Benka v. Consol. Water Power Co.
| Decision Date | 02 April 1929 |
| Citation | 224 N.W. 718,198 Wis. 472 |
| Parties | BENKA v. CONSOLIDATED WATER POWER CO. (TWO CASES). |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Wood County; Byron B. Park, Circuit Judge.
Two actions tried together by John A. Benka and by Veronica Benka against the Consolidated Water Power Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.--[By Editorial Staff.]
These two actions were commenced May, 1927, and tried together in January, 1928, and from the judgment of May 19, 1928, for plaintiffs, defendant appeals.
The plaintiffs, husband and wife, owned separately two parcels of land on an island in the Wisconsin river in said county. Similar complaints were made in each action against the defendant, owner of a dam on such river. Each complaint alleges the loss of crops during each of the summer seasons of 1920 to 1926, inclusive; being deprived of the use of said lands for any and all purposes; the loss of growing timber and other products, caused by the ponding of the water by said dam so as to undermine and waterlog a large portion of said lands and causing damages; that such trespass on the lands of the plaintiffs was at all times willful and unlawful; and praying for damages of $7,600 and $7,400 respectively. The dam was built by permission given by chapter 236 of the Laws of 1889, amended by chapter 209 of the Laws of 1893.
The respective answers alleged that the defendant is a public utility under the laws of this state; admits the ownership of the dam, and the right to construct the same; and alleges that by due proceedings before the railroad commission the defendant's predecessor was authorized to maintain the dam at the height of 21 feet; and also “the defendant further alleges that if any of the lands of the plaintiff are taken by the defendant company for the purpose of flowage, the sole remedy of the plaintiff is a proceeding by condemnation under the Wisconsin statutes for the purpose of ascertaining the damages for such taking.”
There was also a general denial and prayer for dismissal and the answers concluded with the following paragraph: “Defendant further demands that in the event that it should be found that any portion of plaintiff's lands are taken as claimed in the complaint, then the court stay all proceedings in this action pending the proceedings in condemnation to determine plaintiff's damages for such taking.”
A special verdict was submitted to and answered by the jury as to several particular items of injury for each of the years 1921 to 1926 as to the several crops claimed to have been damaged by reason of the floodings by defendant's dam.
Upon respective motions after verdict the court set aside so much of the verdict as assessed damages for 1921, in view of the uncontradicted evidence that the dam was not raised to the height complained of until August, 1922, and for the year 1926 because of an exceptional flood destroying the dam above the plaintiffs' lands and thereby causing a complete destruction of the crops. The trial court also ruled that proceedings in the action might be stayed by the defendant commencing condemnation proceedings and then making application for a stay, but that a stay could not be granted to force plaintiffs to commence condemnation, and that the plaintiffs have the right to maintain these actions; and judgment was ordered for damages.Goggins, Brazeau & Graves, of Wisconsin Rapids (Fisher & Cashin, of Stevens Point, of counsel), for appellant.
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