Ramsdale v. Foote
13 N.W. 557
Wis.
1882
Check Treatment
Cassoday, J.

The rule of the civil law, as stated by Pothier, was that “each of the neighbors may do upon his heritage what seemeth good to him, in such manner, nevertheless, that he doth not, injure the neighboring heritage.” This rule has been adopted and followed, in several of the states where the common law is in force, as being “based upon sound reasons of equity and justice.” Shane v. Railway Co., 71 Mo., 237; McCormick v. Railway Co., 70 Mo., 359; Kouffman v. Griesemer, 26 Pa. St., 407; Miller v. Laubach, 47 Pa. St., 154; Gillham v. Railway Co., 49 Ill., 484; Gormley v. Sanford, 52 Ill., 158; T.,W. & W. R. Co. v. Morrison, 71 Ill., 616; J., N. W. & S. E. R. Co. v. Cox, 91 Ill., 500; Butler v. Peck, 16 Ohio St., 334; Overton v. Sawyer, 1 Jones, Law, 308; Livingston v. McDonald, 21 Iowa, 160; Adams v. Walker, 34 Conn., 466; Ogburn v. Connor, 46 Cal., 346.

Chief Justice Breese says this doctrine “has found favor in almost all the common law courts of this country and of England.” 49 Ill., 486. In Hoyt v. Hudson, 27 Wis., 658-9, however, Chief Justice DixoN took occasion to reject the rule of the civil law and adopt that of the common law, which he defined as follows: “ The doctrine of the common law is that there exists no such natural easement or seiwitude in favor of the owner of the superior or higher ground, or fields, as to mere surface water, or such as falls or accumulates by rain or the melting of snow, and that the proprietor of *561the inferior or lower tenement or estate may, if he choose,' lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may-turn the same back upon or off «on to or over the lands of other proprietors without liability for injury ensuing from such obstruction or diversion.”

The rule in Hoyt v. Hudson has frequently been followed in this and other courts. Eulrich v. Richter, 37 Wis., 226; Allen v. Chippewa, Falls, 52 Wis., 434; O'Connor v. Railway Co., id., 530; Taylor v. Fickas, 64 Ind., 167; O'Brien v. St. Paul, 25 Minn., 334. This last case, as well as the late case of McClure v. Red Wing, 28 Minn., 186, also follows Pettigrew v. Evansville, 25 Wis., 223, and seems to be an exception to the general common law rule, and holds that surface water may be turned upon the land of another in such a way as to have the characteristics of a natural watercourse, and then must, to some extent, be governed by the rules applicable to natural watercourses. But notwithstanding the question was discussed upon the argument, yet the construction which we have put upon the complaint precludes us from determining the case upon the principles applicable to mere surface water. The complaint is silent upon the subject of surface water. There is nothing in it from which it can be inferred that the water which “overflowed and flooded ” the plaintiff’s land, “ and continued to flood or overflow ” the same, was surface water, unless it be the words ditch or drain which had been cut,” etc. But if the water was continually flowing, then, although the ditch or drain •may have been artificial, yet the water flowing therein would •seem to have a continuous or living source. Besides, there is no allegation in the complaint that the dam, or even any ■of the ditch, was on the defendants’ land. The water having continuously flowed along that ditch northward to the place where the dam is located since May, 1870, the plaintiff is presumptively entitled to have it continue such flowage •as against the defendants. If the defendants have any good *562reason why it should now be stopped, they can make it available by way of answer. Certainly it requires no authorities to show that the defendants had no right to build a dam and turn a flowing stream back upon and flood the lands of the plaintiff. But see Arimond v. G. B. & M. Canal Co., 31 Wis., 316; Borchardt v. Wausau Boom, Co., 54 Wis., 107; Weaver v. M. & R. R. Boom Co., 28 Minn., 534. We must hold, therefore, that the complaint does state facts sufficient to constitute a cause of action.

As to the second and third grounds of demurrer, it is sufficient here to say that, assuming that the “cranberry laws,” so called (secs. 1472-1479 B. S.), are constitutional (a question not here determined), yet it is evident that the defendants cannot refuse to join in the selection of arbitrators as required by those laws, and then, when sued, defend on the ground that the plaintiff had mistaken his remedy and was confined exclusively to arbitration. Arnet v. Ins. Co., 22 Wis., 516; Sherman v. M., L. S. & W. R. R. Co., 40 Wis., 652.

The fourth ground of demurrer is the statute of limitations. It is well settled that every continuance of a nuisance is, in law, a new nuisance. Angell on Lim., § 300; Baldwin v. Calkins, 10 Wend., 178; Staple v. Spring, 10 Mass., 74; Hodges v. Hodges, 5 Met., 205; Waggoner v. Jermaine, 3 Denio, 306; Spilman v. Roanoke Nav. Co., 74 N. C., 675; Cobb v. Smith, 38 Wis., 36. This being so, it is evident that the statute of limitations is not available to the defendants. In fact, counsel made no argument and cited no authority in support of it, and hence it need not be further considered.

By the Oourt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law-