*1 Piрeline Appellant, v. Michels State, Construction, others, Respondents.* Inc., Argued 6, 1974. May 7, 1974. No. 355. March Decided (Also reported 308.) in 217 N. 2d 339 and 219 N. W. W. 2d * rehearing denied, costs, Motion without June *4 argued appellant For the the cause Richard was J. Boyd, attorney assistant general, with whom on brief Warren, attorney general. Robert W. respondents joint
For there awas brief Sehroeder, Gedlen, Riester & Moerke and Ewald L. Moerke, Jr., Posekany, Jr., attorneys and Lewis A. for Metropolitan Sewerage County Commission of Metropolitan Sewerage Milwaukee and District County Milwaukee; Paul J. Burbaeh, attorney for Pipeline Inc.; Construction, Michels Brennan, James B. city attorney, Milwaukee Richard F. Maruszewski, assist- city attorney, ant McDonnell, Patrick B. assistant city attorneys Sewerage attorney, Commission of n corporation City Milwaukee; and Robert Russell, P. *5 deputy corporation counsel, and James J. cоun- Bonifas, Milwaukee; attorneys county; sel, for all of Milwaukee argument respon- by Moerke, Jr., L. for and oral Ewald Metropolitan Sewerage County dent Commission of of Milwaukee, respondent Burbach for Michels and Mr. Pipeline Construction, Inc. by
A brief amicus curiae H. Fuhrman was filed Harold Fuhrman, attorneys, and Wiekert & P. Roemer and John counsel, of all Root Action Milwaukee, for River Com- mittee, Inc. by attorney
A filed Warren, brief Robert W. attorney Boyd, general, and Richard general, assistant J. appellant. for the joint
A by Schroeder, Gedlen, brief was filed Riester & Moerke Jr., and Ewald Arthur Moerke, L. and Robert Melin, attorneys Sewerage Metropolitan for Commission County Sewerage Metropolitan Milwaukee and County Milwaukee; Burbach, District of the Paul at- J. torney Pipeline Inc.; for Construction, Michels James B. Brennan, city attorney, Milwaukee Richard F. Maruszew- city ski, attorney, McDоnnell, assistant Patrick and B. city attorneys Sewerage attorney, assistant for Commis- City Milwaukee; sion of the Russell, and Robert P. corporation counsel, deputy and Bonifas, corpo- James J. counsel, attorneys county; ration for Milwaukee all of Milwaukee; respondents.
A brief amicus curiae H. was filed Harold Fuhrman attorneys, Wiekert & Fuhrman, John P. Romer counsel, all for Root Action Milwaukee, River Com- mittee, Inc. appeal: J. Two are raised issues
Wilkie, complaint allege Does the state facts sufficient public nuisance? *6 Assuming yes, the to the does answer first issue is complaint the state to constitute a cause facts sufficient of action?
Public nuisance. injury scope that the of defendants assert the alleged complaint “public in the here does constitute a not They public contend that a nuisancе differs nuisance.” significantly private from a nuisance terms scope nature conse- and of the conduct involved and its quences.
Public nuisance Nuisances4 is described Wood as follows: property creating. Uses of make “Sec. 18. order —In particular public
the use of a manner a in to the annoyance nuisance, it must be common public is, consequences in its must so extensive be —that they persons; that cannot be a said to be confined to few or public place, public or it in a must be a road as on street, seriously annoy law- so as to offend and those who fully pass. .. .” degree in- must be same ... there that would “Sec. 19. necessary damage to maintain jury be and injury and addition: that damages, for suit damage as resulting must be so extensive therefrom time, that many same so persons at one affect part fairly to result to citizens as injury be can said individually. . .” them . than to public, rather and effects of nuisance must character Public “Sec. 20. necessary to the fact establish established. —It be that the community, applicable to an entire are effects ill upon they effects all who in their are same or or influence, or that the same amount their come within degree it, damage person each is done to affected things impossible. very be nature this would pp. 1893), II, 39, 42, 43, (3d Wood, ed. ch. 4 1 Nuisances 18-20. secs. Those in complained might thing vicinity immediate of the erection special damage injury sustain a they for which private could suit, maintain a while might others special injury sustain apart no rest of the community, redress, and thus would have no except through the public prosecution. intervention of a It is sufficient to show that it upon has a common effect
many distinguished from a few. .”. American Jurisprudence5 say has this to about persons number of affected: per- 10. Character “Sec. as determined number of sons affected. frequently “. . . The courts have in- stated jury from a nuisance, in *7 the order to constitute nuisance public one, gen- a public,’ public must ‘the ‘the affect or erally,’ generally.’ admittedly is so or ‘the citizens But it a is question general difficult to tell a nuisance whether in its persons nuisance.’ of is, character —that a affects sufficient number justify ‘public its characterization a as —to public a ... No doubt nuisance is if it affects community
the any entire neighborhood, or or consider- persons, able or public place of public if it number or occurs in a congregate frequently where the num- or where likely public range bers are the of come within its influence. . .” . 6 A operators recent California case found that of the dairy creating public a were a persons nuisance 11 where who owned twelve one-half in a 51 lot tract lots were thereby. affected The court found that this number constituted a persons considerable number of neighborhood dairy and thus manner in which the operated public awas nuisance.
