150 Wis. 594 | Wis. | 1912
Tbe complaint averred ownership and possession by the plaintiff of a specified tract of land bordering on Eib river, an affluent of tbe Wisconsin river, and that tbe defendant by means of a dam constructed in tbe Wisconsin river below tbe inflow of tbe Eib river, prior to 1911, bad caused tbe waters of tbe Eib river to set back and during tbe months of April, May, and June, 1911, to overflow tbe land of plaintiff, causing damage. Tbe defendant admitted its corporate existence and tbe ownership and possession of tbe land by plaintiff, and further interposed a general denial and the special defense that plaintiff and wife bad, on or about February 27, 1906, entered into an agreement in writing with a corporation known as Matbie Brothers Land Company, assignor of defendant, whereby for a consideration there was granted to said Matbie Brothers Land Company tbe right to overflow any part of said land by means of said dam for a compensation to plaintiff of $25 per acre for such overflowed land. Tbe defendant' constructed said dam under tbe authority and pursuant to tbe terms and conditions of cb. 155,
The appellant argues, first, that plaintiff cannot maintain this action because the traüsaction of December 28, 1907, amounted to a payment for the flowage of his land by the defendant’s dam and plaintiff has acknowledged satisfaction for any damages caused by such flowage. ' Second, the "dam of the defendant having been built by consent of the plaintiff, no action for wrongful flowage by the dam can be maintained by the plaintiff against defendant, but the remedy for damages for such flowage, if any, for which he has not already been compensated must be under the provisions of sec. 1777a to sec. 1777d, Stats. (1898), inclusive. Third, the burden of proof is on the plaintiff to establish the amount of damages, therefore he cannot recover in this cause without showing what overflow was caused by the dam at a twenty-foot head over and above the damages caused by a dam at nineteen-foot head.
The contract of Eebruary 27, 1906, was unquestionably valid and binding and it fixed the damages at $25 per acre for all of the plaintiff’s land which might-be overflowed, the area of such overflow to be determined by -a survey after the dam was constructed. If the land was worth less than $25 per acre, this contract was a distinct advantage to the landowner and a corresponding disadvantage to the' owner of the dam. Without waiting for the building of the dam the parties undertook on December 28, 1907, to compute the number of acres which would be overflowed by the dam when built. Pursuant to the first mentioned contract they selected arbitrators, a survey was made, wherein it was assumed that the dam would be of a height sufficient to create a nineteen-foot
“Now, therefore, in consideration of the sum of thirty dollars ($30) paid by the party of the second part to the parties of the first part for such overflowed land, the parties of the first part acknowledge satisfaction and discharge- of any damages that may hereafter be caused them by such flowage, and the party of the second part hereby releases the balance of the land in said southwest quarter of said section 32 from said contract so made and dated the 27th day of February, 1906.”
This is capable of two somewhat different constructions. “Satisfaction and discharge of any damages that may hereafter be caused them by such flowage” may mean the flowage of one and two-tenths acres, or it may mean the flowage caused by a dam having a nineteen-foot head. Nothing is said about the height of the dam in the contract of December 28, 1907, but that height is referred to in a map used by the surveyors in making their computation of the overflowed area, and this map is referred to in the latter contract. But whatever ambiguity exists upon this point, there is in our estimation none whatever with reference to the release by the corporation of the remainder of the land from said contract. This left the remainder of plaintiff’s land free from the restrictions and ■obligations of the contract of February 27th. The remainder of the land is what was left after subtracting one and two-tenths acres. The remainder, called in said contract “the balance,” of plaintiff’s land occupied thereafter the same relation to this dam and to the defendant’s right to flood plaintiff’s land as if the contract of February 27th had never been made. That clause therefore gave character to the words “such flowage” and limited those words to the flowage of the ■one and two-tenths acres. A dam with a twenty-foot head
The third objection by appellant is not well taken. The-court instructed the jurors as follows:
“The burden rests upon the plaintiff to satisfy the jury to-a reasonable certainty by the greater weight of the evidence on the questions, both that the defendant by its maintenance of said dam and of a head of water caused the plaintiff’s lands-other and further than one and two-tenths acres to be overflowed during the period of April, Hay, and June, 1911, and thereby damaged, and also that the plaintiff has thereby suffered loss and damage in some amount ascertainable to a reasonable certainty from the evidence received on this trial.”
No request was made for more specific instruction on this-point. This was a sufficient submission of the cause to the
By the Oouii. — Judgment affirmed.