Summary
In Blumer v. Wisconsin River Power Company, 6 Wis.2d 138, 94 N.W.2d 149, the same criteria was approved to measure damages due to the raising of the water table through operation of a dam.
Summary of this case from Loehde v. Wisconsin River Power CompanyOpinion
December 4, 1958 —
January 2, 1959.
APPEAL from a judgment of the circuit court for Juneau county: BRUCE F. BEILFUSS, Circuit Judge. Affirmed.
For the appellant there was a brief by Brazeau Brazeau, and oral argument by Theo. W. Brazeau and by John A. Cole, all of Wisconsin Rapids.
For the respondents there was a brief by Donovan, Gleiss, Goodman, Breitenfield Gleiss of Tomah, and oral argument by Victor H. Breitenfield.
On November 19, 1956, Walter Blumer and his wife brought action against Wisconsin River Power Company, a corporation. The Blumers alleged that they owned certain real estate in Juneau county; that the Yellow river flows through their land and empties into the Wisconsin river a short distance downstream from their land and upstream from defendant's Castle Rock dam; that the Castle Rock dam was constructed on the Wisconsin river in the year 1951; that the water levels of the Wisconsin and Yellow rivers have been greatly raised over and above the levels previously existing; that the result of raising the water levels by the construction and operation of the dam has been the raising of the water-table level of a large area which includes the plaintiffs' land; that the defendant's acts have wrongfully interfered with drainage, caused the area to be permeated with water, damaged plaintiffs' timber and resulted in ponding of waters upon plaintiffs' land, rendered areas wet and useless, created breeding places for mosquitoes and other insects, created offensive odors, and caused the accumulation of waters upon plaintiffs' land, greatly diminishing its value.
Defendant's answer denied that plaintiffs' land was adversely affected by the Castle Rock dam.
The case was tried before a jury. The jury found that the water table of the land owned by plaintiffs has been raised by reason of the construction and maintenance of Castle Rock dam and pool by defendant; that the fair market value of the plaintiffs' land, as a whole, immediately before the construction of the Castle Rock dam was $12,800 and that the fair market value immediately afterwards was $10,000.
The court upon motions after verdict at first concluded that there was evidence to sustain the answer to the first question, but that the jury had disregarded the testimony of all witnesses as to the value of the property and arrived at conclusions from their own opinions obtained from outside the record. Because of the close relationship between the issue of whether the water level had been raised and the issues as to the ways in which the raise in level may have reduced the value of plaintiffs' land, the court concluded that the new trial must go to all issues. Upon reconsideration, however, the court came to the conclusion that the verdict could also be sustained with respect to the damage finding, and granted the alternative motion of plaintiffs for judgment on the verdict. Judgment was accordingly entered April 26, 1958, for $2,800 damages, plus interest and costs.
Defendant appealed from the judgment. Plaintiffs ask review of several rulings upon evidence and of the court's denial of plaintiffs' motion for a change in the answers as to value of the premises to $28,000 and $20,000 and for judgment of $8,000.
Defendant manufactures electric power and sells it to companies which are its stockholders. It built Castle Rock dam on the Wisconsin river in Adams and Juneau counties in 1950. The dam is just below the junction of the Yellow and the Wisconsin rivers and the pool created by the dam extends northward up both streams.
Nine miles north of the dam, the Yellow river flows through plaintiffs' land. The northerly edge of the Castle Rock pool is about one and three-quarters miles south of their land.
All elevations material to this case are expressed with reference to a bench mark at Nekoosa which is assigned the elevation of 100 feet. Defendant is authorized to, and does, vary the surface of the Castle Rock pool between the elevations of 87 and 94 feet. Plaintiffs own 200 acres. The highest elevations on their land are 108 or 110 feet and these higher elevations occur on approximately 50 acres in the easterly part of plaintiffs' land. The rest of plaintiffs' land is referred to as bottom land or lowland. The main channel of the Yellow river and a number of sloughs are in the lowland. The elevations of the bottoms of the sloughs are approximately 91 or 93 feet. A map prepared by defendant indicated that a contour line at elevation 95.5 feet approximately outlined the sloughs and the Yellow river on plaintiffs' lowland.
