Manteufel v. Wetzel

• Decision Date: 13 December 1907
• Citation: 114 N.W. 91,133 Wis. 619
• Parties: MANTEUFEL v. WETZEL.
• Court: Wisconsin Supreme Court

133 Wis. 619

114 N.W. 91

MANTEUFEL

v.WETZEL.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Waupaca County; Charles M. Webb, Judge.

Suit by Frank Manteufel against Gustav Wetzel for a mandatory injunction requiring defendant to close a ditch on his land and for damages. From a decree for plaintiff, defendant appeals. Reversed and remanded.Eberlein & Eberlein, for appellant.

Olen & Olen, for respondent.

TIMLIN, J.

Only one question is necessary to be considered. It is established by the findings that the parties own adjoining lands. There is on the defendant's land and about 700 feet west of the plaintiff's land a sink hole, or depression, which in wet seasons and before the construction of the ancient ditch contained about three acres of water of the average depth of 1 1/2 feet, and between this sink hole or depression and the land of the plaintiff there is upon the land of the defendant at a point distant from the common boundary an elevation of about three feet. More than 20 years prior to the commencement of this action the predecessor in title of the defendant cut through this elevation by a ditch, so that the surface water which formerly collected in such depression passed through said ditch and to a point upon defendant's land about 150 feet west of the common boundary, where it spread over defendant's land and escaped by the natural course of surface water on to the land of the plaintiff. The said sink hole or depression is a natural basin or reservoir without natural outlet which is capable of holding, and which, in fact, did collect, receive, and hold, large quantities of surface water which fell and gathered upon lands of the defendant and adjacent land in the vicinity of said depression, and the surface water so collected remained standing in said depression until the same disappeared by evaporation, absorption by the earth, or was removed therefrom by means of said ancient ditch or artificial outlet to the point aforesaid upon the defendant's land. In May, 1904, the defendant, following the natural course of the surface water, excavated on his own land a shallow ditch from the termination of said ancient ditch to the common boundary between plaintiff and defendant, and, as a direct result thereof, the surface water from said depression has passed through the ancient ditch and through the extension thereof just mentioned to the plaintiff's land, and has been deposited on the plaintiff's land in greater quantities and with much greater rapidity and force than before, and has thereby rendered about four or five acres of the plaintiff's land too wet for ordinary use as agricultural land, and of less value than formerly, and in the year 1904 caused a washout upon the lands of the plaintiff of about 45 feet in length by 7 feet in width, and 3 feet in depth. Upon these facts, the court below held that the ancient ditch extending from the sink hole or depression on defendant's land to a point on defendant's land about 150 feet from the common boundary should be allowed to be and remain as it was, apparently upon the ground that this outlet had been maintained more than 20 years...