Priewe v. Fitzsimons & Connell Co.

Maeshall, J. The evidence abundantly shows that respondents, or those whose rights they assumed authority to summarily vindicate by removing appellant’s dam across the drainage ditch in the bed of the lake, were benefited by the work of the Wisconsin State Land & Improvement Company which was condemned in the’ suit of Priewe against such company (103 Wis. 537, 79 N. W. 780), and were parties to such work by acquiescence, and, under the principles laid down in such case, were bound not to complain of such work as regards the effect thereof upon their property. As to them the company could have successfully claimed protection on principles of estoppel in pais. In making the second drainage, it adopted the old canal as a basis, in part, for the new work. ' It so incorporated the old excavation in the bed of the lake into the new one that the identity of the former was in a great measure lost. On that account, when this court 'came to construe the judgment against the company in the former litigation the first canal was not regarded as having an identity distinct from the second one. It was said, in deciding the appeal, that the effect of the judgment in favor of 'Mr. Priewe, as rendered in the circuit court, was that he was entitled to have the condition of Muskego Lake, as the same existed prior to the second drainage, restored; and, to that end, that he was entitled to have so much of the canal in the bed of the lake, or elsewhere, filled up, as would accomplish — 508 — that result. Tbe thought, evidently, in the mind of the circuit court in rendering the judgment, as understood and approved here, was not merely that the original condition of the old ditch should be in all respects restored by the improvement company, but that the former condition of the level of the lake should be restored; that the canal in the bed of the lake, as it then existed, should be so dealt with as to accomplish that result. In that litigation appellant established his legal right to have such former condition restored as against the improvement company. He is evidently entitled to an equitable remedy to secure protection against it in the enjoyment of that right. Since respondents were, by acquiescence, parties to the second drainage work, he has an equitable right, as against them, to a' restoration of the former lake level by the same meanj that he may justly use as to the improvement company. They cannot be successfully heard to complain of any mere physical change in the canal which does not in fact raise the level of the lake higher than it was before being disturbed by the second drainage. Plence, they were wrongdoers in destroying any part of appellant’s work merely because it was done within the boundaries of the old canal. Their position in that regard was not and is not superior in any respect to that of the improvement company from the standpoint of right in the abstract. Therefore, if appellant did no more in fact by way of filling up the canal than was necessary to restore the former level of the lake, or, in other words, if, had such filling not been disturbed by respondents, the level of the water of the lake would not have been lifted above where appellant, as a party not bound by the second drainage operations, was entitled to have the same, then respondents, in destroying his work, were wrongdoers in any view of the case. The position of the trial court, it appears, is in harmony with that view, so far as the course of the trial and the findings of fact furnish any indication of the theory — 509 — upon wbicb the judgment was rendered. The judgment, we assume, went wholly on the ground that appellant changed the canal in the bed of the lake so that, had it so remained, in the natural course of things the level of the lake would have been raised so as to submerge lands owned by respondents, or some of them, which were uncovered by the first' drainage. Passing the matter above discussed, we are met by the claim on the part of appellant that the trial court decided as a matter of fact that the dam placed across the canal by appellant was no higher than was necessary to restore him to his former situation as regards the water of the lake, and that such decision entitled him to the relief prayed for or some effective protection against lawless interference with his operations by respondents. There is good ground, it seems, for that claim, looking at one phase of the case as the learned trial court decided the issues. The findings, however, appear to be in irreconcilable conflict. Findings 1 to 8 inclusive may well have been prepared for judicial approval upon the court’s suggestion that-the issues made by the pleadings were decided in respondents’ favor; while findings 9 to 18 seem to have been made in response to requests by counsel for appellant that the matters referred to therein should be passed upon by the court favorably to his client. In the first group of findings we find this language: “If said filling was not removed ... it [the water of the lake] would overflow the lands of these defendants . which were drained by the drainage commissioners’ work.” “If filling was permitted to remain in said channel, as placed there by the plaintiff and his assistants, ... it would have backed the water over and upon large tracts of valuable tillable land which was reclaimed to the defendant landowners by the drainage done by the commissioners.” Respondents’ .counsel point to that language with great confidence as justifying their clients in summarily ridding — 510 — the canal of tbe obstructions placed therein by appellant. In the second group of findings we find this language: “The lake cannot be restored to its natural condition, or the level at which it ordinarily stood after the first drainage, . . -. so as to give plaintiff the beneficial use thereof as provided by the former judgment, without a literal compliance, at great expense, with the judgment rendered in said former action, or the partial damming or filling up of the said drain [meaning the drain in question] near the southerly end of said lake bed, substantially as done by the plaintiff. This finding is based not only on such testimony as is in the case on the subject-matter of this finding, but on . . . personal view.” It seems useless to endeavor to read out of that language by construction any other idea than that appellant’s operations resulted in placing a dam across the canal no higher than was reasonably necessary to give him the benefit of the judgment in his favor by restoring the lake level to where it was when disturbed by the improvement company’s excavations. Such idea being entrenched as a verity in the findings, if all the other findings were in harmony therewith there could be. but little doubt that appellant would, be entitled to the relief he sought in this litigation instead of being compelled,to go remediless from court and be mulcted in costs for having invoked the arm of equity to protect him in doing the very thing that equity had decreed, after expensive litigation, he was entitled to do. Counsel for respondents suggested on the oral argument, and there is something of the same sort in their brief, that the court, in making the finding under consideration, had in view merely tire level of the water as adjudged to appellant in the former case, not the actual fact as to where the level of the water was after the first drainage, and that respondents were not parties to such litigation, hence were not bound thereby. True, as we have before sufficiently indicated, respondents are not bound by the judgment against the improvement company upon principles of res judicata. We see — 511 — no indications tbat tbe trial court bad tbat in mind as rendering tbe finding in appellant’s favor immaterial as regards impairing tbe one in favor of respondents. Tbe court referred to tbe former case, not as settling any particular point upon tbe land of appellant up to wbicb be was entitled to have the late level restored, but as regards tbe principle there established, wbicb must rule this case, not upon tbe principle of res judicata, but because, irrespective of tbe former litigation, appellant is entitled to tbe benefit of tbe lake level unaffected .by tbe operations of tbe improvement company. In other words, tbe principles that ruled tbe former case must certainly prevail in this, on tbat same subject, not because they were there adjudicated, but because they are correct. Of course, tbe fact as to just where tbe former lake level was was a matter material to be established in this case independent of tbe former litigation, and- tbe necessary height of tbe dam in tbe canal, to raise tbe lake to such level as well. Looking to tbe findings in one aspect, we should say tbe trial judge was satisfied tbat such leve] was below where appellant’s work would have restored it. Looking at tbe findings in another aspect, tbe contrary just as clearly appears. This irreconcilable conflict would not call for a reversal of tbe judgment if it were clearly right on tbe evidence and tbe law applicable thereto. But we are unable to come to tbe conclusion tbat it is. Tbe evidence is certainly not sufficiently conclusive for respondents to enable us to come* to a satisfactory conclusion .that way without doing tbe work here tbat rightfully should be done by a trial judge and-generally is left, upon a reversal, for him to do, where there is considerable doubt as to tbe truth of tbe matter. Brown v. Griswold, 109 Wis. 275, 85 N. W. 363; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 92 N. W. 246. It seems tbat tbe learned trial judge, in looking at tbe case from tbe standpoint of tbe issues be deemed material, lost sight of tbe fact tbat it was tbe level of the water of the lake — 512 — prior to the second drainage that appellant was entitled to have restored, not necessarily the former physical condition of the canal from Muskego Lake to Wind Lake. The decision of this court in the former litigation was not studied with legitimate effect by either the court or the learned counsel for respondents. Hence it was overlooked that, to the end that the right of Mr. Priewe to the restoration of the lake level he sought might be vindicated with the highest degree of certainty attainable without unnecessary hardship to the improvement company and without endangering the substantial rights of persons not before the court who were interested in the first drainage, the judgment of the court- below was in effect modified so as not to be read as requiring such company to incur the enormous expense, — do that which, probably, under the circumstances of its financial condition was impossible, — of filling up all of its excavations and restoring all physical conditions in every respect as it found them, but only requiring' it to fill up so much of the canal as should be