79 Wis. 126 | Wis. | 1891
The Wisconsin river, after it passes the dells above Kilbourn City, runs in an east-southeasterly direction to Portage Oity, and then bends to the southwest. Portage City is on both sides of the river, and on the south side of the river is the farm of the plaintiff, of some 100 acres, within the city limits. The plaintiff’s dwelling-house and out-buildings are on or near the river, and there is a bridge across the river, opposite said dwelling-house. The Baraboo river runs for several miles nearly parallel with the Wisconsin river, in some places only a mile or two apart, until it takes nearly the same curve, and empties into the Wisconsin river about five miles south of plaintiff’s house. In times of high water the Wisconsin river formerly ran across this dividing space, in several natural currents, into the Baraboo river below. The north banks of the Wisconsin river are generally high along these distances, and the south banks are quite low, with a few exceptions. The south bank for several rods west and east of the bridge and plaintiff’s house is high, and the land is high ground where the plaintiff’s farm buildings stand, and some distance to the south. A few rods below the bridge the high banks end, and then they are low, and just above the ordinary surface of the water, to the east boundary of plaintiff’s farm. The farm is generally low ground; so that, if the river overflows these low places, the water will naturally run over the land to the south, and at the same time to the west, around the high ground where said buildings stand. Before 1886 such flowage had always been comparatively slight, and not much to the injury of the farm. The farm is valuable for raising the ordinary crops and fruits and for
I have made this description of topographical conditions partly from the testimony, but mostly from my own knowledge-and memory, and it may not be critically accurate, but it will aid somewhat in understanding the case. The case was not well prepared. There should have been maps, drawings, and measurements, as well as plans and surveys of the works.
An act of the legislature of 1873, entitled “An act authorizing the construction of a levee along the Wisconsin river in the counties of Columbia and Sauk,” is published as chapter 213 of the laws of that year. It seems that nothing much was ever done under it until about 1885 or 1886. The first section of the act reads as follows: “ For the purpose of reclaiming the lands subject to overflow from the Wisconsin river in times of high water, and protecting the highways from overflow, and enabling the proper authorities to keep them in a passable condition at all seasons, the authorities of the city of Portage, and of the town of Caledonia, in Columbia county, and of Fairfield, in Sauk county, acting jointly or separately, are hereby authorized to construct a levee along the south bank of the Wisconsin river from any point in the city of Portage or the town of Caledonia to such point up the river in the town of Fairfield, and at such distance from the banks of the river as may be necessary and to maintain the same.” By
In 1885 or 1886 the city of Portage let the contract to build this levee through its own limits, and perhaps further; and the said towns may have acted on the matter also, but to what extent is not stated, excej)t that the levee was-constructed for a long distance up the river. The city of Portage constructed the levee for a mile or more above the-bridge at a height of from four to nine feet, down to the high land, above described, above the bridge. The effect of the levee has been to prevent the waters of the Wisconsin river from passing into the Baraboo river, where it was wont to flow, in times of high water, and to confine all the waters within the main channel of the river, made much narrower. Between the high banks at and east and west of' the bridge, the river is compressed into a width of 600 feet; and the confining of the waters of the river, above, between the levee on the south and the high banks on the north side, has caused a much greater volume of water to pass under the bridge than ever before and to raise the-river at that point much higher. In 1888 there came an unusually large freshet, but not greater than there had been many times before the levee was built. From this compression of the waters into a narrower channel, as soon as they passed below the high banks south of the bridge, they rushed over the low south bank, and over and across the plaintiff’s farm, and back even west, around the high grounds where his main buildings were situated, and more or less flooded his whole farm, washed out the foundations of buildings, destroyed the fences, submerged the highway, carried banks of sand over many acres, of ground from one to four feet deep, and generally did great damage to the
It would not seem to require the expert knowledge of a civil or hydraulic engineer to have anticipated these effects. As soon as this increased volume of water, compressed for a long distance within a deep and narrow channel, should escape from its confinement at the lower end of the high ground, it would naturally rush in impetuous torrents over the low south bank, and spread over all the low grounds of the farm, just as it proved to be the case in 1888. It was a most signal want of common skill and judgment in the authorities of the city in leaving the works so incomplete as not only not to accomplish, but to defeat, the very purpose of the act, and to do positive damage to lands which before needed but little protection. The levee not only prevented the 'Wisconsin river from running into the Bara-boo across the lands above, but gathered and confined such waters and excessive floods within a narrower channel, so as to spread them, at the end, over the farm of the plaintiff. These are the facts substantially proved on the trial, with some of the conclusions of fact. The court granted a nonsuit as soon as the plaintiff had concluded his evidence,
1. The very objects of the act are defeated. They are “ to reclaim the land subject to overflow, and protect the highways from overflow.” The first very high water after the levee is finished, overflows and damages one of the most valuable farms on the south side of it, and overflows the most traveled highway it was intended to protect, and which were never overflowed before to any extent.
2. The levee is so placed as to cut off and close up natural channels of the Wisconsin river, in which the surplus waters in times of freshets escaped into the Baraboo river, and diverted them down the main channel, so as to produce this very mischief. In 1874 this same city of Portage constructed a wide embankment for said highway, across the low lands south of where this levee is built, about four feet high and two miles in length, which cut off and closed up the same natural channels in which the waters of the Wisconsin passed into the Baraboo river in times of high water, and did the work so negligently and unskilfully that the waters were obstructed, and caused to flow back upon and submerge the lands of one Spelman. It is a strange coincidence that the city, fourteen years afterwards should build a levee embankment over almost the same low ground, which cut off and closed up the same channels by which the waters flowed from one river to the other, and did the work so negligently and unskilfully as to cause the waters of the river to flow back upon and submerge the lands of the plaintiff. In both cases the city had the right to build the embankment. In the first case the defect was that the
3. The legislature gave the city the right to take land on which to locate the levee, but made no provision for paying damages of this kind. The act does not contemplate that any such damages could or would be caused by this work, and there would have been none had the levee been continued south of the bridge, as the plaintiff wished and often requested. Folsom v. Apple River L. D. Co. 41 Wis. 602; Hackstack v. Keshena Imp. Co. 66 Wis. 439. In these cases the works were built under, acts of the legislature, and the damages were caused by flowage. There is no principle of law that can protect the city in. such a case. The work, so far, is a private nuisance to the plaintiff, without justification or excuse. The conduct of the city authorities in this business has been grossly negligent and reckless. The idea that valuable farms can be submerged and destroyed under an act of the legislature made especially for their protection from floods, and the owners can have no redress, is too preposterous to be entertained by any legal mind. Smith v. Gould, 61 Wis. 31; Pettigrew v. Evansville, 25 Wis. 223; Arimond v. Green Bay & M. Canal Co. 31 Wis. 316.
5. The question arose on the admission of testimony as to what should be the measure of damages in the case. The learned counsel for the appellant offered to prove what would be the cost to the plaintiff of making the necessary levee below the bridge to protect his farm, and such offer was rejected. This levee is a permanent work, and will cause similar damages to the plaintiff’s farm every time there is very high water in the river. The authorities of the city do not propose to extend it any further down the river. It will be to the advantage of both parties to have the whole matter adjusted and disposed of in this action, and to have the lands of the plaintiff protected against the recurrence of such damages, rather than to have an action brought at each time when such damages shall occur in the future. The plaintiff’s land and improvements ought to be
By the Court.—The judgment of the circuit court is reversed, and the cause remanded for a new trial.