Shaw v. Ward

• Decision Date: 30 April 1907
• Citation: 111 N.W. 671,131 Wis. 646
• Parties: SHAW ET AL. v. WARD ET AL.
• Court: Wisconsin Supreme Court

131 Wis. 646

111 N.W. 671

SHAW ET AL.

v.WARD ET AL.

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Jefferson County Court; George Grimm, Judge.

Action by Joseph Shaw and others against Michael Ward and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Equitable action for a mandatory injunction compelling defendants to close up a ditch made to drain surface water from their lands whereby it flowed by way of adjoining lands to the lands of appellants, and to recover damages.

The facts as found by the court are as follows:

“1. That the plaintiffs are owners in common of the N. W. 1/4 of section 30 and other lands in the town of Cold Spring, and of the E. 1/2 of the S. W. 1/4 of the S. E. 1/4 of section 24, in the town of Koshkonong, all in said Jefferson county; and that the defendant John Kyle is the owner of the S. W. 1/4 of said section 24, and the defendant Michael Ward is the owner of the west 1/2 of the N. W. 1/4 of section 25 in said town of Koshkonong; and that said parties have been the owners and occupants respectively of said lands for more than five years prior to the commencement of this action.

2. That there is a natural reservoir or pond covering from five to fifteen acres of land about one-half of which is the S. W. corner of said one-fourth section owned by the defendant Kyle, and the other half in the northwest corner of said 80 acres owned by the defendant Ward.

3. That said reservoir or pond is in the centre of a basin of several hundred acres of land surrounded by uplands sloping towards said basin.

4. The natural outlet for the waters accumulating in said basin is southeasterly from said lands owned by the defendants across the land owned by the plaintiffs in the town of Cold Spring, and into Galloway creek.

5. That the lands of the defendants lie approximately 37 feet higher than said Galloway creek, and 15 feet higher than the town line road between the towns of Koshkonong and Cold Spring.

6. That for many years prior to the injury complained of in this action there existed an artificial ditch running from said reservoir or pond southeasterly substantially upon the line of the ditch or drain now complained of and had prior to the construction of the new ditch to a considerable extent filled up through natural sources.

7. That said reservoir or pond when filled from melting snow or heavy rains to a depth in excess of one foot would overflow down and along said old ditch and upon the course of said new ditch, but that said old ditch was not of sufficient depth to entirely drain said pond or reservoir, but would leave the water therein to a depth of about one foot to soak into the soil or evaporate.

8. That prior to the construction of said new ditch said pond dried out only during periods of long continued drouth.

9. That the plaintiffs' 20-acre tract in said section is about 4 feet lower than said reservoir and basin, but that it is marsh land and was prior to the construction of the ditch complained of, at times to a large extent covered by water.

10. That near and east of said reservoir or pond there was a smaller depression located upon the land of the defendant Kyle.

11. That prior to the construction of the ditch herein complained of, to wit: In the spring of 1903 the defendant Ward proceeded to clean up and deepen the said old ditch upon the lands of the defendant Kyle, commencing at the east boundary line, and did clean out and deepen the same up to said little pond; that one Chesebro owning marsh land adjoining said 20-acre tract of the plaintiffs in said section 24 and between which lands said old ditch ran, complained in person to said Ward that cleaning and deepening of said old ditch was injuring his marsh by carrying an unusual amount of water thereon; and that thereupon it was agreed between said Ward and Chesebro to stop work until a drain could be constructed by authority of the town board.

12. That thereafter, to wit, on the 20th day of June, 1903, application was duly made to said town board to lay out and construct a town drain upon the line of the ditch or drain herein complained of, and that on the 31st day of July, 1903, said town board made an order for the laying out of said ditch or drain, and on the 19th day of August, 1903, filed the usual maps and surveys together with an order assessing the benefits and damages of the respective parties, etc.

13. That there was assessed to the plaintiffs herein upon their said 20-acre tract of marsh the sum of $74.06, as benefits.

14. That said plaintiffs thereafter themselves dug and constructed a large section of said ditch or drain so laid out by said town board, and herein complained of, which adjoined their lands, and were paid therefor by a town order in an amount a little less than the benefits assessed against their said lands, and which money so paid to them was collected from them through the tax list.