found necessary to restore the lake level to where it was after the first drainage. That obviously had in contemplation that a mere damming up of the canal in the bed of the lake, or at some point, to- the necessary height to restore the former lake level, would satisfy the judgment. Certainly the laws of hydraulics were not so little understood here but that it was in mind that to accomplish such result in such way the dam would necessarily have to be constructed higher than the bed of the old canal; and just as certainly it was supposed that the language of the decision would convey that idea to those who might be called upon to execute it or decide other cases involving the same situation. In the old canal the water of the lake moved at the start, evidently, in a very sluggish stream, about three feet deep, as it is shown by the levels sworn to by the engineer who laid out the work, that the slope of the bottom of the canal in the lake was only about two inches in 1,100 feet. The entire fall toward Wind Lake, — 513 — as shown by the engineer’s work, was just enough to cause a slow current of water from one lake to the other, whereas, the building of a dam across'the canal after it had been deepened some four feet, to a height considerably above the bottom of the old canal, would necessarily create a fall in going a short distance from the crest of the dam, which .would- obviously cause the water to flow out of the lake over the crest of the dam in a shallow but very rapid stream. The result could not be otherwise, in view of the amount of surplus water in the lake, than to merely raise the level thereof slightly above the crest of the dam. The record in this case shows that, with the dam cut down as it was by respondents, to a point several inches below the bottom of the old canal, the water flowed through the opening so rapidly that all the surplus water of the lake was caused to flow into the canal below without raising the level of the lake more than about seven inches above the location of the old canal bottom, whereas formerly it was a little over three feet above that point. The learned court, in the sixth finding, gave great significance to the fact that plaintiff’s dam raised the water above the bottom of the old canal, as if the bottom of the canal, instead of the water level of the lake, was the important feature to be studied. True, the evidence is undisputed that the dam raised the water above such bottom, but plaintiff was entitled to raise it, not only to that point, but some three feet above the same, since that is where it was before the second drainage, as shown clearly by the evidence of Mr. Powrie, the engineer, in connection with the diagrams verified by him and introduced in evidencé. Such diagrams show the level of the water of the lake and the other levels significant for the purposes of this case, at different times, and they, in connection with Mr. Powrie’s evidence, show clearly that while appellant’s dam was constructed some over two feet and a half higher than the bottom of the old< canal, the crest thereof was yet about seven inches lower than — 514 — the level of the water as it formerly flowed through such canal. Who can say that seven inches of perpendicular space between the line of the water level as the same existed after the first drainage and the crest of appellant’s dam, the crest being twenty-two feet long and the fall therefrom to the tail water below being three feet or more, as shown by the evidence, would not have been reasonably sufficient to' pass the water of the lake in a sufficient volume to have prevented the lake level from rising higher than where appellant was entitled to have the same, without actually experimenting or at least without knowing something about the volume of water to be discharged in order to prevent such rising, and the speed of the current under the circumstances ? No witness in the case testified with any degree of definiteness, either as an expert or otherwise, on the subject. There was no proof from which a satisfactory conclusion could be reached independently of expert evidence that the dam, under the circumstances, would not allow the necessary amount of water to pass out of the lake. When the learned trial judge came to this branch of the case, though he evidently deemed the matter not material since in any view of the evidence the bottom of the old canal was disturbed by the dam and the water raised above it, he found, in effect, that such structure was not, in view of the fall from the crest thereof to the tail water below, caused by the second drainage, — the “changed condition,” as the matter was expressed in the finding,'— higher than was required to prevent the water of the lake from flowing to the level of the water below the crest of the dam in greater volume in a given time than it was wont to do before the second drainage; in other words, that the dam was none too high to restore the lake level to where it was before the canal was deepened by the improvement company. There was nothing definitely to that effect in the evidence of Mr. Powrie, the engineer, upon whose testimony the learned. — 515 — court evidently relied in making tbe sixth finding to the effect that the dam, as constructed, would have caused the water of the lake to back up over lands uncovered by the first drainage. The witness said, if the water raised to the top of appellant’s dam it would raise the water of the