Big Horn Power Co. v. State

Scott, Justice. This action was instituted in the District Court of Fremont County on July 24, 1909, by the state in its sovereign — 278 — capacity for an injunction and to abate an alleged nuisance consisting of piers and a wagon bridge built upon and above the crest of a dam for water power purposes theretofore constructed on the Big Horn River where the same pierces and crosses the Owl Creek range of mountains, which is alleged to have been in excess of the plans and specifications approved by the State Emgineer when the permit was granted for the construction of the dam. The case was tried to the court without the intervention of a jury, and the court found in favor of and gave judgment for the State, and against the Big Horn Power Company, and the latter brings error. The plaintiff in error’s contentions on the briefs are as follows.: First: That the defendant in error, plaintiff below, had no sufficient interest in the subject matter of the action and no authority which would or could entitle it to institute, prosecute, or maintain it. And that the action was solely in the interest of another. Second: That the evidence failed to establish the allegations that the dam and superstructure are a nuisance to the general public or a nuisance in any respect whatever or that the removal of the superstructure is necessary to obviate or remedy the things complained of. Third: That the plaintiff in error, defendant below, acquired its right to construct the dam from the defendant in error and the defendant in error approved the dam as constructed and thereby confirmed the right of defendant in error to maintain and enjoy its use as constructed. Fourth: That if the crest of the dam is not long enough to carry the water at a sufficiently shallow depth, this can easily be remedied without destroying any of the property of the plaintiff in error. Fifth: That the decree of the court below would deprive the plaintiff in error of its property and use and enjoyment of it, without due compensation and contrary to the provisions of the Constitution of the State of Wyoming and the United States. It is said in 36 Cyc., at page 907, that “A state, as plaintiff, may sue in its own courts, and this right, although — 279 — sometimes expressly conferred by statute, exists independently of statute as an incident of sovereignty;, and a state may sue in its own courts both in its sovereign capacity and by virtue of its corporate rights.” We have no statute expressly regulating the matter, but impliedly the Legislature has recognized the right. It is provided by Section 145, Comp. Stat. 1910, that “The Attorney Genera! shall prosecute and defend all suits that may be instituted by or against 'the State of Wyoming, the prosecution and defense of which is not otherwise provided for by law.” We think this statute is sufficiently broad to meet any question as to the right of the state to prosecute the action, provided the acts complained of constitute a public nuisance. The facts admitted by the pleadings, together with the finding upon the issues, show that the dam was built upon land the fee of which was in Asmus Boysen; but the water was unappropriated water of the state, on August 3, 1908, when Asmus Boysen made application to the State Engineer for permit to construct the Boysen dam to impound water of the Big Horn River for the purpose' of generating electricity, accompanying his application by drawings and plans of the proposed dam. It was a requirement that he accompany his application with plans and specifications so as to disclose sufficient to enable the State Engineer to judge whether the contemplated works and the proposed appliance for conserving and the application of the water were feasible. It is admitted that the plans and specifications approved by the State Engineer provided for a dam thirty-five feet in height above mean low water level, and no feet along the crest and which together with rock to be excavated approximating thirty-three feet in canon walls made flush with the top of dam was to form a spillway 143 feet in length. Work was commenced and prosecuted until July 10, 1909, when an examination by a Deputy State Engineer disclosed that the construction of the dam had not been carried on in accordance with the plans and drawings, but'had exceeded and departed therefrom in that the excavations in solid rock at either end of the 3am had not been carried out far enough — 280 — to provide, in addition to the 110 feet in length on the crest of the dam, a spillway having a total length of 143 feet, and in addition to this the seven concrete supporting walls eighteen feet apart as provided by the plans of construction, as a part of the dam had been carried twenty-nine feet above the thirty-five foot crest of the dam and supported a wagon bridge, and which supporting walls were two feet in thickness at the crest of the dam and taper to a thickness of 18 inches at their top and that the spillway as planned originally was reduced ten feet for this cause and five feet more by the side concrete walls, so that the available spillway length was reduced to 95 feet instead of being 143 feet as the plans required, and also that by carrying the supporting walls above the crest of the dam they not only obstructed the free flow of water above the crest of the dam, but caught drift wood, logs, tree trunks and trash, thereby diminishing and obstructing the spillway and raising the water to a higher level than the crest of the dam. The plans provided that when the reservoir was filled the crest of the dam should be level with the water surface. The drawing referred to as accompanying the original application were plans for a dam sixty feet in height and showed no proposed