11 N.W.2d 181 | Wis. | 1943
Suit in equity begun August 12, 1940, by Ralph E. Freeman against the city of Lake Mills to abate a nuisance and for damages. From a judgment requiring defendant to "clean out and properly maintain the Rock creek portion of its sewer *538 system, to its proper level and efficiency" and awarding plaintiff damages, defendant appeals.
The complaint shows that the premises of plaintiff abut upon a natural watercourse; that at the time plaintiff acquired his real estate the storm-sewer system of defendant discharged surface water into Rock creek about eighty feet west of plaintiff's property; that at all times material to this action, the city has exercised and maintained dominion and control over the creek, and has used the same for the purpose of carrying off surface water from the streets and public places in said city; that the city has negligently caused to be washed into the creek "large accumulations of oil, grease, sand, gravel, leaves, twigs and other debris" resulting in the raising of the bed of the creek on plaintiff's premises and so obstructing the flow that it was hindered and the "stream was backed up and water piled up in said stream and the bed of said stream raised a considerable distance above its natural level." The answer admits that some storm water from the city streets empties into the stream eighty feet west of plaintiff's property; denies that the sanitary-sewer system of the city or any part thereof at any time mentioned in the complaint emptied into the stream at or near plaintiff's property, and denies that Rock creek was, during any of the times mentioned in the complaint, used by the city as part of its sanitary-sewer system. Admits only that the city has used said creek as an outlet for its storm water.
The trial court found as facts: That at the time plaintiff acquired his real estate, much of the sanitary and storm-sewer system of the city discharged into Rock creek eighty feet west of plaintiff's property and flowed past it; that after the purchase and building by plaintiff "the defendant city has carelessly, recklessly and negligently caused or permitted debris to accumulate and be deposited in said Rock creek, with the result that about the year 1928 and on various dates subsequent thereto there was a large amount of debris accumulated *539
and deposited in said creek and upon the bed of said creek sufficient to raise the bed of the stream several inches, and to raise the stream to such an extent that the surface of the water was above the outlet of plaintiff's tile drain, to not only cause a flow into his basement, but also to cause seepage through the ground from the stream in his basement." The damages were fixed at $300.
The point first to be considered is as to whether any liability rests upon the appellant for using Rock creek in the way it does as an outlet for its surface waters. It must be conceded that the appellant, a city, has the same right with reference to surface waters as an individual would have, although the rule is usually phrased to read that the municipality has no greater rights than the individual. Hoytv. Hudson (1871),
The evidence does not show and the trial court did not find the tapping of a new watershed by the city when it substituted drain pipes for the old ditch or that it added to the drainage area as it had always existed. The rights of the interested parties were not changed merely because the city grew and the storm-sewer system became more practical than the open ditch.
The finding of the trial court that the city permitted a large amount of debris to accumulate and be deposited in the creek bed is not supported by any evidence that the appellant has purposely or negligently invaded any legal right of the respondent. The substance of the filling claimed to raise the creek bed is what would naturally be there if movement down stream of the incoming surface water was interrupted. Some dirt necessarily deposited upon the streets would be carried into the creek and there would be a settling in the bottom of the creek, but as said in A. L. Lakey Co. v. Kalamazoo (1904),
There is evidence which suggests the cause or causes of the respondent's difficulties. All, however, tend in the direction *541 of sources other than the acts of appellant. The removal of the narrow culvert, placed originally, perhaps unfortunately, by the authorities constructing the fish hatchery, seems to have relieved the respondent's trouble in considerable measure. It is unnecessary to treat the matter further than to say no finding of fact under the evidence can be made that the flooding of respondent's premises resulted from any act or fault on the part of the city. It appears that Rock creek was not used as a place for deposit of refuse by the city. The few business houses that made a freer use of the creek were connected with the sanitary-sewer system before this suit was begun, and the analysis of the bottom of the creek does not show a substance other than what would naturally come by movement of surface waters. Nor is there shown any negligence on the part of the appellant in the control of the overflow of Rock lake into Rock creek. The learned trial judge said: "The proof as to actual damages in this case is somewhat meager and indefinite." This, of course, did not refer to the presence of water in respondent's basement at times; but, while respondent was much annoyed by seepage of water, it does not appear that the market value for sale or the rental value of his premises were affected. The error resulted from placing emphasis upon the misfortune of respondent and not fully according the appellant the benefit of the doctrine set forth in the cases cited.
The trial court was in error in assuming that a liability existed on the part of the city when the established facts showed that the change in the channel of the creek and consequent raising of water was a natural process for which no legal liability can be placed upon the city.
The conclusion of law should have been that the appellant was entitled to judgment dismissing the complaint and judgment accordingly.
By the Court. — The judgment of the circuit court is reversed, and cause remanded with directions to enter judgment for the defendant dismissing the plaintiff's complaint. *542