
be drained by Gen.Stl1913, 5523,
as amended by Laws 1915, c. 300, by
permitting drainage of meandered
lakes which had become normally
shallow and of a marshy character.
Id.
4. Dams
The Conservation Commissioner, in
cooperation with various municipall-


DIVISION OF WATERS


History and Source of Law











ties in drouth areas throughout the
state had authority to maintain and
construct dams In outlets of lakes or
in streams where none are now found
so as to store water in such lakes
and streams up to but not above or-
dinary high water mark and in coop-
eration with such municipalities the


Pt. 1


Commissioner had authority to pre-
scribe reasonable rules and regula-
tions for the discharge of water so as
to meet urgent human and domestic
needs in the communities dependent
on such sources of supply. Op.Atty.
Gen., 273-B, Aug. 14, 1934.


105.41 Appropriation and use of waters
It shall be unlawful for the state, any person, partnership, or
association, private or public corporation, county, municipality,
or other political subdivision of the state to appropriate or use
any waters of the state, surface or underground, without the
written permit of the commissioner, previously obtained upon
written application therefore to the commissioner. The commis-
sioner may give such permit subject to such conditions as he
may find advisable or necessary in the public interest. Nothing
in this section shall be construed to apply to the use of water for
domestic purposes serving at any time less than 25 persons or
to any beneficial uses and rights, outside the geographical limits
of any municipality, in existence on July 1, 1937, or to any bene-
ficial uses and rights, within the geographical limits of any mu-
nicipality, in existence on July 1, 1959. Laws 1947, c. 142, 5;
Laws 1959, c. 486, 1.

History and Source of Law


The last sentence of this section
was revised by the 1959 amendment.
Prior to that amendment the last sen-
tence read: "Nothing in this section
shall be construed to apply to the
use of water for domestic purposes
serving at any time less than 25 per-
sons, or to the use of water for any
purpose originating within the gco-


graphical limits of any municipality,
nor to any beneficial uses and rights
in existence on July 1, 1937."
Commission Note (1947). Section 5
[ 105.41] is taken from Section 111.-
46. The Commissioner is authorized
to give permits subject to conditions.


Cross References
Drainage systems, impounding and diversion of waters, see 105.81.
Water resources board policy decisions, see J 105.74.

Notes of Decisions


Library references
Waters and Waters Courses =127
ct seq.
C.J.S. Waters 157 ct seq.

I. In general
A permit from Commissioner of
Conservation should be obtained be-


fore use of the bed of lake as a strip-
ping dump was attempted. Op.Atty.
Gen., 311-D-5, May 26, 1943; Op.
Atty.Gen., 273-A-13, May 26, 1943.
Where water impounded in reser-
voir was owned by state in its pro-
prietary capacity as distinguished
from ownership in its sovereign ca-


105.41


DRAINAGE AND WATERS














Ch. 105 DIVISION OF WATERS 105.37

Federal laws,
Compacts between states, conservation of water supply, consent of Con-
gress, see 16 U.S.C.A. 552.
Levees and drains, grants to states for reclamation of swamp and over-
flowed lands, see 43 U.S.C.A. 982-9S4.
Public lands in Minnesota, drainage, see 43 U.S.C.A. $ 1021-1028.
Right of way through public lands for irrigation or drainage purposes,
see 43 U.S.C.A. 946.
Soil Conservation and Domestic Allotment Act, see 16 U.S.C.A. 590a
et seq.
Submarginal lands, retirement, see 7 U.S.C.A. 1010 et seq.
Flowage easements, see S4.15S.
Goose and Mud Lake, restoration of water levels, see 84.162.
Great Lakes Basin Compact, see 1.21 et seq.
Interference with waterflow beyond state boundaries, see 84.031.
Lac Qui Parle water control project, see 84.154.
Low water mark, stipulation in civil actions, see 84.032.
Municipalities, taking water from lake, see 465.49.
Omnibus Natural Resources and Recreation Act, see 86.01 et seq.
Soil conservation, see 8 40.01 to 40.15.
State ownership, bed of navigable rivers, see 465.18.
Uniform water level work, see 8 111.74, 111.75 and 111.79.
Watershed act, see 112.34 ct seq.
Library References
Waters and Water Courses C217; C.J.S. Waters 5 315.

105.37 Definitions
Subdivision 1. Unless the language or context clearly indi-
cates that a different meaning is intended, the following words
and terms, for the purposes of sections 105.37 to 105.55, shall
have the meanings subjoined to them.
Subd. 2. "Commissioner" means the commissioner of conser-
vation of the state of Minnesota.
Subd. 3. "Division" means the division of waters of the de-
partment of conservation of the state of Minnesota.
Subd. 4. "Director" means the director of the division of
waters of the department of conservation of the state of Minne-
sota. Laws 1947, c. 142, 1.
History and Source of Law
The "division of water resources Commission Note (1947). Section
and engineering" changed to "divi- 1 [ 105.37] is taken from Section 105.-
sion of waters", and powers trans- 01. The definition of "ditch" has been
ferred, see 84.081, 84.083. eliminated and definition of "commis-
sioner" has been added.
Law Review Commentaries
Power of state to control the use of Review of current legislation, Laws
Its natural resources, Dwight Wil- 1917, c. 142, now 55 105.37-105.55.
liams, Jan. 1027, 11 Minn.Law Re- Decc.1948, 33 Minn.Law Review 34.
view 129; Feb. 1927, 11 Minn.Law
Review 233.