superstructure, bridge or supports running up from the crest of the dam or any obstruction to the water flowing over the dam, leaving the spillway as shown by the drawings 143 feet in the clear. Before approving any plans for the dam and for the purpose of procuring further and more exact information, the State Engineer directed a hearing and set the same for February 8, 1908, and upon such hearing the plans and drawings for the dam were approved as in the original application, except that it was reduced to a height of thirty-five feet from mean low water level. Upon that hearing the Chicago, Burlington and Quincy Railroad Company appeared by its attorneys and protested against allowing the dam to be built at a height of sixty feet, as applied for in the original application, as injuring the gorge or canon through which the river ran as a pass for railway purposes. As more clearly show — 281 — ing the condition, we quote the decision of the State Engineer made and filed upon the hearing as follows: "big horn RIVER. “Before the State Engineer. Application of Asmus Boy-sen to build a dam across the Big Horn River in township 5 N., range 6 E., Wind River meridian. “The Owl Creek Mountains run southeasterly through the northeastern corner of the ceded portion of the Shoshone Indian Reservation. They connect with the southern foothills of the Big Horn Mountains near a point common to Big Horn, Natrona and Fremont Counties. The Owl Creek Mountains form the southern rim of the Big Horn Basin. The only pass through this range is formed by the Big Pl'orn River, which runs northerly along the eastern margin of the ceded lands of the Reservation. The canon is about 14 miles long. Precipitous walls of granite run-almost from the water’s edge to great heights in places. However, the canon offers unusual advantages for railroad construction, considering the light grade obtainable in comparison with the difficulties generally encountered in crossing a chain of mountains. “At the southern entrance to this canon the Boysen claim has been located. The mountains both to the east and to the west of the Big Horn River promise great mineral development. Coal is expensive throughout this mining region and gasoline is almost prohibitive in price. Owing to the scarcity of water for boilers it is difficult in many places to use coal to advantage. The development of electric power seems to be the only solution of the problem now confronting the Copper Mountain and Owl Range miners. This should be borne in mind', because it is very questionable whether this mining district will ever develop properly unless cheap power for drilling and other mining operations and for transporting the ore to the nearest railroad point can be obtained. ' “On the 13th day of August, 1906, Asmus Boysen of Gray, Audubon County, Iowa, filed in his own behalf an — 282 — application for the ‘Boysen Pipe Line’ proposing to divert water from the Big Horn. River in the northwest quarter of section 4, township 5 N., range '6 E., W. R. M., for the ‘generation of electricity and electrical power, for hydraulic mining and for milling purposes.’ The pipe line was to have been 3,930 feet long and was to have been 6 feet in diameter. The pipe from the dam to the power house was to have been shelved upon solid rock. The estimated cost of the dam and pipe line was fifty thousand dollars. Under paragraph 11 of the application defining the use in detail occurs the following: ‘no irrigation contemplated. It is proposed to develop approximately three thousand to five thousand horse power under a fifty foot head by the use of 600 to 1,000 feet of water. And it is also proposed to use — gallons of water per second for hydraulic mining and to use water for a one hundred stamp mill. Applicant also asks permission to construct a dam across Big Horn River at said point and to raise said dam 35 feet above the bed of the river.’ This application was given the temporary filing number in the State Engineer’s office, 5 6/357. It was handed to Fred W. Hart, Mr. Boysen’s engineer, on Sept. 21, 1906, for correction. “On the 27th day of March, 1907, an application from the said Asmus Boysen was received by the State Engineer for the ‘Boysen Power Line No. 1.’ This application was returned to Mr. Boysen for correction on the 13th day of April, 1907, and has not been returned to the State Engineer’s office. Its temporary number is 6 4/69. “On the 27th day of November, 1907, the first application No. 5 6/357 was returned to the State Engineer’s office with amended maps and plans, as well as an amended application. This application is prepared on the reservoir form, while the original filing, 5 6/357, was on the form provided for ditches and pipe lines. The application is prepared in the name of the said Boysen and for similar purposes. It proposes the construction of a dam 60 feet in height over which water is to run ten feet in depth during flood seasons. The — 283 — estimated cost of the reservoir is one hundred and twenty-five thousand dollars. . “Before this application was taken up for consideration by the State Engineer, a request was made by attorneys representing the Chicago, Burlington & Quincy Railroad, that before action were taken they should like to have a hearing, because the construction of a dam seventy feet in height across the canon of the Big Horn River tended to impair the right of way of said road through said canon. In accordance with this request, the case was' set to be heard on the 15th day of January, 1908, in the office of the State Engineer, and Attorneys Burke & Clark for said railroad and Attorney John W. Lacey, representing the said B'oysen, were accordingly notified. “Upon the day set for said hearing the parties interested were