#### Young vs. The Chicago and Northwestern Railway Company.

Railboads.— (1) *Obstruction of water-course by road-bed.*(2) *Estoppel in Pais: What acquiescence will constitute.*(3) *Belief to which a party injured by obstruction of a water-course is entitled.*

1. It was the duty of the Rock River Yalley Union R. R. Co., under its charter (and would have been its duty independently of the special provisions of the charter), to so construct its road-bed across a stream of water in the line thereof, as not to divert the water from its natural channel without the consent of the land owner, to the injury of his adjoining lands.

2. The fact that plaintiff, after the diversion' of such a stream on his land by said company, did not *bring suit*for eighteen years, *held*not to be such an acquiescence as deprived him of his right of action; it appearing that at the time the water was diverted he insisted that a culvert should be built so as to retain it in its natural channel, and has from time to time expressed to agents of the company his objections to the diversion.

3. Plaintiff is entitled to a judgment against defendant (as successor to said Rock River Yalley Union R. R. Co.), requiring it to construct a culvert under its road so as to restore the stream to its natural channel, perpetually restraining it from diverting the stream therefrom, and giving damages for the diversion.

APPEAL from tbe Circuit Court for *Dodge*County.

Tbe complaint avers, in substance, tbat tbe Bock Eiver Yal-ley Union Railroad Company, from wbom tbe defendant derived title, in tbe construction of its railroad, in 1858, across tbe plaintiff’s land, obstructed and diverted tbe course of a brook flowing tbereon; tbat when the railroad was building, tbe first design of tbe company was to construct a culvert so tbat tbe stream could keep its natural course, and stone was drawn there for tbat purpose, and was still lying unused; but tbat design was abandoned, and no passage way provided across tbe embankment, and tbe stream was conducted or allowed to run for some distance by tbe side of tbe railroad without crossing it, and quite in another direction from its former channel; tbat tbe *172successors of tbis company, including the defendant, bad maintained tbis obstruction until the commencement of tbis action; that tbis obstruction and diversion of said stream was done without plaintiffs consent and against his wishes ; that in consequence of such diversion, that part of plaintiff's land through which the stream had previously flowed, and which had then been valuable and productive meadow land, had become dry and sterile, and bad lost its value as grass growing land ; that the part upon which the water of this stream was now forced to find its way had become wet, spongy and porous, so as to be unfit for plow-land, or any purpose of agriculture, and was much deteriorated in value; and that plaintiff was also greatly damaged by being obliged to find more distant and inconvenient watering places for his stock. Prayer, that the defendant may be ordered, as provided in its charter, to construct at its own expense, and thereafter maintain, a suitable passage way for the passage of the stream in its own natural channel; and for an injunction perpetually restraining defendant and its successors from diverting the waters of the stream; and for damages for the injuries already sustained. The complaint is verified.

The answer denies that the Eock Eiver Union Valley Bail-road Company diverted the stream from its natural channel *against the consent of the*plaintiff; and alleges that when that company built its road, the plaintiff agreed and consented to the diversion of the water; that in pursuance of this agreement, the company took possession of the stream, and diverted the same to its own use ; and that since then said company and its successors have used the same for supplyingrtheir locomotives with water, with the knowledge and consent of the plaintiff. The answer further denies that the embankment sets the water back upon the lands of the plaintiff.

At the trial, the only evidence introduced was that' of the plaintiff as a witness on his own behalf. His testimony detailed the character of the obstruction, and the injuries sustained by *173tbe diversión of tbe stream, supporting generally tbe allegations of tbe complaint in those respects. He also testified, in substance, tbat tbe injury to bis land did not become apparent until some time after tbe embankment bad been built; tbat at tbe time tbe ditcb along tbe side of tbe railroad was first dug so as to convey tbe water up to tbe railroad water-tank, be complained to tbe men at work there, and also to one McQueen, who was in charge of tbe work, and who bad been ordered to put in tbe culvert, for which stone were drawn, and witness demanded tbat tbe culvert should then be put in, but McQueen sent him to some one else; be bad also complained to station agents, who sent him to tbe section men, and tbe latter told him they knew nothing about it, tbat be would have to go to somebody else — as to tbe road-master; and upon going to him, be said be did not feel disposed to do anything about it, but referred witness to Hobart or Dunlap, or some higher officer of tbe road; be saw Hobart, assistant superintendent of tbe road, at one time, and be agreed with witness, a year ago tbe winter before, tbat if witness would wait until tbe snow was off, be would come and examine tbe premises, and would settle tbe matter amicably; in tbe spring be said be bad made up bis mind not to do anything about it. Witness bad also written to Dunlap, superintendent of tbe road, before be bad seen Hobart. He made complaint to these parties as soon as be found they were tbe proper officers to complain to.

Tbe circuit court found tbe facts as stated in tbe opinion, and dismissed tbe complaint; from which judgment tbe plaintiff appealed.

ü7. *P. Smith*and *H. W Sawyer,*for appellants:

1. Tbe plaintiff has properly come into a court of equity for permanent relief. The acts of tbe defendant and its predecessors in contravention of its charter (Laws'of 1848, sec. 9, p. 164) constitute an undoubted and continuing nuisance. *Brown v. B. P. Co.,*2 Kern, 486; *Yeddw v. Yedder,*1 Denio, 257; *Mahon*
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      *v. B. JR. Co.,*24 N. Y., 658-660; *Pfeifer v. R. B. Go.,*18 Wis., 155; *Burrows v. Bashford,*22 Wis., 103; 2 Story’s Eq. Jur., § 901, 26-27; *Williams v. B. B.,*16 N. Y., Ill; *Gott v. Lewis-ton B. B.,*36 N. Y., 214-217; *Corning v. Troy Iron and Nail Factory,*40 N. Y, 191. Tbe defendant does not show a good case of equitable estoppel. Sucb a claim must be *bona fide,*and tbe use continual, necessary, uninterrupted, and not malicious or uncertain; and no acquiescence short of twenty years can establish title by license or equitable estoppel. If the answer amounts to a plea of actual license, as contra-distinguished from license implied, or equitable estoppel, it is wholly unsustained by the evidence. *Tyler v. Wilkinson,*4 Mason, 400; 3 Kents’ Comm., 359 ; *Adams v. Barney,*25 Vt, 225 ; *First Parish in Medford v. Pratt,*4 Pick., 222-228; *Woodward v. McBeynolds,*1 Ohand., 244 ; *Iiazleton v.t Putnam,*3 id., 117; *Haight v. Price,*21 N. Y., 241; R. S., 820, §§ 8 and 10. The cases in our state cited by defendant, in which relief was denied, are in no respect parallel with this case. The majority were cases involving the erection of mills and mill dams, and where actions were brought to restrain the erection of dams, or to regulate the flow and use of the water, and *that*after long acquiescence on the part of the plaintiff, and great expenditure on the part of the defendant and others. Counsel distinguished the cases of *Sheldon v. Rockwell,*9 Wis., 166; *Blanchardv. Doering,*23 Wis., 203 ; *Gobb v. Smith,*16 Wis., 661; *Crosby v. Smith,*19 Wis., 449; *Pettibone v. Railroad Co.,*14 Wis., 443; *Andrews v. Farmers' Loan Go.,*22 Wis., 296.

*JEJnos & Hall,*for respondent [No printed brief on file.]

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.

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