Merkel v. Town of Germantown

SiebecKER, J. It is conceded in tbis case tbat town authorities, for tbe improvement of its highways, may grade them by cutting or filling,, and may construct bridges, culverts, and drains to accomplish tbis result, and tbat, if tbe flow of surface water is thereby diverted from or carried onto land out of its natural course, no action for damages arises-therefrom, unless it appears tbat tbe improvement is not authorized in law, or was undertaken or executed in a wanton manner, without reasonable advantage to tbe public, and resulted in injury to private property. In Champion v. Crandon, 84 Wis. 405, 54 N. W. 715, tbe opinion exhaustively reviews tbe cases in tbis court upon tbe question. It is there asserted: “Tbe power of supervisors to determine upon a plan and method for improving streets and highways, and providing for tbe removal of surface water, is a discretionary one, and a mere error of judgment in respect to tbe plan will not subject tbe town to an action for damages. . . . Tbe authorities are numerous tbat tbe determination of tbe public authority upon tbe plan for doing such a work is conclusive.”' Citing many cases. Tbe appellant’s complaint-shows tbat tbe surface water collecting on a! large body of land lying to tbe north of the highway naturally, flows over tbe highway onto plaintiff’s-land, and thence to tbe south. Tbe former highway improvement raised tbe traveled track of tbe road about two-feet above tbe natural surface for tbe distance of nearly 400-feet along bis farm premises, and tbe surface water passed through a large culvert in tbe embankment, and thence-flowed on bis premises. In June, 1903, tbe town made im [497] provements in tbe highway by removing this culvert, constructing a smaller one to the east. By reason of the change in location and size of the culvert, it failed to conduct the water from the north to the south of the embankment, which resulted in flooding the traveled track, and diverting the water from its former course over the road and his farm, and thereby caused him damages. These allegations furnish no basis of complaint against the town, inasmuch as the undertaking of respondent’s officers was a lawful one, for the improvement of the highway. Nor can the charge that the officers acted negligently and wantonly in making the improvement and adopting the plan aid the complaint, since the plan adopted to improve the highway is within the lawful right and authority of the town. For the purposes of improving its highways, a town has the same right to divert and obstruct the natural flow of mere surface’ water that the owners of private property have in improving their lands. Champion v. Crandon, supra; Harp v. Baraboo, 101 Wis. 368, 77 N. W. 744; Hoyt v. Hudson, 27 Wis. 656; Clauson v. C. & N. W. R. Co. 106 Wis. 308, 82 N. W. 146. The complaint fails to state a cause of action, and the demurrer was properly sustained. By the Gourt. — Order affirmed.