105.37


DRAINAGE AND WATERS


Notes of Decisions


I. In general
The drainage statutes, including
Laws 1007, c. 470, incorporated in this
chapter, and Laws 1905, c. 230, and
subsclqunc t amendments, were in part
inatcria, and were required to be
construed together. Wold v. Forres-
tal, 1910, 133 Minn. 00, 157 N.W. 998.
In this case the St:preme Court said:
"But we think the statute should not
be construed alone, but rather in con-
nection with the judicial and coun-
ty drainage statutes of which it forms
a part. Chapter 470 [Laws of 1025]
was but an extension of the general
drainage system of the state, and con-
ferred upon the state drainage com-
mission, a board created by the act,
authority not theretofore possessed
by the then existing drainage agen-
cies. The several statutes form one


complete drainage system, one consis-
tent whole; they are in pari material,
for they relate to the same subject-
matter, and should be construed to-
gether. Prior to the enactment of
chapter 470, the Legislature had tak-
en particular pains, in the other
drainage statutes, to classify bonds
given in such proceedings as official
bonds, for what purpose we need not
stop to consider, and no sound reason
can be assigned to sustain a holding
that by the omission of a like classifi-
cation in this statute there was an in-
tention on the part of the Legislature
to depart from its general policy with
respect to such bonds, and to place
those given under the new statute up-
on a different footing from those giv-
en under the other drainage statutes."


105.38 Declaration of policy
In order to conserve and utilize the water resources of the
state in the best interest of the people of the state, and for the
purpose of promoting the public health, safety and welfare, it.
is hereby declared to be the policy of the state:
(1) Subject to existing rights all waters in streams and lakes
within the state which are capable of substantial beneficial pub-
lic use are public waters subject to the control of the state. The
public character of water shall not be determined exclusively by
the proprietorship of the underlying, overlying, or surrounding
land or on whether it is a body or stream of water which was
navigable in fact or susceptible of being used as a highway for
commerce at the time this state was admitted to the union. This
section is not intended to affect determination of the ownership
of the beds of lakes or streams.
(2) The state, to the extent provided by law from time to
time, shall control the appropriation and use of surface and un-
derground waters of the state.

(3) The state shall control and supervise, so far as practicable,
the construction, reconstruction, repair, removal, or abandonment
of dams, reservoirs, and all control structures in any of the pub-
lic waters of the state. Laws 1947, c. 142, 2; Laws 1957, c..
502, 1.


Pt. I


^-*~.14Ur*UI1~-WPrri-Lr










Ch. 105


As enacted, and prior to the 1957
amendment, this section read: "In
order to conserve and utilize the wa-
ter resources of the state in the best
interests of the people of the state,
and for the purpose of promoting the
public safety and welfare, it is here-
by declared to be the policy of the
state (1) that subject to existing
rights, all waters in streams and
lakes wholly within the state and
such portions of all boundary streams
and lakes as lie within the state,
which are capable of substantial ben-
eficial public use, shall be public wa-
ters, and shall be subject to the con-
trol of the state, (2) the state, so far


105.38


as practicable, shall control the ap-
propriation and use of surface and
underground waters of the state, and
(3) the state shall control and super-
vise, so far as practicable, the con-
struction, reconstruction, repair, re-
moval, or abandonment of dams, res-
ervoirs, and all control structures in
any of the public waters of the state."
Commission Note (1947). Section 2
[105.38] is taken from Section 111.43.
The definition of public waters has
been changed from waters navigable
in fact to waters capable of a sub-
stantial beneficial public use.


Notes of Decisions


In general I
Appropriations 7
Authority to act 2
Boundary waters 8
Compensation 4
Donations 6
Existing rights 3
Navigability 5



I. In general
Section 105.42 prohibiting the chang-
ing of cross-section of public waters
without written permit must be read
in conjunction with other statutes of
Water Resources Law of which it is
an Integral part. State v. Kuluvar,
1963, 266 Minn. 408, 123 N.W.2d 690.
Commissioner of conservation was
justified in ordering restoration of
lake level by construction of dam
.across drainage ditch, where lowering
of lake level was detrimental to fish
life, resulted in contamination and
pollution because of increased erosion
of banks, and fields adjacent to lake,
had rendered lake unfit for bathing,
and had exposed great areas of sand
beach and shore which were growing
up to thistles. In re Lake Elysian
High Water Lovel, 1940, 208 Minn.
158, 293 N.W. 140.
County board would be authorized
to construct bridges in places that
they deemed necessary, and could re-


quire a right of way for a bridge over
a private channel constructed by a
landowner with the consent of the
commissioner of conservation. Op.
Atty.Gen., 377a-1, April 17, 102.
In view of the fact that the state
is the owner of the underlying bed,
in trust for the public, of a navigable
stream, application for permit to
change tle channel of the stream
should be made to the Commissioner
of Conservation consistent with the
provisions of Minnesota Statutes,
Chapter 105. Op.Atty.Gen., 370-K,
Oct. 10, 1960.
The title of a new channel of a
navigable stream should be in the
state, and would be in fee simple and
not an easement. Id.
The legislature did not authorize
granting of leases or permits for use
of beds of navigable or public waters
below low water mark for purposes
of constructing dykes in conjunction
with mining ore to prevent seepage
of lake water into the mining pit and,
without such legislative authority, a
permit for such construction could not
be granted. Op.Atty.Gen., 311-D-5,
Jan. 3, 1947.
The Commissioner of Conservation
had veto power over other established
statutory agencies and other agencies
could not proceed to make changes as
to water level of lake or control flow
of water without consent of Comnnis-


DIVISION OF WATERS


History and Source of Law












sioner of Conservation. Op.Atty.Gen.,
273-A-23, July 28, 1044.
The Commissioner of Conservation
had authority to approve and to in-
itiate proceedings for construction of
project for purpose of maintaining
uniform water level of lake. Op.Atty.
Gen., 273-A-14, Sept. 13, 1938.
Question whether Commissioner
should institute proceedings under
0 111.43-111.04 (now repealed), was
within Commissioner's discretion,
such proceedings being of a civil na-
ture and could be instituted on com-
plaint of any proper person or on
Commissioner's own initiative. Op.
Atty.Gcn.1938, No. 99, p. 216.
A public drainage ditch was not a
"navigable stream or water course"
within 111.43-111.03 (now repealed)
and such sections should not be con-
strued as applying to making of im-
provenints to such ditches, such as
excavating them to their original
depth and width and clearing and
grubbing brush and trees on ditch
right of way, unless the ditch consti-
tuted an inlet or outlet of a naviga-
ble body of water or unless a naviga-
ble stream or body of water coming
within the provisions of such statute
constituted a part of the drainage
system or was so connected with such
drainage system as to cause "the
course, current or cross-section" of
such navigable stream or body of wa-
ter to be changed or diminished by
such an excavation or improvement
of the drainage system. Op.Atty.Gen.
1938, No. 96, p. 209.
Commissioner of Conservation had
authority to reconstruct, repair, re-
move and abandon dams, reservoirs
and other control structures within
conservation project area, and where
Commissioner found after hearing
that control structures existing in the
project area were not adequate to
control flood conditions, appropriate
proceedings could be instituted under
111.43-111.63 (now repealed), either
by application to interested persons
or on Commissioner's own initiative.
Op.Atty.Gen.1938, No. 94, p. 205.

2. Authority to act
Whether a lake could be "lowered"
or "drained" in any given case de-


Pt. 1


pends on statutory authority proper-
ly invoked and exercised. In re Lake
Elysian ligh Water Level, 1940, 208
Minn. 158, 203 N.W. 140.
Neither the commission of conser-
vation or any of his agents, had any
authority to go upon private lands
and summarily remove obstruction
in waterway. Op.Atty.Gen., 211-D-7,
June 4, 1946.
Even assuming that the character
and extent of the damage caused by
a beaver constituted a public nui-
sance, neither commissioner of con-
servation nor any of his officers or
agents has authority to take any
summary action to abate such nui-
sance. Id.

3. Existing rights
Where the purpose of the construc-
tion of county ditch, for which bene-
fited lands were assessed for drainage
benefits, was to more effectually drain
slough lands and control sudden rises
and floods overflowing lowlands ad-
jacent to shores of lake, assessed
landowners' rights were limited to
the benefits accruing within engi-
neer's report which was the basis on
which ditch was established and the
assessments for its costs levied, and
subsequent erosion of the lake outlet
whereby natural water level was
much lowered could not be claimed to
be a barrier against the state in seek-
ing restoration of the lake level to its
natural and normal height. In re
Lake Elysian High Water Level, 1940,
208 Minn. 158, 293 N.W. 140.
Long delay, between time of estab-
lishment of ditch to drain lowlands
and to control sudden rises and floods
and proceedings by state commission-
er of conservation to restore lake
level which had been lowered because
of erosion of ditch, did not limit
state's right to so proceed, since no
prescriptive right can be obtained
against the state, in absence of any
statutory time limit within which it
may act. Id.
Where drainage ditch was estab-
lished and constructed, a new status
was thereby created for the lands af-
fected and lands assessed for benefits,
and such new status became a prop-


105.38


DRAINAGE AND WATERS










Ch. 105


DIVISION OF WATERS


erty right appurtenant to such lands
and was not to be taken or impaired
even through governmental action,
except by due process of law. Op.
Atty.Gen., 002-B, Feb. 21, 1952.

4. Compensation
The right to appropriate for public
use portions of a navigable lake with-
out compensation to riparian owners
discussed. Op.Atty.Gen.1942, No. 14,
p. 41.
The rights of riparian owners in-
cluding right of access to navigable
waters could be taken by the state
without compensation, that was the
state could appropriate the water
which might naturally flow past a
riparian owner for the general bene-
ficial use of the public without com-
pensation to the riparian owner. Op.
Atty.Gen., 273-B-4, May 20,1941.

5. Navigability
Minnehaha creek was a navigable
stream and should be treated as such
by administrative agencies until the
courts held differently. Op.Atty.Gen.,
273-A-14, June 29, 1945.

6. Donations
Where county dug a deep well and
operated a pumping station to pump
large quantities of water into a lake
lying wholly within the county as a
community project, it could receive
donations to be used toward expense


105.39


of the work. Op.Atty.Gen.1940, No.
173, p. 222.

7. Appropriations
A county board could make appro-
priations for purpose of digging a
deep well and for maintaining a
pumping station to pump large quan-
tities of water into a lake lying whol-
ly within the county, without the con-
sent of the Commissioner of Conser-
vation and without any other pro-
ceeding. Op.Atty.Gcn.1040, No. 173,
p. 222.

