Barden v. City of Portage

• Decision Date: 24 February 1891
• Parties: BARDEN v. CITY OF PORTAGE.
• Court: Wisconsin Supreme Court

79 Wis. 126

48 N.W. 210

BARDEN

v.CITY OF PORTAGE.

Supreme Court of Wisconsin.

Feb. 24, 1891.

Appeal from circuit court, Columbia county; ROBERT G. SEEBURGER, Judge.G. C. Prentiss and L. W. Barden, for appellant.

W. S. Stroud and J. H. Rogers, for respondent.

ORTON, J.

The Wisconsin river, after it passes the dells above Kilbourn City, runs in an east south-easterly direction to Portage City, and then bends to the south-west. Portage City is on both sides of the river, and on the south side of the river is the farm of the plaintiff, of some 100 acres, within the city limits. The plaintiff's dwelling-house and out-buildings are on or near the river, and there is a bridge across the river, opposite said dwelling-house. The Baraboo river runs for several miles nearly parallel with the Wisconsin river, in some places only a mile or two apart, until it takes nearly the same curve, and empties into the Wisconsin river about five miles south of plaintiff's house. In times of high water the Wisconsin river formerly ran across this dividing space, in several natural currents, into the Baraboo river below. The north banks of the Wisconsin river are generally high along these distances, and the south banks are quite low, with a few exceptions. The south bank for several rods west and east of the bridge and plaintiff's house is high, and the land is high ground where the plaintiff's farm buildings stand, and some distance to the south. A few rods below the bridge the high banks end, and then they are low, and just above the ordinary surface of the water, to the east boundary of plaintiff's farm. The farm is generally low ground; so that, if the river overflows these low places, the water will naturally run over the land to the south, and at the same time to the west, around the high ground where said buildings stand. Before 1886 such flowage had always been comparatively slight, and not much to the injury of the farm. The farm is valuable for raising the ordinary crops and fruits and for hay. There were hay barns in several places, and the buildings are good and suitable for the place. The plaintiff has occupied it as his residence for many years. The town of Caledonia lies a little south of plaintiff's farm in Columbia county, and the town of Fairfield is several miles west, in Sauk county, and the river runs through both of these towns. There is a street or highway south-west from the bridge, which passes some distance through plaintiff's land, and some parts of it are overflowed in times of freshets by the waters running across to the Baraboo river. I have made this description of topographical conditions partly from the testimony, but mostly from my own knowledge and memory, and it may not be critically accurate, but it will aid somewhat in understanding the case. The case was not well prepared. There should have been maps, drawings, and measurements, as well as plans and surveys of the works. An act of the legislature of 1873, entitled “An act authorizing the construction of a levee along the Wisconsin river in the counties of Columbia and Sauk,” is published as chapter 213 of the Laws of that year. It seems that nothing much was ever done under it until about 1885 or 1886. The first section of the act reads as follows: “For the purpose of reclaiming the lands subject to overflow from the Wisconsin river in times of high water, and protecting the highways from overflow, and enabling the proper authorities to keep them in a passable condition at all seasons, the authorities of the city of Portgage, and of the town of Caledonia, in Columbia county, and of Fairfield, in Sauk county, acting jointly or separately, are hereby authorized to construct a levee along the south bank of the Wisconsin river from any point in the city of Portage or the town of Caledonia to such point up the river in the town of Fairfield, and at such distance from the banks of the river as may be necessary and to maintain the same.” By section 5 of said act, the said authorities are authorized to enter upon any inclosed lands; and, by section 6, damages may be awarded according to the provisions of chapter 152 of the General Laws of 1869, relating to damages for laying out highways. In 1885 or 1886 the city of Portage let the contract to build this levee through its own limits, and perhaps further; and the said towns may have acted on the matter also, but to what extent is not stated, except that the levee was constructed for a long distance up the river. The city of Portage constructed the levee for a mile or more above the bridge at a height of from four to nine feet, down to the high land, above described, above the bridge. The effect of the levee has been to prevent the waters of the Wisconsin river from passing into the Baraboo river, where it was wont to flow, in times of high water, and to confine all the waters within the main channel of the river, made much narrower. Between the high banks at and east and west of the bridge, the river is compressed into a width of 600 feet; and the confining of the waters of the river above, between the levee on the south and the high banks on the north side, has caused a much greater volume of water to pass under the bridge than ever before and to raise the river at that point much higher. In 1888 there came an unusually large freshet, but not greater than there had been many times before the levee was built. From this compression of the waters into a narrower channel, as soon as they passed below the high banks south of the bridge, they rushed over the low south bank, and over and across the plaintiff's farm, and back even west, around the high grounds where his main buildings were situated, and more or less flooded his whole farm, washed out the foundations of buildings, destroyed the fences, submerged the highway, carried banks of sand over many acres of ground from one to four feet deep, and generally did great damage to the farm. These effects produced by the levee had never before been tested, but it seems that they had been to some extent apprehended or anticipated by the plaintiff. He had agreed to donate the land on which the levee was built, and from the start was in favor of the work. From his own testimony (and, I think, uncontradicted) it appears that he had frequently notified and warned the authorities that these effects might and would probably follow the termination of the levee at the high bank above his house and the bridge, and that the levee ought to be continued from the...