125 Wis. 82 | Wis. | 1905
1. The four acres and a half of land (and a little over) belonging to the defendant, and specifically described in his answer, were conveyed to him by warranty deed by George H. Bay and wife December 8, 1898. The 214 acres of land (and a little over) belonging to the plaintiff, and specifically described in her complaint, were conveyed to Kaiser & Meininger by warranty deed by George TL Bay and wife February 11, 1899, subject, however, to the right of way, as then located, of the Green Bay & Minnesota and of the Chicago, Burlington & Northern railways across certain portions thereof, and excepting therefrom the four and a half acres of land so conveyed to the defendant December 8, 1898, and to which deed and record reference was therein made for the description thereof. On the same day- — February 11, 1899 — Kaiser and Meininger, and their respective wives, in consideration of the moneys therein agreed to be paid, contracted in writing that, upon such payments being made; they would convey the same land to the plaintiff in this action; and thereupon the plaintiff entered into possession of such lands under such contract. It is undisputed that the four and a half acres of the defendant’s land thus described are immediately north of and adjoining the plaintiff’s land thus described.’ The principal controversy is as to the exact location of the southerly line of the four and a half acres, as mentioned in the deed thereof to the defendant from Bay and wife, December 8, 1898, and the plat thereto attached. That line is
2. It is undisputed that the ditch was constructed by the defendant in the fall of 1902. After stating the claims of the respective parties as to consent, license, and permission, the court charged the jury to the effect that if they found that the ditch was so constructed with the consent, license, permission,, or acquiescence of the plaintiff, acting through her husband as her agent, and who, it was admitted, acted, whenever he did' act, as her agent, along about that time, then that the plaintiff was not entitled to recover any damages whatever in this action. By returning a verdict in favor of the plaintiff the jury necessarily found that the plaintiff never gave such consent, license, permission, or acquiescence. But counsel contend that the court improperly excluded testimony tending to prove that the plaintiff’s husband gave such parol license prior to the time when Eay conveyed to the defendant, and months prior to the time when Eay parted with the title to the lands now owned by the plaintiff. This contention is based upon some supposed equity existing in favor of the" plaintiff’s husband prior to the time when Eay so parted with the title. By the foreclosure sale of May 7, 1898, Eay must be regarded as having become the absolute owner, in law, of all the lands in question. The defendant recognized such ownership by taking the deed from him December 8, 1898. That was more than two months prior to the time when the plaintiff acquired title
3. Among other things the court charged the jury to the effect that, if they found from the evidence that the ditch or dike was wholly upon the defendant’s land, then they should determine whether the defendant had kept and maintained’ the same from time to time prior to the commencement of’ this action, so as to prevent the waters of the river from coming upon the plaintiff’s land; that under the law the defendant was bound to see, from time to time, either that the ditch or the dike, or the dike and ditch combined, were sufficient to carry away the water, so as not to come upon the plaintiff’s land under all ordinary circumstances and conditions; and in that connection the court refused to instruct the jury:
“If the defendant dug the channel on his own lands, there-can be no recovery except the defendant has been guilty of’ some negligent act to which the plaintiff has not actually or impliedly consented.” And again:
“If the ditch was on defendant’s land, and he used reasonable and ordinary care to guard against injury to plaintiff, he is not liable. If the embankment washed out from natural causes the defendant could not reasonably have foreseen and guarded against, he is not liable if the dike was on his own land.”
We are constrained to hold that these instructions should have been given. They were applicable to a point material to-the issue and the evidence and not covered by the general charge, and hence should have been given. Campbell v. Campbell, 54 Wis. 90, 98, 11 N. W. 456; Curtis v. C. & N. W. R. Co. 95 Wis. 460, 470, 70 N. W. 665. Besides, the por
“A proprietor may change the whole course of a stream within the limits of his own land, provided he restores the water undiminished to the original channel before leaving his premises, and, if he has exercised reasonable care and foresight, he cannot be held liable, for injuries resulting from un-. foreseen causes.” 28 Am. & Eng. Ency. of Law (1st ed.') ■982.
This statement of the mle is supported by the authorities. Gould, Waters (3d ed.) §§ 297, 298; Pitts v. Lancaster Mills, 13 Met. 156; Shrewsbury v. Smith, 12 Cush. 177; Wddsworth v. Tillotson, 15 Conn. 366; Everett v. Hydraulic F. T. Co. 23 Cal. 225; Railroad Co. v. Carr, 38 Ohio St. 448; Central T. Co. v. Wabash, St. L. & P. R. Co. 57 Fed. 441, 446. In this last case it was held that, where “the injuries complained of were such as could not be anticipated or guarded against by the exercise of ordinary and reasonable foresight, care and skill, the defendant was not liable.” See McArthur v. Green Bay & Miss. C. Co. 34 Wis. 139, 145. In this connection it is sufficient to observe here that there is evidence tending to prove that in March, 1903, there was an overflow ■caused by a large tree lying in'the ditch about halfway between the main river and the bridge, and that it was filled up with brush, and tore out some of the dirt and threw it up along the side, and the water went through a part of the plaintiff’s land. Besides, the return of a general verdict makes it impossible to tell whether the jury found the ditch to be partly on the plaintiá’s land or wholly on the defendant’s land, or whether some of them found one way and some the other.
4. Error is assigned because the testimony was not strictly limited to such damages as accrued prior to July 31, 1903, when the action was commenced. The court expressly charged the jury that they must not consider any damages subsequent to that date. And again the court said to the jury, “All the
5. It is claimed that the damages found hy the jury were excessive. But there are so many elements entering into the question of damages, depending upon different phases of the-evidence, some of which are quite uncertain, that we do not feel warranted in laying down any arbitrary rule, especially as there must he a new trial and the evidence may he materially different.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded- for a new trial.