139 Tenn. 354 | Tenn. | 1917
delivered the opinion of the Court.
The declaration avers that the defendant in error was, with his family, occupying as his home a certain small parcel of land lying near the hank of the Tennessee river; that the plaintiff in error, in the year 1905, or 1906, began the construction of a dam across the river at Hale’s bar, about thirty-eight miles below the city of Chattanooga, and below the tract on which defendant in error was residing, as stated; that the dam was completed about December, 1913; that when this completion was effected the water above the dam immediately began to rise until it finally reached the height of thirty-eight feet. above the ordinary low-water mark, with the result that for a distance of about thirty-five or forty miles up the river the water was caused to rise and overflow a. large area of adjacent lands, creating a large lake.
It is further averred that while it was the duty of the plaintiff in error to so construct the lake as not to create a nuisance, and this could have
• The declaration was subsequently amended by adding the following averment:
“The rise and fall of the river leaves large areas of land, on which large quantities of growing vegetation was negligently left. by. the defendant, covered,*358 and partially covered, by water, and defendant negligently failed, as was bis duty, to provide proper drainage for this intermittent overflow, so that on account of such lack of drainage and the decay of such vegetable matter large areas of water became stagnant and foul, causing myriads of mosquitoes to be bred, and which, together with the foul odors and noxious smells referred to, caused the injuries complained of. ’ ’
The plaintiff in error filed numerous pleas:
First, the general issue of not guilty; second, the statute of limitations of one year; third, accord and satisfaction; fourth, that the dam “was erected under the direction, control, and specifications of the United States government, in aid of navigation in the Tennessee river, and the work of constructing the said dam was done by the defendant as the agent of the United States government, and in the manner and form prescribed by it, and according to plans and specifications furnished by it, and under and by virtue of an act of Congress, approved April 26, 1904, chapter 1605, 33 Stát., 309, and upon an amended act of Congress, approved January 7, 1905, chapter 32, 33 Stat., 603, and that for any injury the plaintiff hath suffered as the result of said dam, his right, if any, is against the United States government, and not against the. defendant;” fifth, “that the said dam is owned by the United States government, and has been owned and controlled by it since its completion, on or about the 5th day of October, 1913, and that this defendant has had no control over said dam since that date, and has
Issue was duly joined on the pleas 2 to 9, inclusive.
In due course the case came on for trial, and after the evidence of the plaintiff helow was heard the defendant moved for a peremptory instruction, and again after all the evidence was heard. Both motions were overruled. A verdict was rendered in favor of the plaintiff helow for $3,000, upon which a remit-titur of $1,000 was entered, and thereupon judgment was rendered for $2,000, the balance left. On appeal to the court of civil appeals that court was of the opinion that the trial court committed error in refusing to sustain the motion for peremptory instructions last made, and, acting in accordance with this view, dismissed the action. The ease was then brought to this court, by the writ of certiorari, and has been fully argued before us.
It should be stated, before further consideration of the case, that all of the grounds of relief stated in the declaration were practically abandoned in the evidence, except that one expressed in the amendment. The case was made' to turn on the fact that the dam was so constructed that whenever there was a slight rise, say over six inches, in the river it would over
The learned court of civil appeals were of the opinion that" it was impossible to say whether the mosquitoes that inoculated defendant in error and his family with the' malarial poison came from the river or the pond, or from a spring branch close to defendant in error’s house, or from water barrels near his neighbor’s houses; therefore that there was no evidence to .charge the defendant in error’s injuries to the plaintiff in error. .
There was evidence that prior to the filling of the dam, there had been very little malaria in the neighborhood, and none in defendant in error’s family, although he had lived in the same place for several years prior to- the construction of the dam; that after the filling of the dam and the overflow of the water, and the creation of the pond referred to, defendant and his family, in August, 1914, fell ill of malaria and continued to be ill from time to time; that defendant in error observed large numbers of mosquitoes at the pond; that before the construction of the dam and the overflow of the land there had been a few mosquitoes
The dam was about forty-five feet high, and extended across the Tennessee river. On top of this dam the plaintiff in error constructed its power house. The Tennessee river being a navigable stream, it was necessary to procure the consent of the United States.
A contract was entered into between the plaintiff in error and the United States according to the terms of the act, and this contract contained the following provision for indemnity; that is to say, that it should be the duty of the plaintiff in error “to hold and save the United States harmless from and against any and every demand or demands of any nature or kind, for or on account of the use of any patent, instrument, article, or process included in the materials hereby agreed to be furnished and the works to he done under
Indeed the evidence fully sustains the averments of fact set forth in the fourth plea; also those contained in the fifth, except that it appears the plaintiff in error has, with the permission of the United States, from time to time erected flashboards on top of the dam to increase the amount of water retained in times of low water, and that it has from time to time, with the like consent, stopped leaks in the dam; that the flashboards were washed off in times of high water ,- with the further exception that the United States took charge January 1, 1914, instead of on October 5, 1913, as stated in the plea. The evidence fully sustains the facts averred in the sixth plea, understanding by the terms ‘‘right or authority” therein mentioned to refer to the fact that it does not appear that any such right or authority was conferred by the owner of the land. The evidence fully sustains the averments of fact contained in the seventh, eighth, and ninth pleas. There is no evidence controverting any of the foregoing aver-ments. There is evidence to the effect that an ideal construction of the dam would have required the cutting down of all trees, in the inundated land; also the cutting out of corn stalks and other vegetation of the kind, the removal or burning of logs and the cutting of bushes and shrubs of all kinds; but it is further in evidence that at the time this dam was constructed, this was not recognized as being essential to a proper
Plaintiff in error’s power house, as stated, was built on the dam. The substructure of the power house, being a part of the dam, was subjected to the government inspection. It does .not appear that the power house itself was conveyed to the government.
