Gibeau v. Town of Pratt

• Decision Date: 05 April 1950
• Citation: 256 Wis. 617,42 N.W.2d 286
• Parties: GIBEAU, v. TOWN OF PRATT.
• Court: Wisconsin Supreme Court

Page 286

42 N.W.2d 286

256 Wis. 617

GIBEAU, v. TOWN OF PRATT.

Supreme Court of Wisconsin.

April 5, 1950.

S. P. Rigler, Rice Lake, Hill, Miller & Hill, Associate Counsel, Baraboo, for appellant.

Norlin & Spears, Washburn, for respondent.

GEHL, Justice.

The plaintiff owns a farm which abuts on the south an east and west highway which from 1919 until 1924 had been a part of the state highway system. In 1922 it became a town road. The plaintiff's land lies at a lower level than the land south of the road and the natural drainage of surface water is from the south to the north onto the plaintiff's land.

In 1922 a ditch was constructed on the south side of the road and a culvert installed across it at its low point in that area and opposite plaintiff's land. The ditch extends westerly along the south side of the road a distance of about 600 feet to a north and south town road which intersects the east and west road. Another culvert was installed at about the same level as the first named culvert under the north and south road at or about the point of intersection of the two roads. The ditch was intended to and for some time did carry surface water to the west away from the plaintiff's land and through the culvert under the north and south road.

It was shown that between 1944 and 1948 weeds, grass and debtis were permitted to accumulate in the ditch so as to prevent the water from traveling westerly toward the culvert under the north and south road. As a result some of the surface water reached plaintiff's land through the first named culvert.

This action was brought for the recovery of damages resulting, as plaintiff claims, from the diversion of surface water caused by the town's failure to keep the ditch open so as to permit it to continue to carry the surface water to and through the culvert under the north and south road.

Plaintiff concedes that, unless he is provided relief by the provisions of sec. 88.38 Stats., under the rule of Merkel v. Germantown, 120 Wis. 494, 98 N.W. 210 he has no action for damages on account of the diversion by a municipality of surface water by the construction of highways. But he contends that the statute affords him a remedy.

Sec. 88.38 Stats. provides:

'(1) Whenever any county, town, city, village or railway company shall have heretofore constructed and now maintains or hereafter shall construct and maintain any public highway or road through, over and across any marsh, lowland or other natural depression over or through which surface water naturally flows and percolates, and the stopping of the said flow and percolation of said water by said highway or road grade causes any crop or land to be flooded, watersoaked or otherwise damaged, such county, town, city, village or railway...