WILHITE, RESPONDENT, v. BILLINGS & EASTERN MONTANA POWER CO., APPELLANT.

(No. 2,673.)

(Submitted April 5, 1909. Decided April 12, 1909.)

[101 Pac. 168.]

Nuisances-Power Dams - Comparative Damages-Notice-Injunction-Scope of Order-Evidence-Sufficiency.

Power

Dams-Nuisances-Injunction-Findings-Evidence-Sufficiency. 1. In a suit for a mandatory injunction to compel defendant power company to lower its dam so as to avoid flooding plaintiff's lands lying above it, and for damages, held, that the findings of the court in favor of plaintiff were not based upon a "mathematical impossibility," but were supported by substantial testimony and, therefore, ought not to be disturbed on appeal.

Same-Offer of Proof-Exclusion-Harmless Error.

2. Alleged error in excluding defendant company's offered proof that the plaintiff's lands had not netted to him in any one year the sum of $801 was harmless, where he had not claimed any damages on account of impairment of the rental value of his premises, and where the finding of the jury that such value had been decreased by the construction and maintenance of the dam, if pertinent, was probably only material to the question whether the injunction Mont., Vol. 39-1 (1)

should issue, and where the damages which were awarded ($200) could all be attributed to specific losses testified to by plaintiff. Same-Injunction-Notice Before Suit.

3. Defendant power company was chargeable with knowledge of whatever conditions resulted from the construction and maintenance of its dam, and could, therefore, not complain of the failure of plaintiff to give it notice that he had been injured by the overflowing waters and submit an itemized statement of his damages, before commencing suit.

Same-Injunction-Comparative Damages-Evidence.

Same

4. The record not disclosing any evidence that defendant company was a public service corporation or that it was actually operating any part of its plant, but showing that the dam was in course of construction for over twenty years, and that numerous mistakes had been made and difficulties encountered during its erection, defendant's offer to prove that it cost $120,000 to build was properly excluded, since, under these circumstances, the magnitude of defendant's interest was not apparent, so as to make applicable the rule that injunction will not issue in view of the great damage that would result to defendant and others dependent upon its operations, and the comparatively small injury caused to plaintiff by the maintenance of the dam.

Not Nuisance Per Se.

5. The finding of the court that the dam in question was a nuisance per se, disapproved.

Same-Injunction-Scope of Order.

6. Where the evidence did not show that it was necessary to rebuild, repair or remove defendant power company's dam in order to prevent the flooding of plaintiff's lands, an order of the court to that effect was too broad. All plaintiff was entitled to was a decree that defendant abate the nuisance and refrain from causing him injury in the future, and that, to attain this result, it employ the necessary and requisite means.

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

ACTION by F. Wilhite against the Billings & Eastern Montana Power Company. From a decree for plaintiff and an order denying defendant a new trial, the company appeals. Remanded, with directions to modify.

Messrs. Maury & Templeman, and Mr. W. M. Johnston, for Appellant.

Where the business carried on is a lawful business, such as lighting, or furnishing a domestic water supply in convenient form to a city of twelve thousand or fifteen thousand people, then, before the court shall issue its mandatory injunction. demolishing the industry, it is its duty to weigh and balance

the respective inconveniences and losses of each party, and, if any other order as to the manner of conducting the business will remedy an inconvenience, make such other order. (Atchison v. Peterson, 87 U. S. 507, 22 L. Ed. 414; Story's Equity Jurisprudence, sec. 959b.)

The verdict is based on what the books term a mathematical impossibility. Such verdicts cannot stand even in law cases, though supported by what seems to be evidence. (Moore on Facts, sec. 153; Nelson v. Big Blackfoot Milling Co., 17 Mont. 553, 44 Pac. 81.) The plaintiff in his complaint says that the detriment will always last as long as the dam is left there. That gives him a perfect right to avoid a multiplicity of suits. He may bring one suit for the entire damage to his land, by reason of this permanent structure being a nuisance permanent in its character. That the owner of adjacent land may bring one action for the whole damages, see Watson v. Colusa Parrot, 31 Mont. 517, 79 Pac. 14; Chicago F. & B. Co. v. Sanche, 35 Ill. App. 174. Where it is sought to enjoin a business lawful in its nature, the chancellor, instead of striking with his iron hand. and eradicating it, should use his God-given intelligence to try and find out what method, if any, will enable the business to run without injury to anyone. (McMenomy v. Baud, 87 Cal. 134. 26 Pac. 795; Daughtry v. Warren, 85 N. C. 136; Miller v. Burch, 32 Tex. 208, 5 Am. Rep. 242.)

Mr. Fred H. Hathhorn, Mr. Harry A. Groves, and Mr. M. Brown, for Respondent.

The injury complained of is a nuisance per se. It cannot be claimed that the plaintiff cannot maintain his action for a mandatory injunction unless he can show substantial damages. (See Allen v. Stowell, 145 Cal. 666, 104 Am. St. Rep. 80, 79 Pac. 371, 68 L. R. A. 223; Troe v. Larson, 84 Iowa, 649, 35 Am. St. Rep. 336, 51 N. W. 179; Carson v. Hayes, 39 Or. 97, 65 Pac. 814; 2 Farnham on Waters, sec. 582; Fitzpatrick v. Montgomery, 20 Mont. 181, 63 Am. St. Rep. 622, 50 Pac. 416; 2 Wood on Nuisances, sec. 784.) If plaintiff will lose irre

parably the right of property concerning which he brings suit, it is sufficient to entitle him to relief. (22 Cyc. 763, note 25; Oliphant v. Richman, 67 N. J. Eq. 280, 59 Atl. 241.)

MR. JUSTICE SMITH delivered the opinion of the court.

This is an action begun in Yellowstone county to compel the defendant to "lower, remove, or alter its dam in such a manner as to avoid" causing injury to plaintiff, and for damages sustained by the plaintiff "up to date." The complaint alleges that the plaintiff is, and for seven years has been, in possession of certain agricultural lands bordering on the Yellowstone river; that he has made application for leave to file upon said premises under the homestead laws of the United States, which application remains undetermined; that the hydro-electric plant of the defendant company is situated on the river below plaintiff's land; that a dam has been constructed across the river at a point about one-half mile below plaintiff's premises, which dam has been purchased, and is maintained at a height of ten feet, by the defendant; that during the months of June and July, 1908, the dam caused the river to overflow a portion of plaintiff's land and deposit dirt, sand, and sediment thereon, and caused the water to remain stagnant thereon "and to seep. into his cellar and chicken-house"; that the stagnant water became foul, and caused the air to become impure and unhealthy; that, on account thereof, plaintiff became unwell, and his family' were compelled to remove from their home and live elsewhere for a month; that, on account of the overflow, "it is now almost impossible for plaintiff to reach the river and water his livestock or to obtain water for household purposes," and it is now impossible for plaintiff to reach a certain spring on the premises to obtain water therefrom for any purpose; that the water overflowing the land destroyed four tons of hay and partially damaged a garden of about one-half acre, all to plaintiff's damage in the sum of $2,500. Plaintiff further alleges that previous to the completion of the dam, in November or December, 1907, he suffered no injuries of the nature complained of in