(dissenting).
I concur in the conclusion of the majority that under the provisions ■of the revised laws of 1905 the petitioner is authorized to exercise the right of eminent domain for the purposes set forth in the petition, *235but dissent from the decision that the contemplated improvement of the Birch lake drainage basin is in conflict with the provisions of the Webster-Ashburton treaty, and that consent of the federal authorities is a necessary prerequisite. The decision is of far-reaching importance, but it is not my purpose to attempt anything more than to set forth the grounds for my own views.
The petition proposes to take advantage of a certain natural drainage basin, and, by the erection of proper dams, store the waters that would otherwise go to waste in the spring of the year and conduct them for a distance of more than one hundred miles to a point where the same can be delivered with a fall of six hundred feet, thereby creating a power equal to thirty thousand horses. If not held back in this manner by artificial means, the waters of the basin, coming from the melting snows and spring rains, would rush off through the outlet and be of rio service to any one for any purpose; but by the construction of darns at proper points this great amount of water cari be held back, be more equally distributed through the streams constituting the outlet, and at the same time leave a large surplus. The petition clearly states that it is the purpose of the petitioner, and the necessary result of the work, to improve the navigability of the streams affected, in so far as they are naturally adapted to' navigation, and at the same time utilize the immense surplus waters for commercial purposes.
Upon motion to dismiss the petition the facts stated must be taken as admitted, and, so considered, it does not appear from the petition that the improvement, when perfected, will be in violation of the Webster-Ashburton treaty or of the federal laws. The majority have adopted this view in one part of the opinion: “The trial court treated these motions as demurrers, and granted them because the petition does not state facts sufficient to authorize the court in granting the prayer. The allegations of the petition must be taken as true, and it follows that the proposed diversion of waters which will result from the •construction of these works will not injure the navigation of the waters. * * * If this statement is true, the construction of the petitioner’s works will not injure the navigation or other public use of Birch lake and its tributary waters. We find nothing in the statutes •of Minnesota or in the public policy of the state which forbids the pe*236titioner from constructing its proposed work, if it is able to prove the allegations of the petition.” If the facts as stated in the petition are to be taken as true, when considered with reference to the laws of Minnesota, it seems very clear to me that, in order to be consistent, the same concession must be made with reference to the laws and treaties of the United States. From that standpoint, the majority have decided a moot question. However, if we assume that tire diversion of the surplus waters of the Birch lake basin in the manner stated may,, incidentally and to some extent, at some future time, constitute a. diversion.of international boundary waters, and affect the navigability of state waters, then the majority are in error in’ assuming that the-courts of Minnesota have jurisdiction to determine those questions.
The law on the question of jurisdiction is clearly stated by Mr. Justice Miller in Head Money Cases, 112 U. S. 580, 598, 599, 5 Sup. Ct. 254, 28 L. Ed. 798: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to■ it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to-seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do- and can give no redress. But a treaty may also contain provisions-which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the othqr, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The constitution of the United States places such provisions as these in the same category as other laws of congress by its declaration that ‘this constitution and the laws made in pursuance thereof,, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.’ A treaty, then, is-a law of the land, as an act of congress is, whenever its provisions-prescribe- a rule by which the rights of the private citizen or subject *237may be determined. And when such rights are of a nature to be enforced in a court of justice,' that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.”
It affirmatively appears from the petition that the property rights of no one who is a party to this proceeding can in any way ever be affected by the proposed diversion of the waters referred to in the treaty. Whether the improvement may at some time divert such waters in violation of the Webster-Ashburton or some other treaty between the United States and British governments, is purely a political question, to be settled between the nations interested. No case has been cited to sustain the proposition that a United States treaty is the law of the land, obligatory upon state courts, except those wherein were involved the rights of private parties — for instance, the right of a foreign citizen to inherit land, as provided by the treaty; or the jurisdiction of a state court to determine disputes between subjects of a foreign power with respect to wages of seamen, where such settlements were provided for by the treaty.
It seems to be the view of the majority that it was the purpose of congress, by the act of March 3, to assume, if not dominant, yet equal, control, during construction, of all works and improvements on the navigable streams of the United States, whether wholly within the boundaries of a state or not, and that the approval and co-operation of the federal authorities must be secured in order to initiate such an improvement. The language of the act in question, and the decisions of the federal courts construing similar statutes, contradict this assumption. The whole act should be considered with reference to the proviso: "Provided, that such structures may be built under the authority of the legislature of a state across rivers, and other waterways, the navigable portions of which lie wholly within the limits of a single state; provided, the location and plans thereof are submitted to and approved by the chief of engineers and by the secretary of war before construction is commenced.” All that is required by this proviso, when the navigable waters are within the boundaries of the state is that before construction is commenced the location and plans be submitted to the proper officers for approval. The plain object of this enactment was to encourage capital to take the initiative under the laws of the states, and proceed with the improvement, with the single limitation that be*238fore beginning the actual work of construction the constituted federal officers shall have the privilege of overseeing the plans in order that the natural rights of the public in such navigable waters may be protected. If the petitioner, being authorized by the state court, should' proceed with the improvement without complying with the act of March 3, the state court would have no jurisdiction to enjoin the progress of the work. That would be a matter within the exclusive jurisdiction of the United States courts; and if the federal authorities do not see fit. to move in that direction, it is of no concern to the state courts.
In Denver v. Denver, 30 Colo. 204, 69 Pac. 568, 60 L. R. A. 383,. cited in the opinion, the power company sought to condemn ground for a reservoir site located within the limits of a United States forest reserve, and the defendant railroad company, whose right of way was; involved, raised the question that the petitioner in the condemnation proceedings had not obtained the consent of the’- federal government to construct a reservoir within the forest reserve. The court said: “The fact that petitioner may not have leave from the government to maintain a reservoir site upon a forest reserve, if such leave is necessary, or has not complied with the law in this respect, if such is the case, may affect the ability of petitioner to enjoy the lands sought to be condemned, but does not affect its power to condemn such lands as against the respondents. They cannot raise a question which does not concern them, or which rests solely between the petitioner and the government.”
I am unable to find any statute or any decision of any court, federal or state, which announces or recognizes the principle that the United States government shall first stamp its approval upon projects of this character before the state courts can recognize it, although authorized by the state laws. What reason is there for such requirement? It imposes a great hardship upon the petitioner. The engineers of the war department may well wish to inspect the plans before actual construction begins, but must the petitioner be held up and put to all that expense, even before legal sanction for the enterprise has been secured from the state courts? The war department engineers might, with good reason, declare that the consent of the state should first be obtained, for the reason that, until it is definitely determined by the state court just what the petitioner is authorized to do, the federal author!*239ties ought not to be called upon to give their consent to the doing of that which the petitioner may never be authorized by its state to do.