133 Wis. 619 | Wis. | 1907
Only one question is necessary to be considered. It is established by the findings that the parties own adjoining lands. There is on the defendant’s land and about 100 feet west of the plaintiffs -land a sink hole or depression which in wet seasons and before the construction of the ancient ditch contained about three acres of water of the average depth of one and one-half feet, and between this sink hole or depression and the land of the plaintiff there is upon the land of the defendant at a point distant from the common boundary an elevation of about three feet. More than twenty years prior to the commencement of this action the predecessor in title of the defendant cut through this elevation by a ditch, so that the surface water which formerly collected in such depression passed through said ditch and to a point upon defendant’s land about 150 feet west of the common boundary, where it spread over defendant’s land and escaped by the natural course of surface water on to the land of the
We have considered the cases (Pettigrew v. Evansville, 25 Wis. 223 ; Hoyt v. Hudson, 27 Wis. 656; Fryer v. Warne, 29 Wis. 511; O'Connor v. Fond du Lac, A. & P. R. Co. 52 Wis. 526, 9 N. W. 287; Heth v. Fond du Lac, 63 Wis. 228, 23 N. W. 495; Waters v. Bay View, 61 Wis. 642, 21 N. W. 811; Champion v. Crandon, 84 Wis. 405, 54 N. W. 775; Wendlandt v. Cavanaugh, 85 Wis. 256, 55 N. W. 408; Schus-ter v. Albrecht, 98 Wis. 241, 73 N. W. 990; Nicolai v. Wilkins, 104 Wis. 580, 80 N. W. 939; Wilkins v. Nicolai, 99 Wis. 178, 74 N. W. 103; Clauson v. C. & N. W. R. Co. 106 Wis. 308, 82 N. W. 146; Johnson v. C., St. P., M. & O. R. Co. 80 Wis. 641, 50 N. W. 771; Connell v. Stark, 108 Wis. 92, 83 N. W. 1092; Shaw v. Ward, 131 Wis. 646, 111 N. W. 671), and do here determine that where the upper proprietor does no more than collect in a ditch, which ditch follows the course of the nsnal flow of surface water, the surface water which formerly took the same course toward the land of the lower adjacent proprietor, and causes to pass through this ditch the surface water which formerly took the same course but spread out over the surface, he has committed no action-, able legal wrong of which the lower proprietor can complain, or upon which such lower proprietor can maintain an action. In other words, causing surface water to flow in its natural direction through a ditch on one’s own land instead of over the surface or by percolation as formerly, where no new watershed is tapped by said ditch and no addition to the former volume of surface water is caused thereby, except the mere carrying in a ditch what formerly reached the same point on defendant’s land over a wider surface by percolation through the soil or by flowing over such wider surface, is not, when not negligently done, a wrongful or unlawful act. It follows that upon the findings of fact of the court below the conclusion of law should have been that the defendant
By the Court. — Tlie judgment of tlie circuit court is reversed, and tlie cause remanded with, directions to enter judgment for tlie defendant dismissing tlie plaintiff’s complaint.