184 Iowa 566 | Iowa | 1918
1. The general course of the Wapsipinicon River, in passing through Anamosa, is southeasteidy. A highway bridge, resting on stone abutments, was constructed over the stream, several years ago, and was in existence throughout the period of this controversy. A dam across the river, below the bridge, had existed about 40 years. It had been out temporarily, several times, but was always promptly replaced or repaired. A part of the dam washed out in 1911 and in 1912, and early in 1913, a cement dam was constructed in its stead. Above the bridge a short distance, Buffalo Creek emptied into the river, and the complaint is that the present cement dam is higher than and not so long as the old dam, commonly called a crib dam, filled with stone logs and earth. That the general height of former dams, as repaired or rebuilt, continued practically the same, is not questioned. Their purpose was the operation of a mill, while that of the cement dam is to-furnish electric light and power. Plaintiff alleged that this dam is 1 y2 or 2 feet higher thán the old dam and much shorter, and that it backs the water so as to raise it higher in the said river and creek, so as to overflow and thereby injure plaintiff’s lands.
The state owns a large tract of land near by, which is used in connection with its Reformatory; and, in its cross-petition, it alleges that one 40 acres is damaged similarly to that of the plaintiff. It appears that, though the other two defendants may have been interested in the dam, by way of construction or otherwise, the Iowa Electric Company is now owner thereof, and the answer puts in issue the allegations of the petition and those of the intervener. The following map indicates the location of bridge and dam, as well as that of the lands owned by the plaintiff and by the state.
The trial court found that the present dam, with its flashboards, is 14 inches higher than the old dam, with its flashboards, and enjoined the defendant from maintaining a flashboard on the cement dam exceeding 10 inches in height. The evidence leaves no doubt that- the new dam backed the water farther up the river than did the old one, and appreciably raised it higher than it was before; but the mere showing of such rise, without any proof of the additional depth of the back water, furnishes no criterion by which to measure the probable increase in the height of the dam. This evidence goes no further than to prove injury to the land of the plaintiff and that of the state, and resort necessarily must be had to the evidence bearing on the relative heights of the dams, not only to ascertain the cause of such increase in the river and overflow, but the extent of the remedy to be applied. If the old dam was of such height that it held the water back to or above the ordinary water stage (Decorah Woolen Mills Co. v. Greer, 58 Iowa 86), and thereby threw some water back on the lands of the
The evidence shows that flashboards were used on both the old and the new dam; and, if so used continuously, such boards are uniformly adjudged a part of the dam, although not permanent in form, but ordinarily quite efficient in holding the water back. Robbins v. Powers, 170 Iowa 223; National Fire Board Co. v. Lewiston & A. E. L. Co., 95 Me. 318, 323; Ludlow Mfg. Co. v. Indian Orchard Co., 177 Mass. 61, 64; Ely v. State, 199 N. Y. 213 (92 N. E. 629); Amoskeag Mfg. Co. v. Worcester, 60 N. H. 522; Carlisle v. Cooper, 21 N. J. Eq. 576. If, then, a prescriptive right had been obtained by the use of the flashboards, it necessarily follows
II. The evidence that flashboards 24 inches in height were used on the new dam is undisputed. Metcalf, who had owned the old dam from 1892 to 1905, and had been familiar with it since it was first constructed by his father, and had assisted in repairing it several times, swore that, on the last two dams, two flashboards were used, each 10 inches wide. Baum corroborated this, but was not sure whether the boards were 6 or 8 inches wide; as did Templin, who estimated the height of the flashboards at 18 or 20 inches. Moore thought the width of the boards 12 inches, but could not say whether one or two was used; while Dr. King was sure two flashboards were used, each 10 inches wide, one on top of the other. Ingram had seen the flash-boards, but did not state the width. There was some variance in the testimony as to how much they were used, but none as to their being employed, whenever the water was low and whenever they were required, though they were frequently taken out by ice and by high water. The evidence warrants the conclusion that they were maintained at • a height of 20 inches, and with sufficient continuity and length of time to establish the prescriptive right to their use.
III.. Photographs of the old dam were identified as taken at a time when the water was barely flowing over the top without the flashboards. These show the water level to cover less than half of the eighth tier of dressed stone in the north abutment of the bridge. This stone is 20 inches thick. Photographs of the new dam also were identified, taken at a time when the water was barely passing over the top without the flashboards.- These show the water level to cover the eighth course of stone in the abutment, and to
“7 feet above low water. The new dam is 9 feet high on the bulkhead, and at the eastern end it is 2 feet higher than the new dam without the flashboards: The south abutment of the bridge forms part of the mill pond right above the dam. On the far end of the dam, there is a concrete bulkhead. It is built there as a retainer or holder of the south end of the dam. It projects from the pier of the bridge in a northeiiy direction 16 feet. It is made of concrete, and is 3 feet and 8 inches higher than the concrete work of the dam. The fishway passes through this bulkhead, with opening on the level with the top' of the dam. It is about 12 or 14 inches wide and 3 feet long. * * * The bulkhead at the north end of the dam is farther in the river than the north pier of the bridge. The head gates at the north bulkhead are wider than the old ones were, and as high as the bulkhead, and made of concrete and steel.”
