A serious interruption to the common and necessary use of property may be equivalent to the taking of it, and under constitutional provisions it is not necessary that the land should be absolutely taken.
Plaintiff, a landowner, filed a trespass on the case against defendant, a canal company, after the company built a dam across a river, which caused the permanent flooding of the landowner's property. Defendant argued that it was not liable to the plaintiff landowner for damages because the dam was authorized by a Wisconsin statute and built in conformity to the specific requirements of the statute. The landowner demurred to that plea in defense. The trial court denied the demurrer and entered a judgment against the landowner. On appeal, judgment that was entered in favor of the canal company and against the landowner was reversed. The case was remanded for further proceedings not inconsistent with the court's opinion.
Was there a taking of plaintiff's private property for public use tantamount to a taking within the meaning of the Constitution?
In reversing the judgment, the court held that the canal company's construction of the dam, which caused the permanent flooding of the landowner's property, constituted a taking within the meaning of the Wisconsin Constitution even though the dam was built pursuant to Wisconsin statutory authority. The court found that the canal company's plea in defense was not a valid defense to the landowner's lawsuit, and that the landowner's complaint was within the protection of Wis. Const. art. 1, § 13, which provided in part that the property of no person shall be taken for public use without just compensation therefor.