221 Wis. 616 | Wis. | 1936
The Willow river is a stream twenty-five miles long, rising in the northeasterly corner of St. Croix
Downstream from the Willow Falls dam is the Little Falls dam, distant one and three-fourths miles. This dam as originally built of timber in 1894, was rebuilt of concrete in 1916. After it was reconstructed, it had a dirt fill at the southerly portion of the dam of one hundred fifty feet in length, which was unsurfaced and unreinforced except for concrete wing walls at the point of union with the concrete portion of the dam. The dirt fill was constructed and maintained at a height level with the top of the concrete portion of the dam. The total length of this dam including the dirt fill was three hundred fifteen feet. It ran generally in a north and south direction across the stream bed, the bank to the north being
The property of the plaintiff was located approximately one and one-half miles downstream from the Little Falls dam. It consists of a series of trout ponds, the water supply being drawn from the river, the flow being controlled by a gate. These ponds were protected from the river by a dike or dirt fill. The height of the dike above the normal flow of the river does not appear. The manager of the plaintiff company testified that he had been in charge of the property since about 1891; that the ponds had not been flooded except upon one prior occasion when a part of the Little Falls dam went out. Between three and four miles downstream from the Little Falls dam, near the mouth of the Willow river is another dam owned and operated by the defendant.
On the night of April 2 to 2, 1934, there was a-heavy rain two or three inches on two to three inches of damp, heavy snow, and the ground was frozen.'
April 3, 1934. At the trout ponds the water was high. The plaintiff was engaged in protecting its property, and at about 3 in the morning asked the defendant company to lower the water at the trout ponds by opening the gates of the dam at Hudson.
Gunderson, the operator of the New Richmond mills, testified that in the dam at that point there were five seven-foot gates and two nine-foot gates. He
The Mounds dam having no discharge except the gate leading to the wheels, the flow of the stream went over the spillway. At 6:30 a. m., at that point, the water was nine inches deep over the spillway. At 8:30 a. m. it was eight inches; at 5:3V p. m., thirty-six inches; at 9 p. m. forty-eight inches. Thereafter it began to recede, and at 2 p. m. it was thirty-six inches over the spillway. The highest record depth prior to April 3d was twenty-seven inches. The Mounds dam at the peak of the flood passed between six thousand five hundred and seven thousand five hundred cubic feet of water per second.
The peak of the flood reached the Willow Falls dam at 9:30 p: m. The water was then eighteen inches over the top of the dam and fifty-four inches over the top of the gates. Between 12 and 1 p. m. one gate was opened and another partly opened at the Willow Falls dam. At 3 p. m. all gates were opened at the Willow Falls dam. At 6 p. m. the Willow Falls dam was passing all flood water. Early in the morning of April 3d, the defendant stationed two men to patrol the Willow Falls and Little Falls dams. Between 1 and 1:30 p. m. they opened one gate at the Little Falls dam and shortly thereafter a second gate.
This statement is intended to represent the general situation. We have not attempted to delineate it with meticulous accuracy. In the case of substantial dispute, the state of the facts as found by the jury has been assumed to be true.
Plaintiff contends that the special verdict as framed did not properly submit the issues to the jury. By the answer to question 1 the jury found that the defendant was negligent in failing to provide an adequate and suitable means for the passage of water in the case of floods which should have been foreseen by the defendant as likely to occur. This is a general finding. By answer to subdivision (a), the jury found that there was no failure to provide gates and spillways of sufficient capacity. This finding negatives .the claim of the plaintiff that the dam in question was structurally inadequate or insufficient. The only negligence found by the jury is the failure of the defendant to open the gates in the Little Falls dam aild the Willow Falls dam earlier in
In Geuder, Paeschke & Frey Co. v. Milwaukee (1911), 147 Wis. 491, 133 N. W. 835, the court had under consideration the duty of a municipality to provide sewers of sufficient capacity to carry off the surface water. The duty of a municipality with respect to the disposition of surface water is quite different from the duty which the owner and operator of a dam in a stream owes to the upper and lower riparian proprietors. The duty of a municipality is considered in Hoyt v. City of Hudson (1871), 27 Wis. 656. Allen v. Chippewa Falls (1881), 52 Wis. 430, 9 N. W. 284, deals with the same matter. In the Milwaukee Case, Allen v. Chippewa Falls was referred to, and in considering the duty of a municipality with respect to the disposition of surface water, rainfalls are divided into three classes, ordinary, extraordinary, and unprecedented. An unprecedented rainfall is defined to be such a rainfall as never, so far as known, definitely occurred before and so is not reasonably to be expected even at long intervals though not impossible. From this and other cases it is argued on behalf of the plaintiff that if the plaintiff established the fact that at some prior time at some point on the river a preceding flood had reached the same height as the flood in question, the flood in question was not unprecedented. This argument gives to the word “unprecedented” the full effect of the dictionary definition of that word. The use of the word “unprecedented” in this connection is perhaps unfortunate. A flood which exceeded
“But in connection with this question the court explained to the jury that they were to consider whether the flood was an unusual or extraordinary flood, explained the terms ‘unusual’ or ‘extraordinary,’ instructed that the railroad company constructing an embankment or bridge is not required to make provisions against such unusual or extraordinary floods as caimot be foreseen by men of ordinary experience and ordinary prudence in the locality where such flood occurs, but that the defendant ought reasonably to' have anticipated all floods and freshets which occur annually or at longer intervals, and which, from having been known to occur at longer or shorter intervals, may be reasonably expected to occur again.” See Cobb v. Smith (1875), 38 Wis. 21; Sabine v. Johnson (1874), 35 Wis. 185.