However, there are authorities take a re- which more public strictive view of what constitutes a For nuisance. 7 example, public Prosser describes a nuisance: Nuisances, pp. 565, 566, 58 Am. 2d Jur. sec. 10. Campbell (1962), App. 54, Rptr. Wade v. 200 Cal. 2d 19 Cal. 173, 966, Annot. A. L. R. 2d 7 Prosser, (4th ed.), pp. 585, 586, Law Torts ch. sec. 88. of an affect public, “To must be considered the nuisance general than public, rather interest common to the pollution peculiar individual, or Thus one several. merely of a number of a stream inconveniences which may riparian private only, it a nuisance but owners is necessary, public It not become a one if it the fish. is kills long community affected, that the so
however, entire be in come as the nuisance interfere those who will with right. most public a contact with in the exercise of aof illustration, of the obstruction course, obvious only public highway, inconveniences those who which travelling upon are It obvious is, furthermore, it. rather substantially any activity interests of inter- or condition which num- private considerable feres very community likely to inter- of in a ber individuals public right, fere use of the the the comfortable also with some such as of highway; question for this reason persons affected number has seldom arisen.” emphasis A York recent New case follows this right nature invaded: teachings are “. . The statutes and the cases public public that a nuisance is an offense to the neighborhood community enjoyment or com- its rights, distinguished activity mon merely results which injury large persons to a even number of enjoyment private mem- shared neighborhood large.” community bers of at public in terms cases define nuisance The Wisconsin *8 injury type of not in the scope and terms of of of injury. Realty quoted approval Co.9 Oriental with
Schiro v. public description a nuisance: of this “ commonly used, it connotes a condition or As . activity unduly with the use of land which interferes solely public place. which interferes with a Conduct of 8 Gallery Wright (1970), 423, York 64 New v. Misc. 2d State of Supp. 426, 427, 314 Y. 2d 661. N. 9 537, 546, (1956), 76 2d 355. 272 Wis. N. W. private is relatively the use of a small area of land private nuisance. tortious but not criminal and called a is public place Conduct with the use of а which interferes community or with the entire is called activities of an public criminal, a also tortious nuisance. This is and is ” persons specially it.’ who are harmed those Hartung County ap- And court in v. Milwaukee this proved plain- the definition in Sehiro stated oper- quarry proving tiffs had the of that a burden whose complained impaired portion ations were of a substantial city people of in the of Wauwatosa. ap- quoted In Boden v. Milwaukee court with proval a from Texas case had held: which not public one, “. . ‘For a nuisance a it need to be injury or public affect the annoyance or are contact if community, whole but neighborhood, people affect the local some in part public occasioned such come as it.’ . with . .” This persons definition have narrows number of who public a nuisance. constitute affected if conduct is to to be inapplicable quotation is The defendants here claim this question only Boden Case dealt because legislatively declare some- power municipality a involved thing public Boden Case nuisance. The to be buildings public nuisances. of certain condemnation Boden not limited facts quotation from The great Legislative latitude bodies have the Boden Case. they cannot determining but public nuisance what is something public nuisance which is to be a declare Boden Therefore, the definition used fact. one in general applicability. Case must be event the state also claim The defendants neighborhood” allege ad- that a “local here did not complaint speaks versely of nu- terms affected. 475, 269, 2d 799. 10 (1967), 87 N. W. 2d N. W. 2d 2 Wis. 1 1 329, 330, 2d 2d N. W. 8 Wis. *9 288 persons adjacent near the and the area to and
merous allege project. Liberally complaint construed the does neighborhood surrounding that has project the sewer only many been affected. Also it is clear that authorities require large injured persons that a number rather of be certainly allegations complaint than a few. The of requirement. meet that Nuisances states Wood on question of conduct are whether results so public question common as amount nuisance is a jury.12 fact for the recently
And in State v. H. Samuels Co.13 this court said: public injured “. . . If the in its civil or privileges respect public or in health to degree, nuisance; public is sufficient to constitute a to degree goes the should be of harm not the whether or nuisance enjoined.” “public” does not persons have to include all the community only sufficiently large but number of
persons, alleged here.
