61 Wis. 31 | Wis. | 1884
After the decision in 59 Wis. 631, the circuit court, on motion of plaintiff, granted leave to file and serve an amended complaint. Such leave, however, was granted without the showing, by affidavit or otherwise, of any excuse or reason why the facts stated in the amended complaint were not originally pleaded, and without any affidavit of merits or proof that the new facts set forth in the amended complaint were true. The appeal is from the order allowing the amended complaint to be filed. Three grounds are assigned here why the order should be reversed, the third of which is that the amended complaint states no cause of action, and it was not, therefore, in furtherance of justice to allow it to be filed. It is admitted that such an objection to a pleading is usually raised by demurrer, but counsel on both sides saw fit to discuss the point very fully on this appeal, and prefer that the objection be considered as though the case stood on demurrer. Under the circumstances we are disposed to so regard it.
The original complaint was for trespass. It charged, in substance, that the defendants, without lawful authority, entered upon the land of one Abram E. Smith and dug a ditch thereon, whereby the waters of Little La Crosse river were diverted from their natural watercourse along a part of plaintiff’s land, and were made to flow through said ditch directly against his premises at another point, causing seri
It appears the defendants were officers of the town, and,, in the discharge of their duty to repair and preserve the highways of the town, entered upon land adjacent to the plaintiff’s, and cut a ditch to turn the waters of the river into a new channel away from a highway which they were destroying. The defendants were performing a public duty that the law imposed upon them. But it is alleged that they improperly located and constructed the ditch, so that the waters at the lower end thereof entered the original
It is not alleged that the defendants executed the work in a careless and negligent manner. This is not the gist of ^the action. But the complaint is that they located the ditch improperly, adopted a wrong plan, and that it was so constructed that the waters at the lower end entered the original channel directly opposite the plaintiff’s land, whereas the waters should have been made to enter the channel at an acute angle or in a different way; so that the negligence of the defendants really resolves itself into a mistake in engineering,— an error of judgment in locating and con- ■ structing the ditch in the manner the work was done. If the defendants had exercised due care and prudence, it is alleged they might and would have located and constructed the ditch differently, so that the water therefrom, at the lower end, would have entered the stream in the direction of the natural downward channel of the plane of the watercourse. This is the wrongful act of the defendants; and
In Spelman v. Portage, 41 Wis. 144, the city authorities had caused to be constructed a graded street or causeway across a bottom, without proper culverts or drains through which the waters of the Wisconsin river, at times of high water, could pass or flow in their natural course. The plaintiff’s land was overflowed in consequence of the obstruction, and was injured. This court held he was entitled to recover his damages resulting from the negligent and unskilful manner the street vras constructed. -But that was an action against the city, and not against its officers. So, in Squiers v. Neenah, 24 Wis. 588, and Hamilton v. Fond du Lac, 40 Wis. 47, for acts which amounted to a trespass, and which were done by officers of the' corporation, who had au
But it is said the plaintiff was seriously injured by the water of the river being diverted from his land at one point, and then caused to flow through the ditch directly against his land at another place. It is claimed that, in justice, he should have compensation for these damages, which were the direct and necessary result of the construction of the ditch in the way it was dug. When the case was here on a former -appeal, Mr. Justice Cassoday discussed at some length the question whether the acts of the defendants, as then set up in the answer, ought not to be deemed a taking of the plaintiff’s land, within the meaning of the statute. The point, however, was not involved in the case, and was not decided. But we now think the plaintiff could have had his damages assessed under the statute, and that this was his proper remedy. Sec. 1236, E. S., makes it lawful for the overseer of highways, or any person acting under his direction, to enter upon lands adjoining to or near any highway in his district, and to construct such ditches as may be necessary for the improvement or preservation of such highway, carefully avoiding the doing of any unnecessary injur}*- upon the same. The next section provides that the owner of land so entered upon or used for such purpose may have an ap-praisement of his damages as therein prescribed. Now, it is true the premises of the plaintiff were not entered upon to dig the ditch in question; but the direct and unavoidable consequence of constructing the ditch on the adjacent land was to injure the plaintiff. His damage, caused by the work done as it was, is fully within the spirit of the statute, if not within its letter. It is fair to hold that the statute was intended to apply to a case where land was injured
In this view it is obvious, as the amended complaint stated no cause of action, it was an abuse of discretion to allow it to be filed.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings.