Lessard v. Stram

Taylor, J. The learned circuit judge held that it was clearly established that there was no actual watercourse coming down the coulie, and that all the water that flowed down and out of the same was mere surface waters which the defendants had the right to embank against to prevent their coming upon their respective tracts of land; and that if, in so doing, such water was turned in the direction of the plaintiff’s land and flowed tliereon, and injured it, it was a case of damnum absque injuria, for which no action would lie. On the part of the plaintiff it was claimed that upon the evidence it was a question of fact for the jury whether there was or was not a natural watercourse down said coulie. That there was no natural watercourse down the coulie, within the meaning of the law as interpreted by this court in the case of Hoyt v. Hudson, 27 Wis. 656, was, we think, clearly shown by the evidence given on behalf of the plaintiff. ' One of the plaintiff’s witnesses, John A. Fulsom, says: “ This water is surface water. In time of freshets and rains there is a continuous stream of water down that hollow. . . . This wrater runs in that channel only when we have rains. After a rain-storm the water will continue to run from two to twrelve hours. There is no living water there at the mouth of the coulie. ... It forms a well-defined watercourse there when it rains. Whenever it rains there it runs down through the Lhemerie coulie in its certain particular channel to- the prairie, which channel has a particular bed and banks.” The plaintiff himself testified that “ there is no water running in the ditch all the time nearer than a half mile from the dam. The water that follows down the coulie to the dam is caused by melting snow and falling rain.” Another witness, ITarnes, says he “never saw any [115] water there, except when it had been raining it ran off.” Another witness says: “ I never saw any water there except after a rain. Sometimes after a rain the water ran in there for two or three days.” The evidence in this case brings this alleged watercourse clearly within the rule laid down by this court in the case of Hoyt v. Hudson, 27 Wis. 656, and it is not such a watercourse as is protected by the law, and for the obstruction of which damages may be recovered by a person injured by its obstruction. In the opinion of this court in that case of Hoyt v. Hudson, Chief Justice Dixon says: “The term ‘ watercourse ’ is well defined. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel having a bed, sides, or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the waters flowing in hollows or ravines in land, which is the mere surface water from rain or melting snow, and is discharged through them from higher to lower levels^ but which at other times are destitute of water. Such hollows or ravines are not in legal contemplation watercourses.” The learned chief justice then gives a brief abstract of the evidence in that case as to the nature of the watercourse then in question. See pages 661, 662. Such abstract of the evidence shows that the stream in that case was of the same temporary character as the one in question in the case at bar, and that evidence had certainly as, strong a tendency to establish the fact of a watercourse as the evidence in the case at bar. After stating the evidence, the learned chief justice, speaking for the court, says: “ Such is a statement of all the testimony as given by the witnesses themselves, from which we think it clearly appears that it was a mere occasional flow [116] of surface water down the ravine or hollow in question, which was obstructed'by the agents and officers of the city, and not a stream or watercourse within the meaning of the law on that subject.” The rale adopted by this court as to the right of a land-owner to obstruct the flow of surface water upon his land is stated by the chief justice in the following language: “ The proprietor of an 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 injuries ensuing from such obstruction or"diversion.” The case at bar is, in all its material facts, the same as the case above cited, and must be governed by it. The water obstructed by the defendants, and turned from their lands upon the lands of the plaintiff, was surface water. They did not permit the surface water to collect in large quantities upon their lands, and then discharge them in unusual quantities upon the lands of the plaintiff, so as to bring the case within the rule laid down in the case of Pettigrew v. Evansville, 25 Wis. 223; they simply fenced against the surface water from adjoining lands, as they had the right to do; and if in so fencing against such water it was diverted upon the plaintiff’s land, he has no action against the defendants. The acts of the defendants being lawful in the eye of the law, any injury suffered by reason of such lawful acts is not a good ground for an action. The rule laid down by this court in Hoyt v. Hudson, above cited, has been adhered to in the following cases: Pettigrew v. Evansville, 25 Wis. 223, 238, 239; Fryer v. Warne, 29 Wis. 511; Eulrich v. Richter, 37 Wis. 226; Allen v. Chippewa Falls, 52 Wis. 434; O'Connor v. F. du L., A. & P. R'y Co. 52 Wis. 530; Hanlin v. C. & N. W. R'y Co. 61 Wis. 515. We see nothing in the facts of this case which would justify us in making it an exception to the general and well117 established rule of this court upon the real question in issue between the parties. It follows that the nonsuit was properly ordered by the circuit court. By the Court.— The judgment of the circuit court is affirmed.