represented by their attorneys, who discussed the legal phases of the questions in issue. Engineers representing the interested parties and the right of way agent of the said railroad were duly sworn and thereafter examined as to the physical conditions presented by the canon and the conflict in the rights of the interested parties, were in this manner made clear. “One important question before the State Engineer concerns his authority under Section 919, Revised Statutes of 1899. . . “It is plain that when Mr. Boysen’s company develops only such power as is needed in its own operations it stands on a different footing than it does when it becomes a public service corporatioii organized for the purpose of disposing of power to others. When it reaches the latter stage it has the same standing as the railroad, the one furnishing power and the other transportation to the public. As the plans of Mr. Boysen’s company provide for the development of power both for the use of his romnanv, and for others, the State Engineer should, if he has authority under said Sec. 919, determine, if possible, how the application before him should be handled so that the permit issued will not ‘threaten to prove detrimental to public interest.’ — 284 — “The State Engineer cannot judge as to the validity of the right of way claimed by the said railroad. He knows that an excellent water grade from the northern part of Big Horn County to and through said canon, thence easterly to and down the Platte Rjiver to the Nebraska line, can be obtained; that this would naturally be taken advantage of by some railroad and that by so doing freight and passenger rates would be favorable to Wyoming shippers; that if a dam 60 feet high with a depth of water of 70 feet were to be built at the southern entrance to the canon the grade through the canon would be increased to and beyond the limit established for the line as a whole; that this added grade will require more motive power at this point and that this extra expense must be borne indirectly by the shipper. “The testimony brought out the statement that a dam 60 feet in height enclosing the power plant is as cheap as a 35-foot dam with an independent power house; that with the higher dam from five to six times the power can he created as under the lower dam; that a 35-foot dam would develop enough power for the applicant’s own use, but to serve the surrounding mining country as much as 5,000 horse power should be developed. “The first application filed by said Boysen shows that with a pipe line and a dam 35 feet in height from 3,000 to. 5,000 horse power can be developed at an estimated cost of fifty thousand dollars. By the testimony given before the State Engineer on January 15, 1908, it is shown that it is estimated that 5,000 horse power will be developed with the 6o-foot dam. Under the application providing for this dam the estimated cost is one hundred and twenty-five thousand dollars. Taking the lower estimate of 3,000 horse power as-given by the first application, we find that under the plans described therein, the power would be developed for $16.66 per H. P., while under the second 'application the power development would cost $25.00 per H. P. “Opportunities for power development are numerous, throughout the state. Their location near to the point wherfe-the power is to be applied is' always a favorable condition, — 285 — .yet under modern transmission methods,' as 'Mr. -Hart, engineer for Mr. Boysen, testifies,’it is not a difficult matter t6 transmit electric power to distances of 200 miles and over. There are opportunities with 50 of the Boysen dam site where 'power can be developed at a very reasonable rate per horse power. A railroad line and a canal line are hedged about by many restrictions. The canal line must cover certain lands to be reclaimed. It must have a favorable location throughout and its grade must be such that damage will not result through erosion. A railroad line to be operated cheaply must avoid steep grades and sharp curves. Defects either in a canal line or in a railroad line work a perpetual detriment on the public. In comparison a power plant using water as the primary motive factor is in its location, plans and equipment of great elasticity. The state has recognized this and permits for power purposes are issued under the conditions that such use is not to interfere with the use of water for irrigation; the final character of the right to be defined by future legislative enactment. The waters of Wyoming nearly all coriie- from the mountains and much of this volume, and all of the late waters, come from above timber line. This- means that in' passing from the source of the streams to the boundaries of the state the water falls at least a mile vertically.' The combined flow of our streams is about 11,500,000 acre' feet of water per annum, or a continuous average discharge of 15,-972 cubic feet of water per second. This flow with the -available fall will produce approximately 8,000,000 horse power. It does not seem necessary, therefore, that the state, which under the constitution (Sec. 31, Art. 1) ‘shall equally guard all the various interests involved/ should permit any power development to increase perpetually either transportation charges or the cost of delivering water through canals and reservoirs, because power plants can be so located that they will interfere with no other industry and yet operate successfully and easily reach a market for the power created. “No railroad can build through the state from the north — 286 — west and maintain an economical grade without passing through this canon. Successful railroad operation should, and does have a beneficent influence on the public welfare as locally concerned. Any obstacle which threatens to add to the cost of transportation must be considered as'coming under the terms of the statute which provides that the State Engineer is to reject any application which ‘threatens to prove detrimental to the public interest.’ “An application, when found defective by the State Engineer, is returned by him for correction. It may have been prepared on the wrong blanks as was done in the permits of the said Boysen in issue. It is not presumed either by the law or under the rules of the State Engineer’s office that when an application is returned for correction that the fundamental features of the plans set forth in the original papers shall be modified. The application when filed is presumed to represent the objects of the applicant. In order that the' application, when returned to the State Engineer for his indorsement, may receive the original filing number, the changes made should embrace only the corrections called for by the State Engineer. The return of the application cannot be considered, under any conditions, to warrant the applicant in altering his plans in any material way. The application is returned for correction — not for a new filing embracing departures from original plans. “After the consideration of all testimony presented and after having taken up the applications filed in his office in detail, the State Engineer is convinced that the proposed power development, in sufficient magnitude for the applicant’s- own uses, at least, can be brought about through the construction of a dam not over 35 feet in height, as provided in the original filing. The applicant is therefore called upon to modify his plans to provide for such construction. In case he does not comply with this requirement, his application will be rejected on or after thirty days from this date. (Signed) Clartíncu T. Johnston, “State Enginéer. “CiiRyenne, Wyoming, January 27th, 1908.” — 287 — No appeal was taken from this decision. The petition here, as already stated, was filed in the lower court on July 24, 1909, and on that day, upon application of plaintiff, a temporary injunction was allowed by the court in language as follows: “Upon consideration of the application of plaintiff for a temporary injunction upon its petition duly verified, and the exhibits accompanying and annexed thereto, and it appearing to the court that good cause has been shown why a temporary injunction should issue herein, it is ordered by the court that pending the final hearing and determination of this suit, and until the further order of this court, the defendants, Asmus Boysen and Big Horn’ Power Company, a corporation, and each of them, their agents, servants and employes, be restrained and enjoined, (1) from constructing, maintaining or using their dam, or any dam, structure or obstruction, in the Big Horn River, and its bed in the channel of said stream in that certain canon several miles in length where said stream flows in its course through what are known as the Owl Creek Mountains, in the County of Fremont, and State of Wyoming, to a greater elevation than thirty-five feet above the mean low water level of said stream, and without an unobstructed and open spillway of one. hundred and forty-three feet at an elevation not exceeding thirty-five feet above the mean low water level of said stream; and (2) from closing/or obstructing, or causing to be closed or obstructed, the two certain water ways underneath said dam until and unless all concrete construction on said dam above the elevation of thirty-five feet from the mean low water level of said stream, together with sufficient rock excavation at either end of the said dam to provide a spillway of one hundred and forty-three feet in length, is removed; and (3) from doing or performing, or causing to be done or performed, any act or acts, that will interfere with or hinder or interrupt or impede the flow of the waters of said Big Horn River in the said canon in its natural course through said Owl Creek Mountains, not expressly permitted by the order and permit of the State Engineer of the State of Wyoming, heretofore — 288 — granted, and in accordance with the modified plans of defendant Big Horn P'ower Company, approved by said State Engineer.” . • After issue joined and on November 24, 1909, the parties by written stipulation agreed: “1. That the defendants be permitted to install machinery in the interior of said dam. 2. That on and after December 10, 1909, the defendants be permitted to use and operate, and maintain said dam and appurtenances as now constructed, pending final hearing, and subject to the rights of the parties as determined by the final judgment of the court upon the issues joined herein, or by any court to which it may be taken for review by appeal or error. 3. That the said order of injunction heretofore granted herein shall not be affected or modified hereby in any particular except as hereinabove stated. Subject to the foregoing conditions and three items of modification mentioned, in order that the effects of another high water may be experienced before the determination of this suit,, it is hereby stipulated and agreed between the parties that this case be now continued until July t, 1910.” The court modified the injunction and continued the case in accordance with the stipulation and thereafter continued the case from time to time until it came on'for trial on December 1, 1913. Prior to the trial and after it had constructed the dam the Power Company presented to the State Engineer a “Plan of Asmus Boysen Dam, Bag Horn River, Wyoming, June, 1909,” which bears this indorsement over the signature of the State Engineer: “Amended plans approved, July 2, 1913.” The evidence tended to show that the railroad company constructed