Johnson v. Chi., St. P., M. & O. Ry. Co.

• Decision Date: 15 December 1891
• Citation: 80 Wis. 641,50 N.W. 771
• Parties: JOHNSON v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

80 Wis. 641

50 N.W. 771

JOHNSON

v.CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Dec. 15, 1891.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action by John Johnson against the Chicago, St. Paul, Minneapolis & Omaha Railway Company to recover damages for diverting and discharging surface water upon the premises of the plaintiff. Plaintiff obtained judgment. Defendant appeals. Reversed.Tomkins, Merrill & Smith, for appellant.

Lamoreux, Gleason, Shea & Wright, for respondent.

ORTON, J.

This action is brought by the plaintiff to recover damages of the defendant company for diverting surface water running across its lands to and over the premises of the plaintiff. The railway track of the defendant runs east and west along the center of Fourth street of the city of Ashland, and the street is between blocks 28 and 29 on the north and blocks 47 and 48 on the south; and the defendant also owns the north half of said last-mentioned blocks, on which it has three side tracks, leaving the main track west of said blocks and running southeast. The premises of the plaintiff are lot 11 in block 28,--the second lot north of Fourth street; and the brother of the plaintiff owns the intervening lot. These blocks lie between Eleventh and Beaser avenues on the east and west,--Eleventh avenue on the east, and Beaser avenue on the west. There is a ravine coming down from the south on the land of the defendant, and running to Eleventh avenue, and thence turning north-east towards the lake, by which surface water, in the time of rains, is carried across the railway track; and just north of the track there is a swale of some depth at the center, which is filled up in the time of rains, and the water runs off in said ravine towards the lake. There is another ravine, or low place, turning towards north-east from or near the upper end of the other ravine last mentioned. The defendant made a culvert under its track for the water in the first-mentioned ravine to run off north towards the lake, and cut a ditch along the south side of its track from near said culvert to a point on Twelfth avenue, to meet another ditch running through the low ground or ravine second above mentioned; and thence there was constructed a box-drain along the south side of the track to carry the water on towards the west, to a point on Fourth street, opposite the plaintiff's lot, where a culvert under the track was constructed to carry the water off north-west towards the lake, over and through the plaintiff's lot, after passing the lot of his brother. The track of the Northern Pacific Railway runs east and west along Fifth street, south of Fourth street. There is a ravine from the south of Fifth street and south-west of the south-west corner of block 47, and runing northwardly to the last-mentioned culvert, opposite plaintiff's premises, by which surface water is carried through a culvert under the track of the Northern Pacific road, and on through the culvert opposite plaintiff's premises, and across the same towards the lake. These culverts of the defendant under the embankment and track appear to be placed where the surface water formerly passed towards the lake, and there does not appear to have been made very much change in the natural or former running of the surface water towards the lake by the defendant by its ditches, box-drain, and culverts. Perhaps some more water than formerly is made to pass across the defendant's track opposite the plaintiff's premises; but this would seem to be on account of the natural descent of the ground. The plaintiff testified that the water naturally ran across his lot, and that the ground slopes from Fourth street towards his place, and his lot slopes towards his house, and that his house stands in low ground, and that he put in a drain to divert the water from his cellar, and the drain was stopped up when and a week before he brought this action. He testified also that the water ran across his lot and on north-westerly before the track was laid, and that he and his brother made a dam on the south side of his brother's lot to keep the water from running across the lots, but that it was not high enough in times of heavy rains; and that he built his house in the summer of 1883, and the defendant laid its track opposite his house the same summer.

From this description of the locality it would seem that the defendant company took the only proper measures to pass on the surface water towards the lake, consistent with the building and use of its railway. An embankment along Fourth street was necessary, as that would dam up the surface waters coming across their grounds from the south, in order to pass them off through these culverts a proper distance apart. The ditches and box-drain were necessary to direct the water to the culverts. The plaintiff complains that the company's works...