Young v. Chicago & Northwestern Railway Co., 28 Wis. 171

Young v. Chicago & Northwestern Railway Co.

28 Wis. 171 | Wis. | 1871

Cole, J.

It probably would not be claimed by any one, that the railroad company which originally constructed the embank, ment, had the right so to construct it as to divert the stream from its natural channel, without the consent of the plaintiff. The principles of law bearing upon this question are too well settled to admit of doubt, even were there nothing in the char*175ter which imposed tbe duty on tbe company to restore tbe water-conrse to its natural state. But tbe charter itself expressly declared that when it should become necessary for tbe company to construct its road across any stream or water-course, it should restore tbe stream or water-course to its former state, so as not to impair its usefulness to tbe owner or tbe public. Section 9, page 169, Laws of 1848.

In this case tbe stream was diverted by tbe company Nom its natural channel, and was made to run off at a different place through a ditch cut for tbe purpose, to tbe actual injury of tbe plaintiff. This is very plain from tbe evidence offered on tbe trial. There would not seem to be any necessity for this change of tbe stream and diversion of tbe water. For aught that appears, a culvert might easily have been put in for tbe discharge of tbe water through tbe embankment in its accustomed channel.

And this is what tbe company should have done in tbe first instance, unless tbe plaintiff bad consented to tbe diversion; and there is no evidence that be did. And now we are unable to see any valid reason why tbe plaintiff should not have this done, and have tbe relief demanded in tbe complaint, namely, that tbe present defendant be ordered at its own expense to construct and maintain a suitable culvert for tbe discharge of tbe waters of tbe stream mentioned in tbe case, through tbe embankment of its road-bed at tbe proper place, and that it restore tbe water to its original natural channel. It is alleged in tbe answer that tbe plaintiff agreed and consented that tbe Rock River Talley Union Railroad Company might divert tbe water from its natural bed and channel; and that in pursuance of this agreement that company took possession of tbe stream, and diverted tbe same to its use. But there is not a particle of testimony to sustain such a defense. Tbe court, however, found, as matters of fact, that tbe plaintiff, at tbe time of tbe construction of this embankment and road-bed, lived near, and saw tbe work done, and did not forbid or object to tbe filling up tbe *176.channel of tbe stream and diversion of tbe water, until a short time before tbe commencement of tbe action in 1866; and therefore be bad “ silently acquiesced ” in tbe acts of tbe defendant and its predecessors in diverting tbe stream and making a new channel therefor. Tbe doctrine of acquiescence is considered undoubtedly in certain cases, and effect is given to it when a party has long slept upon bis rights. But in tbe present case we see no ground for bolding that tbe plaintiff has lost bis rights by silence and acquiescence in tbe acts complained of. He stated in bis testimony that when tbe road was built, stone was drawn and delivered near tbe channel, and that tbe man in charge of tbe work was notified to put in tbe culvert; and that as soon as be ascertained that tbe stream bad been diverted, be demanded that a culvert should be put in at that place. He further said, in substance, that at various times and occasions before be found out who were tbe proper officers to order tbe culvert put in, be requested tbe station agents to attend to it. Indeed, tbe evidence, so far from showing any acquiescence on bis part in tbe diversion of tbe stream, establishes tbe contrary fact — that be has constantly clamored against it. True, be did not at once resort to legal proceedings to have tbe stream restored, but submitted to tbe inconvenience caused by tbe diversion of tbe water until tbe agents of tbe company should discharge tbe duty tbe law imposed upon them. A man of more litigious disposition might have sooner taken steps to compel tbe company to put in a culvert; but be certainly did enough to show that be never intended to acquiesce, and bad not in fact acquiesced, in tbe unlawful diversion of tbe stream from its natural channel. This is tbe only ground assigned by tbe circuit court for dismissing tbe complaint. We think tbe judgment of tbe circuit court must be reversed, and tbe cause remanded with directions to grant tbe relief asked in tbe complaint. It will doubtless be necessary to assess tbe damages of tbe plaintiff — whatever they may be shown to be — occasioned by tbe diversion of tbe water. This can be done on a proper issue directed by tbe court.

*177By the Court.— Tbe judgment is reversed, and tbe cause is remanded for further proceedings.