8. Boundary waters
In absence of any action by Con-
gress, power to regulate international
boundary waters reposes in state.
State v. Kuluvar, 1963, 266 Minn. 408,
123 N.W.2d 699.
Congress may elect to occupy field
of regulation of international bounda-
ry waters concurrently with state, and
in such instances state regulations are
valid except where they conflict with
federal authority. Id.
Where a conflict is claimed between
congressional action and state regula-
tions of international boundary wa-
ters and conflict is not clear, any
doubt should be resolved in favor of
dominant federal authority. Id.
Treaty governing control of Rainy
Lake by International Joint Commis-
sion does not expressly or impliedly
exclude state jurisdiction over such
waters. Id.


105.39 Authority and powers of commissioner
Subdivision 1. Water conservation program. The com-
missioner shall devise and develop a general water resources con-
servation program for the state. The program shall contem-
plate the conservation, allocation, and development of all the wa-
ters of the state, surface and underground, for the best interests
of the people. The commissioner shall be guided by such program
in the issuance of permits for the use and appropriation of the wa-
ters of the state and the construction, reconstruction, repair, re-
moval, or abandonment of dams, reservoirs and other control .
structures, as provided by sections 105.37 to 105.55.
Subd. 2. Surveys and investigations. The commissioner is au-
thorized to cause to be made all such surveys, maps, investigations










105.39


DRAINAGE AND WATERS


and studies of the water resources and topography of the state as
he may deem necessary to provide the information to formulate a
program and carry out the provisions of sections 105.37 to 105.55.
Subd. 3. Administration over waters and water power. The
commissioner shall have administration over the use, allocation
and control of public waters, the establishment, maintenance and
control of lake levels and water storage reservoirs, and the deter-
mination of the natural ordinary high water level of any public
waters.
Subd. 4. Power to acquire property; eminent domain. The
commissioner shall have the power to acquire title to any private
property for any authorized purpose by purchase or by the exer-
cise of the right of eminent domain; and the use of such property
in the furtherance of lawful projects under sections 105.37 to 105.-
55 is hereby declared to be a public purpose. On request by the
commissioner, the attorney general shall proceed to acquire the
necessary title to private property for such use under the provi-
sions of Minnesota Statutes 1945, Chapter 117.
Subd. 5. Contracts. The commissioner is authorized to
approve contracts for all works under sections 105.37 to 105.55, to
change the plans thereof when necessary, and to supervise, con-
trol, and accept the same when complete. He is further authoriz-
ed to cause the same, together with expenses incurred in connec-
tion therewith, to be paid for out of any funds made available to
the use of the commissioner. Laws 1947, c. 142, 3.

History and Source of Law
Commission Note (1947). Section 3
[ 105.39] is taken from Sections 111.-
45, 105.03 and a part of 105.05.

Notes of Decisions


In general 2
Validity of prior laws I


I. Validity of prior laws
Laws 1897, c. 318, entitled "An act
to create a board of state drainage
commissioners and prescribe its du-
ties," which, among other things, im-
posed obligations on the board of
county commissioners of the proper
county to repair a state ditch, was
not obnoxious to the constitutional
limitation providing that no act shall
embrace more than one subject,


which shall be expressed in the title.
Gaare v. Board of Com'rs of Clay
County, 1902, 90 Minn. 530, 97 N.W.
422.
Laws 1887, c. 97, providing for the
drainage of wet and swampy lands
in the interest of the public health,
convenience and welfare, was valid
as a proper exercise of the police
power. In re Ilegne-HIendrum Ditch
No. 1, 1900, 80 Minn. 58, 82 N.W. 1094.
2. In general
The authority granted the commis-
sioner of conservation to refuse per-


Pt. 1








DIVISION OF WATERS


105.40


mission to place fill upon public wa- unlawfully placed thereupon. Op.
ters of the state carries the implied Atty.Gen., 273c-6, May 3, 19061.
authority to order the removal of fill

105.40 Director; qualifications, duties
Subdivision 1. The director of the division of waters of the de-
partment of conservation shall be a registered professional
engineer, skilled in hydraulics. Under the direction of the com-
missioner, he shall make the surveys and engineering investiga-
tions required by sections 105.37 to 105.55 and perform the follow-
ing duties.
Subd. 2. A complete copy of all preliminary and final
engineers' maps, plans and reports on all public ditches hereaft-
er initiated in the state shall be filed in the office of the director by
the respective county auditors or clerks of district court, and the
director shall report thereon to the county boards of commission-
ers or judges of the district court, as required by the county and
judicial ditch laws of this state.
Subd. 3. Upon request by any county board or judge of the
district court or engineer on any public ditch, the director shall ad-
vise them relative to any engineering questions or problems aris-
ing in connection with any public ditch.
Subd. 4. When any field survey or investigation of any public
ditch is deemed necessary by the director or is requested in writ-
ing by the county board or district judge, the director may make
the same. If the field survey or investigation be made at the re-
quest of the board or judge, the expense thereof shall be reported
to the board or court and paid by the county as are other ditch ex-
penses.
Subd. 5. The director is authorized to prepare and publish
run-off data and information as to the capacity of tile drains and
open ditches within the state together with forms of specifica-
tions for drain tile, open ditches and ditch construction and stand-
ard procedural forms for public ditch proceedings, and to furnish
the same to engineers and public officials for their advice and in-
formation.
Subd. 6. The director is authorized to investigate the methods
employed in the manufacture of drain tile and the causes of any
failures thereof, and to conduct research and experimentation for
the purpose of improving the quality of drain tile. He may make
inspections and tests of manufacturing processes and materials
used and the resultant product in any manufacturing plant in the
state where drain tile is made and sold to the general public. The


