Mohr v. Gault

10 Wis. 513 | Wis. | 1860

By the Court,

Dixon, C. J.

It seems to us that the facts found by the circuit judge do not sustain his conclusions of law. As facts, he finds that Black Earth creek is the natural outlet for the waters of the lake; that at its source it is about six feet wide, and the waters passing out of it about one foot in depth ; that it has been filled up about one foot and a half, by reason of a highway on one side, and cultivated land on the other, and the washings of the earth therefrom; and that from one end to the other, there is no perceptible fall in the lake. As conclusions of law,- from these facts and others, touching the defendants’ title and occupancy of lands bordering upon and overflowed by the waters of the lake, which we need not here repeat, he finds that the defendant has the right in any way to drain his land, by letting off the surface water of the lake, to the depth of three feet, without injury to the natural flow of the lake towards the creek; and that the waters upon the lands of the defendant constitute a private nuisance, which the defendant has the right to abate, in his own way, without committing a breach of the peace.

It is difficult to perceive how the first conclusion is supported by the facts. If there is but one foot of water flowing over the bed of the creek at the point where the waters of the lake enter it, and there is no perceptible fall, or difference in the height of the surface of the lake from one end to the other, as was found, and as appears to have been mathematically demonstrated, how can the defendant be permitted, by a ditch turning the waters in an opposite direction, into Big Marsh, to drain the lake to the depth of three feet, without entirely destroying the flow of waters into the creek ? Certainly he cannot. The present bed of the creek would then be about two feet above the surface of the lake. If it was reduced one foot and a half, to its original condition, it would still be one half foot above the surface of the water in the lake, after it was so drained.

It may be doubtful, from the facts found, whether, according to the definitions given in the books, the obstructions at the head of the creek, occasioned by the washing of the earth, is or is not a nuisance. If the washing in of the earth was purely accidental, and not directly attributable to the acts of man, it would not be. Blackstone defines a nuisance to be “anything that worketh hurt, inconvenience, or damage,” and treats of it throughout as something brought about through human agency. Bishop, Yol. 2, § 848, says, “ that all acts put forth by men, which tend directly to create evil consequences to the community at large, may be deemed nuisances, where they are of such magnitude as to require the interposition of courts.” It is not, however, necessary for us to determine here whether this obstruction is or is not a nuisance, for if it is, the defendant’s remedy lay in abating it, if he could do so by peaceable means; and if not, he must resort to his action for that purpose. If it is not a nuisance, as defined in the law, but an accidental obstruction, he must either endure it, or proceed to remove it; and which, we will not here attempt to say. According to the doctrine laid down in Prescott vs. Williams, 5 Met., 429, he might perhaps remove it, as being necessary to the use and enjoyment of his lands. In neither case has he the right to rid himself of the annoyance by diverting the waters of the lake from their natural outlet. The owners along the creek have a legal right to the natural and usual flow of the waters of the lake through it; and the efforts of the defendant must be directed to the removal of the obstruction or cause of the backwater, which in law constitutes the nuisance.

The judgment must be reversed, and the cause remanded for further proceedings, in accordance with this opinion.