Larson v. Lammers

START, C. J. This action was brought to recover damages for the overflow of plaintiff’s land, situated one-half of a mile south of the river Clear-water, in the county of Beltrami, caused, as plaintiff claims, by the [240] operation of two certain dams maintained by the defendants in the river above the plaintiff’s land. Verdict for the plaintiff for $100, and defendants appealed from an order denying their alternative motion for judgment notwithstanding the verdict or for a new trial. 1. The first claim of the defendants is that the verdict is not sustained by the evidence. There was evidence tending to show that the defendants maintained the dams in the river for the purpose of aiding in driving logs therein; that they raised the gates in the dams, and let the accumulated water flow out, from May 15 to June 15,1898; that during this time the plaintiff’s land was flooded by the river overflowing its banks; that it was a dry spring, and no rains to account for the unusual rise of the river. In the absence of evidence establishing any other cause for the unusual volume of water in the river following the opening of the gates in the dams, the evidence is sufficient to sustain the finding of the jury that the flooding of the plaintiff’s land resulted from the act of the defendants in collecting the water by means of the dams, and then opening the gates, and discharging the water in greatly increased volumes. 2, It is also urged by the defendants that the trial court erred in its rulings as to the admissibility of evidence to prove the plaintiff’s damages. There was evidence on the part of the plaintiff tending to show that, immediately prior to the flooding of his land, he had a growing crop of grass thereon, consisting of one hundred and forty-six acres of redtop, blue joint, and wild peas, an acre and a half of corn, and two acres of flax, all then growing and in good condition; and that all of the grass and growing crops were destroyed by the action of the water. There was no evidence of any permanent injury to the land, or other injury, except the loss of crops, nor that the land would be permanently and annually flooded by the maintenance and operation of the dams. The trial court permitted the plaintiff, over the objections and exceptions of the defendants, to show how many bushels of corn and flax per acre he could have raised if his land had not been flooded, and, further, that his farm was depreciated in value in the sum of .$1,300 by being flooded. These rulings were manifestly erroneous, for there was no permanent injury to the land, nor evidence that the injury would recur each year. Nor could the dam [241] ages be estimated by reference to events occurring subsequent to tbe loss of tbe crops, sucb as tbe average yield of similar crops, and tbeir market value when matured and secured. Tbe plaintiff’s damages, in view of tbe facts of this particular case, were tbe value of bis .growing crops at tbe time they were destroyed, or, if it was impracticable to show sucb value, tbe diminution in tbe rental value of tbe land by reason of tbe injury thereto. He was not entitled to both. Byrne v. Minneapolis & St. L. Ry. Co., 38 Minn. 212, 36 N. W. 339; Ward v. Chicago, M. & St. P. Ry. Co., 61 Minn. 449, 63 N. W. 1104; Jungblum v. Minneapolis, N. U. & S. W. R. Co., 70 Minn. 153, 72 N. W. 971; Burnett v. Great Northern Ry. Co., 76 Minn. 461, 79 N. W. 523. Tbe plaintiff, while practically conceding that tbe trial court erred in its rulings here in question, urges that it was error without prejudice. He claims that evidence was received without objection that tbe usual average yield of tbe grass crop on tbe whole one' hundred forty six acres was three tons to tbe acre, and that tbe defendants’ own evidence shows that bay stumpage — that is, tbe right to enter upon tbe land and cut tbe grass thereon for bay— was worth fifty cents per ton. Hence, upon tbe undisputed evidence, tbe plaintiff was entitled to more damages than were awarded to him. Tbe evidence pretty conclusively establishes tbe proposition that bay stumpage was of tbe value of at least fifty cents per ton. But as to tbe character of tbe plaintiff’s land, and tbe quality and kind of grass growing thereon, it is radically conflicting. There was evidence on tbe part of tbe defendants tending to show that all except forty acres of tbe plaintiff’s land was a slough, with no red-top or bluejoint on it; that tbe forty acres were worth only five dollars an acre, and tbe balance of tbe land no more than one dollar per acre. It not only does not conclusively appear from tbe record that tbe plaintiff was entitled to recover at least one hundred dollars damages, but, in view of tbe fact that tbe jury were not instructed as to tbe measure of damages, it is impossible to determine from tbe record tbe basis of tbe verdict. We therefore are constrained to bold that tbe errors complained [242] of were prejudicial, and that the order appealed from must be reversed and a new trial granted. So ordered.