46 Kan. 170 | Kan. | 1891
The opinion of the court was delivered by
This was an action commenced in the district court of Chase county, on February 3,1888, by David Sauble, against O. H. Drinkwater and P. P. Schriver, to recover damages for alleged injuries to the plaintiff’s land, alleged to have been caused by the erection by the defendants, in October, 1886, of a mill-dam across the Cottonwood river, to the height of 10 feet, and causing the water therein to rise upon the plaintiff’s land to the height of five feet above its ordinary and natural height, and thereby causing the alleged injuries; and the plaintiff also asked for the abatement of the dam to the extent of five feet from the top. The defendants answered, alleging that the dam complained of was the mere replacement of a former dam which had been in existence and maintained by them for more than 15 years prior to the erection of the new dam, under a parol agreement between themselves and the plaintiff’s grantors; and that the new dam was not higher than the old one, and did not cause the water to flow back farther or to rise higher on the plaintiff’s land than the old one did. The plaintiff replied by filing a general denial. A trial was had before the court and a jury, and the
“ VERDICT.
“We, the jury impaneled and sworn in the above-entitled case, do upon our oath find for plaintiff, and assess his damages at $60.”
“special findings.
“1. What was the height of the old dam when first constructed, and up to January, 1870? Ans. Eight feet.
“2. What was the height of the new dam when this suit was brought? A. 8 feet 8|- inches.
“3. Was not the new dam erected 68 feet lower down on the ripple from where the old dam was located ? A. Yes.
“4. What was the amount of fall between the old and the new dam? A. Six inches.
“5. Did the water, while the old dam was in use for the new mill, pass through the old flume of the old mill where the wheel stood when in use for the old mill, and go directly into the flume of the new mill? A. Yes.
“6. What is the difference in inches in the height of the floor of the flume between where the wheel stood in the old mill, and where it stands now? A. About six inches.
“7. What was the distance from or difference between the head-water to tail-water on the old dam from 1868 to 1881, at fall of dam? A. About eight inches.
“ 8. What is now the distance from or difference between the head-water and tail-water at the new dam when at fall of dam? A. 7 feet 8-J- inches, according to evidence.
“ 9. With an ordinary stage of water in the river, does the new dam cause dead-water further up the rivfer than the old dam did when in good order? If so, how much further up the stream? A. Yes to first clause. No definite testimony to the last clause.”
The court also made the following finding, to wit:
“It was further considered, ordered and adjudged by the court, that said new mill-dam constructed by said defendants was built in continuation of the old dam, and that the new dam is and was eight inches higher than the old dam, and that said new dam be taken down and abated by said defendants to the height of eight inches from the top of said dam.”
Upon this verdict and these findings the court below ren
Two principal questions are involved in this case. First^ did the defendants, by building and maintaining the old dam as they did, acquire a right to build and maintain a new dam of the same capacity as the old one, or, in other words, one that would back the water or cause it to rise upon the plaintiff’s land as high as the old one did? Second, if the defendants did acquire any such right, then did they depart from the same by constructing the new dam in such a manner as to cause the water to flow back farther or to rise higher upon the plaintiff’s land than was done by the old dam?
Some slight errors have intervened in this case, as before intimated, but no substantial error has been committed as against the rights of the plaintiffs in error. There was evidence introduced that tended to show that the new dam causes the water to rise upon the plaintiff’s land much more than eight inches higher than the old dam caused it to rise.
The judgment of the court below will be affirmed.