Shaw v. Ward

Marshall, J. The findings are somewhat involved. In the second paragraph it is said, there is a natural reservoir or pond covering five to fifteen acres op respondents’ lands, and in the sixteenth finding it is said, prior to the commencement -of this action the territory formerly covered by water and constituting the bed of the pond had become dry land suitable for •agricultural purposes. From the findings as a whole, however, it is quite clear that this is the situation: There is on respondents’ lands a depression covering several acres and of the depth of about one foot,, toward which, under natural conditions, surface water from a considerable territory, including lands of respondents, flowed and in which the same, to the level of a draw to the east, was retained, the surplus entering such draw and flowing somewhat southeasterly to and onto lands adjoining on the east; thence across the latter lands for a distance of half a mile or more to lands of appellants claimed to have been damaged; thence, except as retained on such lands, flowing further on to Galloway creek east of such lands. The water retained in the depression or basin as aforesaid did not constitute a permanent body. It was not fed to ■any extent by springs, but was mere surface water which in times of dry weather disappeared by evaporation or absorption into the ground. The damage caused to appellants by discharging the water accumulated in the basin, at the time the ditch was opened into it, was produced long before the action was commenced and at a time when appellants were in the attitude of submitting to the existence of the improvement, and by the water reaching their lands in the artificial ■course for which respondents were not responsible. If there is any liability for such damages, under the circumstances, it is not an independent ground for equitable interference nor — 653 — enforceable in an action to compel a restoration of tbe former condition, if a continuance of tbe improvement of respondents’ lands be not 'wrongful as to appellants. That is deemed too clear to require discussion. Eor, a considerable period of time before tbis action was commenced there was no pond of water on respondents’ lands and none will be accumulated there in tbe future unless tbe flow to tbe'adjoining lands be prevented. Erom tbe foregoing it will be seen that tbe major purpose of tbis action is not to prevent tbe casting of a pond of water, accumulated on respondents’ lands, therefrom, resulting in its reaching appellants’ lands to their damage, but is to compel tbe restoration of tbe reservoir on tbe former’s lands so tbe surface water falling or flowing thereon will, as formerly, be there retained instead of passing to tbe lands of tbe adjoining owners and thence to those of appellants. Thus tbe case really involves tbe question of whether respondents have a legal right, for tbe purpose of enjoying their own lands for tbe use tbe same are adapted to, to prevent surface water cast thereon, largely from tbe premises of others, from accumulating and remaining in tbe depression referred to, by causing the same to flow by tbe natural and necessary course of drainage to adjoining lands, by way of which, through an artificial course for which respondents are not responsible, tbe same reach the lands of appellants. Enough has been said to show that tbe doctrine of Pettigrew v. Evansville, 25 Wis. 223, as it has been limited, and similar cases, viz.: that one landowner cannot rightfully collect surface water on bis premises in a reservoir and then discharge tbe same directly onto tbe land of another to bis injury, or onto land near tbe premises of another so that it will reach tbe same in a large volume to tbe material injury thereof, do not fit tbe case, but the common-law doctrine, so, often approved by tbis court, in respect, to tbe right of one landowner to defend bis premises against and rid tbe same of — 654 — surface water, though consequential injuries may thereby be caused to other lands, subj ect to the limitation mentioned in Pettigrew v. Evansville, supra, governs the situation. The following statement of the common-law rule early announced by the Massachusetts court in Gannon v. Hargadon, 10 Allen, 106, 109, has been quoted here with approval on many occasions: “The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface or flowing onto it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow.” There is some language in Borchsenius v. C., St. P., M. & O. R. Co. 96 Wis. 448, 11 N. W. 884, perhaps not wholly in harmony with that rule, but it will be seen that the opening lines of the opinion state the right involved quite as broadly as it is stated in the quoted words. This is the language used: “Surface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, cither by retention, diversion, repulsion, or altered transmission; so that no cause of action arises for such interference, even if some injury occurs, causing damage.” That is followed by the statement, in effect, that such general rulé has its limitation, as declared in Pettigrew v. Evansville, 25 Wis. 223, the scope of which, however, is not stated with perfect accuracy. We shall not discuss at length Borchsenius v. C., St. P., M. & O. R. Co., though will say, in passing, that the doctrine of this court on the subject treated is much more accurately stated in other cases. The right of a landowner as to protecting his premises from surface water — 655 — ’extends to expulsion, of all suck water coming upon suck premises by flowing from otker lands or otherwise, and of repulsion as well, subject to the precise limitations covered by the decision in the Pettigrew Case, and to the reasonable exercise of the right. The common-law rule as it has been quoted is in express terms or effect, subject only to the limitation stated, fully approved in the following cases: Lessard v. Stram, 62 Wis. 112, 22 N. W. 284; Heth v. Fond du Lac, 63 Wis. 228, 23 N. W. 495; Johnson v. C., St. P., M. & O. R. Co. 80 Wis. 641, 50 N. W. 771; Champion v. Crandon, 84 Wis. 405, 54 N. W. 775; Clauson v. C. & N. W. R. Co. 106 Wis. 308, 82 N. W. 146; Connell v. Stark, 108 Wis. 92, 83 N. W. 1092. The mere change of the surface of one’s premises where reasonably necessary to cause surface water to flow therefrom by the natural course of drainage, even to the extent of causing it to pass onto adjoining premises in a ditch, is not understood to be the accumulation of water and casting it upon adjoining land within the doctrine of Pettigrew v. Fvansville, supra, as will be seen by an examination of the