Ch. 105








105.40


DRAINAGE AND WATERS


director, or his authorized representative, shall have free access
to all such manufacturing plants for the purpose of such inspec-
tions and tests, and the results thereof shall be made public for the
information of officials concerned in public ditch proceedings, tile
manufacturers and others interested in the use of drain tile.
Subd. 7. The director shall perform such engineering work as
may be requested by the state water policy board, and shall appear
in all hearings and proceedings before the state water policy
board affecting waters within the state.
Subd. 8. The director shall cooperate with all agencies and de-
partments of the state and federal government relating to projects
or works of improvement affecting waters within the state and
shall make recommendations to the agencies involved and to the
governor as to the desirability, feasibility and practicability of
such proposed projects and works of improvement.
Subd. 9. The director is authorized to purchase such
technical and scientific equipment as may be necessary to per-
form the functions and discharge the duties of his office.
Subd. 10. No contract or agreement shall be made
by any department or agency of the state or any municipality
with the United States or any agency or department thereof, for
the collection of basic data pertaining to surface or ground wa-
ters of the state without first securing the written approval of
the director.
Subd. 11. The director is authorized to formulate rules and
regulations so as to standardize the forms and sizes of maps,
plats, drawings and specifications in public drainage proceedings
and proceedings and undertakings pertaining to public waters of
the state.
Subd. 12. All moneys appropriated to the commissioner of
conservation or the department of conservation for the use of
the division of waters or the director thereof, to conduct hydro-
logic studies, shall remain available until expended.
Subd. 13. The director may appear for the state in any mat-
ter or proceeding affecting waters within the state, including
boundary waters, for the purpose of furnishing hydrologic and
hydraulic engineering advice and information in connection
therewith.
Subd. 14. The director, with the approval of the commission-
er, may make cooperative agreements with and cooperate with
any person, corporation or governmental authority for the pur-
pose of effectuating the provisions of this section. Laws 1947,
c. 142, 4; Laws 1955, c. 771, 1.


Pt. 1










Ch. 105


The "division of water resources
and engineering" was changed to "di-
vision of waters", and the powers
transferred in 1949, see f 84.081, 84.-
0S3.


The provisions of subds. 7-13 were
added by the 1955 amendment.

Notes of Decisions


In general I
Dams 4
Drainage 2
Meandered lakes, drainage of 3


I. In general
The Commissioner of Conservation
could by written order filed in his
office delegate to the director of any
division of the department any of
the powers and duties vested in or
imposed on the Commissioner which
could be exercised or performed by
the respective directors in their own
names or In the name of the Com-
missioner as the Commissioner might
direct. Op.Atty.Gcn.1938, No. 95, p.
207.
2., Drainage
The rule that by reasonable drain-
age works on his own premises, a
landowner might dispose of surface
water as best he could, so long as
he did not unreasonably injure his
neighbor, applied only to private
rights and the exercise thereof, and
bad no application to a public drain-
age proceeding wherein the statute
required compensation to all who suf-
fered damage. Under this rule, the
owner of realty was entitled to com-
pensation for damages for surface
water which was drained onto his
realty by ditch established by town
board of township in public drainage
proceeding. Sheehan v. Flynn, 1803,
59 Minn. 430, 61 N.W. 462, 26 L.R.A.
632; In re Town Ditch No. 1 of
Pleasant Mount Tp., Blue Earth
County, 1941, 20S Minn. 5600, 295 N.W.
47.
Statutory provisions governing
ditch proceedings were required to


105.40


Commission Note (1947). Section
4 [ 105.40] is taken from Sections
105.03, 105.04, 105.00, 105.07 and 105.-
10. It has been materially shortened
as to detail.


be strictly followed. State v. Oldre,
1930, 179 Minn. 566, 229 N.W. 878.
A ditch which only avoided erosion
to a highway was not a "drainage
project" within the drainage statute.
Town of Vivian v. Dunbar, 1925, 102
Minn. 491, 203 N.W. 431.
The power to organize drainage dis-
tricts was referable to the same
source as the drainage power gen-
erally. In re Red Lake Drainage
and Conservancy Dist., 1923, 154
Minn. 442, 192 N.W. 184.
Drainage proceedings were purely
statutory and their validity depends
upon a strict compliance with the
provisions of the statute by which
they were regulated and controlled.
State v. Nelson, 1920, 145 Minn. 31,
176 N.W. 181.
3. Meandered lakes, drainage of
The drainage of a meandered lake
was forbidden by Gen.St.1913,
8949, unless it was of a class author-
ized to be drained by section 5523,
as amended by Laws 1915, c. 300, re-
lating to meandered lakes normally
shallow and of a marshy character.
State ex rel. Westergaard v. District
Court of Stearns County, 1019, 144
Minn. 78, 174 N.W. 522.
Evidence held to show that Crow
Lake, in Stearns county, was not
within class of lakes authorized to
be drained by Gcn.St.1913, 5523,
as amended by Laws 1915, c. 300, by
permitting drainage of meandered
lakes which had become normally
shallow and of a marshy character.
Id.
4. Dams
The Conservation Commissioner, in
cooperation with various municipall-


DIVISION OF WATERS


History and Source of Law









DRAINAGE Al


ties in drouth areas throughout the
state had authority to maintain and
construct dams in outlets of lakes or
in stre.uns where none are now found
so as to store water in such lakes
and streams up to but not above or-
dinary high water mark and in coop-
eration with such municipalities the


ND WATERS Pt. 1

Commissioner had authority to pre-
scribe reasonable rules and regula-
tions for the discharge of water so as
to meet urgent human and domestic
needs in the conununities dependent
on such sources of supply. Op.Atty.
Gen., 273-B, Aug. 14, 1934.