Plaintiffs have a home and a house which they rent out as well as other buildings on their higher land. There are trees and grass on the lowland. For many years before 1928 the land had been used as a dairy farm with some 20 to 25 cattle. The lowland was used as pasture. Plaintiffs have occupied the property since 1935, but have never farmed it, except for an attempt to raise big southern bullfrogs in some ponds which they excavated.
Mr. and Mrs. Blumer and three disinterested witnesses, who had been familiar with the property for years, testified to personal observations of the presence and depth of water on the property. They compared conditions before the dam was constructed and afterwards. They estimated that the water level had raised in varying amounts ranging from 14 to 26 inches. Mr. Blumer produced five pictures taken at various dates before the construction of the dam and other pictures which he testified had been taken of the same areas since the construction of the dam. More water appears in the latter pictures. Mrs. Blumer testified that since the dam was built, there is an odor when the water recedes and that there are more mosquitoes.
A civil engineer, called to testify on behalf of plaintiffs, testified that he had made some observations on the premises on March 9, 1957. He could still see vestiges of ice along the river and concluded that they marked the level of the water at the time that the ice formed. He observed the water level existing at the time of his observation and compared the level of the water with that of the ice at five locations. Upstream from plaintiffs' land at Necedah, he found that the water was only about an inch below the ice. At three locations on plaintiffs' land the water was between 15 and 21 inches below the ice. At the Buckhorn bridge, across a portion of the Castle Rock pool, the surface of the pool was about four feet below the ice. These observations indicated to him, he testified, that the pool was raising the water level on the land.
Plaintiffs' engineer also testified:
"Q. Now, assuming, Mr. Lenschow, that you have an elevation of 94 of the water in Castle Rock pool, what effect would the pooling . . . have upon lands in the adjacent area also having a contour reading of 94? A. It would keep the water, it would retard the normal movement of the water toward the river bed, it requires a certain amount of head to move that water toward the river. If the water is approximately level it stands still. It has got to have a drop for the water to move. . . .
"Q. Now, assuming the elevation of the water at the pool was 94, would lands of higher elevation, say 95 or 96, be affected by pooling the water in Castle Rock dam? A. It would raise the ground level in the land. Yes. . . . The normal flow of water from the land to the river valley is retarded because you don't have sufficient drop to keep that water moving, and as a result the water builds up to a certain height before there is sufficient head to move it out."
A civil engineer, Mr. Andrae, called to testify on behalf of defendant, testified that records of the defendant showed that the water level in these sloughs or the river on plaintiffs' land had been 96.15 feet on June 7, 1928, at a time when the flow of the Yellow river was normal or low. He also produced four readings taken since the construction of the dam showing the water level upstream at Necedah, at Blumer's, at a slough downstream from Blumer's, and at the Buckhorn bridge.
The fifth reading was taken at the same points except for Necedah. The dates of the four readings were January 16, 1954, March 18, 1955, April 5, 1955, and November 29, 1956.
Mr. Andrae indicated that the Blumer gauge was relatively high on three occasions when the Necedah gauge was relatively high, although on two of those occasions the Castle Rock pool was low, and that when the Necedah gauge was relatively low, the Blumer gauge was low even though the Castle Rock pool was high. From this he said that one could draw the conclusion that the water affecting the gauge on the Blumer land was the water coming down from Necedah.
Mr. Andrae also testified that there were three beaver dams in one of the sloughs which run through the Blumer property. He concluded that the removal of these beaver dams would improve the drainage of plaintiffs' land and that he would guess that some 30 to 70 per cent of plaintiffs' lowland would be affected by the presence of these beaver dams. Mr. Andrae was not asked to state whether he had an opinion as to whether construction and maintenance of the Castle Rock dam had any effect on the water table under plaintiffs' property, but on cross-examination he testified:
"Q. In other words, the pooling water in Castle Rock dam would tend to raise the water table in the land surrounding the pool? A. In certain areas, Yes, sir.
