Harvie v. Town of Caledonia

Barnes, J. After the defendant had cut the dike built by the plaintiffs it notified them that it was lawfully proceeding under sec. 1236, Stats., and that the cut should not be again filled up. The material part of sec. 1236 reads: “It shall be lawful for any superintendent of highways or .any person acting under his direction to enter upon any lands adjoining to or near any highway in his town or district and construct such drains or ditches as may be necessary for the improvement or preservation of such highways.” The plaintiffs- then applied for appraisers to assess their damages, acting under sec. 1237, Stats. The material part ■of this section reads: “If any owner or occupant of lands so entered upon or used for any of the purposes mentioned in the preceding section shall feel himself aggrieved he may apply to the supervisors of the town, who shall appoint three disinterested electors of such town to appraise the damages. . . . The ap-praisement of damages so made or the determination not to allow any shall be filed by the appraisers with the town clerk, to be laid before the town board of audit, within ten days after such oath is taken; and in default of such finding the town shall be liable to an action for damages as a trespasser.” Pursuant to this notice the town board appointed appraisers, who found that plaintiffs suffered no damages. Plaintiffs appealed from this award, as provided in sec. 1237a. There is good reason for saying that the parties in effect agreed that the controversy was one which fairly fell within the provisions of the statutes referred to, and that they — 318 — should be bound by their election. As between private parties such would no doubt be an entirely proper rule to apply. If the acts of the town officers were ultra vires, however, there are many cases which hold that such acts would not be binding on the town, and inasmuch as it now claims that it was not liable to the plaintiffs for any damages whatever and could not lawfully obligate itself to pay any, we will proceed to discuss the points raised by the appellant on this appeal. The appellant suggests that the rules of law applicable to-surface water as between private parties do not apply to towns and that they have greater rights and privileges in dealing with such water than individuals have, aside from, the right of condemnation. If such a distinction exists, it is confined within pretty narrow limits. “The same principle which governs as between individúala [in dealing with surface water], holds good as between towns and villages and individual proprietors.” Pettigrew v. Evansville, 25 Wis. 223, 231. “Cities, towns, and villages, as owners of lands for highways and other purposes, have the same rights'as private owners to repel or obstruct the flow of surface water collecting therein from snow and rain.” Champion v. Crandon, 84 Wis. 405, 407, 54 N. W. 775; Hoyt v. Hudson, 27 Wis. 656, 658; Waters v. Bay View, 61 Wis. 642, 644, 21 N. W. 811. “It has been declared to be the law of this state, in Clauson v. C. & N. W. R. Co. 106 Wis. 308, 82 N. W. 146, and in other cases there cited, that a municipal corporation, in the improvement of its streets, . . . has the same right to obstruct and divert the existing flow of mere surface water that an individual owner has in the improyement of his land.” Peck v. Baraboo, 141 Wis. 48, 54, 55, 122 N. W. 740. These cases, as well as others that might be cited, show pretty clearly that a town is not particularly favored in the law over a private proprietor in dealing with surface water, except that it has what is the equivalent of the right of condemnation. — 319 — At common law tbe upper proprietor bad no easement or servitude in tbe land of tbe lower one wbicb entitled bim to .an unobstructed discharge of surface water on tbe lower land. Tbe lower proprietor might fight off tbe flow as best be could and for that purpose bad a perfect right to construct a dike or embankment on bis own land so as to keep tbe water off. Hoyt v. Hudson, supra, p. 659; Pettigrew v. Evansville, supra, p. 228; Eulrich v. Richter, 37 Wis. 226; O’Connor v. F. du L., A. & P. R. Co. 52 Wis. 526, 530, 9 N. W. 287; Waters v. Bay View, supra; Lessard v. Stram, 62 Wis. 112, 22 N. W. 284; Clauson v. C. & N. W. R. Co., supra, p. 310; Peck v. Baraboo, supra, p. 54. It was conceded that tbe highway in question was legally laid out. Tbe appellant argues that this concession establishes tbe fact that tbe west half of tbe right of way was secured from tbe plaintiffs or their predecessors in title by purchase or condemnation, and that in either event tbe acquisition of tbe easement carried with it tbe right to discharge surface water without molestation on tbe adjacent land, and that compensation for such right was necessarily included in tbe consideration paid for tbe easement. A number of cases are cited as sustaining this contention. They do not do so in fact, but deal with tbe dominion wbicb a town may exercise over tbe particular strip of land acquired for road purposes. Tbe town, with certain limitations, bad tbe right to discharge surface water on plaintiffs’ land from its roadway. By virtue of such an act tbe plaintiffs