Borchardt v. Wausau Boom Co.

• Citation: 11 N.W. 440,54 Wis. 107
• Parties: BORCHARDT v. WAUSAU BOOM CO.
• Decision Date: 10 January 1882
• Court: United States State Supreme Court of Wisconsin

54 Wis. 107

11 N.W. 440

BORCHARDT

v.WAUSAU BOOM CO.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Outagamie county.

M. M. Charles and Finch & Barber, for respondent.

Silverthorn & Hurley, for appellant.

ORTON, D.

This action is brought to recover damages to the premises of the plaintiff, situated about the works of the boom company on the Wisconsin river, by flowage caused by such works. The company was authorized to construct and maintain such works at that place, and in such manner, by a charter granted by the legislature of this state by chapter 45, P. & L. Laws 1871. There was evidence tending to show that in ordinary seasons of high water said premises were not at all flowed, and that the great freshets, which, together with the works of the company, caused the flowage complained of, were uncommon, unusual, and extraordinary, and could not have been reasonably contemplated, anticipated, or expected at the time such works were constructed.

In Cohn v. Wausau Boom Co. 47 Wis. 314, [S. C. 2 N. W. REP. (N. S.) 546,] it was held that under the amendment of the charter by chapter 256, Laws 1873, this company was a quasi public corporation, and an agent of the state for the improvement of the Wisconsin river. The seventh instruction asked by the appellant was as follows: “I charge you that if the evidence convinces you that the damages claimed were only incidental to an additional rise of water during extraordinary freshets, although such additional rise of water was caused by the temporary stoppage of logs at defendant's works, the plaintiff cannot recover in this action.” We think the refusal of the court to give this instruction was error. It was contended by the learned counsel of the respondent that this instruction was in effect given in the general charge. but we are unable to find any part of the general charge containing this principle, viz.: that for damages occasioned solely by, and which were only incidental to, an additional rise of water in the river during extraordinary freshets, the company is not liable, notwithstanding they might have been to some extent occasioned by its works being in the river. These works were lawfully and rightfully in the stream, and the company should be held responsible only for all direct and proximate consequences, and perhaps for consequences indirect and remote or incidental, as might have been reasonably expected to follow from their construction and maintenance. This we understand to be the extent of the rule; and injuries incidental only to natural occurrences, which are so extraordinary, unusal. and uncommon that they could not have been reasonably contemplated, anticipated, or expected, are damnum absque injuria. In application to this case, the doctrine may be stated that this company would be liable for all damages by flowage back of the waters of the river occasioned by their works, in all such conditions of the river as might have been reasonably anticipated or expected. Such conditions would be not only the natural rise and fall of the waters during the year, but also the floods and freshets which occur annually, or at longer periods or intervals, if regularly, and which from having been known to occur at such periods or intervals might be reasonably expected to occur again. But, on the other hand, if no damages whatever result from these works during the ordinary and usual fluctuations of the river, and the damages complained of resulted from a flood which to the same extent had never occurred but once before, so far as known, and that very long ago, and which might not reasonably have been expected to occur again, and which was so unusual or phemomenal as to excite wonder or surprise, then they cannot be recovered. It is, of course, very difficult to lay down any certain rule by which such occurrences are to be deemed to be so extraordinary and unusual as to exempt the company from liability for their consequences in connection with their works, and such matter may properly be left to the judgment of the jury, under an instruction by the court in which this principle of the law is clearly stated. This principle is of the utmost importance to the existence and purposes of corporations which are created to build and maintain works of internal improvement, in part for the public benefit, by the investment of private capital. All of the ordinary and natural consequences of their works may well have been contemplated and expected, and their ability to meet such consequences and compensate for such damages as would be likely to occur may be ample and constantly maintained; but one extraordinary and unforeseen event, happening from natural causes, against which no provisions or precautions are or could be made, may sweep away in a day or an hour not only all of their profits, but their capital, and bankrupt and destroy the corporation itself.

In view of such extraordinary risks and hazards, capital would not be likely to seek such an investment, and such enterprises, of great public importance and benefit, would be avoided. But, without further illustration or...