
    Priewe, Appellant, vs. Fitzsimons & Connell Company and others, Respondents.
    
      March 24
    
    April 17, 1903.
    
    
      Appeal: Inconsistent findings: Hiparían owners: Restoring level of lahe by dam: Nuisances: Abatement.
    
    1. Where there is a finding inconsistent with the judgment in an action, and other findings hy themselves sufficient to warrant such judgment, it should he reversed unless found to he clearly right upon the evidence.
    
      2. It being settled thqt a riparian proprietor as a matter of right may dam up the outlet of a lake so as to raise the level of the water therein to where it was at a former time before disturbed by unlawful interference by drainage operations; a finding that a dam constructed by such proprietor for that purpose will cause the water of the lake to rise higher than before such interference, and one that the level of the lake cannot be raised to its former condition without obstructing the outlet of the lake substantially as by the construction of such dam, are manifestly inconsistent, and no judgment involving the legality of such obstruction can be based thereon.
    3. When a person has a legal or equitable right to do a particular thing, requiring in the enjoyment thereof the exercise of judgment, and he proceeds with due care in that regard, and the conditions are such that a mistake of judgment on his part might create an actionable private nuisance, but the indications are clear that such mistake will probably be promptly remedied by him upon the same developing, and private parties, in mere anticipation that such person’s operations may create such a nuisance injurious to them, prevent him from a fair exercise of his judgment in the matter by obstructing his proceeding at all, they are wrongdoers and may be dealt with at law or in. equity as the case may require for the efficient protection of such right.
    4. A person, in mere anticipation that an actionable private nuisance injurious to him may result from the operations of another upon his own premises or upon premises where he may lawfully be for the purposes of such operations, cannot maintain an action at law or in equity against such person in respect thereto.
    5. Where there is no right of action to restrain or remove or to obtain damages in respect to a nuisance created by another, there is no right to prevent, restrain or remove such nuisance without judicial proceedings.
    [Syllabus by Mabshaul, X]
    Appeal from a judgment of tbe county court of Wauke-sha county: M. S. Griswold, Judge.
    
      Reversed.
    