Prom the facts stated, it is apparent that it is impossible for any one to determine whether the malaria in defendant in error’s family was caused by mosquitoes from the river or from the pond, both being favorable breeding places, and each near enough to enable these insects to reach defendant in error’s home. Although no mosquito of the species complained' of was actually found in the margin of the river, or in the pond, no competent search having been made in either place under proper circumstances, yet, compar
The overflow of the McNab lands on which the pond was formed was a natural and necessary incident of the construction of the dam.
We are of the opinion that the invasion of the Mc-Nab lands on which the pond rested in the manner set forth in the statement of facts was of such a character as amounted to an appropriation of the lands for flowage purposes.
The question now to be determined is whether, under these facts, the plaintiff in error was liable to the defendant in error for the sickness caused in his family by the river and the pond through the agency of the Anopheles mosquito, on the adjoining land.
We are of the opinion that there was no such liability, and that the motions for peremptory instructions in the trial court should have been granted and the suit dismissed.
The plaintiff in error was only a contractor, under the United States, doing for it the work that was done
So the liability of the plaintiff in error must be measured by that of the United States. While the United States is liable for the taking of private property, and under its laws can be sued therefor, and for the incidental damages connected therewith involved in the taking, that is, the value of the land taken and the incidental damages to the residue of the tract out
Furthermore, the incidence of such injuries would result, not so much from the fact of the construction of such a public improvement, as from the management thereof after its creation, since it appears from the evidence that the breeding places might be eradicated by cutting away the bushes and removing the debris on the bank of the river that would furnish shade and act as a means of preventing the wave motion of the water; also as to the pond, that it might be prevented by draining the pond. Of course, it is obvious that this removal of vegetation, and of obstructions, would have to be continued from time to time as the new growths would form between overflows, and new obstructions be deposited by the same agency. The failure to remove such obstructions, if
Furthermore, in respect of what has been said concerning the draining of the pond, it should be observed that although the United States had the right to appropriate the land of McNab for flowage purposes, it did not have the right, without-McNab’s consent, to go upon that land for a different purpose, that is, to drain the pond from time to time. Railway Co. v. Telford, 89 Tenn., 293, 14 S. W., 776. For a stronger reason plaintiff in error, its employee, had no such right. The default then, if any, of the United States, in respect of the' matter was its failure to keep the margin of the' lake free of shrubs and debris of all kinds, after it took possession of the property.
“Works of internal improvement which have been erected by the United States for the benefit of its citizens do not become public nuisances from the fact that the neighborhood is thereby rendered unhealthy by the obstruction of running water, and a consequent overflowing upon adjoining land, and the character of such works is not changed by the fact that they are transferred to a private corporation which is required to maintain the same, for the purpose of their creation. ’ ’
For the same reason it could not be abated as a private nuisance at the suit of an individual. Furthermore, if the government has the right to erect public improvements it has the right to employ servants to do the work, and those servants cannot be sued where they act strictly in the line of their employment, executing the orders of the United States. If the rule were to the contrary, then it would be impossible for the United States to serve the public by the erection of great works of internal improvement for the benefit of all. The assertion is preposterous that, a private
Now to apply the foregoing principles. The lock and dam was a work undertaken by the United States, and carried out through its agent, the plaintiff in error. The latter executed, in good faith, all of the employer’s requirements, and was guilty of no negli--gence. It is not therefore responsible for the river banks and pond where the mosquitoes were bred that caused defendant in error’s injury.
The predicate of the present suit is really that the United States so constructed the dam, that is, made it' so high, as that in ordinary freshets it backed the water over the land of McNab, creating the pond; that although while these freshets themselves did no harm to defendant in error, yet on the retiring of the water the pond was left and the banks were left, and, these not being cleaned of bushes, and the pond not
If McNab himself, the owner of the land on which defendant in error lives, were here complaining, he could have no relief, not only for the fundamental reasons already given, but also on the ground that he was fully paid for all injuries done to him and his land. It is true that if defendant in error were a tenant on any part of the land taken, he would be entitled to compensation to the extent that any part of his estate was appropriated. Colcough v. Nashville & N. & W. R. Co., 2 Head (39 Tenn.), 171, 176. But no part of the eight acres of which he was a tenant was invaded by the overflow; so no part of it was taken. The
But it is insisted that the plaintiff in error has an interest in the property, and for that reason should be held liable. It is true it has, during the pleasure of the United States, an easement in the surplus water (that not needed for purposes of navigation), collected in the dam, received by it as compensation for erecting the dam for the benefit of the United States. This fact, however, can in no wise answer the objections already stated. It confers no control over the dam or influence in its operation, and in fact no such control, in whole or in part, exists, and no snch influence
It results that the judgment of the court of civil appeals, ordering a peremptory instruction dismissing the action, must he affirmed with costs.