Wilkins v. Nicolai

• Decision Date: 08 February 1898
• Citation: 74 N.W. 103,99 Wis. 178
• Parties: WILKINS v. NICOLAI ET AL.
• Court: Wisconsin Supreme Court

99 Wis. 178

74 N.W. 103

WILKINS

v.NICOLAI ET AL.

Supreme Court of Wisconsin.

Feb. 8, 1898.

Syllabus by the Judge.

1. By 20 years of open, notorious, continuous, adverse use and enjoyment of an artificial ditch to drain water from the land of one person onto and across that of an adjoining owner, by the consent of such owner, such person acquires by prescription the right to a continuance of such use and enjoyment.

2. Such open, notorious and continuous use for 20 years, without objection from the servient owner, is prima facie evidence of adverse possession or use, and together with such circumstances, establishes title by prescription, unless explained as consistent with the title of the true owner, by some showing that such use was under a lease, contract, or permission of some kind.

Appeal from Waukesha county court; M. S. Griswold, Judge.

Action by Asa Wilkins for a mandatory injunction against Henry E. Nicolai and Elvie J. Nicolai. Judgment for plaintiff, and defendants appeal. Affirmed.

Action for a mandatory injunction compelling defendants to lower a culvert on their premises so as to allow the water to flow freely from adjoining land on the east owned by plaintiff, onto and across such premises, and to restrain defendants permanently from thereafter obstructing such flow. The trial resulted in findings of fact covering the issues raised by the pleadings, in substance as follows:

(1) Plaintiff and defendants are severally the owners of land as alleged in the complaint, plaintiff's land being on the west side of the defendants'.

(2) Near the westerly side of plaintiff's land there is a marsh of about eight acres, onto which water drains from the surrounding country. Near the northerly side of the marsh is a spring where water comes, naturally, to the surface, and from which, some years ago a ditch was dug, connecting with another drainage ditch, through the center of the marsh, in which there has customarily been some flow of water from the spring.

(3) At the easterly end of the marsh, in a state of nature, there was a ridge of dry land, forming a natural obstruction to the flow of water from the marsh onto defendants' land, unless there was considerable surface water. From 20 to 40 years ago the water from some natural springs northeast of plaintiff's land, which flowed southeasterly in a natural channel called “Soft Water Brook,” was diverted so as to flow by an artificial channel southwesterly into a pond 80 rods northeast of the marsh, thence northwesterly into a natural channel into the marsh, and then through the high land before spoken of, on the east end thereof, onto defendants' land by way of a ditch cut through such highland more than 30 years ago for that purpose. Through such ditch, ever since its construction, in ordinary seasons, water flowed a considerable portion of the time, being the drainage from the marsh, the water from the spring thereon, and the water diverted as aforesaid.

(4) For years defendants have maintained a private roadway on their land along near the boundary line between the lands of the parties and across the artificial watercourse aforesaid, the roadbed being raised somewhat, so that, in the absence of a passageway under it it would form a dam and prevent the flow of water off from plaintiff's land by way of the ditch. In the construction of such road a culvert was placed under the same so as to provide a free passage for the water coming off from plaintiff's land as aforesaid, which culvert has been maintained for many years.

(5) About May, 1895, defendants raised the bed of the culvert 10 inches, so as to obstruct the flow of water through the same, and have ever since refused to remove such obstruction, though often requested by plaintiff so to do.

(6) Plaintiff has been damaged by the act of the defendants aforesaid in the sum of one dollar, and will be damaged continually unless defendants are compelled by the court to remove the obstruction and permanently refrain from interfering with any flow of water thereafter through such culvert.

(7) The ditch above mentioned has been maintained and the passageway for water therein from plaintiff's land onto defendants' and through the culvert, under the roadway aforesaid, has been enjoyed by plaintiff and those preceding him in ownership of the land, open, continuous, notorious, adverse and acquiesced in by defendants and those preceding them in ownership of their land for more than 20 years, whereby plaintiff has acquired the prescriptive right to a continuance of such use and enjoyment.

On the facts so found, the court concluded as a matter of law that plaintiff was entitled to the mandatory and permanent injunction prayed for, and to recover of the defendants his damages and costs. Exceptions were filed so as to present the questions discussed in the opinion. Judgment was rendered for the plaintiff in accordance with the foregoing, and defendants appealed.Lindley Collins, for appellants.

Pierce & Daubner, for respondent.

MARSHALL, J. (after stating the facts).

There is no serious controversy but that respondent is entitled to the relief granted by the judgment appealed from, if the findings...