Daly v. State ( 1941 )

Bliss, J.

(dissenting). The claimants have failed to show-that their damage was caused by the State.

I also differ with the majority as to the construction placed upon the releases signed by these claimants and their predecessors in title. These releases are dated August 8,1921, and were executed after the State had lowered the crest of its dam eighteen inches. They release the State from all claims for damages to growing crops “ at any time hereafter sustained, occasioned by the existence and maintenance of said dam at its present height ” and also provided that upon the completion of certain improvements the owner would thereafter execute a further release. I see nothing executory as to the releasing of the State for all claims present and future, caused by the maintenance of the dam at its then present height and it is stipulated that no further work was done by the State on Wood creek. The damages for which claims are now being made, if any, are caused by the maintenance of the dam at the same height as it was in August, 1921. The State has thus settled with these claimants or their predecessors in title for these present damages and should not be compelled to settle with them again. It is true that the State then contemplated further improvements and upon the completion of these improvements the property owners were to execute further releases. Such improvements were never completed and consequently the additional releases were never executed, but these facts do not invalidate the releases which were given in 1921 for all damages at any time thereafter sustained, occasioned by the existence and maintenance of the dam at its then present height. Judgments affirmed, with costs.