    Muskego Lake, in its natural state and as it existed before artificially changed as hereinafter stated, was a meandered body of navigable water covering a considerable extent of country in Waukesha county, Wisconsin. The movement of the water thereof was toward the southerly side of the lake, where there was an outlet through which the water flowed, and thence in a narrow, sluggish stream for some over a mile to and into Wind Lake, in Racine county. Plaintiff, since prior to 1885, has been the owner of a tract of land bordering on Muskego Lake or the meander line thereof, to wit, lot 4, section 14, town 5, range 20, containing sixty-six and one half acres. The natural frontage of such land upon the lake was about 100 rods. The riparian rights of the plaintiff appurtenant to his land were of considerable value. Prior to 1890 a canal was legally excavated from a point about 1,100 feet north of the southeasterly shore of the lake to Wind Lake, of sufficient width and depth to drain the water of the former lake into the basin of the latter, reducing the level of the water of the former about four and one half feet. The canal in the bed of the lake was planned eighteen feet wide at the bottom and thirty-four feet wide at the top, but was made wider. It was constructed under legislative authority by commissioners duly appointed for that purpose, and at the cost of the landowners benefited by the drainage, including the plaintiff. The result of such construction as to plaintiff’s premises was to uncover a strip of land in front thereof from fifty to one hundred feet wide, but without materially impairing the value of his riparian rights. He became a party to the drainage work done by the commissioners by accepting the benefits thereof and paying the assessment imposed upon his property by reason of such benefits.
    Between April 17, 1892, and some time in 1894, the Wisconsin State Land & Improvement Company, a corporation acting under colorable authority from the state of Wisconsin, prosecuted a scheme for wholly draining said lake, and in so doing deepened and greatly changed the character of the canal in the bed of the lake, and also deepened it throughout its entire length between Muskego Lake and Wind Lake, and made other physical changes sufficient, in the whole, to reduce the level of the former lake about four feet, greatly damaging plaintiff’s premises. In 1894, while the said second drainage was in progress, plaintiff commenced an action in the circuit court for Milwaukee county against tbe improvement company to restrain it -from completing its scheme of drainage and to compel it to restore the lake to the condition it was in prior to the commencement of its work. Such proceedings were duly had in such action that March 25, 1898, judgment was rendered in favor of plaintiff, deciding that the legislative enactments to which the improvement company referred for its authority to drain the lake were unconstitutional and void, and that plaintiff was entitled to have the lake restored to the condition it was in prior to the company’s opei*ations, and requiring such company to do so within thirty days, and providing that if .it neglected to do so, plaintiff might himself accomplish such result at its cost. This language was used in the judgment which was rendered:
    “Plaintiff ... is entitled to have the canal constituting the outlet of Muskego Lake filled up and restored to the condition in which it was left after the completion of the work of drainage under said ch. 169, Laws of 1887, and . . to have the waters of Muskego Lake restored to the level at which the same stood at and after the completion of such drainage and prior to the doing of any work by the defendant.”
    “The defendant ... is commanded, ordered and required to fill up the ditches dug by it in the bed of Muskego Lake and to fill up and restore the canal or outlet connecting Muskego Lake with Wind Lake to the condition in which such canal was before the defendant did any work therein so as io permit the water to remain and return to and refill the lake to the level at which it stood prior bo the . . . time that the defendant did any work of drainage therein. And said defendant is ordered, adjudged and decreed to restore and to refill the canal leading from Muskego Lake to Wind -Lake within thirty days of the service of notice of entry of the judgment herein ... so that said canal . . . when so filled and restored shall not average more than eight feet in depth nor more than eighteen feet in width at tbe bottom, and not more tban thirty-four feet in width at tbe top. But in case said defendant does not begin work of refilling and restoring said canal leading from Mnskego Lake to Wind Lake witbin seven days from and after tbe service of notice of entry of tbis judgment upon it, thereupon the plaintiff, at bis option, may cause said work of refilling and restoring said canal to be done as .required of tbe defendant, and tbe plaintiff’s expense and cost of doing said work shall be paid by tbe defendant.”
    Tbe improvement company appealed from sucb judgment to tbis court, where it was construed by so restraining tbe literal sense thereof as to require only sucb filling up of excavations between tbe two lakes, or in Muskego Lake, as might be necessary to restore tbe natural condition of tbe water of tbe latter lake to that existing before tbe second drainage work was commenced. 103 Wis. 537, 553, 79 N. W. 780. Sucb construction, or modification, it may well be called, was deemed necessary, as indicated in tbe opinion of tbis court, because it was seen tbat if tbe judgment were taken literally, it would bear with unnecessary harshness upon tbe improvement company and probably result in tbe plaintiff not obtaining any relief whatever as a result of tbe litigation. It was in effect pointed out tbat tbe objective point sought, and which plaintiff was entitled to secure, was tbe restoration of tbe level of tbe lake to tbe condition it was in before being disturbed by the improvement company under its pretended authority, and tbat if it were required to do tbat by restoring tbe canal from Muskego Lake to Wind Lake to its former condition, and to do tbat by tbe exact means mentioned in tbe judgment, taking tbe same in its. strict literal sense, tbe expense would probably be so great tbat tbe judgment could not be enforced for want of financial responsibility of the defendant company. It was easily seen tbat in sucb event plaintiff could not bear tbe expense of doing tbe work himself. Since it appeared tbat sucb change could be made in tbe canal in Muskego Lake bed as would accomplish the object of the decree at trifling expense, as compared with the cost of accomplishing that result by a literal compliance with the court’s decree, without affecting the substantial rights of any one not a party to the litigation, the decree was construed, or modified, accordingly. The improvement company failed to comply with the judgment as affirmed by this court, whereupon plaintiff built a dam across the canal about 700 feet northerly from the old shore line, making the dam sufficiently high, in his judgment, to secure that which the court had decreed was his right. Within a day or two after the dam was completed, the defendants, except the Fitzsimons & Oonnell Company and William But-benhagen, concerting together, removed a large portion of the dam from the crest down to several inches below the location of the bottom of the old canal. The persons concerned in the transaction, by their conduct on the occasion thereof and their attitude thereafter, gave plaintiff reasonable ground to believe that if he attempted to rebuild the dam it would be destroyed as before, and that he could only protect his right in the matter by applying to the equity jurisdiction of the court to compel the defendants to restore the result of his work to the condition in which they found it, and to respond in damages for the loss caused to him by their operations and to restrain them from further interfering with his efforts to restore the former lake level. • This suit was commenced accordingly.
