I think that plaintiff did prove damages to his land by flooding above the high-water mark. The majority opinion holds that he failed in his proof by not showing the location of the high-water mark, but he did show that ever since the lake had been under the control of defendants the artificial ordinary high-water mark was somewhere between the mean low of 183.07 and the mean high of 186.95, and that it could not be higher than the latter figure. He contends that as a consequence there has necessarily been trespass by water at any time when the water was raised to a point higher than 186.95. It is at least a permissible inference that defendants considered 186.95 as the artificial ordinary high-water mark in 1935 when they settled a claim by plaintiff for damage from water trespass by repairing the erosion resulting upon his shore property by riprapping the bank and paying a small money damage. The high elevation of the water was 187.99 at that time. In the present case, the water elevation had reached 189.26 on May 15, 1942. On that day, plaintiff served the following notice on defendants:
"This letter serves notice upon the City of St. Paul and the St. Paul Water Department that by reason of the deliberate raising the water level of Lake Vadnais they have caused erosion to my property, damaging it to an extent quite considerable; and that the damage is continuing and am therefore unable to determine the *Page 405 full extent of the damage until the City ceases raising such water, causing the excessive flow.
"Last week, I notified Mr. Leonard N. Thompson, Supt. and Chief Engineer of the Water Department, City of St. Paul, over the phone and later called at his office in person directing his attention to the damage by erosion. He stated that he inspected the property and noticed the erosion and that he would have it discontinued. Yesterday, I discovered the lake level higher than at any previous time, that the banks show breaks some ten to twelve feet in height and that the lake has flowed on to the boulevard at a depth, preventing access to my property near the northwest corner."
If his property was damaged in 1935 so that defendants settled his claim when the high elevation of the water was 187.99, there must have been trespass by water on his property in 1942, when the high elevation of the water reached 189.26, the day he served the notice.
It appears from the record that since about 1869 Lake Vadnais has been the principal reservoir for the water supply of the city of St. Paul and that it had been completely controlled artificially for many years prior to the commencement of this action. It further appears that before the time of the damages complained of in this case the highest elevation ever attained on Lake Vadnais since 1885 was on November 16, 1906, when the elevation reached was 189.59.
Defendants claimed as a defense that the high water and damage to plaintiff's property resulted from an unprecedented rainfall on May 29, 1942. However, a review of the notice served by plaintiff on May 15, about two weeks prior to this rainfall, discloses that he claimed damages to his property by reason of the raising of the water level of the lake at the time he served the notice and that he then called attention to the fact that the damage was continuing and that he would be unable to determine the full extent of the damage until the city ceased raising the water level which he claims was causing the excessive flow. It seems to me that plaintiff showed that defendants raised the water of Lake Vadnais, over *Page 406 which it had control, higher than any possible elevation to which it could claim prescriptive rights. For these reasons, I cannot concur in the majority opinion.
MR. JUSTICE JULIUS J. OLSON took no part in the consideration or decision of this case.