Marsh v. Trullinger

By the Court, Boise, J.:

This action was brought to recover damages for a nuisance and to have the same abated. The plaintiff alleges that he is the owner of land in Washington county, through which a creek, called Dairy Creek, flows; that defendant owns land on said creek below him, and has built and maintains a dam on said creek, which causes the waters of the creek to flow back and overflow his land.

The defendant admits that he maintains the dam to use water to run his mills, and does not deny but that the waters are thereby made to flow back and oversow the land of the .plaintiff, but denies the damage; and by a separate answer claims a right to flow said land by pre-emption, which separate answer is denied by the plaintiff. On the trial of the case by the court and a jury, the plaintiff offered testimony tending to show the value of the overflowed land for cultivation, how much it would cost to ditch the same so as to drain it, and generally what it would cost to prepare this land for cultivation, and what the use of it would be worth per acre, per year, when so prepared for cultivation. This testimony was objected to by the defendant as incompetent, but the court overruled this objection and admitted the evidence. This evidence was offered to show how much the plaintiff had lost by being deprived of the use of his land.

It is claimed that such damages are too remote and speculative, and can afford no proper criterion from which to estimate the damages which the plaintiff had suffered. We think this evidence was properly admitted. Suppose this land had been prairie, which only needed to be fenced and plowed to be made ready for grain, and the plaintiff was about to utilize it in that way, and was prevented by this act of the defendant, in causing the water to flow over it. There can be no question but plaintiff could show what the land would have been worth to him, and to estimate this value properly, the jury could take into consideration the condition of the land. There is no way to show the value of the use of land, except to show its condition, and the expense of putting it in a condition to be used, if any such expense is necessary, and whatever expense is necessary would abstract from its value and lessen the damages, and be beneficial for the defendant. And evidence tending to show impediments to the easy utilization of the land might be offered by the defendant to mitigate the damages.

We think also that it was competent for plaintiff to show to the jury that the flowage had so injured the land that it' would impair its future fertility. It is also claimed that it was error to allow plaintiff as to costs of draining this land, because there was no allegation in the complaint that plaintiff was injured by the water percolating through the soil and making it wet and swampy.

The complaint says that the dam of the defendant causes the water to flow back and overflow, and this is not denied, so it is admitted that this water did flow back and overflow the plaintiff’s land, but it is denied that said flowage was any damage. To ascertain the damage it was proper for the condition of this land to be given to the jury, whether it was naturally dry or swampy. If it had been dry, the plaintiff could have used it without draining; if swampy, he could show the jury that he could have drained it and made it available had it not been for the flowage. It might be that little expense would have been sufficient to put it in condition for cultivation, and the land been very valuable had the flowage not interfered. And when the jury were advised by the testimony as to the expense of draining and cleaning this land they could form an intelligent judgment of the amount of damage the plaintiff had sustained in being deprived of its use.

It was insisted by the defendant in the circuit court that the plaintiff could not recover under the pleadings in this case for any damages caused by the back flow of the water, unless it was high enough to overflow the banks of the creek; that is, if the back water caused the water to percolate through the soil and render it wet and swampy, such injury could not be considered by the jury, and defendant excepted to an instruction of the court, submitting this matter to the jury.

The complaint alleges that the damages were caused by the dam of defendant, causing the water of the creek to flow back and over the land of the plaintiff, and this allegation is not denied by the owner and therefore must be taken as confessed; and this allegation is broad enough to include any damages which is caused to the land by the flowing back of the water. And we think the instruction to the jury, directing them to estimate the injury, if any, in considering the damages, was correct. There is error alleged in the proceeding of the court on the motion of the plaintiff to have the dam abated.

The jury found 'that this dam was a nuisance to the plaintiff, and had allowed him damages. When in a case of this kind the jury so find, and the plaintiff recovers damages for the nuisance, the statute, section 330, p. 179, provides that in addition to the execution to enforce the judgment for damages, the plaintiff may, on motion, have -an order allowing a warrant to issue to the sheriff to abate the nuisance. And in this case there being no issue to the jury as to what particular part of the dam caused the nuisance, the verdict simply establishes the fact that the dam was a nuisance to the plaintiff. If the defendant desired to show as a fact that the plaintiff’s land would be restored to its normal condition by the removal of a part of the dam, he should have pleaded that fact in his answer, and if denied by the plaintiff, the jury could have determined that fact by their verdict. But the issue was whether the dam was a nuisance and that fact being established by the verdict, the statute has given the plaintiff a right to a warrant to have it abated.

There being no error found in this case, the judgment of the court will be affirmed.