Dargert v. Dietrich
171 Wis. 584
Wis.
1920
Check Treatment
Vinje, J.

The defendants claim plaintiff is not entitled to recover damages because (1) he did not invoke the statutory remedy afforded by secs. 1384 and 1386, Stats., for the removal of obstructions in the drainage ditch; and (2) because of a failure of proof of defendants’ negligence and of damages to the extent allowed by the judgment.

The first defense was raised by a plea in abatement. The sections referred to provide a remedy for keeping a drainage ditch free from obstructions, but a failure to comply with the orders which the sections authorize subjects the *586defaulting party to a penalty. They give no relief by way of damages to one who suffers injury by reason of such obstructions. The relief afforded by the statute is penal and not compensatory. It was not intended to precede or take the place of an action for damages. Besides, since sec. 1382 places the duty to maintain and keep in repair that portion of a drainage ditch assigned to him, an action under the statute is not required in order to render him liable in damages for a failure to fulfil such duty. The statute casts it upon him, and he cannot escape the consequences of his neglect.by saying you should have compelled me by a penal action to perform that which it was my duty to perform in .the first instance. It is also obvious that the statutory remedy, if seasonably invoked, might fail to prevent just such damage as that complained of here, for the damage might come before the termination of the proceedings.

We havé examined the evidence in relation to defendants’ negligence and the amount of damages awarded by the judgment, with the result that there is sufficient basis therein for both findings as modified by the civil court and approved by the -circuit court.

By the Court. — Judgment affirmed.