27 Wis. 656 | Wis. | 1871
In Pettigrew v. The Village of Evansville, 25 Wis. 223, this court had occasion to examine the subject and express its views very fully as to the rights and liabilities of conterminous proprietors of lands with respect to the obstruction and flow of mere surface water; and to say when, in its opinion, and under what circumstances, by what means, and to what extent, the owner of land might obstruct and prevent the natural and customary flow thereon of such water, and turn the same back upon or off on to or over the lands of others, without liability for injuries thus caused to the lands of other proprietors. The question was discussed in several of the aspects in which it has arisen and been considered by the courts, and many, probably most, of the cases relating to it cited and examined; and an attempt was made to point out and define the rights and duties of owners of lands in those particulars which heretofore have been and hereafter doubtless will be the most frequent subject of controversy. The result of that examination was, that this court rejected the doctrine of dominant and servient heritage of the civil law respecting the natural flow of such water, which is the rule of some of the states, and adopted the very opposite
Such being the rule of the common law, which is the law of this state, and it also having been held in Pettigrew v. The Village of Evansville, that cities, towns and villages, as the owners of lands for highway and other public purposes, have the same rights to obstruct or repel the flow of surface water as other proprietors, it follows that the plaintiffs established no cause of action against the city, unless the ravine or hollow in question had the proper qualities of, and constituted what is known in law as, a watercourse, as distinguished from a ravine, hollow or other depression in land through which, in times of rains, heavy showers and melting snows, the surface water is accustomed to escape. The term “water-course”
The testimony upon this point has been correctly collated by counsel, and is as follows. One witness testified: “ A ravine ran across the premises, diagonally in a southwesterly direction; there was no constant stream there; it only ran there during wet weather, and when süow thawed.” Another: “ There was a ravine across the premises; the water ran down the ravine every heavy rain we had.” Another: “Water has always run through the ravine in wet seasons, rain or thaw.” Another: “I know the ravine in question; the water runs in this ravine only in the spring of the year when snow goes off, and in very heavy rains or long continued rains ; does not run to exceed twenty days in the year; no water runs in the ravine except as I have stated; it is not a stream with banks, but simply a sag in the ground, but spreads out further down, without any particular channel.” Another one testified: “ I know the ravine running across the premises; water runs there after a heavy rain and melting of snow.” And another: “ During. melting of snow and heavy rains,
Such is a statement of all the testimony as given by the witnesses themselves; from which we think it clearly appears that it was a mere occasional flow of surface water down the ravine or hollow in question, which was obstructed by the agents and officers of the city, and not a stream or water-course within the meaning of the law on that subject. As observed in some of the decisions, it would be highly unreasonable and mischievous to attach the legal qualities of water-courses to ravines and hollows thus serving as conduits for mere occasional accumulations of surface water; and especially would it be so within the limits of large towns, cities and villages, where the population is dense and the quantity of land owned or occupied by each individual or family very small. In such cases the universal understanding and practice is, that owners of lots may fill them up or change their natural surface to suit their own tastes or convenience, and so as to obstruct or repel the surface water coming from the lots of others, without liability for injury; and that the public authorities have the same rights and privileges with respect to streets, squares and other public grounds. In such cases and as to such property the doctrine of dominant and servient heritage is rejected by those courts which hold to the rule of the civil law. Bentz v. Armstrong, 8 Watts and Serg. 40; Livingston v. McDonald, 21 Iowa, 174.
In Bowlsby v. Speer, the court, first stating the rule of the common law, that no right of any kind can be claimed in the mere flow of surface water, and that neither its retention, diversion, repulsion, or altered transmission is an actionable injury, even though damage ensues, observe: “ How far it may be necessary to modify this general proposition in cases in which in a hilly region, from the natural formation of the surface of the ground, large quantities of water, in times of excessive rains, or from the melting of heavy snows, are forced to seek a channel through gorges or narrow valleys, will probably require consideration when the facts of the case shall present the question. It would seem that such anomalous cases might reasonably be regarded as forming exceptions to the general rule.”
This exception, or suggested exception, seems sound and just. The rule itself is established in favor of agriculture, and of the right of every owner to make the most profitable use of his own land. But where, in such exceptional cases, it appears that considerable tracts of land are drained through ravines or narrow valleys, and would otherwise be submerged or greatly injured by the accumulation and presence of surface
By the Court. — Judgment reversed, and a new trial awarded.