*1 Lloyd Chippewa wife, vs. Respondents, County,
Appellant.* November 4 December 1953. * denied, costs, for rehearing Motion with on February $25
1954. *5 Sinclair, a there was brief Vance L.
For the by appellant A. Falls and Marshall attorney, Wiley district Chippewa counsel, Sinclair. and oral Mr. argument there was brief by Stafford, For the respondents Pfiffner Falls, Harold and oral argument by & Chippewa Stafford E. Stafford. *6 The contend are they that entitled plaintiffs
Currie, J. from to recover the defendant the county sustained damages them as a the result basement their home by being flooded, the removal of thereby necessitating themselves and home, their from such on the two family following grounds: That the said were result of breach damages of the (1) the contract contained in easement grant of executed the by 27, 1939; Mitchells to the under date and county May That of contract the (2) independently accumulation of said water around house was the result of action- plaintiffs’ able on the of the part county. negligence
The breach of contract on alleged the of the part county 27, 1939, is the in based clause the May of ease- upon grant ment which the under undertook county to “construct and maintain a ditch from shallow the open present culvert beneath in front of the residence on Highway said above- land farm of described in a present plaintiffs] south- [the four direction hundred westerly approximately feet (400) to an intersection the with ditch of northerly Trunk County ‘S’ to facilitate the flow of Highway water accumulating about the on said farm into said storm buildings sewer.”- The storm sewer referred to the concrete underground is creek, sewer westward to Duncan the running east end of the which was several hundred feet to west the point where the in shallow ditch referred to the open easement grant met the ditch of S. northerly Highway
The ditch referred shallow to the open above-quoted been constructed the clause had across the by county south- east corner of farm. breach on plaintiffs’ alleged the of the defendant is a failure to “maintain” such pf Such breach alleged ditch. consists the fact that private the used the the from snowplow by clearing snow off S had snow into the Highway pushed open northerly ditch so as to such ditch the entrance of the under- clog storm There ground sewer. is serious as to question act a failure to “maintain” the constituted whether land, across had ditch as no snow shallow open the into such ditch. been directly snowplow private pitched However, the of this assume for we will purpose opinion be the the easement obligation attempted imposed by “maintain” the ditch private agreement upon land included north- open across plaintiffs’ keeping ditch S and the entrance to storm erly along Highway be so that water the shallow ditch would entering sewer off ditch S northerly drained through Highway storm sewer. *7 us to the advanced the defendant by This brings point that the in the easement agreement county provision requir- maintain to construct and such ditch county private ing was unenforceable across farm invalid and against the shallow The ditch which the the county. purpose construct and maintain across the farm undertook to county is forth set in easement now owned by plaintiffs agree- 27, 1939, “to being as ment May facilitate flow of on about the said into buildings water accumulating farm be sewer.” Such to objective said storm accomplished by for a a is and not shallow ditch clearly private public this There is evidence in the record that such no shallow purpose. an of the WPA or integral constituted project ditch function other than that stated in easement any performed agreement. a for a funds by county public
The private expenditure Heimerl and void. v. Ozaukee is unconstitutional purpose 151, 40 564. Counsel 256 Wis. N. W. County (1949), (2d) statute which author have to no specific pointed for plaintiffs amake contract it to binding perpetually a county izes a across lands for the private and ditch keep open maintain any not the and statute of the landowner and public; benefit such to a or county, to so delegate power attempted which committee, an a such as agency county highway be would unconstitutional. counsel, brief,
Plaintiffs’ in their that a contend municipal as a such an corporation, in- county, may ratify agreement it, made so as to make the validly same or binding upon its acts be by and cite estopped deny liability, authorities However, of such contention. this support doctrine applies where was one only agreement which the municipal was authorized to make in corporation the first place, a not to contract which it had no to enter power into. rule on this is well set forth in 14 Counties, Am. point Jur., sec. as follows: p.
“It is a that whenever a general principle has power to do it particular also has the originally thing, power to and make an valid effort ratify to do attempted thing, the same have been may done although defectively, infor- and even in the first mally, fraudulently, instance. how- If, law, ever, a contract made is or illegal, not warranted by is beyond powers the county, however it beneficial be, the not to be may public ought estopped to its deny validity(Emphasis supplied.)
