25 Wis. 223 | Wis. | 1870
This case differs, from any heretofore decided by this court, and from any cited by counsel for the defendants. • Here the injury to the plaintiff’s land,
The prinqiple upon which those decisions rest is very obvious. It is, that the loss or damage to the land of any proprietor, caused by the presence of surface water collected by the melting of snow or the falling of rain thereon, must be borne by himself, and that he cannot lawfully insist or claim by prescription that the same or any part thereof shall be sustained by the adjoining or other proprietor of land, even though the land of the latter was so situated in a state of nature that it would have received the water and sustained the loss. Every owner may lawfully so improve his own land as to prevent the flow of surface water thereon from the land of his neighbor. And so, too, if the running of the surface water from one man’s land, when in a state of nature or otherwise, off, on to or over the land of another, is such as to be beneficial to the latter, still lie cannot claim it as a legal right, or prescribe for it after any lapse of time. The first proprietor may so provide, by suitable erections or appliances on his own land, as to retain the water or cause it to flow in some other
Some observations may be thought necessary to distinguish this from the leading case of Radcliff’s Executors v. The Mayor, etc., of Brooklyn, 4 Corns. 195. Enough has already been said for that purpose. There the injuries complained of were purely consequential. The public authorities did nothing outside the line of the street. They did not invade the premises of- the plaintiff by conveying or causing to be conveyed thereon water or any other injurious substance. And this we think constitutes the true line of distinction, and one which is clearly recognized in the opinion in that case, on pages 198, 199, 200.
By the Qourt. — The judgment of the court below is reversed, and the cause remanded with directions to enter judgment for the plaintiff in accordance with the prayer of his complaint.
The appeal was finally disposed of at the January term, 1870, when the following opinion was filed:
Counsel for the defendants argue very earnestly and at much length for a rehearing, and complain of several most serious mistakes both of law and of fact. As to the facts, the principal mistake claimed is, that'the court assumes that the trustees of the village, and the street commissioner acting under them, proposed and intended to drain the water of the pond upon the land of the plaintiff, whereas they say the proof was that the trustees and commissioner intended to dig the ditch only to a point from twelve to twenty rods distant from the plaintiff’s line, and that from that point to the line the inclination of the land was such that the water would run upon the premises of the plaintiff of itself, and without any ditching or artificial aid whatever. We decided the cause upon the case presented, and that required no examination of’ the evidence, and we did not examine it. The evidence was not read at the argument, and could not properly have been. The court below found in favor of the plaintiff upon the facts, but against him on the law; and so judgment was rendered for the defendants. Upon such judgment in their favor, the defendants had no occasion to except to the findings of fact. Indeed they could not do so, as they were not aggrieved, and did not desire to appeal from the judgment. On appeal by the plaintiff, therefore, the only questions presented were upon his exceptions, which, for the most part, were to the conclusions of law upon the facts found. The material facts being found in his favor, the plaintiff had no cause to complain of those findings, and did not except to them; and
It is a matter of no moment, however, in this case, that we are unable to review the findings of fact; for upon the facts as claimed by counsel, as well as upon those found by the court, our decision must be the same. The court found all the material allegations of the complaint to be true, except as therein specifically stated. The complaint alleged the existence of the pond, or a large body of standing water, on each side of Main street; that the defendant, the street commissioner; acting under and by direction df the trustees, had commenced the excavation of a large ditch from said standing water, and running thence along the line of Second street toward the premises of the plaintiff, and near thereto, for the purpose of draining said standing water in and upon said premises ; that the defendants gave out and threatened that they would complete such ditch, and drain the water thereon; and that if they did so the plaintiff would be very greatly injured, to wit, in the sum of three hundred dollars. ‘
The complaint further alleged that it was wholly unnecessary, for the purpose of improving Main street,
Now, upon this state of the case, we regard it as wholly immaterial that the findings of the court were not more specific as to the point where the ditch was to terminate,
Tbe other objections urged proceed upon what we conceive to be a misapprehension on tbe part of counsel as to tbe effect of tbe adjudged cases, as well those in Massachusetts, upon which counsel rely, as elsewhere. They fail, as it seems to us, to properly discriminate between those cases where tbe proprietor may, by improvements and structures on bis own land, turn away tbe surface water running thereon from tbe lands of others, and tbe case at bar, or tbe case of a proprietor who, by a ditch or other artificial channel, proposes to turn Ms own surface water, collected in a stream, directly
And the two additional cases cited in support of this motion but further illustrate and confirm the principles laid down in the opinion already filed in this case. Gannon v. Hargadon, 10 Allen, 106, was a case of surface water flowing from the lands of others upon the land of the defendant, and which, by means of sods or turfs placed a few feet from his line, the defendant had obstructed,-and the water then ran off upon the land of the plaintiff, where otherwise it would not. The court below instructed the jury that the defendant might lawfully obstruct the flow of the water upon his own land, and that if, in so doing, he caused it to run off upon the land of the plaintiff, doing injury, no action could be maintained against him for such injury; but that if he permitted the water to come upon his land, and then obstructed it, causing damage to the plaintiff, he was responsible. The substance of the instructions was, that if the defendant exercised his right of stopping the water, he must do so at the point where it crossed his line, and could not do so elsewhere on his own land. This the court above held to be erroneous, and that the defendant had the right to stop the water where he did without incurring responsibility for the injury caused the plaintiff. Such was the real and only material point involved in the case; and although there may be found in the opinion some expressions susceptible of a more extended or different application, we are not to forget that the question before the court concerned only the right of the owner of land with respect to surface water flowing thereon from, the lands of others. After stating the general principle as established by previous decisions, the court say: “Nor is it at all material, in the application of this principle of law, whether a party obstructs or changes the direction or flow of surface water by preventing it from coming within the limits of his land, or by erecting barriers or changing the level of the
Anri the case of Turner v. The Inhabitants of Dartmouth, 13 Allen, 291, was of the very samé kind. The question was as to the right of the town to obstruct or change the course of surface water coming upon the highway from the adjacent lands of others. The acts complained of by the plaintiff, as stated in the opinion of the court, “consisted of placing earth on the road in front of the plaintiff’s mill, so as to raise the surface of' the road, and changing and re-arranging certain water bars a short distance westward of the .mill. The effect of these alterations was to change the course of the surface-water which came upon the highway, so that the water fan down upon the. plaintiff’s premises and
Another and the last objection raises a question, perhaps, of more doubt. It is, whether the proceeding by injunction can be sustained to prevent the injury. This depends altogether upon the nature of the injury. If it be permanent, or such as will continue to operate in all future time, then the proceeding can be sustained; but if only temporary, or such as will cease when the waters of the pond are once drawn off, then it cannot. The finding of the court is not specific upon this point, but we infer from an allegation of the complaint, which is found true by the general clause in the finding, that the threatened injury is permanent. That allegation is, “that if said water is so drained in and upon the
By the Qourt. — Motion denied.