117 Wis. 497 | Wis. | 1903
The evidence abundantly shows that respondents, or those whose rights they assumed authority to summarily vindicate by removing appellant’s dam across the drainage ditch in the bed of the lake, were benefited by the work of the Wisconsin State Land & Improvement Company which was condemned in the’ suit of Priewe against such company (103 Wis. 537, 79 N. W. 780), and were parties to such work by acquiescence, and, under the principles laid down in such case, were bound not to complain of such work as regards the effect thereof upon their property. As to them the company could have successfully claimed protection on principles of estoppel in pais. In making the second drainage, it adopted the old canal as a basis, in part, for the new work. ' It so incorporated the old excavation in the bed of the lake into the new one that the identity of the former was in a great measure lost. On that account, when this court 'came to construe the judgment against the company in the former litigation the first canal was not regarded as having an identity distinct from the second one. It was said, in deciding the appeal, that the effect of the judgment in favor of 'Mr. Priewe, as rendered in the circuit court, was that he was entitled to have the condition of Muskego Lake, as the same existed prior to the second drainage, restored; and, to that end, that he was entitled to have so much of the canal in the bed of the lake, or elsewhere, filled up, as would accomplish
Passing the matter above discussed, we are met by the claim on the part of appellant that the trial court decided as a matter of fact that the dam placed across the canal by appellant was no higher than was necessary to restore him to his former situation as regards the water of the lake, and that such decision entitled him to the relief prayed for or some effective protection against lawless interference with his operations by respondents. There is good ground, it seems, for that claim, looking at one phase of the case as the learned trial court decided the issues. The findings, however, appear to be in irreconcilable conflict. Findings 1 to 8 inclusive may well have been prepared for judicial approval upon the court’s suggestion that-the issues made by the pleadings were decided in respondents’ favor; while findings 9 to 18 seem to have been made in response to requests by counsel for appellant that the matters referred to therein should be passed upon by the court favorably to his client. In the first group of findings we find this language:
“If said filling was not removed ... it [the water of the lake] would overflow the lands of these defendants . which were drained by the drainage commissioners’ work.”
“If filling was permitted to remain in said channel, as placed there by the plaintiff and his assistants, ... it would have backed the water over and upon large tracts of valuable tillable land which was reclaimed to the defendant landowners by the drainage done by the commissioners.”
Respondents’ .counsel point to that language with great confidence as justifying their clients in summarily ridding
“The lake cannot be restored to its natural condition, or the level at which it ordinarily stood after the first drainage, . . -. so as to give plaintiff the beneficial use thereof as provided by the former judgment, without a literal compliance, at great expense, with the judgment rendered in said former action, or the partial damming or filling up of the said drain [meaning the drain in question] near the southerly end of said lake bed, substantially as done by the plaintiff. This finding is based not only on such testimony as is in the case on the subject-matter of this finding, but on . . . personal view.”
It seems useless to endeavor to read out of that language by construction any other idea than that appellant’s operations resulted in placing a dam across the canal no higher than was reasonably necessary to give him the benefit of the judgment in his favor by restoring the lake level to where it was when disturbed by the improvement company’s excavations. Such idea being entrenched as a verity in the findings, if all the other findings were in harmony therewith there could be. but little doubt that appellant would, be entitled to the relief he sought in this litigation instead of being compelled,to go remediless from court and be mulcted in costs for having invoked the arm of equity to protect him in doing the very thing that equity had decreed, after expensive litigation, he was entitled to do.
Counsel for respondents suggested on the oral argument, and there is something of the same sort in their brief, that the court, in making the finding under consideration, had in view merely tire level of the water as adjudged to appellant in the former case, not the actual fact as to where the level of the water was after the first drainage, and that respondents were not parties to such litigation, hence were not bound thereby. True, as we have before sufficiently indicated, respondents are not bound by the judgment against the improvement company upon principles of res judicata. We see
It seems tbat tbe learned trial judge, in looking at tbe case from tbe standpoint of tbe issues be deemed material, lost sight of tbe fact tbat it was tbe level of the water of the lake
Who can say that seven inches of perpendicular space between the line of the water level as the same existed after the first drainage and the crest of appellant’s dam, the crest being twenty-two feet long and the fall therefrom to the tail water below being three feet or more, as shown by the evidence, would not have been reasonably sufficient to' pass the water of the lake in a sufficient volume to have prevented the lake level from rising higher than where appellant was entitled to have the same, without actually experimenting or at least without knowing something about the volume of water to be discharged in order to prevent such rising, and the speed of the current under the circumstances ? No witness in the case testified with any degree of definiteness, either as an expert or otherwise, on the subject. There was no proof from which a satisfactory conclusion could be reached independently of expert evidence that the dam, under the circumstances, would not allow the necessary amount of water to pass out of the lake. When the learned trial judge came to this branch of the case, though he evidently deemed the matter not material since in any view of the evidence the bottom of the old canal was disturbed by the dam and the water raised above it, he found, in effect, that such structure was not, in view of the fall from the crest thereof to the tail water below, caused by the second drainage, — the “changed condition,” as the matter was expressed in the finding,'— higher than was required to prevent the water of the lake from flowing to the level of the water below the crest of the dam in greater volume in a given time than it was wont to do before the second drainage; in other words, that the dam was none too high to restore the lake level to where it was before the canal was deepened by the improvement company. There was nothing definitely to that effect in the evidence of Mr. Powrie, the engineer, upon whose testimony the learned.