lake that high. It would not require a civil engineer to tell that. He said further that if the canal was filled up several feet above where it was before the second drainage, speaking, evidently, of the entire canal between the two lakes, it would not serve the original purpose. That, too, is evident. However, there was no such case before the court. The canal as a whole had not been filled up several feet above where the improvement company found it, and no one proposed to do that. There had been a dam put across the canal, the crest thereof being several inches below the level of the lake as the improvement company found it. That would not necessarily, if allowed to remain, have prevented the water of the lake from being discharged therefrom as fast as formerly. He said if there was a dam across the canal such as appellant put in it would set the water back. That, too^ is evident. It did not require the evidence of an expert to prove that fact. Howevex1, appellant had a light to set the water back so as to raise the level thereof in the canal some three feet above the bottom of the old canal None of the questions that elicited such evidence was calculated to obtain any valuable information bearing upon the vital issues in the case or any valuable information at all except upon the false theory that the water could not be legitimately i*aised higher than would result from damming the canal to a level with the bottom of the old canal. When the witness was asked whether, if the water was i*aised as high as appellant’s dam, it would have any effect on the land uncovered by the first drainage, he said he could not tell offhand. At that point the witness evidently did not have in mind the fact that the levels run by him, which were before the court, showed that — 516 — the crest of the dam was some seven inches below the level of the water after the first drainage, or, as probably was the fact, he was unable to say, without knowing the volume of the surplus water of the lake and carefully calculating from the length of the crest of the dam how many inches above the same would be required to vent such surplus, what the effect of appellant’s dam might ultimately have been had it not been removed. The case on the evidence being as above indicated, it is clear that we cannot sustain the judgment as right regardless of the findings. Neither can we say, with such certainty as a fact ought to appear in order to be found upon evidence here, that appellant’s dam was not too high; though it seems that the probabilities point pretty strongly that way. It may be the truth of the matter cannot be told with certainty without actually experimenting with the dam as it was constructed. If so, appellant ought to be permitted reasonable opportunity to make such experiment up to a point which would at least raise the water substantially to the danger line. However, it seems .that the amount of water that would naturally flow out of the lake in its former condition can be determined approximately by a person experienced in that line of work, using the appliances and rules usually employed for that purpose, and that the height of water above the crest of the dam, in view of the length of the crest, required to permit the water from above the dam to flow over the same and toward Wind Lake in a sufficient volume to prevent raising the level of MuskegO' Lake above where appellant is entitled to have the same, may be determined with reasonable certainty. It seems, also, that evidence may be readily obtained as to a construction that may be cheaply put into a dam across the canal to regulate itself, so that before the water above the dam passes the danger line the volume thereof passing over the crest will be automatically sufficiently increased to avoid raising the level of the lake too — 517 — higb. Evidence along these lines, or such lines as will enable tbe court to define, with reasonable certainty, appellant’s rights and those of the respondents as veil, should be produced, and then a judgment should be rendered accordingly, and the same should then be executed and respected by all parties, and the litigation cease over this matter, the underlying principles of which have been several times passed upon by this court. There is another feature of the case worthy of some consideration. Appellant, by his operations, did not purpose doing more than just enough to avoid the effect upon the lake level of the improvement company’s work, and it was his intention, if his filling as completed should prove to be too high, to promptly lower the same upon that fact developing. The evidence is also undisputed that the wishes of the farmers who desired to have the old drainage work remain effective would not be violated in that regard by appellant; also that the level of the lake was not up to where appellant was entitled to have the same, nor where it injuriously affected any of the respondents, when they took the law into their own hands and destroyed the work. There are no circumstances disclosed by the evidence showing that such hasty summary action on respondents’ part was at all necessary to prevent irreparable damage to them. Eor all that appears, they could safely have waited till the water was up to the old line and then have avoided all danger of its going higher, if such danger developed, by merely requesting appellant to lower his filling, or by then reducing the height of the dam themselves in