#### Van Wie and another, Respondents, vs. Southern Wisconsin Power Company, Appellant.

*February 1*

February *20, 1912.*

*Dams: Flowage of land: Measure of damages: Market value: Adaptability to business uses: Profits: Evidence: Instructions to jury: Excessive damages.*

1. In determining the damage to land from the flooding of a part thereof by means of a dam, evidence of the profits of a business theretofore conducted on the land is not competent to establish the market value of the land; but evidence of the adaptability of the land to business purposes is admissible and proper to be considered.

2. The lands flooded in this case were of an unusual character, being located at the broadening of a ravine or canyon of scenic beauty, frequented by tourists, and improved by a building which had been used as a restaurant, boarding house, etc. The witnesses testifying as to the value of the land took into consideration that the business conducted there would produce an income, but, although they did not use the words “profits” and “income” with strict nicety, did not base their estimates of value on the actual profits that had been or were expected to be realized from such a business. The court explicitly instructed the jury to find as the measure of damages the difference, if any, in the market value of the property before and after flowage, and told them that they could not allow any sum for any injury to the business conducted on the land, and that in fixing the market values they could not assess any sum for remote or speculative values or consider any speculative or remote use to which the property might be put. *Held,*that there was no error prejudicial to the defendant in the admission of such testimony and submission thereof to the jury.

3. An award of $4,500 for the injury to plaintiffs’ land by the flow-age thereof is *held*not excessive as a matter of law.

Appeal from a judgment of tbe circuit court for Sauk county: E. Ray SteyeNs, Circuit Judge.

*Affirmed.*

Tbe plaintiffs, mother and son, own a triangular piece of land, about eight acres in extent, near tbe Wisconsin river, above tbe village of Kilbourn City, Adams county, Wisconsin. *411Plaintiffs’ land is separated from tlie river by a strip of land about 300 feet wide owned by tbe defendant. Extending from tbe river across defendant’s and tbe plaintiffs’ land is a deep, irregular, rocky ravine known as Gold Water Canyon. Tbe sides of tbe canyon are steep, covered with ferns, sbrubs, and trees, and are of great scenic beauty. Along tbe bottom of tbe canyon flows a small stream of spring water. Tbe canyon is narrow except in one place on plaintiffs’ land, near tbe boundary between it and tbe defendant’s land, where it is broadened out to a width of 100 to 125 feet. Tbe area of this wide portion of tbe bottom is about two and one-balf acres. Upon that part of tbe spread nearest to tbe defendant’s land there is located a building, which during and prior to 19 07 was used as a restaurant and boarding bouse, and here soft drinks, peanuts, souvenirs, etc., were sold to tourists passing up and down tbe canyon. A dancing pavilion, ice bouse, etc., bad also been constructed and were used for tbe entertainment of tourists. - This level spread of tbe bottom of •the canyon is from thirteen to fourteen feet above tbe normal level of tbe water of tbe Wisconsin river at tbe mouth of tbe canyon. Tourists visiting tbe plaintiffs’ premises in the canyon usually came through Gold Water Canyon from tbe river, but access thereto could be bad by rights of way to tbe river and tbe public highway which were owned by tbe plaintiffs. Tbe spread in tbe canyon bad no value for agricultural purposes ; its value arose from tbe fact that it was tbe only place -in tbe canyon where buildings could be constructed for tbe entertainment of tourists and because a toll might be charged tourists for passing through this portion of tbe canyon. Tbe tourist season to tbe Dells of tbe Wisconsin, with which Gold Water Canyon is connected, is during tbe months of June, July, and August. Since 1907 tbe plaintiffs have not conducted their business in tbe canyon.

Tbe defendant corporation has erected and maintains under state and federal authorization a dam for power purposes *412across the Wisconsin river, some distance below tbe month of Cold Water Canyon. The completed dam is designed to> raise the normal level of the water of the river at the mouth of the canyon fourteen feet. The work was commenced in September, 1907, and completed in July, 1909. In 1908 the backed-np water began to overflow the plaintiffs’ land, and the buildings are now normally surrounded by from six to twelve inches of water.

The action was commenced before the construction of the dam was begun, by a petition of the defendant for the appointment of commissioners to appraise the damages to be awarded the plaintiffs by reason of the flowage upon the lands of th^ plaintiffs because of the construction of the _ dam. Under stipulation the appeal from the award of the commissioners was tried before the Sauk county circuit court. There was evidence that the value of plaintiffs’ entire property was from $8,000 to $12,000 before the flowage and that its value was almost entirely due to the adaptability of the spread in the canyon for carrying on a business as above described, and that its value after the flowage was from $500 to $8,000. There was evidence tending to show that the water backed up onto plaintiffs’ land was stagnant, that this rendered the canyon unattractive to tourists, and that it was impracticable to remove the buildings to higher ground and there carry on the business. In behalf of the defendant there was evidence that except in times of flood or high water only about six tenths of an acre of plaintiffs’ land was overflowed by reason of the construction of the dam, that the buildings could be removed to higher ground, and that the damage to plaintiffs’ property because of the flooding by the dam was from $300 to $500.

This is an appeal from the judgment on the verdict awarding plaintiffs $4,500 as the damages caused them by the construction of the dam.

