Spelman v. City of Portage

Cole, J. Under the charge of the circuit court, the jury must have found that the city authorities constructed, or caused to be constructed, the graded street or causeway across the bottom in a negligent and unskillful manner, without providing sufficient culverts, bridges or sewers to enable the waters of the Wisconsin river, at times of high water, to pass through or flow in their natural course toward or into the Baraboo river, and that, as a consequence, the waters were obstructed, and overflowed the premises of the plaintiff, and caused the injury of which he complains. There was certainly abundant testimony to support such a finding; and we are unable to see why a cause of action was not established against the city. It would seem plain that the city authorities had no right to construct the street in a negligent and unskillful manner, and thus cause the waters to be obstructed and overflow the property of citizens. The injury was direct, caused by the failure to provide sufficient culverts for the passage of [148] the waters through the graded highway as they had been accustomed to flow. We know of no principle of law which justified the city in making an embankment without proper culverts or drains, and thus damming up the waters and causing them to destroy the plaintiff’s property. The doctrine: of Alexander v. The City of Milwaukee, 16 Wis., 248; Smith v. The City of Milwaukee, 18 id., 64; Pettigrew v. The Village of Evansville, 25 id., 223; and Hoyt v. The City of Hudson, 27 id., 656, afford no sanction to any such right on the part of the city. In Alexander v. The City of Milwaukee, a public improvement was made by the city in a careful and circumspect manner, under authority granted by the legislature; and this court held that the city was not answerable for consequential damages produced thereby to property in the vicinity of the improvement. In Pettigrew v. The Village of Evansville, the right of the village authorities to discharge the surface waters accumulating in a pond upon the lands of the plaintiff, to his permanent injury, was denied. There it'vas. claimed that it was necessary to drain the pond in order to improve the streets in the village. In the Hoyt case, the city of Hudson, in grading and raising a street through a ravine, obstructed the surface waters which occasionally flowed down the ravine, and caused then! to flow upon the premises of the plaintiff adjacent to the street. It was held that a city, town or village, in respect to a public street, had the same rights as private owners to obstruct or repel the. flow of surface water from such street. In the case before us it is obvious that the waters which were obstructed were not surface waters. They were the waters of the "Wisconsin river, which, in its usual high stages, were accustomed to flow across this bottom into the Raraboo river. The effect of the road obviously would be to dam these waters, and proper and sufficient culverts should have been provided for passing the waters through the embankment. But, because the road was negligently and unskillfully built, [149] no such provision was made for the flow of the waters in their natural course. It seems to us the city was liable for damages accruing from the negligent and improper manner of constructing the highway. The position that the city authorities, in making the street, were acting judicially, so that the city would not be liable even if the work was negligently done, is, we think, too manifestly unsound to require argument in its refutation. By the Oowrt. — The judgment of the circuit court is affirmed.