Cause action. granted the demurrer the defendants- The trial court of Huber v. respondents on the basis that case 14 Merkel that there is no cause action established ground a correct water. This is state- interference holding In Huber Merkel of that case. ment of v. attempted land- of real estate to have another an owner vicinity enjoined wasting from un- in his owner per- reasonably using water artesian wells on the property. The to flow defendant allowed his wells son’s simply spilling continuously, on the excess 12 p. Wood, (3d 1893), II, Nuisances ed. ch. sec. 22. 631, 638, 2d 2d N. W. Wis. 14 Supra, footnote 1. *10 adversely pressure and all this affected the artesian of tapped aquifer. the the wells which same This court held judicial that it the was almost universal consensus opinion that: through simply “. . If the the percolate waters ground, they belong without definite the channel, realty they in which are of the found, the owner soil аnd
may If, divert, consume, impunity. or cut them off on the other a hand, subterranean in waters flow channel, govern defined which of surface rules use apply; presumption streams but the that the waters percolating they are supplied waters it are until is shown that 51 by definite, flowing stream.” The court went on to find that intent did not malicious right. affect this ap- that it clear that it must be held “. . . seems right resulting
pellant his the from law, at common had clear thereon, ownership use land, to sink a well away, chose, therefrom as he or allow to flow neighbors’ regardless wells, intent. upon of the effect such use his right by malicious and that is not affected such right absolute Whether results an this the the ownership of itself, the water as stated in some authorities, right or from a to use and mere divert percolating through question soil, is a water while present materiality In either оf event, of such.” no discussion. arising ownership property right, it is a out of his protected by and is land, common law rationale the basis or not discuss The Huber Case did merely this was but asserted common-law rule this severely criti- been adopted case has it. The the rule and court,17 dissenting justices from this only cized, not 51 page 357. Id. at page Id. at Mr. Justice Chief Justice Edward T. Fairchild Mr. Lac, George du Fond their in Menne v. said in dissent R. Currie page plaintiffs supra, case 346: this seek footnote at “The per- protecting equity their aid of opinions but text other also writers and in the jurisdictions.19 at Much the criticism directed holding that his even malice did not a landowner of divest right generally absolute to the It use of water. aspect conceded that probably a mis- case was statement or at had least an extension of the cases which apрlied “English up the common law or rule” nonwasteful, prior All of time. cases had dealt with nonmalicious use of water. companion cases two 1956 this court was faced with *11 holding sought change v. Merkel. to the of Huber
which 20 Empire Fond du du and Menne v. In Fond Lac v. change adopted to the rule this court refused Lac this court Merkel. in the Menne Case However, Huber v. acknowledge had re the case the severe criticism did mainly in the issue of malicious ceived, directed toward the not involved in tent. malice was However, because give necessary to Case the not feel it Menne court did again did not attention to criticism. And the court such reaffirming really the of the rule it discuss basis was differing many juris position the other or evaluate subject. merely the The court indicated dictions on arguable come change, it merits of should whatever legislature. English rule? or common-law What is basis ownership percolat- rule of absolute for this basis ways feeling of under- ing ground that the was a water mysterious unpredictable to and ground were too They supply. they colating their water from which draw waters regardless or not protection of whether are entitled to such regulate percolating police power legislature its to ever exercises waters.” Rights, p. 2718, 938. Farnham, sec. Waters Water 9 1 Light (1907), Power Co. v. Crookston & Erickson Waterworks 391; 481, 489, Hathorn Natural Carbonic v. 111 N. W. 100 Minn. E. Co. 194 N. Y. 87 N. Gas 20 Supra, footnote 2.