Eor the appellant there were briefs by *Jones & Bchubring*and *F. B. Bentley,*and oral argument by *Mr. F. J. B. Bchu-**413*bring*and *Mr. Bentley.*

They cited Lewis, Em. Dom. (3d ■ed.) § 727 (487) ; *In re Dept. Pub. Works,*53 Hun, 280, •6 N. Y. Supp. 750; *De Buol v. F. & M. B. B. Co.*Ill Ill. 499; *Cobb v. Boston,*109 Mass. 438; *Cox v. P. II. é P. B. ■Co.*215 Pa. St. 506, 64 Atl. 729; *Beading & P. B. Co. v. Balthaser,*126 Pa. St. 1, 13 Atl. 294, 17 Atl. 518; *Ban Diego D. & T. Co.- v. Neale,*88 Cal. 50, 25 Pac. 977; *Hamilton v. P., B. & L. B. B. Co.*190 Pa. St. 51, 42 Atl. 369; *Jacksonville <& 8. E. B. Co. v. Walsh,*106 Ill. 253; *Cook &■ B. Co. v. Sanitary Dist.*177 Ill. 599, 52 N. E. 870; *Dupuis v. C. & N. W. B. Co.*115 Ill. 97, 3 N. E. 720; *Sacramento S. B. Co. ■v. Heilbron,*156 Cal. 408, 104 Pac. 979; *Edwards v. Cheyenne*(Wyo.) 114 Pac. 677; *Munkwitz v. C., M. & St. P. B. Do.*64 Wis. 403, 25 N. W. 438; and other cases.

Eor the respondents there was a brief by *Crotophorst, Evans & Thomas,*and oral argument by *H. H. Thomas.*

Siebecker, J.

It is contended that the court erred in -submitting to the jury evidence of the profits of the business •carried on upon the property in question. It is not questioned that evidence of the profits of a business conducted upon the land in question before the alleged flowage is not •competent to establish the market value of the land, nor is there dispute between the parties that evidence of the adaptability of the land for business purposes is a consideration which goes to show the value and is properly to be submitted to a jury to ascertain the damages to land from flooding a part thereof. This latter element of value is entirely distinct •from the former and is proper to be considered in estimating the value of such land before and after flowage. It is strenuously contended that the opinion of the plaintiffs’ witnesses as to the value of this property is shown to have been based upon the profits of the business theretofore conducted on this land and that such evidence was incompetent and operated to the prejudice of the defendant. The court by special ques*414tion submitted to tbe jury tbe inquiry of finding tbe difference in market value of tbe land in question before and after tbe construction of tbe dam causing tbe flowage, and in connection therewith explicitly informed tbe jury tbat tbe difference in tbe market value of tbe property before and after tbe flowage, if any, constituted tbe damage caused thereby to tbe land, and directed them tbat “In fixing this market value you cannot allow any sum for any injury tbat may have' resulted to tbe business tbat tbe plaintiffs conducted on tbe land,” and also, “In fixing this market value you cannot assess any sum for remote or speculative values, or consider any speculative or remote use to which tbe property might be-put.” It is manifest tbat tbe court properly limited tbe jury to a consideration of tbe evidence on tbe question of market value. Treating tbe evidence received in tbe light of this inquiry, can it be said tbat the witnesses based their estimates of value on tbe profits realized in tbe business tbat bad been conducted on tbe premises? Tbe evidence shows that tbe witnesses took into consideration tbat tbe business conducted there would produce an income. Though tbe witnesses, in phrasing their testimony, did not use tbe words “profits” and “income” with strict nicety, yet it is plain tbat in giving their estimates of tbe value of this land they meant and included in their estimates of value tbe element of tbe adaptability of the lands for conducting a profitable business thereon of the nature of tbat which had been conducted ón tbe premises; but. tbe evidence does not warrant tbe claim tbat such estimates were based on tbe actual profits tbat bad been realized or tbat were expected to be realized from such a business. We are persuaded tbat the jury under the instructions and directions of tbe court understood correctly tbe bearing of such evidence and were not misled to tbe prejudice of tbe appellant, and that no error was committed in submitting this evidence to-tbe jury. The property in question is of an unusual character and is restricted in its uses for business purposes, and its-*415market value depends in a material degree upon tbe nature and kind of business that could be successfully conducted thereon. These conditions made its adaptability for profitable business purposes an essential and proper consideration to be taken into account by the witnesses in giving their opinions of its market value. These facts also had an important bearing on the question for determination by the jury, namely, the amount of damages sustained by the plaintiffs on account of the alleged flowage. Under the facts and circumstances shown it is clear that this inquiry, of necessity, calls for the exercise of judgment by a jury and hence is an inference to be drawn by them from the facts and circumstances.

We cannot say as matter of law that the damages awarded are excessive. There is no room for argument that the witnesses were not qualified to give their opinions as to the value of the property nor for the claim that the market value of the property was but slightly affected by the flowage because plaintiffs could readily remove their buildings to other points on the premises and continue their business. These questions were within the jury’s field and must be held to have been properly determined by them.

The claim that the premises were within the limits of ordinary high- and low-water mark is not sustained by the evidence.

The alleged improper remarks of counsel in argument to the jury are not set out in the record, nor can they be held, if made as claimed in oral argument, to have affected the substantial rights of the parties.

*By the Oowrt.*— Judgment affirmed.

KeewiN, J., took no part.