    The complaint contained appropriate allegations to show all the matters heretofore stated, except the construction of the judgment in the former litigation. The prayer of the complaint was, first, that defendants be required to restore the canal to the condition it was placed in by plaintiff’s work; second, that defendants be enjoined from interfering with plaintiff’s future operations to restore the lake to its condition prior to the drainage work done by the Wisconsin State Land & Improvement Company; third, that plaintiff have judgment for tbe damages suffered by bim from tbe wrongful conduct of tbe defendants complained of; fourth, that plaintiff have such further relief as tbe court might deem proper, and recover bis costs of tbe litigation.
    Tbe defendants answered, justifying their conduct by alleging that they were specially interested in maintaining tbe canal in tbe condition it was in prior to tbe second drainage, and that all they did was done in good faith to prevent plaintiff from disturbing such condition. -
    Tbe evidence on tbe part of plaintiff tended to show that be bad no purpose in constructing tbe dam across tbe canal, to make tbe same higher than was necessary to obviate tbe effect upon the level of tbe lake, of tbe second drainage, and that be left tbe crest of tbe dam several inches lower than tbe proper level of tbe lake, and twenty-two feet wide. The evidence was undisputed that tbe defendants peaceably destroyed tbe dam for about ten feet on tbe crest, to a point about seven inches below tbe bottom of tbe old canal; that they insisted openly that plaintiff bad no right to fill up any portion of tbe canal above the location of such bottom. There was evidence tending to show that the old canal was incorporated into tbe new one and that defendants approved thereof and acquiesced therein; and tbe evidence was undisputed and it was established as a fact, that when they destroyed plaintiff’s work, tbe level of the water in tbe lake was considerably below where it was before tbe second drainage. Whether tbe plaintiff’s dam, bad it been left undisturbed, would have raised tbe level of tbe lake higher than where it was before tbe canal was deepened, was in dispute, plaintiff contending in good faith that it would not. There was also evidence tending to show, in one view thereof, that the dam was too high, while there was other evidence tending to prove that though tbe crest of tbe dam was some two feet and a half higher than tbe bottom of tbe old canal, by reason of tbe fall from tbe crest of tbe dam to tbe tail water below, water would be discharged to the lower level, when high enough, to flow over the dam, in a sufficient volume to prevent the level of the lake being made higher than the same was prior to 1892. There was no evidence produced, as to the amount of water required to be discharged from the lake in order to regulate the level thereof as plaintiff was entitled to do, or what length upon the crest of a dam twenty-two feet wide, the width of the crest of plaintiff’s dam, it would take to pass such amount.
    The court decided the issues in effect as follows:
    (1) This related merely to an amendment of the answer.
    (2) There is no evidence connecting defendants Fitz-simons & Gonnell Company and William Bulienhagen with the alleged wrongdoing, and plaintiff’s counsel so conceded the fact to be at the close of the evidence.
    (3) The allegations of the complaint relating to the first and second drainage, and the suit by plaintiff to enjoin the latter and compel the restoration of the lake to its condition prior to such latter drainage, and the result of such suit, are true.
    (4) The first drainage work was done under and pursuant to legal authority and all of the defendants, except the Fitz-simons & Gonnell Company and William Buttenhagen, are specially interested in maintaining the same.
    (5) There was a second drainage of Muskego Lake, substantially as alleged in the complaint, but in judicial proceedings, as there alleged, the same was held to be without authority of law, and the excavations made in effecting such drainage should be filled up by the party responsible therefor.
    (6) Plaintiff and others, before the commencement of this action, filled the canal at a point about 700 feet from the southeasterly shore to a point considerably above where the bottom of the old canal was, causing the water of the lake to rise above the level of such bottom, and rendering it probable that the water would rise to a sufficient height to overflow the lauds in wbicb defendants were interested, wbicb were drained by tbe canal as it existed before tbe second drainage. Thereupon defendants, believing that sucli would be tbe result, peaceably removed tbe dam and in so doing made an opening therein somewhat lower than tbe bottom of tbe old canal. If they bad not taken such course, tbe dam would have caused tbe water to set back upon tbe lands they owned or were interested in, wbicb were uncovered by tbe first drainage.
    (I) Tbe reasonable cost of replacing tbe filling, taken out by tbe defendants, is $115,
    (8) Plaintiff’s filling was within tbe boundaries of tbe old canal. It was necessary to remove tbe same in order to prevent great damage to tbe defendants by overflowing tbe lands in wbicb they were interested, and they accomplished such result for no other purpose than to prevent such damage from accruing.
    (9) After considering plaintiff’s request, tbe court also finds as facts, — tbe Wisconsin State Land & Improvement Company wholly neglected to comply with tbe judgment requiring it to restore tbe canal between Muskego Lake and Wind Lake to the condition in wbicb it found tbe same.
    (10) It was a matter of common knowledge among tbe people living within tbe vicinity of Muskego Lake and interested in tbe drainage thereof, including tbe defendants, at the time of tbe acts complained of, that plaintiff was authorized by the judgment against tbe Wisconsin State Land & Improvement Company, to fill up tbe excavations made by such company.
    (II) Tbe work done by tbe improvement company consisted in so deepening and widening tbe canal from- Muskego Lake to Wind Lake, and making other excavations, as to lower tbe former level of tbe lake at least four feet.
    (12)Tbe improvement company, in constructing tbe canal in tbe bed of Muskego Lake, followed tbe old line, but reduced the width of tbe former ditch and deepened the same some four feet.
    (13) The effect of deepening the canal and all the operations of the improvement company was to lower the bed of Muskego Lake several inches.
    (14) Since the last drainage work was done plaintiff has been wholly deprived of the benefit of his riparian rights.
    (15) To refill all the excavations made by the improvement company wonld cost fifteen to twenty thousand dollars.
    (16) Plaintiff, by being deprived of the benefit of the lake since January, 1900, has been damaged to the extent of $394. The only practicable way to restore the lake to the condition in which the improvement company found it, is to fill up the canal in the bed of Muskego Lake substantially as plaintiff did, for the reason that such result could not be accomplished by restoring all of the prior physical conditions without a large expenditure of money. The court derives this information from the evidence and from a personal view.
    (17) No commissioners, other than the first, have ever been appointed under the legislative enactment of 1887, to which reference is made for authority to do the first drainage work, and no legal work of draining Muskego Lake has been done since the work laid out by such first commissioners was completed in 1889.
    (18) All of the defendants except those excluded as aforesaid participated in destroying plaintiff’s dam, and did so the next day after the sspne was completed and before any of the lands they were interested in were affected thereby or any damage whatever had accrued to them by reason of the plaintiff’s work.
    Upon such facts the court decided as matter of law that the defendants were entitled to a judgment dismissing the complaint with costs, and judgment was so entered. Plaintiff appealed, having filed such exceptions as were deemed necessary to challenge the finding that the effect of placing the dam across the canal, had it not been removed, would have been to raise the water higher than it was before the operations commenced by the improvement company, also challenging the right of the defendants to judgment on the evidence or the facts found, irrespective of whether his dam was in fact too high or not.
    