"Q. It would be true, wouldn't it, Mr. Andrae, that lands within a foot or two of the elevation of your pond would be affected by the waters which are in the Castle Rock pool? A. Possibly."
He also testified:
"Q. It would be true, would it not, Mr. Andrae, that when the elevation at the Castle Rock pool is 94, that all lands having a contour marking [elevation] of 94 would be flooded at that time? A. Yes, I think I said that before.
"Q. It would also be true that lands having an elevation we will say up to 96 would be affected by a headwater elevation of 94? A. Not necessarily. It depends on the type of ground. What is in the ground.
"Q. But it might very probably be affected? A. In certain instances."
A forester, called as a witness by the defendant, testified that there was a nice stand of bottom-land hardwood and pine on plaintiffs' property; that he had observed no damage due to water; that the best place to have the water table in order to get the best growth from timber would be three to four or five feet below the surface; that if the water table is raised closer than two feet to the surface, trees will be affected and die. The degree of damage and how soon it would show would depend upon the height of the water beneath the roots of the trees. He estimated that the lowland would contain some 700 cords of hardwood worth about $1.50 or $2 per cord stumpage and about 250,000 board feet of pine and hardwood; the pine being worth about $25 per thousand and the hardwood from $8 to $10. Plaintiffs and their three lay witnesses gave opinions of the value of the plaintiffs' property just before and just after the construction of the dam. Plaintiffs considered it worth $47,000 before and $32,000 afterward; one of their witnesses said $28,000 and $18,000; two others, $30,000 and $20,000. A witness on behalf of defendant gave an opinion as to the value of the property after the construction of the dam at some $16,000 or $17,000.
Two questions are involved: (1) Does the evidence support the jury finding that the water table of plaintiffs' land has been raised by defendant's dam and pool? (2) Are plaintiffs entitled to an increase to $8,000 in the amount awarded?
(1) The evidence tending to show that the water table has been raised. Lay witnesses familiar with conditions on the property testified that they observed water on plaintiffs' land at higher levels after the dam than before. The pictures tended to show a few instances in which water was evident on the land on occasions after the dam in areas where there was little or no water on particular occasions before the dam.
Plaintiffs' expert gave the opinion that the dam had raised the water table and explained how the raising of the surface of a body of water may impede drainage and raise the water table in near-by land above the elevation of the surface of the body of water. Defendant's expert did not clearly assert any opinion that the dam had not raised the water table on plaintiffs' land, although he did ascribe some of the wet condition to the existence of beaver dams in one of the sloughs and suggested that plaintiffs' land was affected by variations of the water level at Necedah rather than at the Castle Rock pool. He conceded, however, the possibility that the maintenance of defendant's pool at elevation 94 would affect near-by land up to elevation 96.
Plaintiffs' expert compared the level of the water on two occasions: One at the time that the ice was formed and one on the day he was on the land. He reasoned from those observations that, although the level at Necedah was almost the same on both occasions, the water was 15 to 21 inches higher at Blumer's on the occasion when the water in the pool was some three to four feet higher and, therefore, a rise in the pool raised the water on plaintiffs' land. Defendant's expert took readings on four dates and reasoned from them that the water was higher at Blumer's (98 to 99) on the three occasions when the water was higher at Necedah (105 to 106) even though on one of those occasions the pool was lower (89 to 90); and that the water was somewhat lower at Blumer's (95) on the one occasion when the water was lower at Necedah (101) even though the pool at that time was at one of its higher levels (93). Andrae's line of reasoning was based on four observations instead of two, but four observations would be insufficient to establish his theory conclusively.
The trial court concluded that the lay testimony of the presence of more water after the dam was built together with the expert testimony that the operation of the dam could retard the drainage and affect the water table was a sufficient basis for the jury finding. We agree.