21 Supra, footnote 3. for adequate fair rules allow the establishment of regulation competing to water. So such everyone English adopted position that courts get they permitted take all could to and use of which possession. English the law Acton v. Blundell22 the held courts ground apply percolating
оf surface waters did water because: changes underground man can tell these “. . . no what undergone progress time .... have sources implying
therefore, mutual consent or is . . there can be no for ages past . . . which agreement, running one foundations which law as supposed to be built . . . .” streams early American of Roath Driscoll23 said And case v. regard percolating water: can- progress . . . its existence and . The laws of “. . great heights, and regulated. It rises not be known beyond apprehen- our influences collaterally,
moves changeable and un- secret, are so influences These sion. regulations of subject controllable, them to we cannot system rules, as has been upon them a law, nor build done, with streams upon the surface.” Pennsylvania again *12 v. Bruckhart in Haldeman And court said: diverted without A cannot be . . surfacе stream “. pro- a
knowledge affect lower the diversion will percola- an unknown subterraneous prietor. tion or stream. Not so hardly rights upon an- can have One imperceptible, neither are of which other’s land which knowledge.” can have that other himself the Huber Merkel Case was in 1903 when v. Even mysterious, be- unknowable forces written, the awe of becoming for an outmoded basis the earth fast neath was 22 351, Reprint 350, 1843), 324, 152 1223. (Ex. Mees. & 12 W. 23 533, (1850), 541. 20 Conn. 24 519. 45 Pa. a rule of law. The court in Huber Merkel discussed v. subject degree of of artesian a certain water with
sophistication. may been However, artesian have water percolating ground types better understood than other of knowledge today However, water. in the field scientific hydrology certainly point has advanced to where relationship a effect cause and can be established between underground tapping a water level of water liability adjudicated fairly table in the area so can be knowledge process. consonant with due Our scientific systems. interdependence also establishes the of all water hydrologic cycle existing “. . The traces all water from the to the atmosphere, oceans to the and ulti land mately back to the there in nature, oceans. is an separable relationship all in water, between whether atmosphere, on earth’s earth’s or under the surface, surface.” very arbitrary distinction little make an It makes sense to applied to on the basis between rules to be justification little happens There is to be found. where ground ab rights be considered property water to in subject are surface streams solute while Case Merkel The Huber v. doctrine reasonable use. right why property certainly gives explanation no general exception an water should be tuo ut alienum laedas.26 utere non maxim —sic v. although of Huber at the time of the decision Also, English probably prevail, it rule did was Merkel the and ancient venerable, rule of entrenched a common-law origin. enunciated the doc- decisions which The first only early time a short decided in 1840’s trine were application achieved statehood. before Wisconsin developing the time at Wisconsin of the rule still Use, Beuscher, Bar Law Water Wis. Wisconsin’s J. H. (Oct. p. 1968), Bull. injure your a manner as not such Use own that of another.
293 adopted judicial it as the “almost universal consensus opinion.” jurisdictions thereafter American Soon other began reject English to the rule in common-law favor оf what has come to be as the American rule known the upon reasonable use doctrine. Even New whose York, heavily cases the court Wisconsin relied Huber v. Merkel, rejected English years.27 rule within a few pointed appellant’s Now as out in the brief there are 25 which adhere to the reasonable use doctrine and states adopted three which have the even broader correlative rights weight authority doctrine. in this Thus country longer English supports no rule of absolute possession. highlight fluidity To of the law at the time Wisconsin decided the one case of Huber v. Merkel only following passage need read the a treatise rights only year water written one that decision.28 after percolating respect “. . . law with comparatively developed recent until waters subject governing cannot period. the rulеs all And present first regarded time. In the at the as settled be place, agreed nature are not as to the courts that right because of . . . The fact is if exists. water, in such gen- attempt difficulty formulate rights in, govern ownership of, eral rules to percolating water, escape have endeavored the courts doing different have stated responsibility, and in so that harmonize well do not their action which reasons when such water why the use brought together. reason There is no brought definite rules not be within should any property. It has been ... as there are no other class same rights existing correlative between said adjoining lands in reference to use proprietors of percolating upon under its surface. . . the earth or very attempt that doctrine forces act soon But the exception percolating nоt an water is the conclusion People York Acid v. New Carbonic Gas Co. See 421, N. E. 441. N. Y. 2710, 2711, 2712, supra, pages Farnham, footnote at sec.
