Lehner v. Kozlowski

• Decision Date: 14 April 1944
• Parties: LEHNER v. KOZLOWSKI.
• Court: Wisconsin Supreme Court

245 Wis. 262

13 N.W.2d 910

LEHNER

v.KOZLOWSKI.

Supreme Court of Wisconsin.

April 14, 1944.

Appeal from a judgment of the Circuit Court for Green Lake County; E. J. Gehl, Judge.

Affirmed.Suit commenced June 28, 1943, by Philip Lehner against Stanish Kozlowski to restrain defendant from obstructing or interfering with an open ditch constructed across defendant's land and for damages suffered from the maintenance of a culvert erected by defendant and obstructing the ditch. From a judgment dismissing plaintiff's complaint and requiring plaintiff to restore the lands of the defendant to the status of the land prior to construction of said ditch, plaintiff appeals.

Plaintiff and defendant own adjoining land. On September 25, 1913, plaintiff and defendant's predecessor in title entered into a written agreement providing as follows:

‘That said party of the second part, his heirs and assigns, forever, may construct, maintain, deepen and keep in repair an open ditch or drain, tile drain or both, over and across said lands of parties of the first part, their heirs and assigns of such character and sufficient size as to make a proper and sufficient outlet forever for any drainage system second party, his heirs and assigns may establish upon his lands so as to sufficiently drain the same for cultivation, in such manner as second party, his heirs and assigns, may deem advisable.’

Pursuant to this agreement, plaintiff in 1914 constructed a tile drain from the east line of his land easterly across the land now owned and occupied by defendant. The tile drain intersected a farm roadway running north and south which had been located there for many years and was used to reach the northern portion of defendant's farm. In order to allow the use of the roadway, the trench in which the tile drain was laid, was closed above the tile at that point. From 1914 until 1941, the drain so constructed was used without alteration. In October, 1940, after a few exceptionally wet years, plaintiff advised defendant that the system was inadequate. After discussing the matter, defendant offered to allow a relocation of the ditch over a course to the north of the tile outlet and following the then apparent course of the surface drainage, if plaintiff would install a culvert so as to maintain the road in a usable condition. No agreement was reached. Plaintiff, however, dug a ditch and did not construct the culvert. Thereupon on June 20, 1941, defendant placed a culvert in the roadway where it was intersected by the new ditch. In June, 1943 without notice to the defendant, plaintiff entered defendant's land and removed the culvert. Plaintiff now seeks to restrain defendant from replacing the culvert and asks for damages resulting from having had it there.

The trial was to the court and the conclusions of law are:

‘1. That the contract made by plaintiff and defendant's predecessor in title on September 25, 1913, granted to plaintiff the right to construct and maintain upon defendant's land a single drainage ditch and contains no provision establishing the place at which such ditch was to be installed.

‘2. That by installing the ditch upon defendant's land in the year 1914 and using it until the year 1941, the plaintiff fixed, established and determined the location of such ditch.

‘3. That neither under the terms of said contract nor by any act on the part of the defendant was the plaintiff given the right to construct more than one ditch upon defendant's land nor to re-locate the ditch distalled in the year 1914.

‘4. That the construction of the ditc by the plaintiff in the year 1941 was a trespass upon defendant's land.

‘5. That by installing said culvert in said relocated ditch in the year 1941 the defendant violated no rights of the plaintiff.

‘6. That the roadway upon defendant's land does not and never has obstructed the flow of water through any natural watercourse upon defendant's land to plaintiff's damage.’

Lehner & Lehner, of Princeton, for appellant.

J. L. Kelley, of Fond du Lac, and L. I. Krieser, of Princeton, for respondent.

FAIRCHILD, Justice.

To overcome a serious state of affairs due to the presence of surface waters and a rather extensive marsh, the appellant shortly after purchasing a farm, originated a plan for draining his land and to some extent benefiting the respondent's land. In carrying out this plan, he succeeded in getting the easement set forth in the statement of facts. His right to the relief he now seeks depends entirely upon the scope and meaning of this 1913 agreement.

The condition that existed when appellant became owner had it source in the natural surroundings. The appellant testified that ‘before the drainage in this land all this low land of mine was eighteen inch bogs, grew coarse grass where these bogs were, that extended somewhat into the defendant's lands. * * *’ The witness did refer to a watercourse defining the words ‘merely as descriptive * * * in other words it has the same effect as a storm sewer in the city.’ It was in the hope of redeeming some of the marshland that the tile drain was provided. And it does appear that the conditions were...