its road on a grade so as to accommodate the plans of the dam as originally, approved, and active operation'of the road commenced in October, 1913. The depth of the gorge or canon, its precipitous and rocky walls and great depth and the turns in the canon required the'construction of a tunnel near the darii and the evidence tends to show that in 19 ti during high water and while the road was in process of construction the backwater caused by driftwood and trees which during the high water season of that year — 289 — lodged against the concrete supporting walls and obstructed the free flow of water so that the depth of water on the crest of the dam was 16.7 feet. This back water overflowed the track of the road above the dam so the grade had to be raised two feet to get it out of the water in order to render it safe to run the construction train. The water also rah through the tunnel. The evidence further tended to show that the effect of water flooding the track and running through the tunnel was to soften the track and render it dangerous in the transportation of passengers and freight, and that the dam is liable to overflow during high water in the future by such floating debris, and especially by reason of submerged cottonwood trees above the dam, which will decay and ultimately, by reason of such decay, wash down the stream and lodge against the superstructure arid cause back water which will overflow the railroad track, wash through the tunnel and together with the danger of floods and rains constitute a continuing danger to the operation of the railroad. It will be observed that after the Power Company had completed the dam it furnished and presented to the State Engineer an amended plan or map of the dam as constructed by it, showing the superstructure on the crest of the dam which was not shown in the prior drawings. This amended plan or map of the dam, as already stated, bears the approval of the State Engineer under date of July 2, 1913. It has no filing mark. The evidence tends to show that it was furnished in response to a request of the State Engineer for a report of the progress that the Power Company had made and was making in the construction of the dam. It is urged that the State Engineer’s indorsement of approval of this so-called amended plan cured and legalized any departure from the original plan in the matter of the construction of the dam. It is apparent that the Power .Company did not rely upon the indorsement of approval on this plan, for it was not furnished and so indorsed for nearly four years after the answer was filed and no supplementary answer was ever filed covering the matter. The evidence — 290 — tends to show that the stipulation which was carried into the temporary injunction, and which temporary injunction was afterward made perpetual, was to hold the question of the alleged nuisance in abeyance for a time or until that question could be tested out by observance of the effect of the spring rains and freshets, and much of the evidence was directed to the condition, utility and safety of the dam during that time and up to and at the time of the trial, but by no stipulation or agreement was the company authorized to apply ex parte which was done in this case, or otherwise to amend the plans of the dam as theretofore approved. There was evidence to the effect that the map was approved by the State Engineer and retained in his office simply to complete the record of the office. Its recitals should be construed in the light of the conditions existing at the time when the map was presented to the State Engineer and the purpose of so presenting it. The statute with reference to the construction of dams across the channel of running streams in force at.the time and since the company built its dam is as follows: “Sec. 825. Duplicate plans for any dam across the channel of a running stream, above five feet in height, or of any other dam intended to retain water above ten feet in height, shall be submitted to the State Engineer for his approval, and it shall be unlawful to construct such dam until the said plans have been approved. “Sec. 826. The State Engineer shall have authority to examine and inspect, during construction, any dam authorized under the provisions of this chapter, or any ditch, canal or other work carrying over fifty cubic feet of water per second of time, and at the time of such inspection he may order the parties constructing such dam or other works to make any addition or alteration which he considers necessary for the security of the work or the safety of any person or persons residing on or owning land in the vicinity of such works.” By Section 827 it was provided: “Should any person or persons residing on or owning land in the neighborhood of — 291 — any irrigation works after completion, or in course of completion, apply to the State Engineer in writing desiring an inspection of such works, the State Engineer may order an inspection thereof. Before doing so he may require the applicant for such inspection to make a deposit of a sum of money sufficient to pay the expenses of an inspection, and in case the application appears to him not to have been justified, he may cause the whole or part of such expense to be paid out of such deposit. In case the application appears to the State Engineer to have been justified, he may require the company to pay the whole or any part of the expenses of the inspection, and the same may be collected in the same manner as is provided for the collection of the expenses of constructing headgates and measuring flumes.” It will be observed that the approval of the plan by the State Engineer under Section 825 was a condition precedent to the construction of the dam and unless so approved it