Thatcher's Administrators v. Baker

Mr. Justice Gordon delivered the opinion of the court, After a careful examination of the charge of the learned judge who presided at the trial of this case in the court below, the points of the counsel, and the evidence, we fail to discover [25] any error that requires correction. When the dam of 1860 was built the parties fixed the water level by a stake driven into the bed of the stream, to the top of which the defendant was, according to the history of the case as given by the counsel for the plaintiffs, in his paper book, authorized to raise the water. Nor in this has he admitted more than he was warranted in doing, for his client, the decedent, in his evidence before the board of arbitrators, admitted such to bo the fact. He then also said that at that time the defendant did not claim any right to flood his, Thatcher’s, ground, but thought that he had raised the water since the dam was built, two or three inches. He further testified, that in 1860 he agreed that Baker “ might raise it two inches, but not permanently.” If this means anything it means that the water might be raised two inches above the top of the stake, for as the stake was to be, as is conceded, a permanent mark, the temporary allowance of two inches must havo been in addition to this measure. Taking, then, this statement as a true history of the ease, and the court was undoubtedly right in calling the attention of tho jury to the fact that they need consider nothing back of the washout of 1877, for back of that there was nothing to consider. The parties had fixed the water line at the height of the stake and two inches over, and although the latter may have been merely permissive and not a permanent arrangement, yet as this permission was not revoked until 1877, if at all, Baker could not be treated as a trespasser in the continuance of the use of tho additional two inches of head. It was, therefore, entirely proper for the court to confine the attention of the jury to what occurred subsequently to the washout of that year. Nor was the court wrong in charging that in fixing the water level the parties did not mean that the water should never rise above that line, but that that was to be the height of the v,niter under ordinary circumstances. That this was a proper interpretation of the action of the contestants wo have no doubt. There certainly could have been nothing else settled by such au arrangement. The parties well knew that in time of a flood their mark would be covered by the water, but just how much of this effect would be caused by the freshet, and how much by the dam could not be anticipated, for much must depend upon the character of each and every rise. The effect of the dam would, of course, be much greater in a light than in a heavy freshet, and that effect must necessarily vary from the highest rise to the lowest. We must, therefore, take it that the parties intended to settle the line with reference to the ordinary condition of the creek, having no regard to those extraordinary conditions the effects of which they could not [26] calculate. The third assignment is passed as containing nothing of material importance, and as the fourth sets out the point complained of without the answer, it cannot be considered. The affirmance of the defendant’s fifth and sixth points is unexceptionable, for if the water was caused to flow upon the plaintiff’s land by some other cause than the act of the defendant, he cannot be charged with the consequences. Neither can the seventh assignment be sustained; in view of the facts of this ease the court was right in saying that the defendant was not required to keep the whole dam at the water level if there were waste ways enough to carry off the water under all ordinary circumstances. He was certainly not bound to provide for extraordinary circumstances ; for unusual floods which would at all events sweep over the whole breast of the dam. This is exactly what was ruled in Bell v. McClintock, 9 Watts 119; and in McCoy v. Danley, 8 Har., 85. The court below was reversed principally for its definition of what ib called an ordinary stage of water, as that condition in which it remains longest, excluding the dry season. In this case, Mr. Chief Justice Black cites with approval Bell v. McClintock, in which it was held that one who erects a dam is responsible only for injuries caused by it in times of usual, ordinary and expected freshets, and not for those resulting from a flood, which, as the Chief Justice remarks, “ when it does come, is a visitation of Providence, and the destruction it brings with it must be borne by those on whom it happens to fall.” Besides this, however, the court might safely have said to the jury, that the waste wa\^s were sufficient, and more than sufficient to vent all the water that might be expected in this stream. Here was a little creek, about six feet in width, and to vent this little stream there were no less than three water ways, one of six feet in width, and the other two of ten feet each, the smallest of which if we are to believe the evidence, was sufficient to pass all the water of the stream in ordinary stages. Now how it can be that this mere brook, pouring into the head of a wide pond, should require at its outlet from that pond more than four times its own width for its discharge, is more than we can understand. Nor is it to be forgotten that in times of freshets the whole breast of the dam, some forty-eight or fifty feet, was available as an outlet for the water. On the whole we think the plaintiffs received nothing at the hands of the court of which they can justly complain. The ease was well and carefully tried, and one of the last directions which the court gave to the jury was, that if the defendant had raised the water even the fraction of an inch above the line of 1860, the plaintiffs were entitled to their verdict. This was certainly all they [27] liad a right to expect, and as the jury have found that the defendant did not so raise the water, they have that body, not the court, to charge with the result. The judgment is affirmed.