Spellman v. Town of Caledonia

Dodge, J. The complaint discloses that ch. 213, Laws of 1873, if valid, imposed upon the town of Caledonia power and authority to construct and maintain a levee for the purpose, amongst others, of protecting lands, including those of 259 the plaintiff, from overflow by tbe waters of tbe Wisconsin river. If this power or duty could be imposed upon tbe town at all, that could be only because it may be considered within a legitimate governmental purpose. Hence tbe town, in exercising tbe power thus conferred, if tbe law was valid at all, was exercising a function of government, addressed toward tbe plaintiff and bis lands in a governmental respect, namely, by supplying to him certain protection. Tbe charge is that be suffers by neglect in tbe performance of that authority. Tbe logical result of nonliability seems to follow irresistibly in tbe light of principles very recently reiterated by this court. Folk v. Milwaukee, 108 Wis. 359, 84 N. W. 420; Morrison v. Eau Claire, 115 Wis. 538, 92 N. W. 280; Hill v. Boston, 122 Mass. 344. If it be conceded that it is a legitimate governmental function to protect the lands of plaintiff and others against the overflowing waters of tbe adjoining river, tbe municipality which, by authority of law, attempts to execute that function, cannot be liable to one toward whom it is addressed for injuries resulting from negligence therein. It is this circumstance — that tbe governmental act of building these levees was addressed to tbe plaintiff’s lands — which distinguishes tbe situation from many of tbe illustrative cases cited or suggested by appellant; such, for example, as neglect to retain waters of a canal within its banks. If the governmental act and purpose were tbe maintenance of a canal as a waterway, or to conduct water for distribution through waterworks, such act would not be addressed toward the landowners adjoining the canal. Toward them the attitude of the municipality maintaining the canal would be that of an adjoining proprietor, bound as any individual to respond in damages for its negligence, as pointed out in Morrison v. Eau Claire, supra. The case of Barden v. Portage, 19 Wis. 126, 48 N. W. 210, upon which appellant largely rests the present action, is distinguishable on precisely the same grounds. In that case Barden’s lands, where the waters 260 of the river were turned, onto them, were beyond the limits of those which the city Had undertaken to protect. The damage did not result from defective construction or negligent maintenance of the levee, but from the fact that the city, in attempting to protect certain lands, changed the course of the river so that it overflowed other lands, toward which the city was exercising no governmental or protective function, but was merely an upper riparian owner; hence was subject to the liabilities of that relationship. The complaint therefore negatives any liability of defendant to the plaintiff for the damages suffered by the latter, and the demurrer was properly sustained on the ground of inadequacy of facts alleged to constitute a cause of action. By the Court. — Order appealed from is affirmed.