Opinion
Decided December 4, 1934.
One who has committed a tortious act is liable for injuries resulting as a direct consequence therefrom irrespective of whether they were foreseen or foreseeable. One who raises his dam and floods the land of another without his consent commits a trespass and is liable for all the harm caused to the landowner thereby. In such a case where the flooding caused the land to be infested with muskrats which burrowed underground, and the owner while driving a mowing machine was thrown to the ground when one wheel sank into a burrow, the trespasser was held liable for the injuries caused thereby.
CASE, to recover damages for personal injuries. Trial by jury and verdict for the plaintiff. Transferred by Page, J., upon the defendant's exceptions to the denial of its motions for a nonsuit and a directed verdict and to the denial of certain requests for instructions.
The evidence tended to prove the following facts.
The plaintiff is the owner of a farm bordering on the Connecticut river in the town of Charlestown. The defendant maintains a dam across said river at Bellows Falls, Vermont, and on or about September 15, 1928, raised the height of this dam about eleven feet. As a result of this increase in the height of the dam, the level of the water at the plaintiff's farm under normal low water conditions was raised approximately eleven feet and at the time the dam was constructed the defendant knew that this would be the result. As a consequence of this rise in the height of the water a pool was formed in the plaintiff's field which rises and falls with the river. The bottom of this pool is some eight or ten feet above the normal level of the river.
No permission to flow the plaintiff's land was ever given to the defendant, nor had the defendant, at the time of the accident, taken any legal steps to acquire flowage rights in the plaintiff's premises.
At some time after its formation the pool above referred to became inhabited by muskrats. These animals are usually found "in pools or set-backs like coves and marshes" and the pool upon the plaintiff's premises is a natural habitation for them. It is a habit of muskrats to build their dens under ground with the entrances of the burrows under water.
On June 27, 1930, the plaintiff was operating a two-horse mowing machine in his field near the edge of the pool when one of the horses stepped into a hole, and immediately thereafter the left wheel of the machine struck the same hole, throwing the plaintiff from the seat onto the wheel of the mowing machine and thence to the ground, causing the injuries complained of. Upon subsequent examination it appeared that this hole was about ten inches wide, ten inches long and ten or twelve inches deep and that it was caused by the breaking through of a burrow made by muskrats. This burrow started under water at the pool upon the plaintiff's land and extended in an easterly direction under ground away from the pool.
The substance of the defendant's requests for instructions is stated in the opinion.
Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the plaintiff.
Philip H. Faulkner and Ernest L. Bell, Jr. (Mr. Bell orally), for the defendant.
Although the facts of this case are unusual, the principles of law applicable thereto are well settled and familiar.
The defendant admits that "the flowing of the plaintiff's land . . . constituted a trespass." This being so, the defendant is liable for all the harm caused to the plaintiff by the trespass unless his own conduct was such as to bar him from recovery. "If the close is illegally entered, a cause of action at once arises. Whatever is done after the breaking and entering is but aggravation of damages." Brown v. Manter, 22 N.H. 468, 472; 1 Am. Law Inst., Restatement of Torts, s. 160, Comment k; 2 Ib. s. 380.
The question of the plaintiff's contributory negligence was decided adversely to the defendant by the verdict of the jury and the only question argued here has been one of causation, namely, whether it could be found that the flowing of the plaintiff's land was the legal cause of his injury.
This question was presented in two forms by the motion for a nonsuit and the defendant's requests for instructions. The motion for a nonsuit was based upon the ground that "the injury to the plaintiff was not the natural and probable consequences of the defendant's act in raising the water in the Connecticut River." In its requests for instructions the defendant asked the court to charge that a verdict could not be rendered for the plaintiff unless the jury found that the defendant "should have anticipated that by reason of the setting back of the waters of the Connecticut River onto the plaintiff's premises by its dam, muskrats would . . . dig burrows and holes on the plaintiff's premises and that as a result thereof the plaintiff while driving his mowing machine on his premises, would break through one of these burrows or holes and be thrown from the mowing machine and be injured."
The defendant's whole argument is based upon the proposition that a wrongdoer is liable only for those consequences of his act which were probable and should have been anticipated by him when he acted. This is not the law. Liability for the consequences of a tortious act does not depend, as the defendant asserted in its requests for instructions, upon anticipation by the wrongdoer of the way in which his wrong actually results in harm. In this jurisdiction "the question is not whether the damage was foreseen or foreseeable, but whether it in fact resulted as a direct consequence of the defendant's acts." Tuttle v. Dodge, 80 N.H. 304, 311 and cases cited. In actions based upon negligence the rule of reasonable anticipation may be decisive of the question whether the defendant's conduct measures up to the standard of due care. Minor v. Railroad, 73 N.H. 317, 321, and cases cited. But when a tortious act committed by the defendant has been proved, the rule has no application upon the issue of damages. Bowley v. Duca, 80 N.H. 548, 552; Derosier v. Company, 81 N.H. 451. This point has been so thoroughly considered in the cases above referred to that further discussion at this time is superfluous.
"The question [of causation] is essentially one of fact, and is so treated in this jurisdiction." Derosier v. Company, supra, 462. The jury was instructed in a form favorable enough to the defendant, that "the question is not whether the damage, in the precise form it took, was or might have been foreseen, but whether in fact it resulted as a direct consequence of the defendant's act." There appears to be no reason for disturbing the verdict of the jury upon this issue.
Judgment on the verdict.
PAGE, J., did not sit: the others concurred.