      Geo. L. Williams, for the appellant.
    Eor the respondents there was a brief by Ryan, Merton & Newbury, and oral argument by T. R. Ryan.
    
   Maeshall, J.

The evidence abundantly shows that respondents, or those whose rights they assumed authority to summarily vindicate by removing appellant’s dam across the drainage ditch in the bed of the lake, were benefited by the work of the Wisconsin State Land & Improvement Company which was condemned in the’ suit of Priewe against such company (103 Wis. 537, 79 N. W. 780), and were parties to such work by acquiescence, and, under the principles laid down in such case, were bound not to complain of such work as regards the effect thereof upon their property. As to them the company could have successfully claimed protection on principles of estoppel in pais. In making the second drainage, it adopted the old canal as a basis, in part, for the new work. ' It so incorporated the old excavation in the bed of the lake into the new one that the identity of the former was in a great measure lost. On that account, when this court 'came to construe the judgment against the company in the former litigation the first canal was not regarded as having an identity distinct from the second one. It was said, in deciding the appeal, that the effect of the judgment in favor of 'Mr. Priewe, as rendered in the circuit court, was that he was entitled to have the condition of Muskego Lake, as the same existed prior to the second drainage, restored; and, to that end, that he was entitled to have so much of the canal in the bed of the lake, or elsewhere, filled up, as would accomplish that result. Tbe thought, evidently, in the mind of the circuit court in rendering the judgment, as understood and approved here, was not merely that the original condition of the old ditch should be in all respects restored by the improvement company, but that the former condition of the level of the lake should be restored; that the canal in the bed of the lake, as it then existed, should be so dealt with as to accomplish that result. In that litigation appellant established his legal right to have such former condition restored as against the improvement company. He is evidently entitled to an equitable remedy to secure protection against it in the enjoyment of that right. Since respondents were, by acquiescence, parties to the second drainage work, he has an equitable right, as against them, to a' restoration of the former lake level by the same meanj that he may justly use as to the improvement company. They cannot be successfully heard to complain of any mere physical change in the canal which does not in fact raise the level of the lake higher than it was before being disturbed by the second drainage. Plence, they were wrongdoers in destroying any part of appellant’s work merely because it was done within the boundaries of the old canal. Their position in that regard was not and is not superior in any respect to that of the improvement company from the standpoint of right in the abstract. Therefore, if appellant did no more in fact by way of filling up the canal than was necessary to restore the former level of the lake, or, in other words, if, had such filling not been disturbed by respondents, the level of the water of the lake would not have been lifted above where appellant, as a party not bound by the second drainage operations, was entitled to have the same, then respondents, in destroying his work, were wrongdoers in any view of the case. The position of the trial court, it appears, is in harmony with that view, so far as the course of the trial and the findings of fact furnish any indication of the theory upon wbicb the judgment was rendered. The judgment, we assume, went wholly on the ground that appellant changed the canal in the bed of the lake so that, had it so remained, in the natural course of things the level of the lake would have been raised so as to submerge lands owned by respondents, or some of them, which were uncovered by the first' drainage.

