199 Wis. 342 | Wis. | 1929
The appellant Henry is and was the owner, for five years past, of certain upland which, prior to 1885, was drained of surface waters through a natural channel across the point in the railroad embankment where the Railroad Commission directed the opening by the order held void by the trial court. The evidence is sufficient to sustain the finding- of the commission that a portion of the waters discharged from the appellant’s upland passed through a natural channel at such point prior to ■ 1885. ' The railroad company, in 1885, built its road over such channel and filled the same by the creation of an embankment several feet in height, and turned the waters from such natural channel easterly along such embankment to a point about 800 feet easterly, where it built a bridge and allowed such waters to pass .thereunder. In the course of time the new channel was partially filled in and raised by the deposits carried by the waters from the upland, so that the drainage of appellant’s lands is to some extent held back on his land, to his damage.
Appellant’s land is of value not exceeding $1,500. The cost of the opening in the embankment and the bridging of the same will be about $10,000. Between the present drainage channel and the railroad, and running parallel with the railroad, has been at all times a turnpiked highway. Originally there was a bridge in the highway at the point where the original channel crossed the same, under which the water flowed in its natural channel, but for many years the bridge has been removed and the channel filled up, so that now, to restore the waters to the old channel, it is necessary not only to make an opening in the railroad embankment, but also an opening in the highway. The making of the necessary open
Sec. 88.38 of the Statutes provides:
“ (1) Whenever any county, town, city, village or railway company shall have heretofore constructed and now maintains or hereafter shall construct and maintain any public highway or road grade through, over and across any marsh, lowland or other natural depression over or through which surface water naturally flows and percolates, and the stopping of the said flow and percolation.of said water by said highway or road grade causes any crop or land to be flooded, water soaked or otherwise damaged, such county,' town, city, village or railway company shall construct, provide and at all times maintain a sufficient ditch or ditches, culverts or other outlets to allow the free and unobstructed flow and percolation of said water from said lands, and to prevent said lands from becoming flooded, watersoaked or otherwise damaged by said water. Provided, however, that the foregoing shall not apply to public highways or road grades now or hereafter used to hold and retain water for cranberry purposes.
“(2) Any county, town, city, village or railway company which shall fail to provide such necessary ditches or culverts or other outlets shall be liable for all damages caused by reason of such failure or neglect.”
Sec. 88.40 provides:
“In case of the failure or refusal of any railroad company to comply with any of the provisions of sections 88.38 and 88.39, the person, firm or corporation or the town, village or city aggrieved thereby may file a complaint with the railroad commission setting forth the facts. The commission shall investigate and determine the matter in controversy, in accordance with the provisions of sections 195.01 to 195.54, inclusive, and any order it shall make in said proceeding shall have the same force and effect as an order in any other proceeding properly begun under and by virtue of the provisions of said sections.”
By the Court. — The judgment of the circuit court vacating the order of the Railroad Commission is affirmed.