85 Wis. 256 | Wis. | 1893
Much testimony was introduced on the trial, and there is considerable conflict in the statements of some of the witnesses. We have examined the testimony sufficiently to satisfy us that it supports the findings of the learned circuit court. Statement and discussion of the testimony in this opinion would be profitless, and we refrain therefrom. Three questions must be determined, and it is believed that they cover the whole case. These are: (1) Was the demurrer to the counterclaim properly sustained? (2) Did the court properly deny the demand of defendant for a jury trial, and properly overrule his demurrer ore tenus to the complaint ? Or, stated in another form, was the action properly brought in equity? And (3) is the judgment supported by the findings?
2. Does the complaint state a valid cause of action in equity? The action was brought under sec. 3180, R. S., as amended by ch. 190, Laws of 1882 (S. & B. Ann. Stats, sec. 3180
3. Is the judgment supported by the findings? Such findings are to the effect that there was a low place or basin on defendant’s land in which water caused by rains and inciting snow was wont to collect, 'much of which soaked into the ground or was wasted by evaporation; that ditches were dug which conducted the water from springs into such basin; that the quantity of water therein was also increased by a fountain dug by defendant which brought the subterranean water to the surface and into such basin; and that the defendant dug a ditch through an elevation of the ground on his own land near the plaintiff’s line, and through it precipitated the water thus collected
The above findings bring the case directly within the rule of Pettigrew v. Evansville, 25 Wis. 223. That case has been much discnssed and somewhat criticised in many cases before this court since it was decided, and in some respects the doctrine thereof has been modified, especially as regards the rights of municipalities to dispose of surface water in the improvement of streets. Most of these cases and numerous others are cited by Justices Oassoday and Put-ney in the opinion of the former in Heth v. Fond du Lac, 63 Wis. 228, and of the latter in Champion v. Crandon, 84 Wis. 405. But in an action between private individuals, in which no question of public duty or authority is involved, none of these cases question the accuracy of the rule of Pettigrew v. Evansville, correctly stated in a headnote to that case, as follows: “ The owner of land on which there is a pond or reservoir of surface water cannot lawfully discharge it through an artificial channel directly upon the land of another, greatly to his injury.” Under that rule the findings herein fully support the judgment.
By the' Court.— The judgment of the circuit court is affirmed.