105.41 Appropriation and use of waters
It shall be unlawful for the state, any person, partnership, or
association, private or public corporation, county, municipality,
or other political subdivision of the state to appropriate or use
any waters of the state, surface or underground, without the
written permit of the commissioner, previously obtained upon
written application therefore to the commissioner. The commis-
sioner may give such permit subject to such conditions as he
may find advisable or necessary in the public interest. Nothing
in this section shall be construed to apply to the use of water for
domestic purposes serving at any time less than 25 persons or
to any beneficial uses and rights, outside the geographical limits
of any municipality, in existence on July 1, 1937, or to any bene-
ficial uses and rights, within the geographical limits of any mu-
nicipality, in existence on July 1, 1959. Laws 1947, c. 142, 5;
Laws 1959, c. 486, 1.

History and Source of Law


The last sentence of this section
was revised by the 1059 amendment.
Prior to that amendment the last sen-
tence read: "Nothing In this section
shall be construed to apply to the
use of water for domestic purposes
serving at any time less than 25 per-
sons, or to the use of water for any
purpose originating within the gco-


graphical limits of any municipality,
nor to any beneficial uses and rights
in existence on July 1, 1937."
Commission Note (1947). Section 5
[ 105.41] is taken from Section 111.-
40. The Commissioner is authorized
to give permits subject to conditions.


Cross References
Drainage systems, impounding and diversion of waters, see 8 105.81.
Water resources board policy decisions, see 105.74.

Notes of Decisions
Library references fore use of the bed of lake as a strip-
Waters and Waters Courses =127 ping dump was attempted. Op.Atty.
et seq. Gen., 311-D-5, May 26, 1943; Op.
C.J.S. Waters 157 et seq. Atty.Gen., 273-A-13, May 26, 1043.
Where water impounded in reser-
i. In general voir was owned by state in its pro-
A permit from Commissioner of prietary capacity as distinguished
Conservation should be obtained be- from ownership in its sovereign ca-


105.41


C*--------~-------Ill-~(-CI-- rrr-------r Irrc- -cL- ^---









DIVISION OF WATERS


pacity in trust for the public, the
Commissioner of Conservation did
not have authority to issue permit
for cutting of ice on reservoir. Op.
Atty.Gen., 273-A-8, Jan. 5, 1940.
Department of Conservation was
not required to issue a permit to


105.42


village to construct a well to pump
underground waters for municipal
purposes and for restoration of a
lake lying wholly within the corporate
limits. Op.Atty.Gen., 211-D-7, Feb.
16, 1938.


105.42 Permission required to build dams
Except in the construction and maintenance of highways when
the control of public waters is not affected, it shall be unlawful for
the state, any person, partnership, association, private or public
corporation, county, municipality or other political subdivision of
the state, to construct, reconstruct, remove, or abandon or make
any change in any reservoir, dam or waterway obstruction on any
public water; or in any manner, other than in the usual operation
of dams beneficially using water prior to July 1, 1937, to change
or diminish the course, current or cross-section of any public wa-
ters, wholly or partly within the state, without a written permit
from the commissioner previously obtained. Application for such
permit shall be in writing to the commissioner on forms prescribed
by him.
The commissioner, subject to the approval of the county board,
shall have power to grant permits under such terms and condi-
tions as he shall prescribe, to establish, construct, maintain and
control wharfs, docks, piers, levees, breakwaters, basins, canals
and hangars in or adjacent to public waters of the state except
within the corporate limits of cities or villages. Laws 1947, c.
142, 6.

History and Source of Law


Commission Note (1947). Section 6
is taken from Section 111.47 as
amended by Chapter 344, Laws 1943.


The exemption from control of future
water powers has been eliminated.


Cross References
Drainage systems, impounding and diversion of waters, sec 105.81.
Highway construction, changing of channels of streams, see 161.27.
Mineral rights acquired by state under tax laws, ore lying within bed of public
lake or stream, see 93.335, subd. 1.
Water resources board policy decisions, see 105.74.

Notes of Decisions


Boundary waters II
Bridges 8
Change of cross section or current 5
Constitutionality I


Construction and application 2
Current or cross section of public wa-
ters 12
Dredging and removal of fill 9


Ch. 105










105.42 DRAINAGE
Note I
Political subdivisions 3
Property rights relating to navigable
waters 6
Review 13
Roads and highways 7
Rules and regulations 10
Scope of permit 4
Validity I


Library references
Waters and Water Courses -=160.
C.J.S. Waters 144 et seq.

I. Validity
This section prohibiting, without
permission, any act which would
change or diminish course, current or
cross-section of any public waters
regulates rights of riparian owners
only to extent of prohibiting any In-
terference with waters adjoining If
such waters are public waters and if
interference is detrimental to public
use, and this section cannot be regard-
ed as unreasonable and does not take
property without compensation. State
v. Kuluvar, 1963, 266 Minn. 408, 123
N.W.2d 699.
This section prohibiting, without
written permission, the changing of
any cross-section of any public waters
required defendant to apply for per-
mit when he knew or reasonably was
required to know that his activity in
clearing channel in lake could affect
public interest, and this section is not
unconstitutional on the grounds of
uncertainty or unreasonableness. Id.
Due process requires that statute
imposing criminal sanctions be suffi-
ciently explicit to inform those re-
quired to comply with it of conduct
forbidden or required, in such terms
that men of ordinary intelligence need
not guess at its meaning and will not
necessarily differ as to its application,
but this rule does not preclude use of
broad, flexible standards in penal stat-
ute which necessarily requires person
to exercise judgment. Id.
Constitutionally prohibited uncer-
tainty invalidates criminal statute
only when those subject to it cannot
determine with reasonable certainty
whether particular act is forbidden or
permitted. Id.


