Smith v. Gould
| Decision Date | 23 September 1884 |
| Citation | 20 N.W. 369,61 Wis. 31 |
| Parties | SMITH v. GOULD AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Monroe county.Morrow & Masters and S. U. Pinney, for respondent, Robert Smith.
Tyler & Dickinson and Cameron, Losey & Bunn, for appellants, G. H. Gould and others.
After the decision in 59 Wis. 631, S. C. 18 N. W. REP. 457, the circuit court, on motion of plaintiff, granted leave to file and serve an amended complaint. Such leave, however, was granted without the showing, by affidavit or otherwise, of any excuse or reason why the facts stated in the amended complaint were not originally pleaded, and without any affidavit of merits or proof that the new facts set forth in the amended complaint were true. The appeal is from the order allowing the amended complaint to be filed. Three grounds are assigned here why the order should be reversed, the third of which is that the amended complaint states no cause of action, and it was not, therefore, in furtherance of justice to allow it to be filed. It is admitted that such an objection to a pleading is usually raised by demurrer, but counsel on both sides saw fit to discuss the point very fully on this appeal, and prefer that the objection be considered as though the case stood on demurrer. Under the circumstances we are disposed to so regard it.
The original complaint was for trespass. It charged, in substance, that the defendants, without lawful authority, entered upon the land of one Abram F. Smith and dug a ditch thereon, whereby the waters of Little La Crosse river were diverted from their natural water-course along a part of plaintiff's land, and were made to flow through said ditch directly against his premises at another point, causing serious damage in the manner specifically set forth. In the amended complaint it is, in effect, charged that the defendants, being officers of the town, entered upon the land of Abram F. Smith, and constructed the ditch, claiming to be thereto lawfully authorized, in order to protect a certain highway of their town along said river from injury from the waters of the river washing against the same, and to divert the waters from the highway. It is alleged that while it was the duty of the defendants to exercise their authority for the purpose aforesaid in a proper and prudent manner, to avoid inflicting injury upon the plaintiff in so protecting and repairing the highway, as they well could and might have done; yet, notwithstanding these facts and their duty in the premises, they so improperly located and constructed the ditch that the necessary and unavoidable consequence of digging and constructing the same was and is, that by reason of said ditch the water in the stream is taken and turned from its natural channel and course, and caused to flow against and upon the lands of the plaintiff, directly from the end of the ditch, and the stream of water has thereby greatly injured and damaged the premises of the plaintiff in the particulars described. These are the material allegations in the amended complaint which state the cause of action; and the question is, do they show a wrongful act on the part of the defendants for which they are personally liable?
It appears the defendants were officers of the town, and, in the discharge of their duty to repair and preserve the highways of the town, entered upon land adjacent to the plaintiff's, and cut a ditch to turn the waters of the river into a new channel away from a highway which they were destroying. The defendants were performing a public duty that the law imposed upon them. But it is alleged that they improperly located and constructed the ditch, so that the waters at the lower end thereof entered the original channel directly opposite the plaintiff's land, or at right angles thereto, and thus injured him. It is said that if the ditch had been so located and constructed that the waters at the lower end thereof had entered the original channel at an acute angle, or in the direction of the natural downward plane of the channel, no material injury would have been done the plaintiff's property. But are the defendants liable for an injury arising or caused by an error of judgment in locating and constructing the ditch? If so, upon what principle of law? Undeniably they were invested with power to repair and preserve the highways of the town. They might construct ditches, if necessary for that purpose, upon adjoining land. About...
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