The act of the the benefit of accepting the ease ment the storm sewer agreement laying pursuant to the *8 it to do so does granted not the right estop from county the of the covenant asserting invalidity imposed it to upon the maintain ditch across open private plaintiffs’ land. Such is the of this court in by implication holding Hyde v. Super visors Kenosha County 43 In (1877), Wis. 129. that it was that the case had made an alleged county agreement the of tax certificates with to refund on purchasers demand interest, if the the certificates money plus became paid void the or failure of officers neglect county that through .so the would be from prevented thereby a purchasers acquiring the lands. The court held title to that perfect “any 302 in excess of conferred contract would be the authority
special statute, board bind the the would not county” by upon of such decision was that the county, result 138). (p. transac- and retained benefits of such had received which form the for moneys paid in the purchasers tion certificates, to assert the invalidity the tax was permitted an of the which placed obligation upon that agreement part under certain price to refund such condi- county purchase tions. 563, 565, Mont. v. 92 County
In Lewis Petroleum (1932), 61, 575, 577, R. A. L. the Montana 86 Pac. (2d) stated: court a to deal with on the
“If a assumes party supposi- it it which does not fact tion that possesses powers possess, recover, even he has not be allowed to though per- he will . . contract. (. his of the Constitutional Cooley, formed p. 272.)” Limitations (7th ed.), further contend that of any Plaintiffs cause irrespective recover have to their based they of action on may damages contract, of breach of are entitled to they recover theory on negligence. such damages ground based immunity The defense upon govern in the not available case mental function is instant under the this in Matson v. Dane court County decision (1920), In N. W. 774. that case 172 Wis. the court held that, a the maintenance of a public while highway by county a function be with to the governmental respect may rights thereon, it is not a of the such function traveling with public occasioned to the owners of injuries thereby respect ad as to such owners the joining property, adjoining In in a the Matson acts Case the proprietary capacity. court was created. also held nuisance Likewise the case bar, if lands were at flooded due to fault of also be we would confronted with a county, defendant nui-
303 In of sanee. case nuisance there is liability grounded upon no of defense based a immunity upon performance govern- where, mental function available to the here, as relation of did not governor governed exist between and the Holl v. Merrill plaintiffs. 251 (1947), 203, 207, Wis. 28 N. W. 363. (2d) are here We concerned with surface waters. At common is landowner, law there no who, on the of a liability as a result of an obstruction on his placed premises, causes surface waters to back onto the lands up of his neighbor. Waters, 552, 56 Am. Jur., sec. 69. This p. common-law rule has been as in this recognized state. prevailing v. Hoyt 656, Hudson 27 Wis. 9 Am. (1871), 473; Rep. Chicago, Q. B. R. v. Railroad & Co. Comm. (1929), Wis. 226 N. 286. In Merkel W. v. Germantown 120 Wis. (1904), 494, 497, 98 N. W. this rule was held applicable acts in town board the flow of surface obstructing waters as a of the result making highway improvements, wherein the court declared:
“For the its purposes improving highways, a town has right same divert obstruct the natural flow of mere surface water that the owners of private have in property their lands.” improving has attorney general ruled that the principle announced Germantown, v. Merkel supra, is to other applicable mu such as counties. corporations
nicipal Op. Gen. Atty. 498. In the instant case liability is to be sought asserted against for an act defendant maintenance of a public viz., removal, snow as a result which highway, snow was into the ditch of northerly pushed Highway S thereby of water flow obstructing through ditch into However, storm sewer. underground we can perceive no construction, between an act of distinction highway and one maintenance, which results highway obstructing *10 304 statute, Therefore, of independently waters.