AND WATERS


Pt. 1


2. Construction and application
State possesses proprietary interest
in public waters and riparian rights
are subordinate to rights of public and
subject to reasonable control and reg-
ulation by state. State v. Kuluvar,
1963, 266 Minn. 40S, 123 N.W.2d 699.
This section prohibiting the chang-
ing of cross-section of public waters
without written permit must be read
in conjunction with other statutes of
Water Resources Law of which it is
an integral part. Id.
Authority granted to commissioner
for issuance of permits for construc-
tion of dams pertained to navigable
waters only. Op.Atty.Gen., 273-B-4,
July 26, 1951.

3. Political subdivisions
If town board wishes to construct
roadways over public waters, appli-
cation for written permit to do so
must be made to the Commissioner of
Conservation. Op.Atty.Gen., 983-H,
June 7, 1955.
Township had no authority to In-
stall a culvert and necessary fill
across lake narrows. Id.
If township desired to install a cul-
vert and necessary fill across lake
narrows, it was necessary to consult
the State Conservation Department.
Id.

4. Scope of permit
The commissioner of conservation
has the authority to issue permits
for docks, wharves, levees, or any
other type of use of lake shore and
lake bottom within the limits of a
village or municipality. Op.Atty.
Gen., 273c-6, May 3, 1961
Commissioner may issue permit for
the purpose of changing a portion of
public navigable stream by diverting
flow of that stream through a new
channel in order to use natural creek
bed for occupancy and private indus-
try. Op.Atty.Gen., 370-B, Jan. 22,
1954.

5. Change of cross section or cur-
rent
It is not necessary to secure a per-
mit from the Commissioner of Con-
servation for construction of wharfs,


-^--*---(-nr~-cl"r~an-*~srrrrrs*lr**-i










DIVISION


docks, piers, etc., within corporate
limits of any city or village where
they do not change or diminish the
course, current, or cross-section of
public waters. Op.Atty.Gen. 273-B-
4, August 16, 1949.
In any case where the course, cur-
rent, or cross-section of any public
waters, is to be changed or diminish-
ed, a permit should be first obtained
from the Commissioner of Conserva-
tion, whether structure is within or
without the corporate limits of cities
or villages. Id.

6. Property rights relating to navl-
gable waters
Title to the bed of stream below
the low water mark is in the state,
and artificial draining of stream by
changing its course does not trans-
fer title of bed of stream to riparian
owners. Op.Atty.Gen., 370-B, Jan. 22,
1934.
The bed and banks of a new por-
tion of proposed channel for public
navigable stream would not become
property of state unless acquired by
land exchange or conveyance to state
as a gift. Id.
Where change of channel of exist-
ing public navigable stream is pro-
posed, state, which owns bed of
stream, may exchange its interest
with the interest of those who hold
title to bed and bank. Id.
Unless creek was determined to be
navigable in fact and unless normal
flow could be determined at not less
than two cubic feet per second, elim-
inating periods of high or flood wa-
ter stages from computation of nor-
mal flow and unless some public in-
terest was demonstrable, Department
of Conservation would not have au-
thority over creek. Op.Atty.Gen.,
273-A-14, Dec. 13, 1944.
Any construction which would in-
trude beyond natural, ordinary high
water mark of any body of public
water, other than the ordinary dock
or wharf, the right to construct
which could exist in riparian owner,
required a permit of the Commission-
er of Conservation. Op.Atty.Gen.,
273-A-5, July 11, 1944.
9 M.S.A.-3 .'1


Ch. 105


OF WATERS 105.42
Note 8
Jurisdiction assumed by United
States Army Corps of Engineers or
other proper agency of federal gov-
ernment over navigable waters with-
in state did not affect authority of
Division of Water Resources to is-
sue permit to change cross-section of
the river or gradient of navigable
waters of obtaining such permit, but
joint consent of federal and state
governments was required to permit
such change. Op.Atty.Gcn.1942, No.
13, p. 30.

7. Roads and highways
Town board may protect washing
out of town's roads by changing
course of river back to its original
bed but must secure permit from
commissioner of conservation. Op.
Atty.Gen., 370-B, Jan. 11, 1954.

8. Bridges
County board would be authorized
to construct bridges in places that
they deemed necessary, and could
require a right of way for a bridge
over a private channel constructed by
a landowner with the consent of the
commissioner of conservation. Op.
Atty.Gen., 377a-1, April 17, 1962.
A bridge and its piers and abut-
ments, or a culvert were "waterway
obstructions" for which counties are
required to secure permit from Com-
missioner of Conservation except
those in areas less than one square
mile of drainage area or where
stream has a flow of less than two
cubic feet per second or to emer-
gency repairs. Op.Atty.Gen., 148-A-
14, Aug. 0, 1038.
If a "dry run" creek had one or
more square miles of drainage area
and had a normal flow of not less
than two cubic feet per second, the
provisions of former q 111.43-111.63
(now repealed) applied to the con-
struction of a bridge over such creek
and abutments thereof as being "wa-
terway obstructions" within the stat-
ute, but if such creek did not have
one or more square miles of drainage
area and did not have a normal flow
of at least two cubic feet per second,
the provisions of these statutes did
not apply to the construction of the










105.42 DRAINAGE I
Note 9
bridge and its abutments. Op.Atty.
Gcn.1938, No. 96, p. 209.

9. Dredging and removal of fill
The authority granted the commis-
sioner of conservation to refuse per-
mission to place fill upon public wa-
ters of the state carries the implied
authority to order the removal of fill
unlawfully placed thereupon. Op.At-
ty.Gen., 273c-6, May 3, 1961.