294 general rights organized society to the rule that in are not absolute, correlative, but and that one man cannot be permitted right to exercise if the direct effect of his neighbor.” injury act will be an to his
Stare decisis. As earlier, was mentioned the court in Menne v. Fond actually du Lac did not decide to retain doctrine of change Huber v. Merkel but rather that if was stated legislature. desirable it should comefrom the Assuming, deciding, .“. . however, but without correctly the Huber decision did not state the common law, it did state a rule that was reached adhered and is to in several other states referred and which is often as the common-law It rule. determined the use percolating water underneath аn owner’s land is a property right and that water obtained so could be sold. operated fifty years. We have thereunder for more than Property rights acquired thereunder have been and sold. Under the rule of stare decisis, where engage judicial are legislation. involved, courts are reluctant to in change, If there is to be a it should come legislature. legislature action of the We know that the studying problem legislation expect and we can such people itas deems advisable in the interests of all of the 29 in the state.” However, several later cases this court did much restraint, make clear that stare decisis is not an inflexible merely cautionary pointed but rule. In cases, several appellant out brief, in its court has made changes though dramatic in common-law rules even saying change earlier cases had to do refused so such 31 legislature.30 Holytz up v. Milwaukee this court said: 29 Lac, supra, 3, page Menne Fond v. du footnote at 345. 30 Holytz (1962), See: v. Milwaukee 26, 2dWis. 115 N. W.
2d page 37, Kojis quoting Hospital Id. at from v. Doctors 367, 372, 131, 2d 12 Wis. 2d 107 N. W. 107 N. 2d 292. W. “ *. stare however desirable decisis, . The rule require certainty standpoint stability, does ap- longer perpetuate be that should no us to plicable a doctrine changes present-day charitable of the view ” hospitals/ the mean- in Bielski v. Schulze the court And discussed ing XIV, Constitution: art. sec. Wisconsin *15 adopt event, In that sec. “. . . we view cannot 13, from prohibited our court art. XIV of constitution this changing adopting principles them. now common-law or of dynamic principle which Inherent allows it in common law is a changing grow meet and to tailor itself to cor- decisis, which, within the of stare if needs doctrine rectly undеrstood, not and did not forever static reversing from prevent the courts from themselves or applying principles of common law to new situations so, need If the to this were we succumb arose. not must judge ‘long a rule that and let others dead should lives, problems age of the unaware in he which thinking do his for him.’ . . .” 34 v. Esser And in State this court said: “ is found unsuited an rule old *. . . Whenever aside it should be set present unsound, or conditions harmony conditions in with those is a rule declared which ” justice/ demands of and meets urge decisis is however, that stare respondents, rights. involving property often more in cases adhered to 35 v. this court said: Wilcox Wilcox give certainty light attempt decisis of stare “The rules foresee- planned can be in conduct law, our so 32 (1962), 1, 11, 114 2d N. 2d 105. 16 Wis. W. 33 parts XIV, of the common 13: “Such Const. art. sec. Wis. territory Wisconsin, in in not in force as are now law pаrt of constitution, he and continue shall consistent this legislature.” suspended altered state until this law 34 505, quoting 567, 582, (1962), 2d 115 N. W. 2d 16 Wis. Law, p. 154, Jur., sec. 2. Common Am. 617, 622, 133 2d (1965), 2d N. W. 26 Wis. legal consequences. able rele- is less Certainty, however, vant in the torts, law of unintentional where conduct planned, not par- than in or, the law of more contracts ticularly, in the property.” law of real And recently more in Gottlieb Milwaukee36 v. this court said: “Moreover, we have made it clear court, this general, depart would only from stare decisis un where
intentional only conduct was involved and then there when compelling were altering reasons for a court-made rule. King Estate (1965), (2d) 431, (2d) Wis. 137 N. W. 122. In 623, Wilcox v. Wilcox (2d) 617, 26 Wis. (2d) pointed N. W. we out our reluctance to precedent deviate from prop where rules of contract or erty were involved.” However, the above say cases do not that stare decisis must be change adhered to wherever would affect property rights. The cases indicate that caution be must used this area any changes in the common law be well considered this court. present
In the proposed change case the confisca- tory brings merely It type nature. *16 ground
(percolating water) general in line with the property limitation on all use of in embodied the law inconsistency nuisance. There is a saying basic in that a person right property underground a has in water that cannot be taken without compensation, for, when he right exercises to detriment of his he neighbor, actually taking neighbor’s is property his without com- pensation.