flow of surface of the defendant on the liability part be no there would of the theory negligence. on to have would seem any application The statute which only 88.38, as follows: Stats., which in part is provides sec. . heretofore . . shall have any county Whenever “(1) hereafter shall construct maintains or constructed and now . or road . . across highway grade maintain any and public or which through . over . . natural depression any surface and the of and naturally percolates, stopping water flows of said water said by highway flow and the said percolation flooded, land to be water- causes or any or road grade crop soaked, . . con- such . shall county, or otherwise damaged, struct, at all times maintain a sufficient ditch or provide, ditches, culverts, the free or other outlets to allow and un- lands, of said water from said flow and percolation obstructed flooded, from water- said lands becoming prevent or otherwise soaked, . said water. . . damaged . shall fail to . . which such Any county provide
“(2) ditches culverts or other outlets shall be liable or necessary of reason such failure or all caused by neglect.” for damages supplied.) (Italics the basement of home which flooded plaintiffs’ water it because as Highway there in the first place passes
got is built on a fill which acts aas front of premises surface waters from in their flowing which dam prevents across such the four- highway, course southeastward natural not sufficient highway having culvert underneath foot to drain off all at times of water to allow it high capacity the west side of the which comes down along high the water 53 is a federal and as such is highway part way. Highway and maintenance thereof system, trunk highway of the state’s 84.07, Stats. is no the state. Sec. There liability rests upon for done as damage the defendant on the of water due to backing inadequacy up result 53, inasmuch as the duty installed under Highway culvert maintain said is the state highway and not upon upon v. Pierce county. Leininger County (1938), Wis. 187; N. 277 W. and 29 Atty. Gen. 378. Op. fill,
While construction 53 on Highway together with the times water inadequacy high four-foot culvert, were the causes of the surface waters plain flooding land, tiffs’ it is contended that the actual damage resulted from the fact ditch of northerly S Highway was *11 as a of an with snow result act of clogged mainte highway nance said waters from thereby preventing being drained off However, such ditch into the storm through sewer. recovery such for cannot be damages 88.38, sec. predicated upon Stats. has reference to a only Said statute situation where the high it, or of the maintenance natural way, prevents flow of surface 617, waters. Gibeau v. Pratt 256 Wis. (1950), N. W. 286. Prior the installation the to of (2d) underground storm 1939, in sewer surface waters that any accumulated on plain tiffs’ farm had westward no into Duncan drainage creek. creek was Such flow into Duncan accomplished in only by the storm sewer at some which was stalling points 16 to 18 feet below the surface of the This ground. clearly establishes of an elevation land between that there was plaintiffs’ farm which, creek and Duncan the to buildings prior installation sewer, storm water the from prevented of west flowing Pratt, court held Gibeau v. This specifically ward. supra, be a no could on liability imposed municipal that corporation a for failure to maintain sec. 88.38 ditch drainage under along with result that surface water the a backed on highway up land, where the effect of the ditch in the first place to to cause the surface waters flow different direction was their natural flow. was than our reasons hereinbefore advanced it is the conclusion
For held liable cannot be in this action county the defendant that of of breach contract or the of theory on either on the theory a violation including negligence predicated upon negligence, of statute. time as the in this matter was
At the same appeal argued also a motion the this court there was on argued before the the that to dismiss on appeal ground of ap- plaintiffs board of county not been authorized super- had peal In this motion county. the defendant support visors forth the affidavit resolution of said setting filed an was there 1953, 23, which adopted April board supervisors taken “in the was to be discretion that the appeal provided of the county. committee” the highway it was motion to dismiss that argued of the In support no to to the authority delegate had highway board as to whether decision to an take making committee However, a counteraffidavit was this court. filed appeal motion, to the which clerk in affidavit opposition the county of the resolution on after passage April disclosed clerk for to such payment by claims were presented the record forwarding of the the su- expenses *12 of court for court, for the the reporter payment original preme thereof for testimony the copies of purposes transcript of the fee for in payment filing supreme $10 the of appeal, referred were to committee said claims of the court; that back to which committee the reported board board county and that the board allowed payment; county recommending same have been and the duly paid pursuant the claims each of on of These acts the the part allowance. board of establish clearly the that the appeal in expenses paying We, of the the board did there- ratify taking appeal. fore, on the of whether question find it unnecessary pass 23, 1953, of resolution April not the constituted original or board, the of the an on part illegal delegation power be and the motion to dismiss the must denied. appeal
306a the By Judgment reversed and cause remanded Court.— directions to with dismiss the Plaintiffs’ motion complaint. to dismiss is denied without costs. appeal memorandum was filed following 1954: February Plaintiffs, motion (on Currie, in their rehearing). J. for in brief filed of their motion for support maintain rehearing, that the ditch referred to private easement agreement as “the flow of facilitating water about the accumulating on said buildings farm into said plaintiffs’] storm [the sewer” served a public We have purpose. carefully reread record, and can find therein nothing which impugns of the statement following contained in accuracy our original : p. 300) opinion (ante,
“There is evidence in the no record that such shallow an ditch constituted of the integral part WPA or project function other than any that stated in the performed ease- ment agreement.” made, however, should
Correction be aof misstatement at the in the top statement occurring page of facts. The of easement did not cover the grant portion the under- sewer within lying limits ground highway S Highway but “between the only bank easterly of Duncan ” creek and Trunk County ‘S.’ Highway The southerly of the farm boundary covered strip the ease- ment was southerly boundary such farm and the of such boundary was a northerly strip continuation of the north line S extended Highway westerly to creek. is silent as The record to there curve being any S Highway creek, to Duncan Highway westerly between but appar- S must have turned either ently to the or Highway south *13 so as to make it necessary north to obtain the easement for
306b beyond sewer extending
that of the underground evidence established limits the highway, although north line of in the ditch east end such sewer was highway. denied with for rehearing the Court.—Motion
By $25 costs.