The case on the evidence being as above indicated, it is clear that we cannot sustain the judgment as right regardless of the findings. Neither can we say, with such certainty as a fact ought to appear in order to be found upon evidence here, that appellant’s dam was not too high; though it seems that the probabilities point pretty strongly that way. It may be the truth of the matter cannot be told with certainty without actually experimenting with the dam as it was constructed. If so, appellant ought to be permitted reasonable opportunity to make such experiment up to a point which would at least raise the water substantially to the danger line. However, it seems .that the amount of water that would naturally flow out of the lake in its former condition can be determined approximately by a person experienced in that line of work, using the appliances and rules usually employed for that purpose, and that the height of water above the crest of the dam, in view of the length of the crest, required to permit the water from above the dam to flow over the same and toward Wind Lake in a sufficient volume to prevent raising the level of MuskegO' Lake above where appellant is entitled to have the same, may be determined with reasonable certainty. It seems, also, that evidence may be readily obtained as to a construction that may be cheaply put into a dam across the canal to regulate itself, so that before the water above the dam passes the danger line the volume thereof passing over the crest will be automatically sufficiently increased to avoid raising the level of the lake too
There is another feature of the case worthy of some consideration. Appellant, by his operations, did not purpose doing more than just enough to avoid the effect upon the lake level of the improvement company’s work, and it was his intention, if his filling as completed should prove to be too high, to promptly lower the same upon that fact developing. The evidence is also undisputed that the wishes of the farmers who desired to have the old drainage work remain effective would not be violated in that regard by appellant; also that the level of the lake was not up to where appellant was entitled to have the same, nor where it injuriously affected any of the respondents, when they took the law into their own hands and destroyed the work. There are no circumstances disclosed by the evidence showing that such hasty summary action on respondents’ part was at all necessary to prevent irreparable damage to them. Eor all that appears, they could safely have waited till the water was up to the old line and then have avoided all danger of its going higher, if such danger developed, by merely requesting appellant to lower his filling, or by then reducing the height of the dam themselves in a reasonable way, instead of destroying the same entirely, as they did, in effect. Again, the courts were accessible to them and -were able to furnish them adequate protection, the same as they were open to appellant, and no reason appears by the evidence to justify them in not invoking judicial assistance instead of summarily wholly destroying the effective use of the dam. In that situation, were re
The solution of the proposition last suggested is governed by a few familiar principles. Appellant, as we have seen, had a clear legal and equitable right to change the character of the canal so far as necessary to enable him to restore the water of the lake to the condition it would have been in but for the second drainage. So long as his actions in that regard caused no actual injury to respondents, nor created a situation from which injury to them was certain to result,, they had no cause of complaint against him. Without such cause they could not have brought action against him, either in law or in equity; hence they had no right to take the law into their own hands and destroy the result of his work. The law on that point is well settled. Garrett, Nuisances, 353; Wood, Nuisances, § 100; 3 Blackstone, Comm. 220; 1 Hilliard, Torts (4th ed.) 605, 608, and note; Adams v. Barney, 25 Vt. 231; Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53; Brown v. Perkins, 12 Gray, 89, 101. There was no nuisance to be abated in any view of the case up (to the time respondents did the acts complained of; therefore they manifestly had no action at law against him, because they had suffered no damage. There was no certainty that what appellant had done would cause any actionable nuisance to respondents or any of them, even if it be admitted that the filling placed in the canal was of sufficient height that, had it remained, the lake level would have been higher than appellant was entitled to have it, as it clearly appears that he did not intend to maintain the filling so as to do more than restore the former
It is clear to us that tbe evidence in this case should be reconsidered by tbe trial court in the light of the principles here laid down, keeping prominently in view tbe fact that respondents are not entitled to prevent obstructions from being placed in tbe canal in tbe bed of tbe lake merely because they are built up above tbe level of where tbe bottom of tbe old canal was, which do not do more than obviate the
The judgment appealed from must 'be reversed and a new trial had on the questions suggested, and new findings and conclusions be then filed, and a decree be then rendered according thereto and in harmony with the principles declared in this opinion for the guidance of the trial court.
By the Court. — So ordered.