Rocheleau v. Consolidated Water Power & Paper Co. , 189 Wis. 290 ( 1926 )

The following opinion was filed January 12, 1926:

Eschweiler, J.

(1) Appellants claim that by the language used in the stipulation and order thereon, referred to in the statement of facts, the defendant was foreclosed from disputing that there was a taking of petitioners’ land under the condemnation statutes and that there was properly before the court solely the questions of compensation for and the damages consequent upon a taking. Some of the recitals in the stipulation and order and quoted above, if considered alone, might well support such a claim under the ruling in Fritz v. Southern Wis. P. Co. 181 Wis. 437, 440, 195 N. W. 321. However, the answer to the petition expressly denied a taking, and in the more important parts of the stipulation and order, those describing the issues to be determined, two distinct elements were, mentioned, namely, the compensation, if any, for the value of thé property taken and proposed to be taken as alleged in the stipulation, and the damages, if any, resulting from such taking. This language certainly did not prevent defendant from contesting the allegations as to a taking, for, if there was a taking of the property for the uses and purposes of the dam, compensation therefor followed as matter of law, and was not an open question for appraisers or jury except as tO' amount. The italicised words just above, if any, must be given some effect, and the language of these declaratory clauses must be construed in effect to be, that if there be found no taking, then no compensation could be allowed; and if a taking were found, then and then only the amount of the compensation (as distinguished here from the much broader element of consequent damages) must be determined. Such contention now made does not appear to have been asserted on petitioners’ behalf at the commencement of the trial, for that proceeded upon the issues as framed for the hearing before the commissioners. Neither was it suggested when the form of the special verdict was being discussed and agreed upon by counsel. This specific and independent question was submitted as to each parcel, viz.: “Was said land described in question -, or any part thereof, taken in June, 1919, by flooding by water from defendant’s dam? (A) With the dikes; (B) Without the dikes.” If such issue had been originally stipulated out of the proceedings, as is now claimed by petitioners, it was in effect stipulated in again during the trial and by the agreed form of the special verdict. It was clearly an issue in the case.

(2) The judgment provided that it be without prejudice to further proceedings by petitioners or their successors in title against defendant or its successors for the proper redress by condemnation, injunction, or suit for damages in the event that the dikes referred to in the evidence be removed, or in the event the pump also referred to shall cease to operate. As to this provision' petitioners contend that there is no warrant for the court inserting such conditions as to future possibilities. There is cited on this proposition McCord v. Sylvester, 32 Wis. 451, an action for the diversion of a stream where the commissioners reported no damages, “provided sufficient water shall be suffered to flow in . . . said creek for . . . necessary farm purposes;” this award was held properly disregarded because void for uncertainty (p. 455), and probably beyond the power of the commissioners to attach such conditions (p. 456) ; Thompson v. M. & St. P. R. Co. 27 Wis. 93, where defendant offered and asked to be permitted by the judgment, at some indefinite time in the future, to build at its expense a necessary retaining wall, at a cost of $100, which offer was held properly refused; and Milwaukee E. R. & L. Co. v. Becker, 182 Wis. 182, 196 N. W. 575, a condemnation of a special easement for a right of way and station grounds, in which case it was held that an- offer of petitioner to grade and surface the property or for a future forfeiture in case of breach, but all this in diminution of damages, should not be considered (p. 187). The situation here is substantially different and not within the control of any such cases. Here the dikes or retaining walls were there at the time of the alleged taking, and, as well said by the trial court: “They are just as much a necessary part of the defendant’s dam as the cement wall across the river.” If petitioners are entitled to any damages by the raising of the head they are entitled to all such as shown consequent on such increased capacity, but not as to possible future damages consequent upon a breach in the dam. As to such, a new right of action must arise before petitioners, or their successors, can legally complain, and as to such possible future rights the judgment expressly safeguards them, if such an express provision were necessary.

(3) We deem it unnecessary to recite the evidence in this case to demonstrate the correctness of the conclusion reached by the trial court and by us now, that the questions of fact as to whether there was a talcing, and if so the compensation and. consequent damages, were for the jury and not absolute in favor of petitioners, as claimed by them.

(4) We find no wrongful denial by the'trial court of a new trial upon the affidavits on petitioners’ behalf and the counter affidavits as to the alleged condition of these premises after the trial and after a twenty-one foot head had been held.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on March 9, 1926.