King v. Board of Council

Opinion of the Court by Wm. Rogers Clay, Commissioner Reversing. Appellant is-the owner of a'gristmill located on the waters of the Dix river, in- Boyle county, Ky. In the year 1804 appellee decided to build a system of waterworks for the town of Danville. With that aim in view .it purchased some 8 acres of land on the Dix river about one and a half miles above appellant’s mill. This land was purchased for the purpose of ■building and constructing across- the .river- a- large dam to accumulate and gather the water. The water 'thus ' accumulated and gathered. was pumped from the pool above the dam to a standpipe erected within the limits of the town of Danville, and: the water- was in this way supplied to the citizens of Danville for fire — 325 — protection and other purposes. On the 31st day of December, 1904, appellant instituted this action against appellee, charging that the defendant had wrongfully and unlawfully diverted the water that had hitherto flowed to and supplied the power for the operation of his mill, whereby he had been greatly injured, and deprived of the use and enjoyment of said mill.- Appellant asked damages in the sum of $10,000 for the diversion and obstruction of the water by appellee. Evidence was heard, and the case submitted to a jury, which returned a verdict in favor of .appellee. From an order overruling appellant’s motion and grounds for a new trial, this appeal is prosecuted. Appellant assigns as grounds for reversal (1) the admission of incompetent evidence, and (2) errors in the instructions. Appellant complains particularly of the fact that the court permitted appellee to introduce evidence to the effect that roller flour had supplanted burr flour, and there was very little demand for the latter. As the diminution in the value of the use of the mill is the measure of damage in a case like this, we think the evidence was competent. It was proper for appellee to show that the value of appellant’s mill had been diminished from causes other than the diversion of the water complained of. In other words,- if -it could be shown that appellant’s mill really had no value, then it could not -be further affected by the diversion of water. The court instructed the jury as follows-: “(1). If-you believe- from the -evidence that the defendant, by- the erection of the dam- and operation -of its water system in connection therewith, diverted or diminished the natural flow of water in the river to the extent that plaintiff was unable to operate his — 326 — mi-11 as- fully as lie might have done if the flow of water had not been so diverted or diminished, and that by reason of .this fact plaintiff suffered a pecuniary loss in the operation of his mill, then you will find for plaintiff such sum as you believe from the evidence will be equal to ther loss sustained on this account, which has accrued within and during the five years-next preceding the 31st day of December, 1904, not exceeding $10,000, the amount claimed in the petition. Unless you so believe, you will find for defendant. “ (2) If you believe from the evidence that the defendant' diverts the water, yet .that it is not such a diversion as impedes, delays, or affects the running of plaintiff’s mill, or causes any material injury to the plaintiff, then the law is for the defendant; and you should so find. “(3) If you believe from the evidence that the volume of water that had hitherto flowed to plaintiff’s mill had become so depleted from other causes than those resulting, if any, from the erection of said dam and diversion of the water by the defendant, and that thereby there would not be a sufficient quantity to operate said' mill for a longer length of time than- it has been possible t:o operate the same, then the law is for defendant; and you should so find. “(4) If you believe from the evidence that there had been, prior to the five years next before the finding of the petition, such a change in the market in thb locality of plaintiff’s mill as that there was such a preference for flour made by the roller process, as distinguished from the burr process, of milling, as that it had rendered it unprofitable to plaintiff to operate his mill for any purpose, then there can be no recovery, even if you believe from the evidence ■ that — 327 — said dam detains the water to sneh an extent as to forbid the operation of said mill.” Instruction No. 4 is manifestly erroneous. Appellant had the right to operate the mill for the use of himself and family, even if there were no market for his flour. Such use by himself and family would be valuable; and, if this use was materially impaired by the diversion of water, appellant would be entitled to damages. Upon the next trial of the case the court will instruct the jury as follows: “ (1) If you believe from the evidence that the defendant diverted or diminished the natural flow of water in Dix river to' the extent that plaintiff was unable to operate his mill as fully as he might have done if the flow of water had not been so diverted or diminished, and that by reason of this fact plaintiff suffered a pecuniary loss in the operation of his mill, then you will find for plaintiff such sum as will fairly compensate him for the diminished value of the use of the mill, if any, occasioned by the diversion of water, if any, within and during the five years next preceding the 31st day of December, 1904, not exceeding $10,000, the amount claimed in the petition. Unless you so believe, you will find for the defendant. “(2) If you believe from the evidence that the defendant diverted the water, yet it was not such a diversion as impeded, delayed, or affected the running of plaintiff’s mill, or caused any material injury to plaintiff, then the law is for the defendant; and you should so find.” It is the contention of appellee that the' court erred in sustaining a demurrer to that paragraph of its answer pleading the five-year statute of limitation. It is insisted that, as the dam was completed in 1894, — 328 — and this action was not instituted until December 31, 1904, appellant’s cause of action 'was certainly barred by the statute,' as his 'cause of action accrued upon the completion of the dam. The law is well settled that; where injury to real estate results from the construction of á permanent structure, the cause of- action accrues upon th'e'’completion of the structure.' The measure of damage' in such cases is the differénce between the value of the property before it became generally Known that the structure would be built and its value just after the completion of the structure. In such cases only one action for damages is allowed. In that action plaintiff must sue for all damages; past and future. Louisville & Nashville Railroad Co. v. Orr, 91 Ky. 109, 12 Ky. Law Rep. 756, 15 S. W. 8; Hay v. City of Lexington, 114 Ky. 665, 71 S. W. 867, 24 Ky. Law Rep. 1495; Johnson v. Owensboro & Nashville Railroad Co., 36 S. W. 8, 18 Ky. Law Rep. 276; Oliver v. Illinois Central Railroad Co., 74 S. W. 1078, 25 Ky. Law Rep. 235. If, then, it was shown that the diversion of water, as claimed by appellant, was occasioned solely by the construction of the dam in 1894,'it would necessarily follow that'his cause'of action was barred at the time of the institution Of this suit. ’■ ' While counsel for appellee seem to have proceeded upon the idea that' the construction of the dam was the basis of appellant’s action',' the p etition sufficiently alleges the wrongful and' unlawful úse of the :water by appellee to'show that the real cause Of appellant’s' complaint was, not the construction of-the dam, but the taking and usé' of the water by appellee. ' In:other words, the construction of the 'dam:would1 hot necessarily divert the water to such' anvextent as to 'materially interfere with the running óf'a mill.' After the — 329 — dam filled up, the water would continue its natural flow, unless it were pumped out of the dam. . The diversion, then, would be caused, not .by the construction of the dam, but by taking the water out of the river. With this view of the case, we do not think appellant’s cause of action accrued' upon the completion of the dam, but that he is entitled to recover for such damages, if any, as may have resulted from the diversion of the water during the five years next preceding the filing of the petition.. The judgment is reversed, for proceedings consistent with this opinion.