76 Wis. 278 | Wis. | 1890
Proceedings were taken under the laws of the United States and of this state to obtain compensation for the flowage of the land of the plaintiff by means of the dam at Menasha, as a part of the works of thq improvement of the Eox and Wisconsin rivers, belonging to the United States. The case was tried on appeal from the report of commissioners awarding to the plaintiff no compensation, because the plaintiff’s land was not flowed by means of said dam. The principal questions to be determined in the circuit court were, therefore, whether the plaintiff’s land was flowed or injured by means of said dam, and, if so, what should be the reasonable compensation therefor.
Cases of this sort are quite familiar to the bar and courts of this state, and involve well-known and established principles ; and every question raised on this appeal has been decided by this court. It would be useless to consider to any great extent the questions of fact determined by the evidence. The testimony, as in other like cases, is conflicting and contradictory. It is not the province of this court to determine its credibility. It is sufficient if there is evidence, which the jury had a right to believe, to sustain their findings. The special verdict of the jury is as follows: “ (1) Is the plaintiff the owner in fee of the S. W. J of the S. E. ¿ of section 31, town 20, range 14 EJ Answer. Yes. (2) Since August 3, 1866, and prior to the commencement of this action, has the defendant’s dam at Menasha been changed? A. Yes. (3) If you answer the last question
There was testimony to support these findings. The testimony shows that the dam in question was built across the Menasha outlet of the Fox river into Lake Winnebago, in 1849. After that the dam was improved at different times, but was not raised so as to flow any of said land until 1869. After that it commenced to affect said land more and more. In 18Y6 a new dam was built, of such height that it continued to flow said land to some extent; and in the winter of 1880 and 1881 a large quantity of stone and other material was placed upon the dam, which raised the water so as to completely submerge the said twenty acres of said land, as found by the jury, and it has remained so submerged ever since. In 1882 the United States commenced the building of a new dam; and it was completed in 1886 or 188Y, and has stood at such height as to continue the complete overflow of said twenty acres, and rendered it, in the opinion of several witnesses, entirely worthless for any purpose. The land of the plaintiff is situated on the northwest shore of Lake Poygan, an enlargement of the Wolf river; and by the course of the current, as it passes through the Wolf river, Lake Winneconne, and Lake Butte des Morts, and of the Fox river through Lake Winnebago to the Menasha dam, it is about fifty miles. But
If the defendant was not responsible for the raising of the dam in 1880 and 1881, when it first caused the plaintiff’s land to be flowed, the evidence tends to show that it has continued to be flowed all of the time since. What particular changes in the dam have produced such a result may be uncertain; but one thing seems to be very certain, and that is that the dam has caused the land to be overflowed, according to the testimony for the plaintiff, and that is the important question. The changes in the dam which have caused it, as in other like cases, is a question upon which the testimony is likely to be conflicting and contradictory; and it is very difficult, if not impossible, in some cases to account for the fact that a dam which did not at one time, in an ordinary stage of water, flow certain lands above, has afterwards done so. It may be by raising its height by embankment or flush boards, or by tightening it and increasing its capacity to hold back the water, or by setting in operation .processes of nature, such as the gradual accumulation and deposit of mud or the growth of vegetation in the stream, causing obstructions, or other intermediate natural causes which are attributable to the dam as the primary cause. If it is not made perfectly clear what changes in this dam have been made, the testimony of surveyors and civil engineers on behalf of the plaintiff establishes the fact that the dam has caused the flowage. That the land is submerged appears to be an unquestionable fact, and there must be some cause for it.
Eurther reference to the testimony is not necessary, except in connection with the assignment of errors,, which we will now consider.
2. The counsel of the government asked the court to instruct the jury that, where works have been constructed in a public river by public authority, there is no liability for damages for flowing of lands caused by an extraordinary freshet, which could not have been reasonably anticipated and provided against. The court properly refused to give this instruction for the reasons (1) that it is an abstract proposition of law; and (2) that it is inapplicable to the case. The case, as well as the recovery, depended upon the fact that the land was completely and permanently submerged and rendered entirely worthless. Extraordinary floods could not cause such effects. The cause must be as continuous and permanent as the effect, and extraordinary floods are only temporary; and no damages are claimed or recovered on account of any such cause. The instruction might be good law in a proper case. But there was no evidence of any such extraordinary floods that could not have been anticipated. They were not very unusual. The dam should have been so made as not to allow such floods to flow plaintiff’s land. Borchardt v. Wausau Boom Co. 54 Wis. 107.
3. The learned counsel of the appellant contends that the court erred in allowing a recovery as for lands permanently flowed, and in fixing the time when they became completely submerged and their use destroyed as the time of their actual talcing by the government, and allowing interest on their value from such time. As above stated, the jury had the right to find from the testimony that the land
4. The counsel of the appellant asked the court to submit to the jury the question: “What was the value per acre of the lands permanently flowed at the time they were so permanently flowed?” The question submitted to and answered by the jury was: “What is the value of the lands, if any, permanently flowed?” This is assigned as error. This apparent error AA’as cured by the instruction of the court in connection with the question, that “you Avill ascertain from the evidence what was the value of the land at the time of the taking, and that will be the damages, Avith interest added, for such lands.” The question asked is in the present tense, as if it was asked of the jury: “What do you say is the value of the land permanently floAved?” or “What value do you find?” for brevity. The testimony of the Avitnesses as to the value of the land was confined to the time it was first permanently floAved.
5. The counsel of the appellant requested the court to submit to the jury certain questions, and to give certain
By the Court — The judgment of the circuit court is affirmed.