#### Falkenstern, Appellant, vs. Town of Greenfield, Respondent.

*February 3*

February *21, 1911.*

*'Appeal: Affirmance: Verdict directed on wrong ground: Evidence: Weight: Testimony at variance with natural laws: Waters: In<jury from overflow: Defective bridge.*

1. *A*judgment upon a directed verdict, though not sustainable upon tbe precise ground upon which the trial court rested it, will be affirmed if it appears from the record that the evidence would not have warranted a different verdict.

2. Testimony of a witness, even when uncontradicted by any instrument or by other testimony, may be rejected if, in the light of physical situations and matters of common knowledge, it is1 at variance with the laws of nature.

8. In an action by a millowner against a town for injury to his property by the overflow of a creek, alleged to have been caused by the fact that defendant in building a new bridge across the stream had narrowed the openings which formerly existed for the passage of the water, it is *held,*in view of the physical situation and the laws of nature, that the jury would not have been warranted in finding from the evidence that the change in the bridge was an efficient cause in producing the injury.

Timlin, J., dissents in part.

[Appear from a judgment of tlie circuit court for Sauk county: Chester A. EowleR, Judge.

*Affirmed.*

Action to recover damages for creating and maintaining a nuisance to plaintiff’s damage.

The claim of the plaintiff was that the town constructed a bridge across a creek below his mill property thereon, leaving an insufficient opening for the free passage of water as formerly, whereby water backed up, overflowed the banks of the stream and carried off some of his buildings and otherwise injured his property.

The claim of defendant was that although plaintiff’s property was damaged by flood water at the time alleged, the injury was caused by his having maintained his dam in such an *233insecure condition that it bad frequently been washed out, depositing a large amount of *debris*in tbe creek bed between tbe dam and tbe bridge, thus interfering with, and obstructing tbe flow of water to and past tbe bridge; that be knowingly maintained tbe dam in sucb insecure condition, and that tbe damage complained of was caused thereby.

Tbe evidence was to this effect: Plaintiff owned a mill property on a small creek some 250 feet above tbe bridge in question. Tbe mill and mill-race were on tbe left bank of tbe stream. Tbe mill-dam on tbe left side was composed of a long solid bank of earth. At tbe right extending toward the right bank there was an old and a new spillway, tbe aggregate width being about ninety feet. Eurtber to tbe right, forming tbe right wing nearly 100 feet long, there was a bank composed of brush, stones, and earth.

Tbe water formerly left tbe spillway in a broad, thin stream, but by filling up of tbe creek by *debris*cast therein from time to time, by washings out of tbe dam, tbe waterway was caused to divide about forty feet from tbe foot of tbe dam, so that part of tbe water flowed to the right in a channel which narrowed at a point a short distance from tbe dam to a width of about sixteen feet and part flowed to tbe left in a channel which narrowed a.t a point about 100 feet from tbe dam to a width of about ten feet. Tbe division between tbe two channels was about fifty feet. They came together about 240 feet from tbe dam and the way for tbe water was then under tbe bridge through two culvert openings having an aggregate width of twelve feet on tbe bottom, a height of five and one-half feet, and a cross-sectional area of seventy-two feet.

There was a large water-shed- above tbe dam. Tbe territory was so large that in heavy rains there was danger of tbe dam being carried out. Sucb occurrences bad happened several times before tbe occasion in question. There were gates in tbe data and splash boards thereon, which were removed *234when necessary to prevent undue pressure on account of flood water. The removal of the splash boards on occasion of an existing freshet would canse a large quantity of water to be cast into the territory between the dam and the bridge, as the pond was quite large.

The right bank of the creek between the dam and the bridge raised about two feet above the water, ordinarily, when the mill was not in operation. The surface of the ground on that side back from forty to one hundred feet or so was about on the same level, then it sloped upward at an angle of some forty-five degrees for a considerable distance. The situation was such that from five to ten acres, or perhaps a little more of surface drained into the creek on the right side above the bridge and below the dam. The filled-in territory aforesaid was nearly as high as the banks of the creek. The left bank was about the height of the right bank. It was so low that a rise of water from the ordinary level of two feet or such a matter would cause the same to go out of the creek bed on either side. Near the foot of the left wing and around to the mill, a distance of about 130 feet the surface of the ground was somewhat higher than from a little further down to the highway and further on down the creek valley. The millrace extended from a point in the left wing of the dam about 140 feet from the left side of the spillway nearly parallel with the downward course of the stream for a distance of about 140 feet, then turned to the right to serve the mill. The tail-race extended from the mill down the valley about 100 feet to and through a culvert over the highway and then on down the valley to an intersection with the natural creek bed. The highway was about parallel with the dam. The approach to the bridge on the right of the creek was raised a little.