His measurements made the new dam two feet higher than the old dam. On cross-examination, he explained that by low Avater he meant the point “where the discharge of the Avater wheel was set to, so there would be no back water on the Avater Avheels. What I had to get was where the old water wheels were set. That was about 40 or 50 or 60 feet below the dam. It was the height of the river at low or ordinary stage of the water. I did not establish this low-water mark. Mr. Hill, the man who was in charge of the electric light
Later, he again measured from the top of the bulkhead to the top of the present dam, and found the distance to be five feet. This testimony was somewhat corroborated by Benrose, who said that he “had a piece of flint, and marked on the wall where the old dam was; and after they had built the south end of the dam, I measured it, and it was 24 inches or more to the top of the cement of the dam. There are boards on the top of the cement. * * * This dam with the flashboards is four feet higher. * * We made a survey three or four years ago, just before the new dam was put in. I think Mr. Whalen made it, and Mr. Beam and I paid for it. We were thinking the serving an injunction on them: That is why I went back and marked on the abutment.'”
Renk swore the dam raised the water from 16 to 18 inches, but his measurements were made about 40 rods above the fish house hollow. Brant thought the water was raised by the new dam from where it was with the old dam a foot, but admitted having told counsel for plaintiff in the morning that the difference was two feet without the flashboards.
. Lienen, the city marshal, was of opinion that the new dam without the flashboards “is about 18 inches higher than the old dam was.” The plaintiff had made no measurements, but was sure that “they raised the water four feet higher than it was before. I fixed that by the way the river is so much smaller, and since then it has been higher, and the new edge is higher. * * * I made an estimate of the relative height of the old and new dam with the flashboards off.”
An engineer of considerable experience, Wickham, was engaged in 1910 .to run levels for the wheel pits, and testified that, in doing so, he “worked from a bench mark on the end of the pier as you go across the river,” which he designated, 100 feet high, as a base from which he measured; that he took the elevation of -the top of the old .dam, and drove a 20 penny spike there; “the floor of the wheel pit was to come' 7.4 feet below the old dam;” that the height of the old dam was 86.2 feet, or the crest thereof 13.8 feet lower than the bench mark.
The engineer, Green, made his measurements after the bridge was completed, and testified:
“There is a bench mark which is 100 on the flat stone on the top of the north abutment of the highway bridge.” He measured from this; and, as compared with the height at 100 feet, found the top of the new dam to be 86.02 feet. His bench mark evidently was the thickness of the top stone, or 1.68 feet above that adopted by Wickham. Deducting this 1.68 feet from the 13.98 feet, so as to render the point of measurement the same as that of Wickham, and we have 12.30 feet, as the distance from the bench mark of Wickham to the top of the new dam. Deducting this from the 13.80 feet, the distance from Wickham’s bench mark to the top of the old dam, and the difference is 1.50 feet. But it does not appear from, what point in the old dam Wickham measured, though inferentially it was in the vicinity of the wheel pit.
The county engineer, Whalen, testified to having made measurements as to the relative heights of the two dams
“You see, 1 foot and 6 inches, that could be easily accounted for; 1.4 feet is 1 foot 5 inches, — that couldn’t be readily accounted for. There was not any point in the dam but what there Avas a variation of 6 or 8 inches in any point of elevation across, — but what there would be a variation of half a foot.”
The witness testified that he did not know whether he had reported to plaintiff and Beam that the new dam “was 1 foot and 6 inches higher than the old one.” Whalen took the Avindow sill of an old mill as a bench, mark.
Wickham had testified that the old dam in 1910 was of timber, with plank on it; and Harrison, that there was a flat timber at the top of the dam, but it did not increase the
These witnesses ascertained the distance by applying a square or rule to the gas pipes, and probably were not very accurate in their measurements.
The testimony of Whalen, though indicating that some of the,old dam had been washed or broken away,, furnished no basis for computing the amount; and, though this may have happened, his “idea was to get the elevation of the old dam as it ordinarily was.” There is no ground for saying that a timber a foot square had been removed from the top, as do counsel for appellee, nor, in the face of Harrison’s testimony, that the top was raised by any timber’s being there. Moreover, the testimony of Whalen was that his measurements agree substantially with those of Wickham. The difference of little more than an inch in the heights of the new and the old dam in their measurements emphasizes the accuracy with which these experts did their work.
The photographs of the old and the new dam are conclusive evidence that the new dam is higher than the old one was, and, as the eighth course of stone in the pier is 20 inches thick, furnish strong evidence that the new dam is less than 20 inches higher than the old dam was, and would be conclusive, were the water barely flowing over the old
Upon a careful examination of the record, we have been unable to discover any evidence, save, possibly, the breaking or washing away of the top of the old dam, warranting a finding that 'the new dam is less than 1 foot and 4.8 inches
In argument, the state challenges the right to construct the dam across the river, on the theory that the state is . proprietor of the bottom of the stream. The issue was not raised by the pleadings, and for this reason will not be considered. The decree will be so modified as to enjoin the maintenance of the dam with flashboards or any other device raising the water exceeding 3 inches in height above the new dam. — Modified and affirmed.