Home/Supreme Court of Vermont/Perkins v. Vermont Hydro-Electric Corp.

Perkins v. Vermont Hydro-Electric Corp.

177 A. 631, 106 Vt. 367, 1934 Vt. LEXIS 183
CourtSupreme Court of Vermont
DecidedOctober 2, 1934
StatusPublished
Cited by58 cases

This text of 177 A. 631 (Perkins v. Vermont Hydro-Electric Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perkins v. Vermont Hydro-Electric Corp., 177 A. 631, 106 Vt. 367, 1934 Vt. LEXIS 183 (Vt. 1934).

Opinion

Moultok, J.

During the flood of 1927 the plaintiff’s property, in the village of Cavendish, was destroyed by the waters of the Black River. He has brought this action to recover for his injury of which he claims the negligence of the defendant *377 in tbe manner in which, it constructed a conduit diverting the waters of School House Brook, and in the construction of an inadequate dike along the side of its pond in the river, about 1,000 feet from plaintiff’s premises, was a cooperative and producing cause. The flood itself is conceded to have been of such unprecedented dimensions and destructive character that it was an act of God. The defendant is a corporation engaged in the business of generating and selling electric power, and, at the time in question, maintained a dam, pond and power house at Cavendish.

At the village of Cavendish the Black River flows in an easterly direction and turns sharply to the north, passing through a narrow defile known as Cavendish Gorge. Just at the turn, and at the entrance to the gorge was the defendant’s dam and pond. The village lies to the north and west of the river, Main Street,, on the easterly side of which the plaintiff’s house was situated, being roughly parallel to the river and turning to the northeast as the river entered the gorge. Between the street and the gorge there was a ridge, called in the record the Hogback or the Kame ridge, which at some distance northerly of the plaintiff’s premises turned to the northwest, the highway passing through it by means of a cut. Beyond the highway the ridge appears to be known as School House hill. A brook, called “School House Brook,’’flowed from the northeast, and at one time crossed Main Street by means of a culvert and then, turning to the south and passing through the plaintiff’s land east of his house and between it and the Hogback, emptied into the defendant’s .pond. About a year before the events in issue, in pursuance to an agreement between the plaintiff and certain other property owners and the defendant, the latter diverted the course of the brook to the northeast by means of a system of Toucan iron pipes or conduits. A 48-ineh pipe, laid under ground received the water of the stream at an intake, equipped with gratings, at a point northwest of the street, and passing under and along it, conducted the water to a. concrete catch basin, situated on the easterly side of the road beyond the Hogback. Another pipe 24 inches in diameter, for the purpose of taking the surface water, was laid from a point in the rear of the plaintiff’s premises, along the original course of the brook, until it joined the course of the 48-inch pipe, from which point it was laid in the same trench, but underneath the larger pipe, *378 until both pipes reached tbe catch, basin. From the basin, a 36-inch pipe extended to an open ditch, through a swamp, the water being finally discharged into the Black River below the gorge. At the lower end of the 36-inch pipe, where it reached the open ditch, there was a'concrete anchor. At the point where the brook originally joined the pond a dike was erected, the details of which will be described later. The general situation and the location of the various landmarks may be seen in the subjoined plan, plaintiff’s Exhibit 1, * introduced at the trial without objection. The plaintiff’s house is the one marked 10 thereon.

During the afternoon and evening of November 3, 1928, the waters of School House Brook and Black River, swollen by a long continued rain of great intensity, overflowed their banks. The diversion system washed away, the soil about it having been eroded by the action of the water, and a trough or ditch was thus formed from the highway easterly to the outlet of the 36-inch pipe. The flood water filled the low land lying easterly of Main Street and westerly of the hogback, and having risen above the level of the highway where it passed through the hogback, flowed to the east along the line of the erosion, thus creating a current the action of which undermined and swept away the plaintiff’s house and property. It is the plaintiff’s claim that the negligent construction of the diversion system caused the erosion along the line of the pipe which, in turn, created a sluice way through which the water rushed with great velocity; and that the dike was built at a height below the level of previously known .high water in the Black River.

At the close of the plaintiff’s case, and again at the close of all the evidence, the defendant moved for a directed verdict. The motion was overruled and an exception taken. This is the first question for our consideration. The motion is based upon twenty distinct grounds, but it is not necessary to recite them, because they will all receive attention in the following opinion.

The law governing the determination of the issues presented by this exception is well settled. Where dámages suffered are due, directly and exclusively, to natural causes, without human intervention, which could not have been prevented by any amount of foresight, pains, and care reasonably to be ex *380 pected, there is no liability because it is an act of God. But, if the damages are not due exclusively to such natural causes, in other words, if the negligence of the one sought to be charged mingles with the operation of the natural causes, the injury is not, in a legal sense, the act of God. So if the injury which the flood occasioned might have been avoided or prevented by human prudence, foresight, pains, and care reasonably to. be expected from the defendant, but not exercised, there is liability. Town of Bennington v. Fillmore & Slade, 98 Vt. 405, 421, 130 Atl. 137; Porter Screen Mfg. Co. v. Central Vermont Ry. Co., 92 Vt. 1, 11, 102 Atl. 44; Eagan v. Central Vermont Ry. Co., 81 Vt. 141, 145, 69 Atl. 732, 16 L. R. A. (N. S.) 928, 130 A. S. R. 1031; Zeno’s Bakery v. State of Vermont, 105 Vt. 370, 166 Atl. 379, 382. The negligence of the defendant must, however, be an active and cooperating cause of the damage. Bennington v. Fillmore & Slade, supra, page 423 of 98 Vt., 130 Atl. 137; Porter Screen Mfg. Co. v. Central Vermont Ry. Co., supra. "The .mere existence of negligence which is not a producing cause of the injury produces no liability.” Helbling v. Alleghany Cemetery Co., 201 Pa. 171, 174, 50 Atl. 970. It must not be ‘‘a'merely fanciful or speculative or microscopic negligence which may not have been in the least degree the cause of the injury.” Baltimore & O. R. R. Co. v. School District, 96 Pa. 65, 70, 42 A. R. 529; Kenney v. Kansas City, P. & G. R. R. Co., 74 Mo. App. 301, 308. So, if the act of God is so overwhelming as of its own force to produce the injury independently of the negligence- of the defendant, the latter cannot be held responsible. Helbling v. Alleghany Cemetery Co., supra; City of Piqua v. Morris, 98 Ohio St. 42, 49, 120 N. E. 300, 7 A. L. R. 129; James v. Kansas City P. & G. R. R. Co., 69 Mo. App. 431, 439, 440; 1 Shearman and Redfield on Negligence (6th ed.), par. 39.

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Bluebook (online)
177 A. 631, 106 Vt. 367, 1934 Vt. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perkins-v-vermont-hydro-electric-corp-vt-1934.