It is also true that although doctrine Huber, enunciated in not 1903, has been long reaffirmed in a line of cases. State v. Surma this court said that courts prоne apply are less the doctrine of stare decisis a single distinguished decision as from a line of decisions
36 (1967),
408, 431, 147
2dWis.
2d
N. W.
37 (1953),
263 Wis.
However, it that a clear existing state be doctrine” would use conflict activity may although be particular a For, statutes. exempt lawful, this does not authorized and therefore Fairyland In Jost the doctrine of nuisance. v. it from Cooperative court said: Power public utility, pursuit “. . . contend that To legitimate can, ef- enterprise, praiseworthy and of its fect, with- deprive property the full use of their others of poses theory the law compensation, unknown out of oрinion the tak- Wisconsin, constitute and in our would process ing due of law.” without argu- during respondents in their brief and oral importance particular sewer of this ment discussed *17 38 Supra, footnote 2. 164, 177, 2d 172 N. 2d 647. 45 Wis. W.
project making public utility its and as a not reason for any change per- in common-law doctrine of colating ground urged consequences They water. that its project justification on making their for not change. However, arguments their actu- were addressed ally to question the whether, fact, substantive their in particular use type and of relief “reasonable” what may be available. appellant
The points out it its action did project ask that the Certainly utility be abated. the and necessity project of this would be relevant factors question whether abatement proper would be remedy. appellant What asked was re- spondents steps be ordered to or take eliminate amelio- hardship rate the project and adverse effects of upon argued citizens appellant it. affected The has persuasively that example, increased of, cost furnishing a supply parties affected would spread project larger the social cost of the over the com- munity which project would be benefited the sewer leaving instead wholly adjacent burden on the landowners. above, we our deci-
For reasons discussed overrule Merkel in Huber v. and for that we sion reason find necessary adopt harmony law more a rule of present legal principles. scientific adopted. rule should be
What adopt should rule this court now What as to use percolating water? There are three doc- distinct jurisdictions regard- applied in American trines various ing rights percolating water: English (a) rule: common-law person dig who may “. . the owns surface there- apply all that there purposes in, found his own Waters, pp.770-773, (c). S., C. sec. J. *18 pleasure; the at Ms free and in exercise if, will intercepts right, he the water collected such or drains off underground neighbor’s this springs well, in his description neighbor inconvenience to his falls within the absque of damnum cannot which become injuria, ground of an action. . . .” may There be is one limitation that not actions by motivated malice and waste can actionable. of water be Although language framed in doctrine this really capture. may a rule of The landowner sell grant right his to withdraw others.
(b) Reasonable Use: Corpus As stated in Juris Secundum: law followed “In the rule of common states, some given of reason- еarly way to the doctrine in has decisions limiting right percolating a landowner to able use may be as an amount of water in such water necessary tion his land purpose in connec- useful or beneficial some restricting taken, from which land his purpose on right useful to use water for his restricting right to use it elsewhere and not his land, own adjoining injury landowners. proof absence rights: (c) Correlative
Again doctrine Corpus Juris defines this Secundum as: rights all rights, correlative “Under the rule of strata, or basin, saturated
landowners over common underground cannot extract more for use on his own coequal correlative, and one are reservoir even water, than his share of rights injured land, where others’ are thereby.” by group of brief, submitted this case amicus project, printed the citizens affected sewer has overruling the re- of the trial court decision text full private brought to the nuisance suit spondents’ demurrer opinion In that the court landowners. the affected Corpus use” rule that the “reasonable as stated states Juris Secundum is applied the one to be to the facts the case. many early cases the two doctrines of reasonable use together and correlative seem have been mixed
as the “American However, Corpus rule.” Juris Secundum clear, they makes are two doctrines. distinct *19 According appellant’s only to the ad- brief three states here correlative doctrine. This doctrine applies the basic rules of the doctrine, use reasonable but apportionment underground calls for water where there supply is not a sufficient for all reasonable uses. areWe not shown here that water conditiоns in Wiscon- sin are adoption so critical as to necessitate the of this doctrine. Also the administrative difficulties of a court trying to apportionment make such an would militate against adoption. its widely adopted