a reasonable way, instead of destroying the same entirely, as they did, in effect. Again, the courts were accessible to them and -were able to furnish them adequate protection, the same as they were open to appellant, and no reason appears by the evidence to justify them in not invoking judicial assistance instead of summarily wholly destroying the effective use of the dam. In that situation, were re — 518 — spondents justified in advance of tbeir rights being judicially settled, in doing wbat they did, and would they be justified in continuing such conduct, as it was made plain to the trial court they purposed doing unless restrained by injunctive relief in appellant’s favor ? Counsel for appellant claims not, and makes the point that the judgment appealed from is wrong upon the evidence and the findings on that question, if upon no other. The solution of the proposition last suggested is governed by a few familiar principles. Appellant, as we have seen, had a clear legal and equitable right to change the character of the canal so far as necessary to enable him to restore the water of the lake to the condition it would have been in but for the second drainage. So long as his actions in that regard caused no actual injury to respondents, nor created a situation from which injury to them was certain to result,, they had no cause of complaint against him. Without such cause they could not have brought action against him, either in law or in equity; hence they had no right to take the law into their own hands and destroy the result of his work. The law on that point is well settled. Garrett, Nuisances, 353; Wood, Nuisances, § 100; 3 Blackstone, Comm. 220; 1 Hilliard, Torts (4th ed.) 605, 608, and note; Adams v. Barney, 25 Vt. 231; Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53; Brown v. Perkins, 12 Gray, 89, 101. There was no nuisance to be abated in any view of the case up (to the time respondents did the acts complained of; therefore they manifestly had no action at law against him, because they had suffered no damage. There was no certainty that what appellant had done would cause any actionable nuisance to respondents or any of them, even if it be admitted that the filling placed in the canal was of sufficient height that, had it remained, the lake level would have been higher than appellant was entitled to have it, as it clearly appears that he did not intend to maintain the filling so as to do more than restore the former — 519 — level of tbe lake. * If be in fact constructed it a little too bigb, it was a-mere mistake of judgment, and constituted no basis for an action in equity to restrain a threatened nui-sanee, since, so far as appears, be stood ready to- adjust tbe level of tbe filling to tbe proper beigbt as soon as that developed, and there was no danger whatever of any irreparable damage happening to respondents before they could themselves have reduced, tbe filling bad appellant neglected or refused to do so>. He bad a right to exercise bis judgment in tbe matter, so'long as be proceeded reasonably and inflicted no injury upon respondents. Any violation of that right by them constituted them wrongdoers, subject to be dealt with at law or in equity, as tbe nature of tbe case might require in order to furnish appellant an efficient remedy theiefor. In short, since at tbe time they destroyed appellant’s dam they bad no right of action against him, legal or equitable, their conduct towards him was wrongful and be was entitled to some judicial remedy therefor. In view of tbe undisputed evidence that it was their purpose, at tbe time of tbe commencement and trial of this action, to continue interfering'with appellant’s efforts to restore tbe lake level by filling up tbe channel in tbe bed thereof, and that tbe putting of a new dam in tbe channel would have resulted only in a repetition of what is here complained of, it seems obvious that there was no adequate way open, for him to remedy tbe interference with bis reasonable efforts to restore the former lake level, but to apply to a court of equity for protection, as be did. It is clear to us that tbe evidence in this case should be reconsidered by tbe trial court in the light of the principles here laid down, keeping prominently in view tbe fact that respondents are not entitled to prevent obstructions from being placed in tbe canal in tbe bed of tbe lake merely because they are built up above tbe level of where tbe bottom of tbe old canal was, which do not do more than obviate the — 520 — effect of the second drainage work; tbat tbe beigbt to which appellant may rightfully build such obstructions is not limited by where such old bottom was, but by the effect of the dam as regards raising the lake level up to where the commissioners’ drainage left it; that the objective point to be at all times kept in view is the restoration of such former level, regardless of where the crest of the obstruction used to accomplish that result may be with reference to the old canal bottom, so long as it is not high enough to carry the ordinary level of the lake above where it was before. The judgment appealed from must 'be reversed and a new trial had on the questions suggested, and new findings and conclusions be then filed, and a decree be then rendered according thereto and in harmony with the principles declared in this opinion for the guidance of the trial court. By the Court. — So ordered. Dodge, J., took no part.