Nicolai v. Wilkins

80 N.W. 939, 104 Wis. 580, 1899 Wisc. LEXIS 324

• Court: Wisconsin Supreme Court
• Decided: November 24, 1899
• Status: Published

Opinion

WiNslow, J.

This is an action in equity between the same parties who were involved in the action of Wilkins v. Nicolai, reported in 99 Wis. 178, and involves cognate questions. In that case the present defendant (WilJdns) was plaintiff, and he sued and obtained a mandatory injunction compelling the present plaintiffs (Nicolai and another) to lower a culvert upon their land immediately adjoining the lands of Wilkins so as to reopen a drainage ditch which for mauy years had drained an eight-acre marsh on Wilkins's land, on the ground that Wilkins had acquired a prescriptive right to have such ditch kept open. In the present action it appears by the findings that Wilkins has sunk a tile drain, with lateral branches, in and across said eight acres of marsh, for the purpose of underdraining the same, and that such system of tile drainage ends at a point immediately adjoining Nicolai's land, near the culvert involved in the former action, at a depth of eight inches below the bottom of the culvert as it was ordered to be placed in the former action, and that by reason of the lowering of said tile drain there is caused a continual flow of water upon Nicolai's premises, coming from the artificial drainage of the marsh, which would not flow there in a state of nature, thus causing permanent injury to said premises. Upon these findings the trial court granted a mandatory injunction requiring Wilkins to raise his tile drain to a point on'a level with the bottom of the culvert as it was ordered to be placed in the former action, and enjoining him from lowering the same in the future; and from this judgment Wilkins appeals.

The findings are supported by the evidence, and they clearly present a case where a landowner has attempted to collect the waters accumulating in a marsh or basin on his own lands, and discharge them through an artificial channel upon or in close proximity to his neighbor’s land, to such neighbor’s permanent injury. It is well settled that he cannot lawfully do this. The principle has been frequently stated, and no discussion would be profitable. Schuster v. Albrecht, 98 Wis. 241.

By the Court.— Judgment affirmed.