The “reasonable use” doctrine has been reading in the United However, a close States. language very of the doctrine that it not a shows is departure radical from the It common-law rule. still quite privilege contains a broad to use The water. respondents in their brief seem misunderstand scope ap- real of the “reasonable rule it use” as has been plied. page they On 11 of their brief state: right being . case, plain- “. . claimed right put any type tiff is the down well owner wishes and be assured thereafter that no one else will aquifer use the in a manner affect will that well’s production. right Such not doеs should not exist in Wisconsin.” impact This is not the of the reasonable use doctrine. This is because the term very special “reasonable” has a meaning. restricted A waste of water or a use wasteful only of water is not unreasonable if it causes harm, and use of water causes harm is reasonable nevertheless Annot. 65 A. L. R. and cases cited therein. overlying if it is made connection land. with withdrawal of for beneficial water for use elsewhere purposes supply is municipal supply such as or domestic special sense, not removal “reasonable” in this but such may liability be made without if no harm results. story of the re-
Thus can be seen that the scare spondents may is not true. One domestic sink a well for liability use or other to his use on his without land neighbors long he acts for effects on their wells as wasting without malice and detri- their mеnt. basically only protec-
The “reasonable use” rule affords withdrawing large quantities tion from cities of water municipal pay The rule those utilities. forces cities to damages affected such excessive of new use cost pumping equipment very wells and much in accord and is policies requiring loss distribution and bene- thereof. pay the costs harmful activities to ficiaries of apportionment there no under the rule However, *20 adjoining If water landowners. water as between the land from which use on for a beneficial withdrawn any adjoining liability to harm no it taken there is gives protec- partial the rule effect, owners. companies, against or cities water wells tion to small large factory apartment a protection from but neighboring building land.42 on the adopt any here dis of the three rules not to choose We adopt in Tentative forth rather to rule set but cussed, Second, of the Law the Restatement Draft No. of 26, adoption 1971, for Torts, April proposed on of this section The revisors Institute.43 American Law Ellis, Law and Administration Wis also: Water-Use 42 See p. 91, no there is 5.04, for situations where sec. consin present protection law. under Wisconsin Torts, Second, Draft No. Tentative of the Law Restatement replacing 868, 869, 151-162, 1971, 858A, pp. April 26, secs. sec. 17, of 861, 862, Restatement of the Law Torts. 863 of the they indicated that felt in the Eestate- the rules set forth First, Torts, ment of the both the Law were curious mixture of rights” doc- “reasonable use” and “correlative trines, but without the idea that on beneficial use overlying apportionment land of reasonable. Also balancing utility against water was on the basis aof of right equality harm, rather than on the that undеrlies the correlative doctrine.44 significantly changes 858A Sec. the rule Eestate- protection ment of First, Law broadens analysis “reasonable use” rule. As section stated proposal: “Analysis. adopted Topic The rule can de- in this be protection scribed as the American rule its broad- gives It ened. more or less unrestricted freedom to possessor water overlying ground develop land to and use permits grant ground and sale of water persons possess who need water but do not over- land lying among attempt apportion It does not it. except special users to the extent that the condi- underground ground tions streams and interconnected permit and stream water it to be done on rational gives protection basis. It American rule by large owners of small wells harmed withdrawals for protection proper elewhere, use but extends that cases by large operations to harm done withdrawals for overlying lands.” proposed section of the Eestatement Second reads as follows: Non-liability “Sec. 858A. for use of water— exceptions. possessor grantee “A of land or his who withdraws ground water from the land and uses it for a beneficial purpose subject liability is not for interference with *21 the use another, of water unless page Id. at 162. page Id. at 166. Id. at page “(a) The withdrawal of causes unreasonable water through reducing lowering harm table or water pressure, artesian “ (b) ground stream, The underground water forms an in which case the rules are stated 850A to 857 sec. applicable, or “(c) The withdrawal water of has a direct and sub- upon lake, stantial effect the water of a watercourse or in which case the rules stated in 850A 857 are secs. applicable.” preserves expression a rule