10. Rules and regulations
The Conservation Commissioner, in
cooperation with various municipali-
ties in drouth areas throughout the
state had authority to maintain and
construct dams in outlets of lake or
in streams where none were to be
found so as to store water in such
lakes and streams up to but not above
ordinary high water mark and in co-
operation with such municipalities
the Commissioner had authority to
prescribe reasonable rules and regu-
lations for the discharge of water so
as to meet urgent human and domes-
tic needs in the communities depend-
ent on such sources of supply. Op.
Atty.Gen., 273-B, Aug. 14, 1934.

II. Boundary waters
In absence of showing that compli-
ance with this section, which required
permission to change cross-section of
public waters, conflicted or in any
manner interfered with exercise of
power over international boundary
waters vested in International Joint
Commission by treaty, state had ju-
risdiction to proceed against defend-
ant for violation. State v. Kuluvar,
1963, 266 Minn. 408, 123 N.W.2d 699.

12. Current or cross section of pub-
lic waters
This section prohibiting any act
which would change or diminish
course, current or cross-section of any
public waters without permit is not
directed at interference with bed or
riparian rights, but against interfer-
ence with natural conditions of pub-
lic waters. State v. Kuluvar, 1963,
266 Minn. 408, 123 N.W.2d 699.


A1


ND WATERS Pt. 1

Prohibition against change of cross-
section of public waters without per-
mit refers to any change from natural
condition discernible in view of wa-
ters as they would appear if cut
through by intersecting plan; in short,
as it would appear in a cross-section
of waters in relationship to basin in
which they are contained or the bed
over which they flow. Id.
Legislature by enacting this section
prohibiting, without permission, any
act which would change or diminish
course, current or cross-section of any
public waters did not intend that every
change apparent in cross-section view
of waters or every act or excavating
or filling be prohibited and to fall
within ban of statute it must be found
that change in cross-section would be
wasteful, dangerous or detrimental to
public interest. Id.
Under this section prohibiting,
without permission, any act which
would change cross-section of any
public waters the character of the
prohibited change must be one which
affects public as distinguished from
private interest, and only in case
where interference with private use
also results in detriment to public
generally could statute be employed
to protect private rights. Id.

13. Review
Where judgment is in one sig-
nificant and essential part unexecuted,
there is no acquiescence therein and
judgment is appealable. State v.
Kuluvar, 1963, 266 Minn. 408, 123 N.
W.2d 699.
Where defendant was convicted of
unauthorized changing of cross-sec-
tion of public waters and sentenced
to pay a $400 fine and serve four
months in jail, commitment being
tentatively stayed upon certain con-
ditions, and defendant paid fine but
was thereafter found in default of
performance of conditions and com-
mitted to jail, defendant had not
waived right to review of judgment
of conviction. Id.


34









DIVISION OF WATERS


105.44


105.43 Application for establishment of lake levels
Application for authority to establish and maintain levels on any
public water and applications to establish the natural ordinary
high water level of any body of public water may be made to the
commissioner by any public body or authority or by two or more
riparian owners thereon; or, for the purpose of conserving or
utilizing the water resources of the state, the commissioner may
initiate proceedings therefore. Laws 1947, c. 142, 7.

History and Source of Law
Commission Note (1947). Section
7 [ 105.43] is new.
Cross References
Water resources board policy decisions, see 105.74.
Notes of Decisions


In general 2
Constitutionality I
Validity I


Library references
Navigable Waters C=34.
C.J.S. Navigable Waters 11.
I. Validity
Laws 1047, ch. 142, 7-11, as
amended, establishing the procedure
for determining the level of public
waters would be valid in view of the
presumption that every statute is


presumed valid and in view of the
passage of time during which the
statute was not challenged. Op.Atty.
Gen., 273c-6, May 3, 1061

2. In general
A county may not borrow money
for drilling of wells for purpose of
raising lake level. Op.Atty.Gen.,
1948, No. 15, p. 40.
County board may apply for au-
thority to establish and maintain
levels on any public.water by apply-
ing to Commissioner of Conservation.
Id.


105.44 Procedure upon application
Subdivision 1. Permit. Each application for a permit required
by sections 105.37 to 105.55 shall be accompanied by maps, plans,
and specifications describing the proposed appropriation and use
of waters, or the changes, additions, repairs or abandonment pro-
posed to be made, or the public water affected, and such other data
as the commissioner may require. If the proposed activity, for
which the permit is requested, is within or affects a watershed dis-
trict, a copy of the application together with maps, plans and
specifications shall be served on the secretary of the board of
managers of the district. Proof of such service shall be included
with the application and filed with the commissioner.
Subd. 2. Authority. The commissioner is authorized to re-
ceive applications for permits and to grant the same, with or with-
35


Ch. 105




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