52 Wis. 526 | Wis. | 1881
The gravamen of the complaint is, as we interpret its allegations, that the defendant company, in making-
In Hoyt v. City of Hudson, 27 Wis., 656, it was in effect decided, that, under the rule of the common law which exists here, an owner has the right to obstruct and hinder the flow of mere surface water upon his land from the land of other proprietors; that he may even turn the same back upon or-onto the land of his neighbor, without incurring liability for injuries caused by such obstructions. The same doctrine was laid down in Pettigrew v. Village of Evansville, 25 Wis., 223, where the question is very fully considered; also in Fryer v. Warne, 29 Wis., 511. There is a discrepancy in the decisions of the different states upon this subject, because some follow the rule of the civil law, which gives a servitude on the lower in favor of the superior estate. But here the rule of the common law has
We place our decision upon the distinct ground that the complaint fails to show that any natural watercourse, properly speaking, has been obstructed or interfered with by the defendant. The company has only obstructed a ditch which drained or carried off surface water from the plaintiff’s premises. We do not think the defendant was bound to keep that ditch open on its own land for the convenience of the plaintiff; in other words, the owner of land is under no legal obligation to provide a way for the escape of mere surface water coming on to his land from the land of his neighbor, but has the right to change the surface of the ground so as to interfere with or obstruct the flow of such water. “ The obstruction of surface water, or an alteration in the flow of it, affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil.” Bigelow, C. J., in Gannon v. Hargadon, 10 Allen, 106-110.
The learned counsel for the plaintiff argued the case upon the assumption that the complaint shows that a stream of water or natural watercourse had been obstructed to the injury of his client; but we do not understand this to be the cause of action stated. It is quite clear that the company would have
But the facts stated do not bring the case within the doctrine of any of the above decisions. Here, it appears, there is low land adjacent to the plaintiff’s premises, the surface water from which was accustomed to flow through a ditch which was on another’s land. That ditch the defendant has filled up in constructing its road-bed, and thereby turned this surface water back upon plaintiff’s premises, causing the injury complained of; that is, the surface of the land has been changed by the construction of the defendant’s road-bed, which prevents the surface water from passing off to the east to the river. This
By the Court.— The order of the circuit court is affirmed.