Thus rule the basic of nonliability you privilege if use will—to —a exception water beneath the land. The formulation of enough usually recognizes to this there basic rule that necessary apportionment all that water for users so is not deep- problem but that the is who shall bear costs ening prior installing paying increased wells, pumps, pumping lowering costs, necessitated a etc., by large placed the The water table user. common law making improvements The burden of each user. on gives existing protection “reasonable use” rule wells use if the taken off the water withdrawal land pur- not if the elsewhere but water is for beneficial used poses overlying proposed on the rule of land. placе Restatement would Second matter cost applicable the rule the same rational basis as surface upon placing the reasonableness of streams, burden party one other. meaning harm” on the “unreasonable
The comment explains that other as in rule in the Restatement as used vary the circum- will with situations, reasonableness superior economic resources Later users stances. impose upon costs smaller water allowed not be should capacity. beyond The com- their economic are users respondents itself to the fear of addresses also ment concerning percolating use change the rule depth dictate user to of wells the first allow will The comment ex- to all later users. table the water *22 303a
plains that usually give equal treatment reasonable is pеrsons similarly place situated and to similar burdens quote on each. To from the comment: irrigation “. . . If the first farmer to sink an well facility inadequate finds his other is when farmers irrigate lands, unreasonably their he has not been harmed deepen them if he is forced to well same his to the pay as pumping level and theirs costs same when drops. water have level Furthermore, own his withdrawals lowering contributed of the water On table. hand, the other uses purposes of water for domestic and watering ordinarily stock justify deep will not the cost of expensive wells and and pumps, unreasonable harm usually person making to the caused such uses when materially pressure table is lowered or artesian destroyed. In these cases the withdrawals the harmed usually they water users are minuscule and have materially In causing contributed to the harm. situation many causing person such cases the solution is for the his to supply harm person the needs of the harmed from large withdrawals an alternate and source, placing liability causing person on the the harm will encourage this result. . . .” adopting proposed in the the rule Eestatement necessarily Torts, we overrule the trial court order sustaining here, the demurrer and we remand for further proceedings trial court.
By the Court. —Order and remanded for reversed cause proceedings not opinion. further inconsistent this following July 3, memorandum was filed 1974. (on Opinion motion for Supplemental Wilkie, J. rehearing). original opinion Our overruled the deci Huber v. Merkel 355, sion of 94 N. 117 Wis. W. 354, adopted forth Draft rule set in Tentative Torts, Second, the Eestatement of the as No. Law 26, proposed April identified “Sec. 858A. Nonliability exceptions.” use of water — page Id. at
303b given filing opinion, court Since the of that has overruling further consideration whether adoption of a new of Huber v. Merkel and the decision Kojis only. v. prospective rule made See: should be *23 Hospital 2d 367, (1961), Doctors 12 107 W. Wis. 2d N. Holytz (charitable immunity); v. 2d 292 131, 107 N. W. 26, 2d 618 Milwaukee 2d 115 N. W. (1962), 17 Wis. Holy Trinity (governmental immunity); Catho Widell v. 249 648, 2d 2d (1963), lic Church N. W. Wis. immunity); (1963), 20 (religious v. Wis. Goller White immunity). 402, 122 (parental 2d 2d 193 N. W. general court the ‘Black “The rule adhered to provides that a Doctrine.’ doctrine decision
stonian This repudiates an earlier decision retro which spective or overrules Fitzgerald Hicks, operation.” Meissner & v. 571, 575, 2d 595. Inc. 2d Wis. N. W. recognized However, also ex- this court has various doing ceptions have made to this doctrine and in been so has stated: operation “. . . Retroactive denied has been sometimes great
where there reliance on an de- beеn overruled has persons number cision able substantial consider- harm or detriment could result to them. also It has purpose ruling denied where of the cannot been be tend to thrust an new retroactivity by retroactivity, and where would served on the excessive burden administration Fitzgerald, justice. page supra, of 576. L. 3d 1384.” A. R. compelling We have concluded that there are reasons making application adopted rule in the original opinion prospective except only, as to those in- dividually plaintiffs appearing curiae, named amici including in the Dale others class related case Pipeline Nolte, Construction, Inc., et al. v. Michels Case Court, County, Wisconsin, Circuit Milwaukee #441-610, allege they represent, except whom and further toas arising May 1974, after causes of action the date original filing opinion. of our