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Show BOIS DE SIOUX RIVER LITIGATION 529 convincing indeed to support such a theory. Instead of that it is a combination of estimates, and conjecture based on no accurate knowl- edge of the flow of the Mustinka before the ditches were put in, and depending greatly on a hypothetical detaining basin in the so-called Delta Zone, existence of which the greater weight of the evidence negatives. Moreover, as already pointed out, the burden of proof that the State of North Dakota must carry in this case is much greater than that imposed on the ordinary plaintiff in a suit between private individuals. The possibility of saving these Bois de Sioux lands from recurring floods, whether each year or every ten years, by controlling and dis- tributing; the flow from the Lake and making larger its outlet, sug- gests itself even to the layman. The capacity of the present outlet is between 1,200 and 1,500 cubic second feet, offering too small oppor- tunity fpr safe escape of the high water of the lake which experience shows may be. expected in that region. Accordingly, after the first hearing of.this case, Wsithout reaching a conclusion as to the legal responsibility for the overflow complained of, and with the thought that the Court might be able to provide for a proper remedy in its decree, it ordered a rehearing and the taking of supplemental proof deemed necessary to an adequate consideration and disposition of the cause, as to the possibility and cost of ameliorating the flood condi- tions by means other than the injunction prayer in the bill. [256 U.S. 220.] The order specified the projects to which the proof should be directed as follows: First, to a project for detaining basins in the Mustinka River watershed, Second, to a sluice dam in Lake Traverse, Third, to improvements of the Bois de Sioux outlet by increasing its capacity, Fourth, to making an outlet from the lake across a height of land into Big Stone Lake which drains into the Mississippi, and Fifth, to a larger diversion of the Mustinka River waters into the Rabbit River. The Court also directed proof as to the flood conditions which had prevailed in the area claimed to have been flooded since the filing of the bill. Three engineers were to be called on each side. All the remedies suggested by the Court were rejected by the engi- neers of both sides as impracticable except those of a sluice dam in Lake Traverse and the enlarging of the capacity of the lake outlet through the Bois de Sioux. The engineers for North Dakota thought that such an improvement could be constructed for about $100,000, while the engineers for Minnesota insisted that the dam and dredging provided at that cost would be a mere temporary and unsatisfactory makeshift and that ampler works needed for a permanent remedy would require an expenditure of from two and a half to five times as much. The evidence further showed that there had been no flooding of the lands in question since the filing of the bill, a period of six years, although there had been a very great rainfall and large increases in the flow of the Mustinka River in the spring of 1917 which was fol- lowed by a dry season. |