The action in that case was begun to recover damages caused by a flood which occurred in July, 1907. It was shown that similar floods had occurred in 1876, 1884, and 1900. It appeared therefore in that case that the flood was not of such character that the defendant should have anticipated and guarded against it.
In Nashville, C. & St. L. Ry. v. Yarbrough (1915), 194 Ala. 162, 69 So. 582, 584, the court said:
“An unprecedented flood may be defined as such an unusual and extraordinary rainfall as has no example or parallel in the history of rainfall in the vicinity affected, or as affords no reasonable warning or expectation that it will likely occur again.”
The overwhelming weight of the evidence in this case establishes the fact that the flood in question was of a most extraordinary character and that nothing like it had ever been seen in the river prior to April 3d. The only evidence which tends to contradict this conclusion is the testimony of the witness, Curtis Cook, a former employee of the defendant. Referring to the flood in 1916, he was asked: “How high did it rise?” “A. I imagine there were four or five inches of water in the plant [at Willow Falls] at that time.” On April 3d, it appeared that at the same point the water reached the height of five-to seven inches. However this proves very little, if anything, with regard to the proportions of the flood in the river. The depth of water at a particular point may be affected by many things, the operation of the gates above and below, flood trash in the stream, such as ice, trees, and débris of all sorts. What is to be considered is the state of the flood in the stream as a whole. So considered the evidence without contradiction establishes that the flood in question exceeded any theretofore known on the river.
The plaintiff contends here that it was the duty of the defendant company, when notified of flood conditions on the river at 6 o'clock in the morning of April 3d, to open its gates at the Little River Falls. It is further contended had it done so that the increased capacity of the pond above the Little Falls dam would have prevented the damage complained of. In this connection it is to be remembered that at 3 o’clock in the morning'of April 3d, the plaintiff was calling upon the defendant to lower its pond created by the St. Croix dam below the Little Falls dam. There is no evidence in the record that at the time in question the Little Falls dam was not passing the flow of the stream. When later the water raised and it appeared that the openings were insufficient for that purpose, the gates were opened. After they were entirely opened, the level of the water fell two inches in the pond above Little Falls dam in two hours. After 6 p. m. it continued to rise with the gates entirely'open. If the defendant had opened the gates of the Little Falls dam and had done as the plaintiff, a lower riparian requested it to do, an amount of water in excess of the flow of the stream would have been discharged. Had damage resulted, the defendant would have been liable. The defendant owed duties to upper as well as to lower riparians. Subject to its reasonable use, it was under a duty to pass the flow of the stream as it reached it in such manner to do no damage to either upper or lower ripa-rians. Boyington v. Squires (1888), 71 Wis. 276, 37 N. W. 227; Hackstack v. Keshena Improvement Co. (1886) 66 Wis. 439, 29 N. W. 240.
Certainly it cannot lawfully be required to discharge the contents of its millpond in addition to the flow of the stream upon lower riparians and so make itself liable for resulting
The plaintiff here contends that the defendant is liable because by opening the gates sooner it might have discharged . a quantity of water which it withheld; that by reason of this withholding the dam broke and the retained water was let down upon the plaintiff. The uncontradicted facts disprove this conclusively. The discharge of the river at the time of the peak of the flood when it poured over the gates, spillway, and embankment for an hour or more must have amounted to very much more than any volume of water that could have been released by the opening of the gates. There is nothing in the evidence that indicates that all of the damage sustained by the plaintiff would not have been sustained however the gates were operated. Plaintiff was not required to anticipate an unprecedented flood. It was its duty to pass water through its dam as fast as it received it. The claim that the water withheld by failure to sooner open the gates, assuming it to be a negligent act, caused the injury, finds no factual support in the evidence: What effect, if any, this proportionately small volume of water had upon the property of the plaintiff is a matter of pure speculation and conjecture. The trial court correctly so held.
By the Court. — The judgment in each case is affirmed.