Passing the matter above discussed, we are met by the claim on the part of appellant that the trial court decided as a matter of fact that the dam placed across the canal by appellant was no higher than was necessary to restore him to his former situation as regards the water of the lake, and that such decision entitled him to the relief prayed for or some effective protection against lawless interference with his operations by respondents. There is good ground, it seems, for that claim, looking at one phase of the case as the learned trial court decided the issues. The findings, however, appear to be in irreconcilable conflict. Findings 1 to 8 inclusive may well have been prepared for judicial approval upon the court’s suggestion that-the issues made by the pleadings were decided in respondents’ favor; while findings 9 to 18 seem to have been made in response to requests by counsel for appellant that the matters referred to therein should be passed upon by the court favorably to his client. In the first group of findings we find this language:

“If said filling was not removed ... it [the water of the lake] would overflow the lands of these defendants . which were drained by the drainage commissioners’ work.”
“If filling was permitted to remain in said channel, as placed there by the plaintiff and his assistants, ... it would have backed the water over and upon large tracts of valuable tillable land which was reclaimed to the defendant landowners by the drainage done by the commissioners.”

Respondents’ .counsel point to that language with great confidence as justifying their clients in summarily ridding the canal of tbe obstructions placed therein by appellant. In the second group of findings we find this language:

“The lake cannot be restored to its natural condition, or the level at which it ordinarily stood after the first drainage, . . -. so as to give plaintiff the beneficial use thereof as provided by the former judgment, without a literal compliance, at great expense, with the judgment rendered in said former action, or the partial damming or filling up of the said drain [meaning the drain in question] near the southerly end of said lake bed, substantially as done by the plaintiff. This finding is based not only on such testimony as is in the case on the subject-matter of this finding, but on . . . personal view.”

It seems useless to endeavor to read out of that language by construction any other idea than that appellant’s operations resulted in placing a dam across the canal no higher than was reasonably necessary to give him the benefit of the judgment in his favor by restoring the lake level to where it was when disturbed by the improvement company’s excavations. Such idea being entrenched as a verity in the findings, if all the other findings were in harmony therewith there could be. but little doubt that appellant would, be entitled to the relief he sought in this litigation instead of being compelled,to go remediless from court and be mulcted in costs for having invoked the arm of equity to protect him in doing the very thing that equity had decreed, after expensive litigation, he was entitled to do.

Counsel for respondents suggested on the oral argument, and there is something of the same sort in their brief, that the court, in making the finding under consideration, had in view merely tire level of the water as adjudged to appellant in the former case, not the actual fact as to where the level of the water was after the first drainage, and that respondents were not parties to such litigation, hence were not bound thereby. True, as we have before sufficiently indicated, respondents are not bound by the judgment against the improvement company upon principles of res judicata. We see no indications tbat tbe trial court bad tbat in mind as rendering tbe finding in appellant’s favor immaterial as regards impairing tbe one in favor of respondents. Tbe court referred to tbe former case, not as settling any particular point upon tbe land of appellant up to wbicb be was entitled to have the late level restored, but as regards tbe principle there established, wbicb must rule this case, not upon tbe principle of res judicata, but because, irrespective of tbe former litigation, appellant is entitled to tbe benefit of tbe lake level unaffected .by tbe operations of tbe improvement company. In other words, tbe principles that ruled tbe former case must certainly prevail in this, on tbat same subject, not because they were there adjudicated, but because they are correct. Of course, tbe fact as to just where tbe former lake level was was a matter material to be established in this case independent of tbe former litigation, and- tbe necessary height of tbe dam in tbe canal, to raise tbe lake to such level as well. Looking to tbe findings in one aspect, we should say tbe trial judge was satisfied tbat such leve] was below where appellant’s work would have restored it. Looking at tbe findings in another aspect, tbe contrary just as clearly appears. This irreconcilable conflict would not call for a reversal of tbe judgment if it were clearly right on tbe evidence and tbe law applicable thereto. But we are unable to come to tbe conclusion tbat it is. Tbe evidence is certainly not sufficiently conclusive for respondents to enable us to come* to a satisfactory conclusion .that way without doing tbe work here tbat rightfully should be done by a trial judge and-generally is left, upon a reversal, for him to do, where there is considerable doubt as to tbe truth of tbe matter. Brown v. Griswold, 109 Wis. 275, 85 N. W. 363; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 92 N. W. 246.

