Falkenstern v. Town of Greenfield
| Decision Date | 23 February 1911 |
| Citation | 130 N.W. 61,145 Wis. 232 |
| Parties | FALKENSTERN v. TOWN OF GREENFIELD. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sauk County; Chester A. Fowler, Judge.
Action by Charles Falkenstern against the Town of Greenfield. Judgment for defendant, and plaintiff appeals. Affirmed.
Action to recover damages for creating and maintaining a nuisance to plaintiff's damage.
The claim of the plaintiff was that the town constructed a bridge across a creek below his mill property thereon, leaving an insufficient opening for the free passage of water as formerly, whereby water backed up, overflowed the banks of the stream and carried off some of his buildings and otherwise injured his property.
The claim of defendant was that although plaintiff's property was damaged by flood water at the time alleged, the injury was caused by his having maintained his dam in such an insecure condition that it had frequently been washed out, depositing a large amount of débris in the creek bed between the dam and the bridge, thus interfering with and obstructing the flow of water to and past the bridge; that he knowingly maintained the dam in such insecure condition, and that the damage complained of was caused thereby.
The evidence was to this effect: Plaintiff owned a mill property on a small creek some 250 feet above the bridge in question. The mill and mill race were on the left bank of the stream. The mill dam on the left side was composed of a long solid bank of earth. At the right extending toward the right bank there was an old and a new spillway, the aggregate width being about 90 feet. Further to the right, forming the right wing nearly 100 feet long there was a bank composed of brush, stones and earth.
The water formerly left the spillway in a broad thin stream but by filling up of the creek by débris cast therein from time to time, by washings out of the dam, the water way was caused to divide about 40 feet from the foot of the dam, so that part of the water flowed to the right in a channel which narrowed at a point a short distance from the dam to a width of about 16 feet and part flowed to the left in a channel which narrowed at a point about 100 feet from the dam to a width of about 10 feet. The division between the two channels was about 50 feet. They came together about 240 feet from the dam and the way for the water was then under the bridge through two culvert openings having an aggregate width of 12 feet on the bottom, a height of 5 1/2 feet and a cross sectional area of 72 feet.
There was a large water shed above the dam. The territory was so large that in heavy rains there was danger of the dam being carried out. Such occurrences had happened several times before the occasion in question. There were gates in the dam and splash boards thereon, which were removed when necessary to prevent undue pressure on account of flood water. The removal of the splash boards on occasion of an existing freshet would cause a large quantity of water to be cast into the territory between the dam and the bridge, as the pond was quite large.
The right bank of the creek between the dam and the bridge raised about two feet above the water, ordinarily, when the mill was not in operation. The surface of the ground on that side back from 40 to 100 feet or so was about on the same level, then it sloped upward at an angle of some 45 degrees for a considerable distance. The situation was such that from 5 to 10 acres, or perhaps a little more, of surface drained into the creek on the right side above the bridge and below the dam. The filled in territory aforesaid was nearly as high as the banks of the creek. The left bank was about the height of the right bank. It was so low that a rise of water from the ordinary level of 2 feet or such a matter would cause the same to go out of the creek bed on either side. Near the foot of the left wing and around to the mill, a distance of about 130 feet the surface of the ground was somewhat higher than from a little further down to the highway and further on down the creek valley. The mill race extended from a point in the left wing of the dam about 140 feet from the left side of the spillway nearly parallel with the downward course of the stream for a distance of about 140 feet then turned to the right to serve the mill. The tail race extended from the mill down the valley about 100 feet to and through a culvert over the highway and then on down the valley to an intersection with the natural creek bed. The highway was about parallel with the dam. The approach to the bridge on the right of the creek was raised a little.
On the left side of the roadway down to the creek there was a deep wide gully made by action of the surface water. Down this gully on occasions of heavy rain storms a large quantity of water flowed and into the creek just above the bridge. The fall from the foot of the dam to the bridge was about 3 feet. The territory bounded by the dam, the creek, the flume, the tail race and the highway was 150 feet wide near the dam, 250 feet on the creek line and 240 feet on the side bounded by the highway. The highway from near the bridge to the tail race was on the natural surface of the ground. The ground within the boundaries stated from near the foot of the left wing of the dam and the bank of the creek, which points were about 2 feet above the ordinary surface of the water in the creek, sloped a little down towards the highway so that a rise of water of about 2 feet would cause it to overflow the filled-in territory aforesaid and at the same time overflow the bank of the creek on the left for a distance above the highway of some 200 feet so as to cover a large part of the territory between the creek and the tail race and pass over the highway and down the valley in a still broader sheet. The spread at the highway would be upwards of 200 feet wide in case of there being sufficient water to cover such area. The lay of the surface was favorable thereto.
Plaintiff's mill was located about midway between the left wing of the dam and the highway and about 130 feet from the left...
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...is immaterial what ground the trial court assigned as the reason for his ruling if it be in fact correct." In Falkenstern v. Greenfield, 145 Wis. 232, 130 N.W. 61 (1911), the court concluded that, although the appellant appeared correct in his contention that the verdict could not be sustai......
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...still it is immaterial what ground the trial court assigned as the reason for his ruling if it be in fact correct (Falkenstern v. Greenfield, 145 Wis. 232, 130 N. W. 61;Jeffers v. Green Bay & Western Ry. Co., 148 Wis. 315, 134 N. W. 900;Garage Equipment Mfg. Co. v. Danielson, 156 Wis. 90, 1......