On the left side of the roadway down to the creek there was a deep, wide gully made by action of the surface water. Down this gully on occasions of heavy rain storms a large *235quantity of water flowed and into tbe creek just above tbe bridge. Tbe fall from tbe foot of tbe dam to tbe bridge was about three feet. Tbe territory bounded by tbe dam, the creek, tbe flume, tbe tail-race, and tbe highway was 150 feet wide near tbe dam, 250 feet on tbe creek line, and 240 feet on tbe side bounded by tbe highway. Tbe highway from near tbe bridge to tbe tail-race was on tbe natural surface of tbe ground. Tbe ground within tbe boundaries stated from near tbe foot of tbe left wing of tbe dam and tbe bank of tbe creek, which points were about two feet above tbe ordinary surface of tbe water in the creek, sloped a little down towards tbe highway so that a rise of water of about two feet would cause it to overflow tbe filled-in territory aforesaid and at tbe same time overflow tbe bank of tbe creek on tbe left for a distance above tbe highway of some 200 feet so as to cover a large part of the territory- between tbe creek and tbe tail-race and pass over tbe highway and down tbe valley in a still broader sheet. Tbe spread at tbe highway would be upwards of 200 feet wide in case of there being sufficient water to cover such area. Tbe lay of tbe surface was favorable thereto.

Plaintiff’s mill was located about midway between tbe left wing of tbe dam and the highway and about 130 feet from tbe left channel of tbe creek. His granary was located about twenty-five feet from tbe mill towards tbe creek and a little above tbe general level of tbe creek bank. His barn was below tbe highway, about twelve feet from tbe center line thereof and on a level with tbe general surface of the valley, as above indicated, and in tbe natural course of water overflowing from tbe creek between tbe bridge and tbe dam.

Tbe bridge was constructed in 1903 to replace an old one. Tbe latter bad an opening for tbe passage of tbe creek about one half wider and of different form than tbe new one and sufficient to allow tbe full capacity of tbe creek to flow through it at all times. Tbe form of tbe new construction *236was not as suitable as tbe old one to accommodate a flow of water carrying floatable material liable to lodge and create ■obstructions. Tbe old bridge narrowed tbe natural banks considerably and tbe new one about one third more. Formerly tbe water could reach tbe vicinity of tbe bridge flowing in a stream of considerable width. By reason of filling up by washing out of tbe dam, from time to time, that was narrowed to tbe two channels, aggregating about twenty-six feet wide. When tbe bridge was in progress of construction plaintiff protested to those doing tbe work that the openings were too small. After tbe new structure was put in, in case •of a heavy rain, tbe water flowing into tbe creek on tbe left •bank above tbe bridge would meet tbe water flowing from the dam and cause a rise and whirlpool motion of tbe water reaching up to tbe dam.

On tbe night of July 4, 1907, there was a heavy storm. Plaintiff was on tbe dam tbe greater part of tbe night. Tbe water came down into tbe creek from tbe steep hillsides reaching for a distance of some twelve miles above tbe dam. It also came down in a large quantity from tbe territory on tbe right bank of the creek between tbe dam and bridge, particularly down tbe aforesaid gully on tbe side of tbe highway. Erom time to time as tbe storm progressed plaintiff took tbe splash boards off tbe dam. Tbe water came down tbe gully, meeting tbe water of tbe creek, causing a whirling and backing up of tbe water to tbe dam. About 12 or 1 o’clock tbe barn collapsed from tbe action of tbe water and washed away. Later, as plaintiff testified, tbe dam went out. Sometime during tbe night tbe granary was caused to tip over by action of tbe water and other injuries to plaintiff’s property occurred. No damage was caused to plaintiff’s property by in-•sufliciency of the culvert till tbe occasion in question.

At tbe close of tbe evidence tbe court directed a. verdict in favor of tbe defendant upon tbe ground that 'the evidence showed tbe damage to plaintiff’s buildings to have occurred before tbe dam broke and by reason of tbe natural freshet *237flow of the stream, and tbat sucb flow below tbe dam and above tbe bridge was so obstructed by tbe filling up caused by plaintiff after tbe building of tbe bridge; and tbat sucb obstruction efficiently contributed to cause tbe overflow and tbe damage. Judgment was rendered accordingly.

Eor tbe appellant there was a brief by *Bentley & Kelley,*and oral argument by *F. B. Bentley.*

Eor tbe respondent there was a brief by *Daniel Buggies*and *Jolm A. Aylward,*and oral argument by *Mr. Buggies.*

MaRshalu, J.

Whether tbe trial court was warranted in directing a verdict in favor of respondent upon tbe ground tbat tbe evidence conclusively showed negligent maintenance by appellant of tbe dam to have efficiently contributed to produce tbe injury complained of, in tbat it resulted in tbe natural bed of tbe creek between tbe dam and tbe bridge being filled up by *debris*cast there upon occasions of tbe dam being washed out, and tbat such filling obstructed tbe flow of water to and through tbe openings under tbe bridge, materially adding to tbe danger of water overflowing tbe creek banks above tbe bridge and reaching appellant’s improvements with damaging effect, does not appear very satisfactorily. It is doubtful, at least, whether tbe judgment could be sustained upon tbe precise ground tbe trial court rested it, but there is a much broader one in favor of respondent which seems to be insurmountable.

