Lessard v. Stram

• Decision Date: 13 January 1885
• Court: Wisconsin Supreme Court
• Parties: LESSARD v. STRAM AND OTHERS.

62 Wis. 112

22 N.W. 284

LESSARD

v.STRAM AND OTHERS.

Supreme Court of Wisconsin.

Filed January 13, 1885.

Appeal from circuit court, Crawford county.

Thomas & Fuller, for appellant.

Wm. H. Evans, for respondents.

TAYLOR, J.

The appellant brought this action to recover damages for the alleged wrongful acts of the respondents in obstructing the flow of the water which issues out of Lhemerie coulie and turning the same onto the lands of the plaintiff. The evidence given on the trial shows that Lhemerie coulie is a hollow or ravine worn down through the hills or bluffs on the east side of the Mississippi river, in Crawford county, and that at the mouth of this coulie, and on the south side thereof, the lands of the several parties to this action are situate; the land of August Stram being nearly opposite the mouth of the coulie, and the lands of the other parties to the action lying south of his lands. All the lands are lowlands, and lie between the bluffs and the river. The evidence further shows that there is no living stream of water flowing down the coulie or out of the mouth thereof; but that during and for a short time after any considerable rainfall, water flows down said coulie onto the lowlands below the bluffs, and that there never has been any definite channel through such lowlands in which such water was accustomed to flow, but that it spread out over such lowlands. The evidence also shows that until about 13 years ago the water coming down the coulie, before it reached the lowlands, turned to the north and did not flow upon the land of either of the parties to this action; that about 13 years before this action was tried one of the overseers of highways of the town in which the lands in controversy are situated, on the pretense of protecting a highway which passed up said coulie, obstructed the natural flow of the water down the coulie, diverting it to the south, so that it flowed upon the lowlands of August Stram and spread out over his land. It also shows that during the same or the next year after the water was diverted by such overseer from its course north to a course in a southerly direction, the defendant August Stram, in order to prevent the water from overflowing his lowlands and remaining there to his damage, constructed an embankment or dam from one to three feet in height at the east end of his land, where the water so diverted issued out of the coulie, and such embankment or dam stopped the water near the mouth of the coulie and turned it south along the foot of the bluffs in the direction of the plaintiff's lands. The other respondents had lands lying next south of August Stram's lands, and they also constructed low embankments across the east ends of their tracts of land so as to continue the flow of the water along the foot of the bluffs towards plaintiff's land, so that the water coming out of the coulie after any considerable rain or after the melting of the snow would and did flow south along the foot of the bluffs until it reached plaintiff's land, where, on account of the formation of the surface thereof, it accumulated and remained stagnant, to his injury. That the plaintiff's land was injured by reason of such water flowing thereon was clearly proved, and was not denied by the defendants.

Upon these facts appearing in the circuit court, on motion of the defendant the learned circuit judge nonsuited the plaintiff, and from the judgment entered upon such nonsuit the plaintiff appealed to this court. The learned circuit judge held that it was clearly established that there was no actual water-course coming down the coulie, and that all the water that flowed down and out of the same was mere surface waters which the defendants had the right to embank against to prevent their coming upon their respective tracts of land; and that if, in so doing, such water was turned in the direction of the plaintiff's land and flowed thereon, and injured it, it was a case of damnum absque injuria, for which no action would lie. On the part of the plaintiff it was claimed that upon the evidence it was a question of fact for the jury whether there was or was not a natural water-course down said coulie.

That there was no natural water-course down the coulie, within the meaning of the law as interpreted by this court in the case of Hoyt v. Hudson, 27 Wis. 656, was, we think, clearly shown by the evidence given on behalf of the plaintiff. One of the plaintiff's witnesses, John H....