| Wis. | Jun 1, 1911
Lead Opinion
The following opinion was filed October 25, 1910:
1. Tbe first assignment of error is tbat tbe contract of December 26, 1905, is unambiguous and covered all damages up to tbe time it was entered into, and tbat it was error to give it a different construction than its language required, in tbe absence of fraud or mistake. No fraud or mistake is claimed, so those elements are eliminated from tbe case. Did tbe trial court err in its interpretation of tbe contract in view of tbe facts and circumstances surrounding tbe parties at tbe time it was made ? It cannot be denied tbat tbe phrase “all losses sustained in tbe past due to tbe pollution of tbe water” is broad enough to include damage to tbe water power resulting from tbe deposits in tbe pond as well as damage to tbe ice field resulting from contaminating particles being held in suspension in its water, or from a contaminating deposit therein as a result of pollution, or both. Tbat is, it may have a broad meaning or it may have a restricted meaning. Which interpretation shall tbe court give it? If its meaning can be ascertained with reasonable certainty from tbe instrument itself, then recourse cannot be bad to extrinsic facts to aid in its interpretation. Let us, therefore, first see what we can gather with reasonable certainty from tbe agreement itself. Prom an inspection thereof it is clear tbat tbe parties made an adjustment of all losses sustained in tbe past due to pollution of tbe water in plaintiffs’ pond and provided for tbe future adjustment of such losses by tbe payment of $400 annually, at tbe option of tbe defendant. It is equally Mear tbat they excluded from such adjustment, both past and
But if there is any serious doubt as to the correctness of this interpretation gathered from the instrument itself, and it should be held that the contract is so uncertain that recourse' must be had to the facts and circumstances surrounding the' parties in order to ascertain what they, so circumstanced,, meant by the language employed, then we are convinced such facts and circumstances completely dispel the doubt. Eor four years past the defendant, by its unreasonable use of the stream, had damaged plaintiffs’ ice business in the sum of from $400 to $500 per year. It had filled up their millpond so that it was necessary to expend about $300 per year more for fuel to replace power lost, and, in addition to that, it would cost at least $5,000, as found by .the court, to restore-the pond to its former state. Under such circumstances the inadequacy of the consideration in the contract may be taken into account in construing its terms; and such inadequacy can be reconciled only by giving the contract the construction put upon it by the trial court, which we deem to be the correct construction..
2. Error is also assigned because, it is alleged, the court found the damage resulting from the deposit in the mill-pond as permanent damages to plaintiffs’ property. This contention is based upon the claim that the court’s finding bears such a construction, and upon the fact that one witness testi
“That the lands upon which the said plaintiffs have the flowage right heretofore referred to have been filled up and filled in to a considerable extent by the defendant company in discharging, depositing, and emptying its waste matter therein, thereby greatly depreciating the storage capacity of the plaintiffs’ reservoir and diminishing the amount of power it is possible to develop from said water storage, all of which is calculated and intended to and does greatly diminish the value of the flouring mill or grist-mill property of the plaintiffs as above described, all to. the plaintiffs’ damage in the sum of $8,500, which said sum included the past damages for additional use of steam and destruction of ice field for one season as above found.”
Counsel for defendant say in their brief that the case was. tried by the plaintiffs on the theory that the measure of damages was the cost of the removal' of the deposit. This is undoubtedly true, and it is equally true that it was disposed of by the trial court on that theory. In its opinion the court says:
“The question of. damages is a perplexing one, and it has been extremely difficult to arrive at a satisfactory conclusion on that question from the evidence in the case. The testimony produced by both sides as to the cost of restoring the mill-pond to a reasonable condition for the use of plaintiffs is quite unsatisfactory.”
The court then goes on to discuss this testimony and to give reasons for arriving, from such testimony, at the conclusion it does on the question of damages. It needs no argument to show that the court did not assess permanent damages to plaintiffs’ property.