It seems tbat tbe learned trial judge, in looking at tbe case from tbe standpoint of tbe issues be deemed material, lost sight of tbe fact tbat it was tbe level of the water of the lake prior to the second drainage that appellant was entitled to have restored, not necessarily the former physical condition of the canal from Muskego Lake to Wind Lake. The decision of this court in the former litigation was not studied with legitimate effect by either the court or the learned counsel for respondents. Hence it was overlooked that, to the end that the right of Mr. Priewe to the restoration of the lake level he sought might be vindicated with the highest degree of certainty attainable without unnecessary hardship to the improvement company and without endangering the substantial rights of persons not before the court who were interested in the first drainage, the judgment of the court- below was in effect modified so as not to be read as requiring such company to incur the enormous expense, — do that which, probably, under the circumstances of its financial condition was impossible, — of filling up all of its excavations and restoring all physical conditions in every respect as it found them, but only requiring' it to fill up so much of the canal as should be found necessary to restore the lake level to where it was after the first drainage. That obviously had in contemplation that a mere damming up of the canal in the bed of the lake, or at some point, to- the necessary height to restore the former lake level, would satisfy the judgment. Certainly the laws of hydraulics were not so little understood here but that it was in mind that to accomplish such result in such way the dam would necessarily have to be constructed higher than the bed of the old canal; and just as certainly it was supposed that the language of the decision would convey that idea to those who might be called upon to execute it or decide other cases involving the same situation. In the old canal the water of the lake moved at the start, evidently, in a very sluggish stream, about three feet deep, as it is shown by the levels sworn to by the engineer who laid out the work, that the slope of the bottom of the canal in the lake was only about two inches in 1,100 feet. The entire fall toward Wind Lake, as shown by the engineer’s work, was just enough to cause a slow current of water from one lake to the other, whereas, the building of a dam across'the canal after it had been deepened some four feet, to a height considerably above the bottom of the old canal, would necessarily create a fall in going a short distance from the crest of the dam, which .would- obviously cause the water to flow out of the lake over the crest of the dam in a shallow but very rapid stream. The result could not be otherwise, in view of the amount of surplus water in the lake, than to merely raise the level thereof slightly above the crest of the dam. The record in this case shows that, with the dam cut down as it was by respondents, to a point several inches below the bottom of the old canal, the water flowed through the opening so rapidly that all the surplus water of the lake was caused to flow into the canal below without raising the level of the lake more than about seven inches above the location of the old canal bottom, whereas formerly it was a little over three feet above that point. The learned court, in the sixth finding, gave great significance to the fact that plaintiff’s dam raised the water above the bottom of the old canal, as if the bottom of the canal, instead of the water level of the lake, was the important feature to be studied. True, the evidence is undisputed that the dam raised the water above such bottom, but plaintiff was entitled to raise it, not only to that point, but some three feet above the same, since that is where it was before the second drainage, as shown clearly by the evidence of Mr. Powrie, the engineer, in connection with the diagrams verified by him and introduced in evidencé. Such diagrams show the level of the water of the lake and the other levels significant for the purposes of this case, at different times, and they, in connection with Mr. Powrie’s evidence, show clearly that while appellant’s dam was constructed some over two feet and a half higher than the bottom of the old< canal, the crest thereof was yet about seven inches lower than the level of the water as it formerly flowed through such canal.

