McIntosh v. Rankin

Brace, P. J. The judgment of the circuit court of Atchison county, sustaining a demurrer to the plaintiffs’ petition is complained of as error in this case. It is alleged in the petition, filed on the twenty-' eighth of April, 1894, in substance, that on the first day of March, 1893, the plaintiffs were, ever since have been, and now are, the owners of a grist mill operated by water, situated on the’ Big Tarkio creek in said county; that said creek always has been and is now a running stream with well defined channel, bed, and banks; that during the year 1892 the defendant wrongfully cut ditches along the side of, and placed obstructions in the channel of said stream, causing the waters [343] thereof to be backed up into the tailrace of plaintiff’s mill, and upon the water wheel thereof to the depth of six feet, thereby rendering said mill wholly worthless and unfit for use, and so the same has continued unto this day; that afterward on the eighth day of March, 1893, the defendant, being cognizant of the injury thus inflicted upon the plaintiffs by the wrongful acts aforesaid, “entered into a written contract with plaintiffs, in duplicate, each party keeping a copy thereof, whereby he promised and agreed and bound himself to pay to said plaintiffs as damage for the injury occasioned to said mill, by reason of obstructing said stream and changing the channel thereof, as aforesaid, and backing the water up into plaintiffs’ said tailrace and upon the water wheel of said mill, the sum of $10 per day commencing with said date until the water ceased to flow back in and upon said tailrace and said water wheel, and to stand at the same stage and depth in said mill race at which it stood before said obstructions were placed across said creek and the channel thereof diverted as aforesaid. “That by said agreement the defendant further bound himself, in case that said waters continued to flow back into said tailrace and onto said wheel and did not fall to the level or stage of water at which the water stood in said mill race prior to the obstructions of said creek and change of the channel thereof, to pay said plaintiffs the said sum of $10 per day commencing on said eighth day of March, 1893, until he should remove said obstructions from across said stream and turn the waters of said creek back through its original channel. “Plaintiffs further state that the water in said creek has not ceased to flow back into and upon plaintiffs’ tailrace and water wheel, nor has it fallen to the level or stage at which the water stood prior to the [344] changing of the channel of said creek and obstructing the same as aforesaid, but that said water, by reason of the unlawful acts of the said defendant in obstructing the channel of said creek and changing the waters thereof, as aforesaid, still continues to back up and stand in plaintiffs’ tailrace and upon plaintiffs’ said water wheel at a. depth of six (6) feet higher than it stood before the obstruction of said stream and changing of the channel thereof as aforesaid, and has so done continuously from the eighth day of March, 1893, to the present time, and now stands at said depth in said race and upon said wheel at said depth as aforesaid. “Plaintiffs further state that they have kept and performed the conditions of said contract upon their part to be kept and performed in all things, but that the said defendant has failed and refused to keep and perform the conditions of said contract upon his part in this that he has not removed said obstructions so placed across said creek as aforesaid and filled up said ditches and turned the water back through the original channel of said creek, nor has he paid to the plaintiffs the amount of $10 per day for each and every day since the execution of said contract as he agreed by said contract to do, nor any part thereof. That said defendant owes said plaintiffs ten dollars ($10) a day for four hundred and fifteen (415) days making the sum of forty-one hundred and fifty dollars ($4,150) for damage to their said mill so occasioned as aforesaid, for which plaintiffs ask judgment and costs of suit.” The demurrer is as follows: “Now comes the defendant and demurs to plaintiffs’ petition for the following reasons. “1. It does not state facts sufficient to constitute a cause of action. [345] “2. It is an attempt to contain in one count two separate causes of action, one for damages growing out of a tort, and a suit upon a contract. “3. Because said petition does not show that plaintiffs had any authority to erect and maintain a mill or mill dam, or tailrace thereto. “4. For the reason that the contract attempted to be set out in said petition is void on its face and contrary to the laws of this staffed ’ It does not appear from the record upon which one of these grounds the demurrer was sustained. If any one of them is well assigned the judgment must be affirmed. 1. It is sufficiently apparent upon the face of the petition that the pleader is not attempting to state two causes of action, one in damages for wrongfully obstructing the channel, and one on the contract, but a single action on the contract by which those damages were liquidated, and the demurrer could not have been sustained upon the second ground. The third and fourth grounds are specifications under, or reasons why the first ground should be sustained, and that ground wilhbe disposed of by the consideration of those reasons. 2. It appears from the petition that the plaintiffs are the owners of a grist mill on a running stream. As such they are entitled to the uninterrupted flow of its waters in their natural channel and the use of its power for their mill, if available for that purpose without injury to others, without express statutory power, and if deprived of that use by the unlawful acts of the defendant set out in the petition a right of action accrued to them for damages for such wrong. Every one is presumed to be in the lawful possession and management of his property until the contrary is made to appear, and if the use of which plaintiffs have [346] been deprived was an unlawful one, that fact does not appear on the face of the petition, and advantage of it could only be taken by plea in this action upon a contract to compensate them for such damages, in which the legality of their structure and their right to the unobstructed flow of its waters below the mill is recognized by the defendant, so that the demurrer could not be sustained upon the third ground specified. 3. This brings us to the fourth and last objection to the petition, which is that the contract declared on “is void on its face and contrary to the laws of this state.” The proposition on which this contention seems to rest is that the plaintiffs as proprietors of a grist mill on a running stream by whose waters it is operated, owe to the public certain duties which by this contract they are induced to neglect or to render less efficiently than they ought. This proposition has nothing to rest upon unless the plaintiffs’ grist mill is a public mill. Public mills are defined by statute to be “all grist mills which grind for toll; and all water grist mills built on any water course by authority of any statute, or order of any court.” It does not appear on the face of the petition that plaintiffs’ grist mill “grinds for toll or that it was built on a water course by authority of statute or order of any court.” Hence it does not appear that it is a public mill, in the management of which the owner owes any duty to the public that could in any way be interfered with by the contract sued on. The petition states a cause of action on the contract and the demurrer should have been overruled. The judgment of the circuit court is therefore reversed and the cause remanded for further proceedings. All concur.