15. That said ditch or drain herein complained of was substantially completed from the town line between the towns of Koshkonong and Cold Spring, up to and beyond the plaintiffs' said 20-acre tract, and up to and into the lands of the defendant Kyle during the summer and fall of 1903, but that it was not fully extended into said reservoir or pond and to its western limit until the spring of 1904.

16. That prior to the commencement of this action said ditch or drain had completely emptied said reservoir or pond on defendants' lands and that the area formerly occupied by it has become plough land suitable for general farming purposes and that the digging of the west end of said ditch, by which said pond was finally emptied, was done by the defendants.

17. That the spring and summer seasons of 1904 and 1905 were unusually wet, i. e. that there was an unusual amount of rainfall.

18. That by reason of the completing of said town drain into said reservoir or pond and by reason of said excessive rains an unusual amount of water passed through said ditch or drain during the said season of 1904 and 1905, and more rapidly than it would have passed if said ditch or drain had not been opened, and that by reason thereof plaintiffs' lands in the town of Cold Spring lying between the said town line and said Galloway Creek had thrown upon them more water than a small ditch therein, leading across the same was able to carry, and that a tract of about 15 acres of marsh land, thereby became unusually wet and soggy, and was injured for pasturing and other farming purposes.

19. That said small ditch across plaintiffs' land last referred to, prior to the spring of 1904 had become partly closed up by cattle walking through the same, and by natural sources, and that by reason of some soil being carried down and through said drain or ditch said small ditch became almost wholly closed; that a causeway about 12 rods in length built across the 15 acres on plaintiffs' land last referred to, was washed away and became useless, and that by reason of the washing away of said causeway plaintiffs lose the use for pasturing purposes of a 5-acre tract of land lying southerly and somewhat higher than said 15 acres.

20. That plaintiffs suffered damages by reason of the construction of such ditch to their said lands in the town of Cold Spring and by reason of the partial filling up of the small ditch across the same and the washing away of said causeway in the sum of $125, prior to the commencement of this action.

21. That by reason of said ditch or drain, about 16 acres of plaintiffs' 20-acre tract in section 24 before referred to were materially benefited, to wit: in the sum of $50, prior to the commencement of this action.

22. That if said small ditch be reopened (the expense of which I include in my finding of paragraph 20) the plaintiffs will suffer no future damages in excess of the benefits which will accrue to their 20-acre tract in the town of Koshkonong.

23. That during the laying out of said ditch or drain and during the construction thereof, all of which plaintiffs had knowledge, they brought no proceedings to prevent the same.

24. After the greater part of said damage had been done to plaintiffs' low lands in the town of Cold Spring (which I find was in the spring of 1904, when the pond was tapped and emptied by completing the ditch as laid out) to wit: on the 15th day of November 1904 the plaintiffs presented to this court a petition for a writ of certiorari to bring up for review and determination the proceedings of said board of supervisors of the town of Koshkonong relating to the laying out of said ditch; that such writ was issued and returned; and that such proceedings were had thereafter, to wit: on the 27th day of April 1905, that this court adjudged the proceedings of said town board in laying out said town ditch or drain (the drain or ditch herein complained of) to be null and void for the reason among other things that said board had not found that said ditch or drain would conduce to the public health or welfare.

25. That a notice signed by the plaintiffs, marked ‘Exhibit 8’ and directed to the defendant Michael Ward and to one A. Chesebro and others notifying them that the proceedings of the town board of supervisors in laying out the said ditch or drain had been judicially declared void and requiring them to discontinue said ditch or drain was served on the defendant John Kyle on or about the 12th day of May, 1905; that a similar notice also signed by the plaintiff marked ‘Exhibit 9’ was served on defendant Michael Ward in the spring or summer of 1905.”

Upon such findings it was concluded as matter of law, as follows:

“The plaintiffs by reason of participating in constructing the ditch and not preventing its construction by moving in a reasonable time and before defendants had expended a large amount of money or labor are estopped from recovering damages which the same has caused and from having equitable relief as prayed for in the complaint. The defendants are entitled to...