119 Wis. 189 | Wis. | 1903
This is an action at law triable by jury as a matter of right. This being so, the order of the trial court changing the answer of the jury to the first question from the affirmative to the negative can-only be sustained
To appreciate the evidence, the general situation should be considered. The plaintiff and defendant each own eighty acres of land, together constituting the W. half of the E. half of section 13, the plaintiff owning the south eighty and the defendant the north eighty. One Jensen owns the eighty immediately east of the plaintiff’s land, and on the southeast
Such is a general summary of tbe situation as given by the learned trial judge. There is evidence tending to prove that the water came onto tbe plaintiff’s land from surrounding farms, in tbe first place from rains and snows, and perhaps from springs, and ran all over tbe flats, and'gathered in tbe miiddle of tbe flats in one corner at tbe plaintiff’s north line; that several years ago tbe plaintiff dug a ditch three or four feet wide and one foot deep to better drain bis land, although tbe water would flow off without it, but not as well; that before the ditch was dug tbe water ran from tbe big swamp down onto tbe plaintiff’s land, and over and upon the defendant’s land; that the water flows now in tbe ditch for several months in the year, the same as before the ditch was dug, but faster, and it is seldom dry, even in dry weather; that the plaintiff’s 'land is a very little higher than the defendant’s land; that the creek flowed all the time between the two ponds; that the water from the swamps emptied into the small pond or swale hole which contained water the year round;
It is sometimes difficult to distinguish between a watercourse and mere surface water. Much may depend upon soil and other surroundings and conditions. It is well known that certain Western streams — some marked as rivers upon the map — have quite extended sections which for months are perfectly dry. In defining a watercourse, Chief Justice DixoN said:
“There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, sides, or banks, and usually discharge itself into some*195 other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes.” Hoyt v. Hudson, 27 Wis. 661.
That case was followed in Eulrich v. Richter, 37 Wis. 226, where the facts were quite similar to the case at bar, and where the court directed a verdict. But the judgment Was reversed, and a new trial ordered, because “the facts of the case are not so clear and undisputed as to warrant the court in withdrawing from the jury the question whether the locus in quo was a natural watercourse.” Id. 37 Wis. 227, 230. So this court has held, in effect, that streams having their origin in the overflow of a river or other watercourse, by reason of unusual freshets, although they had no well-defined channels or banks, but spread widely over the intervening ground, were, nevertheless, ‘watercourses. Spelman v. Portage, 41 Wis. 144; Barden v. Portage, 79 Wis. 133, 48 N. W. 210. These cases were followed in Case v. Hoffman, 84 Wis. 445, 446; S. C. 100 Wis. 323, 75 N. W. 945. It has been held in Indiana that “water which has a definite source in a spring, and takes a definite course, is a watercourse, which cannot be lawfully diverted from its natural channel so as to injure another’s land, although at a certain point it spreads over marshy ground, without a defined channel, where it again flows in such a channel.” Mitchell v. Bain, 142 Ind. 605, 42 N. E. 230.
“In an action for diverting a brook from the plaintiff’s land” in a Massachusetts case, “it appeared that, at a point on the defendant’s land below the place of the alleged diversion, the water ceased to flow between defined banks, spread itself out several rods wide, and ran so, over the surface of the ground, for five rods, to the plaintiff’s, land, across which it spread, and ran for seven rods in like manner, and then began to flow again in a defined channel, which conducted it into a river. Held, that the brook did not cease to be a natural watercourse on the plaintiff’s land, and that he could maintain the action.” Macomber v. Godfrey, 108 Mass. 219.
“A stream does uot cease to be a watercourse aud become mere surface water because at a certain point it spreads over a level meadow several rods in width, and flows for a distance without defined bardes before flowing again in a definite channel.” Gould, Waters (3d ed.) § 264, citing numerous cases in support of the text.
Quite similar language is used in 28 Am. & Eng. Ency. of Law, 944-946. Within the rules of law stated, the evidence is certainly sufficient to authorize a finding that twenty-five or thirty years ago there was a watercourse from the big swamp onto the plaintiff’s land, and from thence onto' the defendant’s land, and into the small pond; and, although the flow of water has been much less since the timber has been cut off and the land cultivated, still we are constrained to hold that the credible evidence was sufficient to take the case to the jury on the first question submitted.
The conclusion reached raises a question as to what should be the mandate of this court. Shall it be with direction to-enter judgment upon the verdict or for a new trial? The statute declares that “upon an appeal from a judgment” this court “may reverse, affirm, or modify the judgment . as to any and all of the parties, and may, if necessary or proper, order a new triad” Sec. 3071, Stats. 1898. This court held several years ago that this power given by statute “to affirm, reverse, or modify a judgment in part, and order a new trial, necessarily ccfefers the power upon this court to order a new trial as to the part of the judgment reversed.” Braunsdorf v. Fellner 76 Wis. 18, 45 N. W. 97. In a late case it is said that, under the power given by that section, the custom of this court “has been generally to apply the law to the facts as they appear to us, and direct the court below as to its judgment or other further proceeding.” Hill v. Am. Surety Co. 107 Wis. 34, 81 N. W. 1024, 82 N. W. 691. It is there further said, among other things, that “the policy
By the'Gourt. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.