O'Donnell v. City of New London
| Decision Date | 10 March 1902 |
| Citation | 113 Wis. 292,89 N.W. 511 |
| Parties | O'DONNELL v. CITY OF NEW LONDON. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waupaca county; Chas. M. Webb, Judge.
Action by Daniel O'Donnell against the city of New London. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
This is an appeal from an order sustaining a demurrer to the amended complaint, alleging, in effect, that during the times mentioned the plaintiff was the owner of the lands described; that the Embarrass river flows in a southerly course between such lands of the plaintiff, and empties during its low-water stage into the Wolf river, in the lumber yard described, in the city of New London; that the lands of the plaintiff lie north and west of the lumber yard, and are all within the limits of the city; that a portion of the plaintiff's lands is low bottom land; that the Embarrass river frequently overflows its banks, and from time immemorial it has been the natural course of the overflow water of said river to pass over said lands west beyond the highway thereinafter described, and thence empty into the Wolf river, in the town of Mukwa; that in all times of high water, or whenever the waters of the river overflow its banks, the course of the water is over said bottom lands of the plaintiff, and the same is the water course of the river; that for many years the city has maintained a street or highway bordering the low lands of the plaintiff, known as “Shawano Road,” for a considerable distance in the city, which highway had been graded a considerable height, and two bridges or culverts for the overflow water to pass had been built, kept, and maintained all that time by the city through the said highway, so that the overflow water would pass over said lands quickly, and said lands would drain off and dry up, and the same would be suitable for crops each year; that nineteen acres of the said lands were planted to corn during 1900; that during 1899 the plaintiff built a dwelling house on a portion of the lands lying east of the highway, and fitted the lands for a home and for his business, at a cost of about $1,000; that the defendant, by its officers, agents, and servants, while repairing the said highway known as “Shawano Road,” in said city, in the fall of 1899, disregarding the rights of the plaintiff in the outlet for the overflow waters of the river, wantonly, negligently, and unskillfully removed the longest of the bridges or culverts, being an outlet for said overflow waters, of about 30 feet in length, and filled the same in with earth, without providing other bridges, culverts, or sewers for the said overflow waters, and thereby obstructed the said waters in their natural course over the low lands of the plaintiff; that in the fall of 1900 the Embarrass river overflowed its banks, and solely in consequence of the removal of the said bridge or culvert on Shawano road, and the lowering and narrowing of a bridge by the defendant in the lumber yard theretofore, said waters were obstructed and caused to flow back upon the lands of the plaintiff, and submerge all the lands of the plaintiff so described, including his dwelling house, and there to remain for want of sufficient outlet through Shawano road, so that the same remained upon the lands of the plaintiff, submerging his dwelling house for many weeks, thereby ruining his crops and rendering his property of no value for the purpose intended, and that so long as the defendant maintains such highway without providing suitable bridges, culverts, or sewers for such overflow waters to pass, the said lands will be of no value for any purpose; that, by reason of the acts complained of, the plaintiff had sustained $1,500 damages, for which he demands judgment.F. C. Weed, for appellant.
F. J. Feeney, for respondent.
CASSODAY, C. J. (after stating the facts).
The charter of the city provides, in effect, that the common council shall have power to audit, adjust, and allow all claims and demands of every nature against the city, except such claims or demands as are payable out of the school fund; and no action shall be maintained by any person against the city upon any claim or demand mentioned in the preceding section, other than a city bond or order, unless such person shall first have presented such claim or demand to the common council of the city. The determination of the common council disallowing, in whole or in part, any...
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Collins v. City of Memphis, 4373.
...1136; Steltz v. City of Wausau, 88 Wis. 618, 60 N.W. 1054; McCue v. City of Waupun, 96 Wis. 625, 71 N.W. 1054, and O'Donnell v. City of New London, 113 Wis. 292, 89 N.W. 511, go to sustain the proposition that, in respect to demands arising outside of the purely governmental functions of ci......
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Persons v. City of Valley City
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