would, by the terms of the section, be unlawful to construct it.. The statute does not provide for the approval of the plan after the construction as precedent authority or otherwise for building it. Such plan so filed after the construction would furnish valuable information to the State Engineer in superintending the control and distribution of the water of the state, and it would also show whether the dam had been built upon the plan which had been approved as a necessary prerequisite to building it at all. This map and plan were material evidence in this case and was introduced by the Power Company, and in so far as it showed the departure from the plan theretofore approved by the State Engineer as a condition precedent to constructing the dam was binding upon the Power Company. The approval indorsed on the so-called amended plan on July 2, 1913, after the completion of the dam, was not the approval contemplated or required by statute as precedent authority to build the dam, nor is it here shown that the addition of the superstructure was in pursuance of any suggested or required change by the state acting through its State Engineer during the period of its construction and cannot for that reason be — 292 — reasonably said -in so far as materiál changes were made, to have been built with and by 'the approval of the-state.'’-- It ip apparent that -Section 827 is inapplicable to this case, for -that section by its terms refers to irrigation works, while, as already stated, the dam here was constructed • for - power purposes. - The trial court evidently gave the approval of 'this plan little or no weight in the trial of the case, for the state was not estopped by the record, nor was it estopped from- maintaining this action to abate the alleged nuisance, no matter how it crept into existence. The defense of estoppel was not pleaded as a defense, but even had it been it could not have been sustained upon the evidence.- The establishment of any structure under the sanction or approval of one of its officers if such structure becomes a nuisance-is no excuse for the state to permit the continuance of such á nuisance, the removal or abating of which would clearly- be within the duty and power of the state. At the time of the trial,-as well as on July 2, 1913, the railroad had constructed its’road through the gorge or canon 'upon a grade and elevation in view of the dam having a free and' open spilíwáy of: 143 feet in length as contemplated and shown by the plans upon which the perrnit to construct the dam was originally granted. The evidence tends to show, and the court found upon that issue, that the operation of the railroad upon its present grade is attended with more than ordinarily hazardous risk to the traveling public, its employes; ' roadbed, equipment and freight in transit, during high water, by reason of the spill way being but 93 feet in length in the clear, when the plans called for 143 feet, and that the accumulation of debris during high-water or freshets are a menace to its tracks and traffic and the lives of its employes and passengers.' The Railroad Company owes duties to the'públic, some of which are peculiarly under the police regulations of the state, among which is the duty to safely transport' the public. The railroad is a highway to be kept in repair and safety, for the purposes of the business in which it is engaged for all-the people of the state. The building of railroads opens "up and — 293 — makes accessible the remote portions of the state and are the only, or at least the best, means for opening up such localities and carrying foodstuffs to the public.' It is contended that the effect of the decree is to take and destroy a part of defendant’s property without just or due compensation, and comes within the inhibition of the constitution of the United States and of this state. It may be conceded that the superstructure of the dam was private property, but as constructed and maintained it was a constant menace in itself to the public and constituted a public nuisance. Its construction, even if a necessary part of the dam, was not approved by the state because not shown in the plan of the clam which was approved by the State Engineer as precedent authority to construct the dam and its construction was for that reason unlawful within the provision of the statute. The superstructure was so erected by the Power Company without authority of law, and whether constructed as a necessary part of the dam or not, the court found that it was a nuisance. The evidence supports the finding. The Power Company is in the attitude of having constructed a nuisance and is insisting that such nuisance shall not be destroyed or removed without compensation. The superstructure was and is not taken or sought for public use; but the Power Company was required by the decree to remove such public nuisance under and as an enforcement of the police power of the state. (8 Cyc. 1105.) Plaintiff in error contends that the enforced removal of the superstructure, and that is as far as the decree of the trial court went, is unnecessary in order to lessen the depth of the water on the crest of the dam. That was also suggested in the state’s evidence and it was pointed out that the wagon bridge could be built as a stone arch bridge. This question was squarely before the court and upon the evidence the court found that the superstructure was a public nuisance and ordered its removal and its decree was supported by the evidence. It was not material how it should be removed except that it should be done with the least possible damage and danger in effecting such removal. We find — 294 — the record free from error and the judgment will be affirmed. Affirmed. Potter, C. J., and Beard, J., concur.