Who can say that seven inches of perpendicular space between the line of the water level as the same existed after the first drainage and the crest of appellant’s dam, the crest being twenty-two feet long and the fall therefrom to the tail water below being three feet or more, as shown by the evidence, would not have been reasonably sufficient to' pass the water of the lake in a sufficient volume to have prevented the lake level from rising higher than where appellant was entitled to have the same, without actually experimenting or at least without knowing something about the volume of water to be discharged in order to prevent such rising, and the speed of the current under the circumstances ? No witness in the case testified with any degree of definiteness, either as an expert or otherwise, on the subject. There was no proof from which a satisfactory conclusion could be reached independently of expert evidence that the dam, under the circumstances, would not allow the necessary amount of water to pass out of the lake. When the learned trial judge came to this branch of the case, though he evidently deemed the matter not material since in any view of the evidence the bottom of the old canal was disturbed by the dam and the water raised above it, he found, in effect, that such structure was not, in view of the fall from the crest thereof to the tail water below, caused by the second drainage, — the “changed condition,” as the matter was expressed in the finding,'— higher than was required to prevent the water of the lake from flowing to the level of the water below the crest of the dam in greater volume in a given time than it was wont to do before the second drainage; in other words, that the dam was none too high to restore the lake level to where it was before the canal was deepened by the improvement company. There was nothing definitely to that effect in the evidence of Mr. Powrie, the engineer, upon whose testimony the learned. court evidently relied in making tbe sixth finding to the effect that the dam, as constructed, would have caused the water of the lake to back up over lands uncovered by the first drainage. The witness said, if the water raised to the top of appellant’s dam it would raise the water of the lake that high. It would not require a civil engineer to tell that. He said further that if the canal was filled up several feet above where it was before the second drainage, speaking, evidently, of the entire canal between the two lakes, it would not serve the original purpose. That, too, is evident. However, there was no such case before the court. The canal as a whole had not been filled up several feet above where the improvement company found it, and no one proposed to do that. There had been a dam put across the canal, the crest thereof being several inches below the level of the lake as the improvement company found it. That would not necessarily, if allowed to remain, have prevented the water of the lake from being discharged therefrom as fast as formerly. He said if there was a dam across the canal such as appellant put in it would set the water back. That, too^ is evident. It did not require the evidence of an expert to prove that fact. Howevex1, appellant had a light to set the water back so as to raise the level thereof in the canal some three feet above the bottom of the old canal None of the questions that elicited such evidence was calculated to obtain any valuable information bearing upon the vital issues in the case or any valuable information at all except upon the false theory that the water could not be legitimately i*aised higher than would result from damming the canal to a level with the bottom of the old canal. When the witness was asked whether, if the water was i*aised as high as appellant’s dam, it would have any effect on the land uncovered by the first drainage, he said he could not tell offhand. At that point the witness evidently did not have in mind the fact that the levels run by him, which were before the court, showed that the crest of the dam was some seven inches below the level of the water after the first drainage, or, as probably was the fact, he was unable to say, without knowing the volume of the surplus water of the lake and carefully calculating from the length of the crest of the dam how many inches above the same would be required to vent such surplus, what the effect of appellant’s dam might ultimately have been had it not been removed.

The case on the evidence being as above indicated, it is clear that we cannot sustain the judgment as right regardless of the findings. Neither can we say, with such certainty as a fact ought to appear in order to be found upon evidence here, that appellant’s dam was not too high; though it seems that the probabilities point pretty strongly that way. It may be the truth of the matter cannot be told with certainty without actually experimenting with the dam as it was constructed. If so, appellant ought to be permitted reasonable opportunity to make such experiment up to a point which would at least raise the water substantially to the danger line. However, it seems .that the amount of water that would naturally flow out of the lake in its former condition can be determined approximately by a person experienced in that line of work, using the appliances and rules usually employed for that purpose, and that the height of water above the crest of the dam, in view of the length of the crest, required to permit the water from above the dam to flow over the same and toward Wind Lake in a sufficient volume to prevent raising the level of MuskegO' Lake above where appellant is entitled to have the same, may be determined with reasonable certainty. It seems, also, that evidence may be readily obtained as to a construction that may be cheaply put into a dam across the canal to regulate itself, so that before the water above the dam passes the danger line the volume thereof passing over the crest will be automatically sufficiently increased to avoid raising the level of the lake too higb. Evidence along these lines, or such lines as will enable tbe court to define, with reasonable certainty, appellant’s rights and those of the respondents as veil, should be produced, and then a judgment should be rendered accordingly, and the same should then be executed and respected by all parties, and the litigation cease over this matter, the underlying principles of which have been several times passed upon by this court.