suffered no legal wrong for wbicb they could demand compensation in a condemnation proceeding. Waters v. Bay View, supra; Champion v. Crandon, supra. Kailroad companies might exercise tbe same right without liability for compensation. Hanlin v. C. & N. W. R. Co. 61 Wis. 515, 21 N. W. 623; Johnson v. C., St. P., M. & O. R. Co. 80 Wis. 641, 644, 50 N. W. 771; O’Connor v. F. du L., A. & P. R. Co. 52 Wis. 526, 9 N. W. 287; Clauson v. C. & N. W. R. Co. 106 Wis. 308, 82 N. W. — 320 — 146. It is not to be presumed that compensation was paid for this particular right. It would be a pure fiction to say that because plaintiffs sold a strip of land for a highway they also sold their right to fight off the surface water coming from the highway, provided their activities were confined' to their own land and outside the limits of the road. The surface water might have been' diverted to the east side of the-highway as well as to the west side, and if the defendant purchased and paid for an easement for the unobstructed flow of surface water over lands adjacent to the highway it should be-able to establish that fact by proof. Occasions may arise where it is essential that a town should permanently discharge surface water on adjacent land. The-legislature at an early day provided for this situation by giving ample power to do this very thing on the reasonable condition that the resulting damage be paid for. It is urged that the right to build the dike did not exist here because the general rule of law did not apply to the exceptional situation involved. In Hoyt v. Hudson, 21 Wis. 656, it was suggested but not decided'that a'situation might arise where a landowner would not have the right to construct a dike so as to obstruct the flow of surface water. . The court has never decided that the exception exists, but neither has it expressly decided that it does not exist. If it does exist, its application is restricted to very unusual situations. To use-the language of the court, it should be applied, if at all, where “it appears that considerable tracts of land are drained through ravines or narrow valleys, and would otherwise be-submerged or greatly injured by the accumulation and presence of surface water, so that the rule would operate adversely to the interests of agriculture and be productive of' more harm than good. . . .” What the court evidently had in mind was that a dam or dike might not be built across a narrow valley or ravine where the building of it would result in submerging a considerable part of the land which drained — 321 — through, the valley or ravine. The fact that land may be hilly or that surface water from a considerable area may be drained at a certain place is not sufficient to bring a case within the supposed exception. To so hold would materially change existing law and disturb existing rights that are supposed to be firmly established. Surface water flows because of the uneven condition of the earth’s surface, and the fact that the unevenness may be due to a hill rather than to a more moderate slope does not ordinarily call for the application of any different rule of law to the situation. The mere fact that surface water flows through a ravine has been held not to affect the general rule. Eulrich v. Richter, 31 Wis. 226; Lessard v. Stram, 62 Wis. 112, 22 N. W. 284. Neither the proof offered and received nor that offered and rejected, nor both combined, were sufficient to bring the case within the possible exception suggested in Hoyt v. Hudson, and therefore we do not find it necessary to decide whether or not such an exception exists. It is also urged that the dike which plaintiffs built was an unlawful obstruction within the meaning of sec. 1236, Stats., and that plaintiffs were actuated by malice in building it. If, as we hold, the plaintiffs were within their legal rights in building the dike, then it is obvious that they did not violate the law by obstructing the highway. Neither would their motive be very material, although we do not find any evidence of malice. Johnson v. Ætna L. Ins. Co. 158 Wis. 56; 147 N. W. 32, and cases cited; People’s L. & M. Co. v. Beyer, post, p. 349, 154 N. W. 382. It is further insisted that the court erred in refusing to admit evidence tending to show that plaintiffs were specially benefited by the construction of the road. Under see. 1236 the proper town officer may enter any land adjoining or near a highway and cut a ditch when it is necessary to do so to improve or preserve the highway. As to unimproved adjoining lands, the additional right is given — 322 — to enter upon them and take stone, gravel, sand, etc., for use in improving tbe highway, and also to cut and remove wood and trees for a like 'purpose. Sec. 1231 requires the appraisers to “take into consideration the special advantages, if any, as well as the damages done to said lands by reason of any improvement made on said road by such materials so taken.” The assessment of special advantages seems to be confined to cases where material is actually taken from adj acent land and placed on the road. Damages are recoverable where a drain or ditch is cut upon adjoining land, but benefits are not provided for. By the Gourb. — Judgment affirmed.