This court has held in two situations that testimony of laymen that they observed land before and after the building of a dike or dam and that it was wetter afterward than it had been before is sufficient to sustain a jury finding that the change was caused by the structure. Krcmar v. Wisconsin River Power Co. (1955), 270 Wis. 640, 72 N.W.2d 328, and Konrad v. State (1958), 4 Wis.2d 532, 91 N.W.2d 203. Of course, such testimony must be, as it was in those decisions, considered in the light of all the other circumstances shown. In the case before us, the lay witnesses had been familiar with conditions on the property for many years, the conclusion that the change observed was caused by the dam was supported by the opinion of one engineer, and the defendant's engineer conceded in effect that this conclusion was not contrary to the laws of nature. We are of the opinion that there was an issue for the jury to decide.
(2) Damages. The jury was asked to determine the value of plaintiffs' land before and after the dam was built. The difference between those values would be the amount of damages caused. Neither answer was sustained by the evidence. The lowest valuation given by any witness was from $16,000 to $17,000 and both valuations fixed by the jury are below that figure.
While defendant moved for a new trial in circuit court, in this court defendant's counsel confined his attack to the sufficiency of the evidence to sustain the finding that the water table was raised by defendant. He appears to be satisfied with the award of $2,800, if there was sufficient evidence that the defendant caused any damage. We understand that he concedes that the judgment is to be affirmed if we decide against defendant on the main issue.
Plaintiffs did not move for a new trial and they asked the circuit court to reconsider the matter after the circuit court granted a new trial on all issues because the findings of value could not be sustained. Plaintiffs' position before the circuit court and here is that the jury was required by the evidence to value the land before the dam as at least $28,000, the lowest value stated by any witness, and after the dam as no more than $20,000, the highest value stated by any witness, except plaintiffs. Plaintiffs assert a right to changes in both answers and judgment for the $8,000 difference.
We agree that the evidence does not support either valuation fixed by the jury because both are lower than the lowest figure given by any witness. But we are of the opinion that the only remedy plaintiffs could claim is a new trial, and that under the circumstances of this case, a new trial must necessarily embrace all issues as originally concluded by the circuit court. Plaintiffs do not want that remedy. They did not ask for it and asked for reconsideration when the circuit court ordered it.
Plaintiffs' theory is that once the jury was satisfied that the defendant caused any change in the water table of plaintiffs' land, the jury must disregard all evidence as to the extent of the change and its effect upon value, except the figures stated by the witnesses. We are not certain that plaintiffs have properly selected the $20,000 and $28,000 figures even under their own theory, but will assume for the purpose of discussion that they have. The fallacy is that the testimony of each witness as to the difference in value before and after the construction of the dam was necessarily based on assumptions that each of the changes which he observed was caused by the defendant. It was for the jury to decide whether any one or more of the changes in conditions actually occurred and, if so, were the result of the defendant's acts. We think the jury could properly have fixed a value either before or after the construction of the dam somewhere within the range testified to by the witnesses and have fixed the other value after considering the extent of the change in water table, its effect upon the timber, whether there was greater odor, more mosquitoes, less opportunity for pasturing animals, and the like. The circuit court instructed the jury that in answering as to value, "You should consider the value of the plaintiffs' lands as a whole, you should consider the effect of the defendant's dam, if any you so find, on the plaintiffs' timber, on the residence located on the property; on the water table underlying the plaintiffs' land and the agricultural land of the plaintiffs, any annoyance, discomfort, or inconvenience if you find that the same is existent and further find that it was caused to the plaintiffs by the dam of the defendant."
We conclude that if the jury had found, for example, a value after the dam was built of $19,000 (a figure within the range of the testimony) and a value before of $21,800, those findings would be sustained by the evidence and would sustain a judgment of $2,800. The value of $21,800 would have meant that the jury found that the extent of the rise in the water table caused by defendant and its effect upon the timber and other elements of the property, was less than that assumed by plaintiffs' witnesses. Had all parties been bound by the testimony that the difference in value attributable to the dam was at least $8,000, the jury would not have been free to answer that the dam did not raise the water table because such an answer would have meant that there was no change in value as a result of the dam.
Thus the plaintiffs are incorrect in their contention on appeal that they have a right to valuations which are at least $8,000 apart. Defendant being satisfied with the damage figure and plaintiffs having opposed a new trial, we affirm even though neither valuation figure fixed by the jury is sustained by the evidence.
By the Court. — Judgment affirmed.