There is another feature of the case worthy of some consideration. Appellant, by his operations, did not purpose doing more than just enough to avoid the effect upon the lake level of the improvement company’s work, and it was his intention, if his filling as completed should prove to be too high, to promptly lower the same upon that fact developing. The evidence is also undisputed that the wishes of the farmers who desired to have the old drainage work remain effective would not be violated in that regard by appellant; also that the level of the lake was not up to where appellant was entitled to have the same, nor where it injuriously affected any of the respondents, when they took the law into their own hands and destroyed the work. There are no circumstances disclosed by the evidence showing that such hasty summary action on respondents’ part was at all necessary to prevent irreparable damage to them. Eor all that appears, they could safely have waited till the water was up to the old line and then have avoided all danger of its going higher, if such danger developed, by merely requesting appellant to lower his filling, or by then reducing the height of the dam themselves in a reasonable way, instead of destroying the same entirely, as they did, in effect. Again, the courts were accessible to them and -were able to furnish them adequate protection, the same as they were open to appellant, and no reason appears by the evidence to justify them in not invoking judicial assistance instead of summarily wholly destroying the effective use of the dam. In that situation, were respondents justified in advance of tbeir rights being judicially settled, in doing wbat they did, and would they be justified in continuing such conduct, as it was made plain to the trial court they purposed doing unless restrained by injunctive relief in appellant’s favor ? Counsel for appellant claims not, and makes the point that the judgment appealed from is wrong upon the evidence and the findings on that question, if upon no other.

The solution of the proposition last suggested is governed by a few familiar principles. Appellant, as we have seen, had a clear legal and equitable right to change the character of the canal so far as necessary to enable him to restore the water of the lake to the condition it would have been in but for the second drainage. So long as his actions in that regard caused no actual injury to respondents, nor created a situation from which injury to them was certain to result,, they had no cause of complaint against him. Without such cause they could not have brought action against him, either in law or in equity; hence they had no right to take the law into their own hands and destroy the result of his work. The law on that point is well settled. Garrett, Nuisances, 353; Wood, Nuisances, § 100; 3 Blackstone, Comm. 220; 1 Hilliard, Torts (4th ed.) 605, 608, and note; Adams v. Barney, 25 Vt. 231; Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53; Brown v. Perkins, 12 Gray, 89, 101. There was no nuisance to be abated in any view of the case up (to the time respondents did the acts complained of; therefore they manifestly had no action at law against him, because they had suffered no damage. There was no certainty that what appellant had done would cause any actionable nuisance to respondents or any of them, even if it be admitted that the filling placed in the canal was of sufficient height that, had it remained, the lake level would have been higher than appellant was entitled to have it, as it clearly appears that he did not intend to maintain the filling so as to do more than restore the former level of tbe lake. * If be in fact constructed it a little too bigb, it was a-mere mistake of judgment, and constituted no basis for an action in equity to restrain a threatened nui-sanee, since, so far as appears, be stood ready to- adjust tbe level of tbe filling to tbe proper beigbt as soon as that developed, and there was no danger whatever of any irreparable damage happening to respondents before they could themselves have reduced, tbe filling bad appellant neglected or refused to do so>. He bad a right to exercise bis judgment in tbe matter, so'long as be proceeded reasonably and inflicted no injury upon respondents. Any violation of that right by them constituted them wrongdoers, subject to be dealt with at law or in equity, as tbe nature of tbe case might require in order to furnish appellant an efficient remedy theiefor. In short, since at tbe time they destroyed appellant’s dam they bad no right of action against him, legal or equitable, their conduct towards him was wrongful and be was entitled to some judicial remedy therefor. In view of tbe undisputed evidence that it was their purpose, at tbe time of tbe commencement and trial of this action, to continue interfering'with appellant’s efforts to restore tbe lake level by filling up tbe channel in tbe bed thereof, and that tbe putting of a new dam in tbe channel would have resulted only in a repetition of what is here complained of, it seems obvious that there was no adequate way open, for him to remedy tbe interference with bis reasonable efforts to restore the former lake level, but to apply to a court of equity for protection, as be did.

It is clear to us that tbe evidence in this case should be reconsidered by tbe trial court in the light of the principles here laid down, keeping prominently in view tbe fact that respondents are not entitled to prevent obstructions from being placed in tbe canal in tbe bed of tbe lake merely because they are built up above tbe level of where tbe bottom of tbe old canal was, which do not do more than obviate the effect of the second drainage work; tbat tbe beigbt to which appellant may rightfully build such obstructions is not limited by where such old bottom was, but by the effect of the dam as regards raising the lake level up to where the commissioners’ drainage left it; that the objective point to be at all times kept in view is the restoration of such former level, regardless of where the crest of the obstruction used to accomplish that result may be with reference to the old canal bottom, so long as it is not high enough to carry the ordinary level of the lake above where it was before.

The judgment appealed from must 'be reversed and a new trial had on the questions suggested, and new findings and conclusions be then filed, and a decree be then rendered according thereto and in harmony with the principles declared in this opinion for the guidance of the trial court.

By the Court. — So ordered.

Dodge, J., took no part.  