opinions in Johnson v. C., St. P., M. & O. R. Co. and Clauson v. C. & N. W. R. Co. While there is much' authority that the common-law rule is not to be so understood as to permit an upper proprietor under any circumstances to expel surface water from his premises as it comes thereon in a stream, it is considered that the logical scope of such rule and its reasonable, administration extends to doing so, where- there is no other reasonable means of the landowner enjoying his property for the purposes for which it is adapted and especially where there is no great damage to the lands of others not avoidable by the exercise of the same right. That is to say, so long as a landowner acts reasonably in ridding his premises of surface water the common-law rule should be applied as it reads, subject to the one exception mentioned in Pettigrew v. Evansville, supra. The — 656 — 'position of tbis court in respect to the matter is tersely stated in the headnote to Johnson v. C., St. P., M. & O. R. Co., supra, thus: “The owner of land, for the purpose of securing or protecting its reasonable use and enjoyment, may obstruct or divert surface waters thereon, and which have come down from higher levels, by embankments, ditches, drains, culverts, and other constructions, and in doing so may lawfully hinder the natural flow of such waters and turn the same back upon or off on to and over the lands of other owners, without liability for injuries ensuing from such obstruction or diversion.” The court in the opinion said: “The doctrine here sanctioned is that one proprietor may turn and divert surface water from his own land onto the land of another, and such other proprietor may turn and divert the same waters onto the land of his adjacent neighbor,, and so on. Each proprietor may thus pass on surface water, and there is no remedy except in doing so.” The doctrine ns above stated has been very broadly applied in some other jurisdictions, notably in Minnesota. Jordan v. St. Paul, M. & M. R. Co. 42 Minn. 172, 43 N. W. 849; Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462; Gilfillan v. Schmidt, 64 Minn. 29, 66 N. W. 126; Oftelie v. Hammond, 78 Minn. 275, 80 N. W. 1123. Sheehan v. Flynn carried such doctrine much farther than is necessary in this case. There was on the defendant’s land a depression into which surface water naturally accumulated till it covered about twenty-four acres, and to the depth of about four feet at the-lowest point of such depression, the surplus flowing over the-brink of the depression and down a natural draw off from the-defendant’s land. The water in the basin, in times of dry-weather, entirely disappeared, as in this case. The proprietor tapped the basin by a ditch about ninety rods long and of a sufficient depth to empty the reservoir and to thereafter prevent the surface water from accumulating. By way of the ditch water passed off from defendant’s land and in its course — 657 — thereafter, reached the plaintiff’s land, to its injury and his damage to some extent. The court held that under all the circumstances the defendant only exercised the right to reasonably enjoy his own property, not doing any unreasonable or unnecessary injury to the property of others. It is recognized by some writers, as perhaps the fact is, that this court has taken a very broad view of the common-law rule. So far as it is thought that the court has gone beyond such rule such writers, it seems, are mistaken. We observe that it is said in the note to Gray v. McWilliams, 21 L. R. A., at page 600: “The Wisconsin court has reached a peculiar position on this question. While professing to follow the so-called common-law rule of noninterference it has decided that surface water on one’s premises, including that which has been thrown there from higher land, may be lawfully drained and diverted from such land to the land of another, and the only remedy of the latter is ,to pass it on to other lands.” The mistake, it seems, lies, chiefly, in the idea that the common-law rule is confined to noninterference. Certainly the doctrine that surface water is a common enemy which every proprietor may fight of get rid of as best he may, and that “the right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, . . . is not restricted or modified by the fact that his own land is so situated . . . that an alteration in the mode of its improvement or occupation . . . will cause ..water, which may accumulate thereon by rains and snows falling on its surface or flowing on to it over the surface of adjacent lots, either to stand in unusual quantities on other adj acent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow,” cannot be legitimately confined to noninterference. The comment referred to on the position of this court is merely the result, it seems, of a too narrow view of the common-law rule. Here it is — 658 — given tbe legitimate effect, it is thought, which the language employed to state it in Gannon v. Hargadon, 10 Allen, 109, suggests. No reason is perceived why respondents could not rightfully have filled up the depression on their lands preventing the water from accumulating thereon and causing it to pass on to the east and reach appellants’ lands by way of the ditch, or to have at any time opened the basin into the draw, or a ditch if necessary, to the east and emptied the reservoir, being responsible, if at all, for the damages thus caused to others, but not for damages caused by the improvement preventing surface water from subsequently being retained on their lands, or, at a time when the pond had disappeared by evaporation and absorption, have opened the basin towards the natural draw so as to prevent a future accumulation. From the foregoing it seems that the judgment appealed from is right regardless of the precise ground upon which the trial court based it. Respondents have a legal right, as we have seen, to rid their lands of surface water as it comes thereon from any source by permitting or causing the same, by such means as may be reasonably necessary, to flow in the natural course of drainage to and onto adjoining lands, though the same may by natural or by artificial means for which they are not responsible reach and spread out over appellants’ lands. In so doing they but exercise the common right of every person to defend his premises against surface water. If consequential damages, from the exercise of such right, occur to appellants, they are remediless except by the exercise of the same right, so far as conditions render that feasible, upon their own premises. By the Court. — The judgment is affirmed.