Tbe claim of appellant tbat the natural flow of tbe stream below tbe dam, augmented by water which came into tbe creek from tbe few acres of surface on tbe right bank, was so obstructed at tbe bridge as to overflow tbe creek bank on tbe left .side in sucb quantity as to form a deep powerful torrent reaching to and engulfing tbe bam and granary, located as indicated in tbe statement, overturning tbe latter and causing tbe former to collapse and float away, — ds too incredible for belief.

Tbe story told by appellant tbat tbe occurrence to tbe bam *238took place long before the dam went out taxes our credulity at least to the limit. There is a boundary beyond which a witness cannot go and have his evidence entitled to any weight in determining the truth as to a controverted question of fact. It is a mistake to think everything which a witness may say under oath, however preposterous, is proof. The story of a witness on the stand, uncontradicted by any instrument or statement from the mouth of any other witness, may, in the light of physical situations and matters of common knowledge, convict him of at least being conclusively mistaken. In suggesting this we do not intend to go so far as to decide that the appellant in this case told a false story as to the time when the barn floated off with reference to when the dam went out. For the purpose of the case, it may be assumed that the story, however incredible, is a true one and the result would be the same as we view the record.

The laws of nature cannot he turned aside by the story of any witness or number of them. Water will flow down hill and in all such directions till it comes to a level, and a few inches of disturbance of the level within such distances as are material to this case, that is from point to point in the territory bounded by the creek, the dam, the mill flume and race, and the highway; will inevitably, in case of the volume being large, cause a rapid, forceful flow. The lay of the ground was such that before water in the downward course on the left side of the creek was sufficient to reach and do the damage to the buildings complained of, it must have been several feet deep and in a stream reaching from the bank of the creek toward the flume over 100 feet and below the mill, covering practically the whole width between the creek and the tail-race, a distance of nearly 200 feet. It cannot be that water flowing into the creek just above the bridge formed any material part of such a great body. It must have come from above the dam, primarily; territory hundreds of times greater in area than that served by the inflow to the creek between the dam and the bridge.

*239Tbe evidence from tbe mouths of witnesses is that tbe rain storm was not extraordinary, yet, by undisputed evidence, for tbe four years tbe bridge bad been maintained, as at tbe time of tbe occurrence in question, it bad not caused any injury to appellant’s property. That there were some bard storms in tbe meantime tbe evidence amply shows. Therefore, assuming that tbe witnesses were correct in saying that there was nothing extraordinary about tbe storm in question, certainly some other extraordinary occurrence must have taken place to have caused such an immense body of water to come- from tbe territory above tbe line of tbe dam as was flowing down tbe valley outside tbe banks of tbe creek at tbe time tbe barn floated off. Such an occurrence is not consistent with tbe direct evidence, except that appellant took off tbe splash boards from bis dam before tbe barn moved off. Of course, in view of tbe size of tbe flowage above tbe dam and tbe storm, tbe removal of tbe splash boards must have greatly augmented tbe natural freshet flow of tbe stream; and yet it is bard to believe it could have done so sufficiently to have produced such a deep, broad stream as that mentioned.

Tbe only complaint about tbe bridge is that tbe openings were decreased in capacity by a narrowing of about one third. As tbe opening practically was unobstructed the morning after tbe dam went out, it must have been so during tbe night in question. There was nothing in tbe changed characteristics -of *the*bridge, from tbe time when it was confessed that it did not obstruct tbe stream, to account for tbe great flood passing down tbe highway, except narrowing of tbe opening about six feet. That such narrowing could not have caused tbe flood is plain beyond room for reasonable controversy. If such narrowing bad caused water to pass down on tbe left bank across tbe highway it could not have been sufficient, under tbe circumstances, to create a stream of any great depth. If tbe whole opening in tbe bridge, as it formerly existed, bad been ■closed up so as to compel tbe entire ordinary freshet flow of tbe stream to pass down tbe valley on the left bank, tbe spread *240would bave been so great that no such broad, deep flow would have occurred as must have existed at the time the barn collapsed and floated off and the granary toppled over.

So irrespective of whether the filling up of the channel below the dam by *debris*from the dam previous to the occurrence in question, proximately, to any extent, caused the damages complained of, it is very plain that the jury would not have been warranted in finding from the evidence to a reasonable certainty that the change in the bridge had anything, substantial to do with the matter.

*By the Court.*— Judgment affirmed.

TimxiN, J.

I concur in the result but not in all that is said in the opinion. I have not that confidence in my knowledge of physical situations as established by oral evidence nor in my grasp of “matters of common knowledge” which would enable me to thereby impeach and discredit a witness. I may be pardoned for doubting whether others have such power.

Testimony which is demonstrably false may no doubt be rejected, as if one should testify that the square root of 64 was 9, or that the sum of the interior angles of a triangle was greater than two right angles. Testimony might also in some cases be rejected which was so much in conflict with known natural laws that the act or event testified to would be a miracle. But not every one would agree with this last proposition. In every case, however, where the physical situation is itself derived or imagined from oral narrative, even if the latter be uncontroverted, and in all that vast number of instances where common knowledge may possibly be only common error, there should be no such rule for weighing testimony.