61 Wis. 642 | Wis. | 1884
The village of Bay View, in grading Potter avenue, allowed an old culvert to remain, or constructed a new one (and it is no matter which), under the street, to carry off the surface water which sometimes accumulated on the adjoining lands of one Link and the lands of the plaintiff and others beyond the lands of Link, and which usually passed off through a ravine down to and through this culvert. The culvert became obstructed, and thereby the surface water -was caused to flow back and injure the lands of the plaintiff. The complaint alleges that this flow of water was a natural watercourse. The special verdict of the jury negatives this allegation, and finds that the damage to the plaintiff was caused by the surface water which had been so obstructed.
The lands of the plaintiff are not adjoining Potter avenue, and were not directly affected by the improvement of that street, so as to entitle the plaintiff to compensation for lands taken for public use, but were so remote as to make the injury merely consequential from the back-flow of surface water so caused. It has been too often decided by this court that such an injury is damnum absque injuria to be an open question, and such are the decisions elsewhere, where the common law rule prevails. “ According to that rule, no natural easement or servitude exists in favor of the owner of the higher ground for the flow of mere surface water over the lower estate, but the owner of the latter may detain or divert the same without rendering himself liable in
Whether this is mere surface water and not a watercourse is a question of fact which the jury determined against the plaintiff, and there is no finding which would even imply that the flow of such surface water was so great or constant as to be so near a watercourse as to be an exception to the rule, which some authorities seem to recognize. Municipal corporations have full power and discretion in grading or filling up their streets, and need make no provision for carrying off the surface water of adjoining lands, or against its back-flow upon such lands (Lynch v. Mayor, 16 N. Y. 60); and when it has made such provision by a sewer or a drain, it may discontinue, or abandon the same if such owners are left in no worse condition than they would have been if such sewer or drain had never been made. Atchison v. Challiss, 9 Kan. 603. The authorities cited by the learned counsel of the appellant are cases of nuisance and condemnation. This is neither. The injury is caused by the occasional rains and melting snows, which create temporary surface water, and the plaintiff’s land is in no sense taken for public use. This
Bij the Court.— The judgment of the circuit court is affirmed.