Skalicky v. Friendship Elec. Light & Power Co.

• Decision Date: 20 June 1927
• Court: Wisconsin Supreme Court
• Parties: SKALICKY ET UX. v. FRIENDSHIP ELECTRIC LIGHT & POWER CO.

193 Wis. 395

214 N.W. 388

SKALICKY ET UX.

v.FRIENDSHIP ELECTRIC LIGHT & POWER CO.

Supreme Court of Wisconsin.

June 20, 1927.

Appeal from Circuit Court, Adams County; Chester A. Fowler, Judge.

Condemnation proceedings by Adolph Skalicky and wife against the Friendship Electric Light & Power Company. From a judgment in circuit court increasing the commissioners' award, defendant appeals. Reversed and remanded.--[By Editorial Staff.]

Plaintiffs, as landowners, brought condemnation proceedings.

From 1867 to 1915 a dam had been maintained in said county with a 10-foot head which continuously flowed about 3 acres of a 44 and a fraction acre tract, title to which is now in plaintiffs. In 1915 the dam was enlarged so as to have about an 18-foot head, and since that time such increase has caused the flowage of about 14.25 acres more of said tract.

The plaintiff's title is traced from a tax deed of 1880, the immediate deed to plaintiffs was in March, 1902, was recorded and possession taken thereunder in March, 1903, and contained a clause similar to that in prior conveyances and as early as 1867 as follows:

“Excepting and reserving therefrom the right of flowage of all lands necessary for mill purposes to drive not to exceed four run of stones.”

In February, 1924, the present plaintiffs, as then petitioners, made application to the circuit court for the appointment of commissioners. They alleged the ownership by the defendant here, a Wisconsin corporation, of the dam in question, and hydraulic electric plant, in the village of Friendship; that petitioners owned a tract of 44.18 acres more or less, through which flows the stream into the dam aforesaid; that prior to 1915 about 3 acres of their said tract had been flowed by reason of the maintenance of the 10-foot head, and that on such 3 acres “a flowage right has long existed in the name of the Friendship Electric Light & Power Company and its predecessors in title”; that by the raising of the dam in 1915 to a 16 or 18 foot head some 14 acres more of the petitioners' lands were being flooded and injured; that it is necessary that the said company acquire a flowage easement in such portion of the lands so now flooded; and that the two parties cannot agree upon the compensation to be paid or for the purchase, lease, or use of such lands. They asked for appointment of commissioners and the determining of compensation.

Upon this petition an order was made by the circuit court fixing the time and place for the hearing and for the giving of notice. The said order also recited:

“And that the rights of flowage by the Friendship Electric Light & Power Company in the lands of petitioners be determined and fixed.”

A verified answer to said petition was made which, among other things, alleged that the property described in the petition “is now, and for many years past and prior to petitioners' ownership thereof been, subject to the right of flowage and right of flowing all of said land thereof necessary for mill purposes not to exceed four run of stones.” It admitted the additional overflowing as alleged in the petition, but alleged that the said lands for many years past have been, and still are, subject to the said flowage by said company, and that such right of flowage was acquired by virtue of a deed of June 13, 1921.

It alleged that for many years the lands of the petitioners have at all times been subject to the right of flowage and right of flowing all such lands necessary for dam purposes. Also that the conveyances under which petitioners claim title expressly reserve and except from the grant the right of flowage as in said answer alleged. The answer further denied that petitioners suffered any damages or are entitled to any compensation, and prayed for dismissal of the petition and a denial of any appointment of commissioners.

Thereafter findings of fact and conclusions of law were made by the court.

The court found, among other things, that the reservation in the deed of 1867 and other deeds through which defendant claimed its flowage right, reading, “excepting and reserving the land necessary for flowage * * * or all of said land necessary for mill purposes to drive not to exceed four run of stone,” is so indefinite and uncertain as to make it no longer possible to fix the extent of the flowage rights thereby.

That the maintaining of not to exceed 10-foot head of water in the dam from 1867 to 1915 was a height acquiesced in, and accepted by, all the interested parties as the height to which the water could be maintained, and amounted to a practical construction of the original reservations, and that the defendant is now estopped from raising the head of the water, and that the petitioners were entitled to have commissioners appointed to ascertain the compensation. No exceptions were filed by the company to such findings.

In June, 1925, the commissioners determined compensation in the sum of $738. Immediately thereafter the said petitioners gave notice of appeal to the circuit court from the award of the commissioners and from the whole thereof fixing the amount of compensation for the taking of a right of flowage on said land. On said appeal, before a jury, the damages were fixed at $1,000. After motions by the respective parties, the court below denied defendant's motions, and directed judgment for said sum. From such judgment defendant appeals.Charles H. Gilman, of Friendship, and Goggins, Brazeau & Graves, of Wisconsin Rapids, for appellant.

Grotophorst, Quale & Langer, of Baraboo, for respondents.

ESCHWEILER, J.

The appellant company contends that, upon the appeal taken by the petitioners from the award of the commissioners, there must be a trial de novo in the circuit court of all the issues presented by the petition and the answer. The respondentscontend that the company, having failed to file exceptions to the findings made in the first hearing wherein commissioners were appointed, and having failed to appeal from the order therein, is conclusively bound by the result of the preliminary hearing, and that no question is or can be presented on appeal other than the amount of damages for the taking. The trial court ruled upon the offers of evidence made by the defendant in accord with respondents' contention, and such rulings present the primary questions to be determined.

These proceedings were instituted by landowners under chapter 32, Stats., regulating condemnation under the power of eminent domain. Section 32.04, Stats., provides two separate and distinct methods by which condemnation proceedings may be started: First, the manner in which one who seeks to acquire property belonging to another shall proceed; and then, second, the manner in which the owners of the property, such as plaintiffs here, may or shall proceed against any one taking their property without first having obtained the right so to do under such section; the second method being found in the last two sentences of said section providing, “If any owner of property desires to institute condemnation proceedings,...