141 Wis. 48 | Wis. | 1909
In the circuit court tRe respondent presented a complaint charging the appellant with negligence in the adoption of a plan for a sewer or system of sewerage which was partly upon the street in front of respondent’s property, also negligence in failing to adopt any plan for the same, also negligence in maintaining such sewer; and averred that, in consequence of such negligence, the respondent was damaged by a flow of surface water on his premises on May 22, 1907, which water the sewer so negligently constructed and maintained failed to carry off after a heavy rainfalL The jury, after hearing the evidence, arguments, and instructions, returned a special verdict as follows:
“(1) Did the defendant use ordinary care in adopting the plan for the Barker street sewer ?'■;( A. No.
“(2) Did the defendant use ordinary care in maintaining such séwer? A. ISTo.
“(3) Was the rain of May 22, .1907, an extraordinary rain ? A. No.
“(4) If you answer ‘No’ to either question No. 1 or question No. 2, was such want of ordinary care the proximate cause of the injury sustained by plaintiff May 22, 1907 ? A. Yes.
“(5) Did the sewer in front of plaintiff’s property on May 22, 1907, carry anything but surface water? A. Yes.”
The respondent’s damages were assessed by the jury at $370. Respondent moved for judgment in his favor upon tlris verdict, and the learned trial judge added a conclusion from the evidence, or a finding, that the land and streets adjacent to respondent’s property had been so graded as to increase the flow of surface water down to and upon such property, and ordered judgment in favor of respondent.
It will be noticed that there is no averment in the pleading, and no finding by the jury, that the water was first collected by the city in the sewer and then escaped upon respondent’s
We think the words of the special verdict should receive, with a view to support the verdict, great liberality of construction, and we therefore assume that want of ordinary care in adopting a plan means want of such care in selecting the plan- and in examining and passing upon its sufficiency, or in failing -to examine and pass upon its sufficiency, or in constructing a sewer or series of sewers without any definite plan, although the narrower meaning of adopting by merely voting upon a resolution might be urged.
Inquiring into the legal duty due from a city to a lotowner with reference to the construction of sewers, we find it noted. (10 Am. & Eng. Ency. of Law, 2d ed. 239) that the decisions ■of the courts on this subject are by no means harmonious. The same comment is made at Id. 249, with reference to the liability of a municipal corporation for damages to private property caused by surface water: Whenever this condition of discord is found among the precedents, it is advisable to confine ourselves to the law of this state, so that the interstate ■discord may not become local and internecine. Carelessly and negligently constructing streets lying to the north and west of certain land by reason of which large quantities of surface water which would otherwise have passed off in other -directions were conducted through the drains or gutters of such streets and cast in a body on his land, and at the same time raising the grade of a street to the south or sorrthwest of his land so as to retain on the land tire waters thus cast upon it, was held to confer no right of action in favor of the owner of the land and against the city doing these acts. Harp v. Baraboo, 101 Wis. 368, 77 N. W. 744. It will be observed
A municipality, after it has made provision by a drain or ■sewer for carrying off surface water, may discontinue or abandon the drain or sewer if the landowners are thereby left in no worse condition with reference to the surface water set back than if the sewer had never been constructed. Waters v. Bay View, 61 Wis. 642, 21 N. W. 811. If the municipality may omit this intentionally, it may omit it negligently without incurring any liability. This does not apply generally to acts done as it does to acts omitted. This last case negatives the existence of a right of action by the lotowner against the city on account of damages from surface water set back upon the lot, which water the sewers of the city were insufficient to carry off by reason of lack of capacity for that purpose or by reason of the clogging or discontinuance of the. ■sewer. This probably would not apply to the extent stated to injuries arising from sewage or other-agencies than surface water and caused by the negligently defective condition of tile sewer; but it is quite remarkable in this connection that in Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420, it was ruled that the city was not liable for the death of a pupil in a public school caused by sewer gas escaping into the school building from a sewer which the city had knowingly and negligently allowed to become clogged up and out of repair.
The common law recognizes some distinction between the right of a landowner to repel the inflow of surface water upon
x\mong the rules of law relating to surface water the following, qxioted with approval in Shaw v. Ward, 131 Wis. 646, 111 N. W. 671, and in other cases in this court, is essentially paramount:
“The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water which may accumulate thereon by rains and snows falling on its surface or flowing onto it over the surface of adjacent lote either to stand in unusual quantities on other adj acent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow.” See, also, Manteufel v. Wetzel, 133 Wis. 619, 114 N. W. 91.
It has been declared to be the law of this state in Clauson. v. C. & N. W. R. Co. 106 Wis. 308, 82 N. W. 146, and in
The instant case presents upon the pleadings, verdict, and finding no question of liability for discharging upon the land of the respondent surface water accumulated in a pond or resr
The printed case presented by appellant does not contain a fair statement of the evidence. The brief contains no assignments of error. It contains numerous propositions of fact averred to be in evidence without any reference to the printed case or the record to show upon what such propositions are based. It contains no adequate statement of tire nature of the action nor of the issues involved, nor of the leading facts and conclusions which the evidence tends to establish. In short, Rules 9, 10, 11, and 12 of this court have been flagrantly disregarded. Therefore no costs will be allowed to be recovered by appellant for the expense of printing the case or brief.
By the Court. — The judgment of the circuit court is reversed, with costs in favor of appellant, except the expense of printing case and brief, which is disallowed, and the cause is remanded with directions to render judgment for defendant.
A motion for a rehearing was denied December 7, 1909.