112 Minn. 175 | Minn. | 1910
Appellant is the owner of a power dam on the Mississippi river at Sartell, Minnesota. The plant has been in operation since March, 1907, and this action was brought for the purpose of recovering damages for overflowing lands of respondent located on Little Eock lake, at a point about twelve miles above the dam. Four special questions were submitted to the jury, and answered as follows:
“1. Are you able to determine, after considering all the evidence in the case, whether the dam of the defendants did or did not cause water to flow upon the land of the plaintiff in the year 1908, which water would not have flowed upon his land if defendants’ dam had not existed?” Answer: Yes.
“2. Did the dam of the defendants cause water'to flow upon the land of the plaintiff in the year 1908, which water would not have flowed upon his land if defendants’ dam had not existed ?” Answer: Yes.
“3. What was the amount of damage sustained by the plaintiff on account of injury to his crops and grass by water from Little Eock lake overflowing portions of his land in the year 1908 ?” Answer: $100.
“4. What was the amount of damage, if any, sustained by plaintiff in the year 1908 on account of injury to his crops and grass by water which was caused to flow upon them by the dam of the defendants and which would not have flowed upon them if said dam had not existed?” Answer: $100.
Appellant submits that the evidence conclusively shows that the overflow and consequent damage to respondent’s hay and crops was by an unusual and unanticipated flood of water, and that the dam was in no way responsible therefor.
The power generated by the dam operates a pulp mill, by means
Appellants’ expert witness declared that there were certain general laws in physics which controlled the case. Those laws, as stated, are that the curve where the waters of a stream meet with the waters of a mill pond advance toward the dam as the waters in the stream increase in volume. And again: “If the escape of water over the dam is such that it keeps the water in the pond at a lower level, than, — or at a less depth above the ordinary stage than is obtained in the river above the pond, then the backwater line must continually approach the dam.” Also, that, when the stage of water over the dam attains the height of the dam itself, the dam ceases to be an
The expert witnesses called on behalf of respondent accepted the application of these general rules with some qualifications, and claimed that for a, certain length of time after the water in the pond had risen even with the crest of the dam there would continue to be a backward movement of the meeting point of the waters coming, down the river with the waters in the pond, and that when such movement would cease depended on many conditions, and was largely a matter of guesswork. It would depend on the character of the pondr and the manner in which the dam was manipulated. Had the dam been absent, the water coming down the river would have had the benefit of a fifteen-foot fall in something less than four miles'. If the theory of appellant is true that the dam ceased to be an obstruction after the water in the pond reached the level of three feet above the crest of the dam, then it would seem that an eight-foot head of water above the .ordinary stage at the mouth of the creek would back up and raise the level of the lake five feet above its ordinary stage. This would occur if the dam were not in the river. But theoretical reasoning does not necessarily solve the question, and the expert testimony must be considered in connection with the other evidence in the case.
Evidence was received tending to show that during the ordinary stage the water never backed up beyond the fifteen-foot level, if used. Witnesses called on behalf of appellant testified that at no time during the years 1907, 1908, and 1909 did the dam have any effect upon backing the waters above the fifteen or eighteen foot level. Other witnesses called by respondent testified that, after the erection of the dam, the stage of the river above the creek under ordinary conditions was two to three feet higher than it would have been
While the exact point may not have been definitely 'fixed where the dam ceased to have effect during high water, it may fairly be inferred from the evidence that the effect in retarding the flow of the river above the dam was far greater than claimed by appellants. Of course, if the condition at the mouth of the creek would have been the same with or without the dam, then a rise of eight feet in the river would cause the lake to rise five feet. But it seems quite clear that the same conditions did not exist. That backwater continued up stream for a considerable time after the pond' had filled to a level with the crest of the dam seems reasonably certain. A part of the crops for which respondent claims damage was above high-water mark, and, if the rise in the river was not unusual, there was reasonable ground for the claim that the dam was the cause of pushing the water to the extraordinary height reached on this occasion. The owner of lands bordering upon a navigable stream or lake is entitled to recover damages for such overflow as may occur above what is known as the ordinary high-water mark. By high-water mark is meant those points where the water usually rises, such rises as may be reasonably anticipated, but does not mean such extraordinary freshets as cannot be anticipated. Ames v. Cannon River Mnfg. Co., 27 Minn. 245, 6 N. W. 787.
During the month of June, 1908, the grass land and fields of appellant bordering upon Little Bock, lake were overflowed, and, to some extent, damaged. There was evidence tending to prove that the grass and crops in question were located' at a point above the ordinary high-water mark. There was evidence to the effect that part of May and June, 1908, was a rainy period, but the evidence
The jury answered the special questions submitted to them by finding’ that the dam was the cause of the entire amount 'of the resulting damage. Appellants insist that the evidence does not support this conclusion of the jury. That respondent suffered some damage to the grass and crops located above the ordinary high-water line is beyond question. Evidence was received to the effect that the damage was more than the amount returned, and we are unable to say that the evidence does not sustain the jury in arriving at the figures it reached, although it might have justified them in finding it to have been less.
Respondent introduced in evidence a government chart — Exhibit C — which contained data of the soundings across the river in the vicinity of the mouth of Little Rock creek, taken under the supervision of the United States government in 1898. Counsel for respondent proceeded to have a witness testify from the chart what those soundings were when the objection was made that no proper foundation had been laid for such testimony, since it was not shown that the same conditions existed in 1898 as in 1908. Counsel for respondent stated that he would come to that later, and the objection was overruled. The witness testified as to what the soundings were as shown by the chart. ITe was subjected to cross-examination on the same subject, but no further objection was made to the use of the chart, and no motion was made to strike out either the testimony or the plat. Possibly a proper foundation had not been laid, but under the circumstances appellant is not in a position to raise the question.
We have examined the affidavits in support of the motion for a new trial on the ground of newly-discovered evidence, and are of
Affirmed.
On November 25, 1910, the following opinion was filed:
On the reargument it was insisted by counsel for appellants that it conclusively appears from the record that the presence of the dam in the river did not, and could not, have any effect in causing the high waters which injured plaintiff’s crops. As stated in the opinion, we consider the evidence conflicting upori that question, and the credibility of the witnesses was for the jury. But inasmuch as the question was closely contested, and the evidence was conflicting, we are now satisfied that the reception in evidence of Exhibit C was prejudicial. This chart contained a statement of the soundings of the river which had been taken under the supervision of the United States government in 1898, ten years prior to the time the injury complained of occurred. It was objected to upon the ground that it was incompetent, irrelevant, and immaterial, and that no proper foundation had been laid.
We were in error in holding that the objection was waived by permitting a witness to be examined with reference to it without further objection. The objection was directed to the chart itself, and ¡not to the testimony of the witness. Whether the dam was the cause «of the deeper stage of water at and above the creek was the important iissue. If the soundings of the chart were correct, then the soundings of 1908 showed that the water was higher at those points at the Hatter date. It cannot be presumed that the bed of the river was the same in 1898 as it was in 1908, and hence the evidence was prejudicial.
New trial granted.