3. Further error is assigned on the ground that as to each item of damage found by the trial court the evidence was too
4. The only other assignment of error it is deemed necessary to consider is, that it was error to enjoin the use of the settling basin and to order the same removed, because the question whether or not it was an infringement of plaintiffs’ flowage rights was not within the. issues in the case. It is true the complaint does not allege that the settling basin is an infringement of their flowage rights, but it does allege that defendant, by its unreasonable use of the river, has created a nuisance upon plaintiffs’ property, and it asks to have this nuisance abated, and prays for such other and further relief as may be deemed just and equitable; and it also alleges “that by reason of filling up plaintiffs’ reservoir and diminishing the capacity of the same, it has virtually destroyed the water power used in connection with said mill property belonging to plaintiffs, thereby causing irreparable injury.” It seems to be a verity in the case that defendant’s settling basin is within the plaintiffs’ flowage limits, and that it is about 300 feet long and 100 feet wide. Naturally it lessens the capacity of plaintiffs’ reservoir by the cubical contents of the water that would lie within its limits if it were not there. The evidence shows that plaintiffs made a twofold use of their flow-age rights: first, to secure the required head of water to run their mill; and second, to use the overflowed land as a storage reservoir to draw on. Where flowage rights are established either by grant or prescription, the owner of the servient estate can do nothing to impair such rights. He cannot interfere or meddle with the territory so as to diminish its capacity for storage. 2 Farnham, Waters, p. 1784; Watuppa R. Co. v. Mackenzie, 132 Mass. 71" court="Mass." date_filed="1882-01-04" href="https://app.midpage.ai/document/watuppa-reservoir-co-v-mackenzie-6420478?utm_source=webapp" opinion_id="6420478">132 Mass. 71. In the latter case the owner of
Inasmuch as there is no dispute about tbe fact that tbe settling basin lies within the flowage or reservoir rights of tbe plaintiffs, it is not perceived bow tbe defendant is prejudiced, even if tbe court abated it upon a ground not mentioned in tbe complaint, where tbe ground-upon which it was abated existed and was a lawful one for abating it.
By the Court. — Judgment affirmed.
Rehearing
Upon motion of tbe appellant a rehearing was granted on January 31, 1911, and tbe cause was reargued on May 5, 1911.
Eor tbe appellant there were briefs by Nath. Pereles & Sons, attorneys, and Burr W. J ones, of counsel, and oral argument by Mr. J ones and Mr. Nathan Pereles.
Eor tbe respondents there was a brief by Byan, Merton, Newbury & Jacobson, and oral argument by M. A. Jacobson.
Tbe following opinion was filed June 1, 1911:
A motion for rehearing was granted in this case upon the following question: Did the trial court apply tbe proper measure of damages, and are tbe damages awarded excessive ? Upon tbe first branch of tbe question it is urged now, as before, that tbe finding set out in tbe foregoing opinion is a specific, unambiguous finding of permanent damage to plaintiffs’ mill property, and not a finding of tbe reasonable •cost of restoring such property to its former condition. It is also urged that tbe finding of tbe trial court, and not its written opinion, controls. In a case where both parties insist that it was tried throughout on tbe sole theory that tbe proper measure of damages was tbe cost of removal of tbe deposits in
Counsel for defendant is no doubt correct in claiming that the finding and not the opinion of the trial court controls. But that does not preclude reference to the opinion or to the record in the case for the purpose of ascertaining what the finding means, when it is not so clear and unambiguous as to bar construction. It is always pertinent in construing am
Upon the second branch of the question, namely, are the damages awarded excessive, we have come to the conclusion, upon a more careful examination of the record, that the court included in its award of damages for restoring the mill-pond and overflowed lands the amount of deposit contained in the settling basin. This fact escaped the attention of the writer of the opinion and, owing to that inadvertence, a proper reduction was not made from the allowance of $6,500. It is, of course, self-evident that defendant should not be compelled to remove the deposit in the settling basin and also pay plaintiffs for doing it. Such basin, it is admitted, contains approximately 30,000 square feet. Plaintiffs’ evidence shows the depth of the deposit therein in three places as follows: 11.6 feet, 5.6 feet, and 6.2 feet. This makes an average depth of 7.73 feet, or substantially 8,590 cubic yards of deposit. Allowing twenty-three cents per cubic -yard, the amount presumably allowed by the trial court on the basis of $6,500 for 28,831 cubic yards, makes an overcharge of $1,975, which should be deducted from the amount of the judgment as of the date of its rendition. It is true defendant’s evidence was to the effect that there was not to exceed an average depth of 3.6 feet of deposit in the settling basin, but the trial court seems to have adopted substantially the claims of plaintiffs as to the amount of deposit, and we shall do likewise as to the amount in the settling basin.
It is further claimed that it was error to allow for about 10,000 cubic yards of deposit below the bottom of plaintiffs’ dam, or below the penstock, for the reason that such deposit could not injure plaintiffs. We deem this assignment of error not well taken, for two reasons: in the first place, the evidence showed that in order to secure an even, steady flow of water on the wheel it was necessary to have the pond deeper
As to items of damage for additional use of steam, and damage to ice field, found by tbe trial court, we tbink tbe evidence sustains them.
By the Gourt. — Tbe former judgment of tbis court herein is vacated and set aside, and tbe judgment of tbe circuit court is modified by deducting therefrom as of tbe date of its entry tbe sum of $1,9.75, and, as so modified, is affirmed, with costs to tbe defendant.