Johnson v. Schmidt (In re Theresa Drainage Dist.)

• Decision Date: 15 May 1895
• Parties: IN RE THERESA DRAINAGE DIST. JOHNSON ET AL. v. SCHMIDT.
• Court: Wisconsin Supreme Court

90 Wis. 301

63 N.W. 288

IN RE THERESA DRAINAGE DIST.

JOHNSON ET AL.

v.SCHMIDT.

Supreme Court of Wisconsin.

May 15, 1895.

Appeal from circuit court, Washington county; A. Scott Sloan, Judge.

Petition by D. H. Johnson and others to organize and establish a drainage district. From an order denying his motion to quash the petition, Anselm Schmidt appeals. Reversed.

This is an appeal from an order of the circuit court, made in the above matter, which denies a motion to quash the petition, and to dismiss the proceedings commenced to organize and establish a drainage district, and to appoint commissioners to lay out, erect, and construct the proposed works, under the authority of chapter 401 of the Laws of 1891. The question raised is the validity of the statute under which it was proposed to organize the proposed drainage district, and to construct the proposed works. The act provides for the laying of ditches, drains, levees, or other works “across the lands of others for agricultural, sanitary or mining purposes.” It provides that whenever it shall be made to appear to the circuit court of the proper county, in the manner provided, “that the proposed drain or drains, ditch or ditches, levee or levees, or other works, is or are necessary, or will be useful for the drainage of the lands proposed to be drained thereby, for agricultural, sanitary or mining purposes,” the court shall appoint three competent persons as commissioners to lay out and construct the proposed works. Provision is made for the payment of damages to the owners of lands and such other property as are injured by the construction of the works. The cost of the works and the damages to be paid are to be raised by assessment of benefits upon the property within the assessment district which shall be benefited by the improvement. The petition is conceded to be sufficient in form and substance to satisfy the statute. It is urged against the statute itself that it is invalid, in that it provides for the taking of private property, against the will of the owner, to promote a purely private enterprise.Barney & Kuechenmeister, for appellant.

Rietbrock & Halsey, for respondents.

NEWMAN, J. (after stating the facts).

It is settled law in this state that private property can be taken in invitum for a public use only. For a private use it cannot be taken. Water Co. v. Winans, 85 Wis. 26-39, 54 N. W. 1003. It is also settled that to dig ditches or drains across the lands of private owners, under an apparent legislative authority, is a taking of the lands. Mills, Em. Dom. § 30; Smith v. Gould, 61 Wis. 31, 20 N. W. 369;Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389. The question presented for decision is whether the digging of the ditches and drains and the construction of the levees and other works contemplated by the statute under consideration is for a public use. The provision of the statute is: “If it shall appear to the court that the proposed drain or drains, ditch or ditches, levee or levees, or...