157 Minn. 451 | Minn. | 1924
The defendant is a public service corporation engaged in generating electric current and supplying "it to municipalities and the general public. Seven or eight years ago, defendant erected a plant at the village of Elk River for generating electricity and constructed a concrete dam across the Elk river for the purpose of providing power to operate it. In .1920, needing more power, defendant raised the height of the dam about three feet by placing flashboards on the top of it. Five landowners owning separate ■ parcels of land above the dam, portions of which are overflowed by the water held back by it, brought separate actions to recover damages and to compel defendant to lower the dam so that it would not back the water upon their lands.
The pleadings in these actions are identical in form, except as to the description of the land involved and the amount of damages claimed, and they were tried together. It was conceded at the open
The court found, among other things, that defendant, without right, had increased the height of the dam three feet and one inch by placing dashboards “of a semi-permanent character” on the top of it; that such increased height “causes and maintains a permanent overflow” of a portion of plaintiff’s land; “that plaintiff has been damaged thereby up to date of the trial hereof in the sum of $425;” and that maintaining such fiashboards is a continuing nuisance as to the plaintiff. Although not important in determining the questions here presented, the court further found that, without the additional power created by the fiashboards, defendant could not furnish adequate service to its customers, unless it operated an auxiliary steam plant provided for use in cases of emergency. As conclusions of law the court found that plaintiff was entitled to judgment for the sum of $425, that the nuisance created by the fiashboards should be abated, and that a mandatory injunction should issue commanding defendant to remove them forthwith.
Defendant insists that the finding that plaintiff is entitled to the sum of $425 for the damages which had accrued prior to the trial is not sustained by the evidence, that this sum is, in fact, the amount of damages for the permanent flooding of the land by the water cast upon it by the fiashboards, and that plaintiff cannot recover damages for the permanent flooding of his land and also compel the removal of the fiashboards.
Plaintiff offered no evidence as to the rental value of his land either with or without the water cast upon it by the flashboards, and made no attempt whatever to show the diminution in rental value caused by the flooding. The only evidence which he offered to show the amount of his damages, was testimony as to the value of his land in its present flooded condition and its value if not flooded. This furnished a basis for determining the amount of damages to which he would be entitled for the permanent flooding of his land, but did not furnish a basis for determining the amount to which he would be entitled for the temporary flooding of it. It follows, therefore, that the finding that plaintiff was entitled to the sum of $425 for the damages which had accrued prior to the trial is without support in the evidence and cannot be sustained.
Defendant argues that, as the only damages which plaintiff proved or attempted' to prove were the damages to which he would be entitled for overflowing his land permanently, and as the court found that the increased height of the dam “causes and maintains a permanent overflow” of the land, the findings, taken in connection with the evidence, should be construed as awarding plaintiff the sum of $425 ás and for the damages which will be caused to his property by maintaining the dam permanently at its present height. Apparently, defendant does not seriously object to the amount of the award, but to the requirement that it lower its dam. It takes the position that the award covers the damages for the permanent flooding of the land, and that the court erred in requiring it to remove the flashboards. Of course plaintiff cannot recover on the theory
In view of a new trial it is proper to add that defendant’s contention that three of the plaintiffs are barred from recovering by a reservation in a deed under which they hold, is not tenable. W. H. Houlton owned the water power in question and maintained a dam across the river for many years. He also owned the lands now owned by these three plaintiffs. When he conveyed the lands to the predecessor in title of these plaintiffs he inserted in the deed the following reservation for the benefit of his water power:
“Subject, however, to the flowage of the waters of the Elk River over the said lands by the mill dam now built, or which may in the future be built and constructed across the said river.”
It will be noticed that this provision fails to fix the height to which the water may be raised. A dam was then in existence and had been maintained across the river for many years. It will be presumed that the parties had in mind the conditions then existing and made their contract with reference to such conditions. In the absence of anything to indicate such intention, it will not be presumed that they intended to create an unlimited right of flowage, but rather that they contemplated the continuance of the existing conditions without any radical change. Schlag v. Gooding-Coxe Co. 98 Minn. 261, 108 N. W. 11.
As they had in mind that a new dam might be built and omitted to specify the height to which the water might be raised, or to provide that the new dam should not exceed the height of the old, it will be presumed that they did not intend to fix a definite and specific limit to the height to which the water might be raised, but it will not be presumed that they contemplated any large or substantial
For the reason that the award of damages is not sustained by the evidence, the judgment is reversed and a new trial granted in each of the cases.