Bratonja v. City of Milwaukee

• Decision Date: 04 February 1958
• Parties: Henry BRATONJA et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, Respondent. Clara GAUS, as Special Adm'x of the Estate of Leonard Gaus, deceased, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent. Charles HOFFMAN, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent. Elmer BECKER et al., co-partners d/b/a Metal Grinding Co., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 775

87 N.W.2d 775

3 Wis.2d 120

Henry BRATONJA et al., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Clara GAUS, as Special Adm'x of the Estate of Leonard Gaus, deceased, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Charles HOFFMAN, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Elmer BECKER et al., co-partners d/b/a Metal Grinding Co., Appellants, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

Feb. 4, 1958.

Joseph N. Futowski, Albert Gould, Milwaukee, Arlo McKinnon, Milwaukee, of counsel, for appellants.

Walter J. Mattison, City Atty. George A. Bowman, Jr., and Harvey G. Odenbrett, Asst. City Attys., Milwaukee, for respondent.

WINGERT, Justice.

The appeals are founded on the contentions that the sewer was inadequate to carry away the rainfall when built in 1906, that it became more inadequate as the years went by and more and more buildings were built in the area, thus increasing the fraction of the rainfall that ran down the street and collected in the low point, that the city had notice for many years that by reason of such inadequacies plaintiffs' properties were flooded from time to time, and that the rainfall of July 27, 1949 was not extraordinary in amount or in rapidity of fall. It is urged that the city's failure to install an adequate sewer in the first place, and particularly its failure to supplement the sewer or increase its capacity after notice of its inadequacy, constituted negligence, and that the inadequate sewer was a nuisance, for which negligence and nuisance the city is liable notwithstanding the doctrine of municipal immunity.

In our view these legal contentions are not well founded, and the trial court was right in dismissing the complaints.

For present purposes we may accept as true the propositions that the sewer has at all times been inadequate to carry away all of the water running in the street after ordinary heavy rains, and that the damage to plaintiffs' properties resulted from the inadequacy. Such inadequacy alone does not give rise to a cause of action in favor of persons whose property is flooded by excess water not carried away by the sewer. On that point these cases are ruled by Peck v. Baraboo, 141 Wis. 48, 122 N.W. 740, in which this court had before it a similar case, and in a very thorough opinion by Mr. Justice Timlin reviewed the earlier cases and laid down principles which are fatal to the contentions of the present appellants.

In the Peck case, the jury's special verdict, as interpreted by the court, established that the flooding damage resulted from the inadequacy of the sewer to carry away all of the water which collected in the street as a result of the heavy but not extraordinary fall of rain. On that state of facts, the court held that the city was not liable for the damages resulting from the inadequacy of its sewer. It pointed out that a municipality, in improving its streets, has the same right to obstruct or divert the existing flow of surface water that an individual has in improving his land; a principle we have recently recognized in Laur v. Milwaukee, 1 Wis.2d 561, 565, 85 N.W.2d 349, as well as in earlier cases. Freeman v. Lake Mills, 243 Wis. 537, 539, 11 N.W.2d 181, Leininger v. County Highway Committee, 217 Wis. 61, 64, 258 N.W. 368. Thus the city is not obligated to build a sewer at all, or to build one large enough to carry away all the water in the street as a result of even ordinary rainfall. Peck v. Baraboo, 141 Wis. 48, 52, 122 N.W. 740. Moreover,

'A municipality, after it has made provision by a drain or sewer for carrying off surface water, may discontinue or abandon the drain or sewer if the landowners are thereby left in no worse condition with reference to the surface water set back than if the sewer had never been constructed. Waters v. Bay View, 61 Wis. 642, 21 N.W. 811. If the municipality may omit this intentionally, it may omit it negligently without incurring any liability.' 141 Wis. at page 53, 122 N.W. at page 742.

On the other hand, it was recognized that

'If the city first collect surface water in a sewer or drain, and thereafter, by reason of negligent construction or maintenance of the sewer or drain allow it to escape upon land adjacent to the sewer, the city will be liable for the damage caused thereby.' 141 Wis. at page 52, 122 N.W. at page 741.

The court concluded its discussion of the law with the following statement of the decision:

'The instant case presents upon the pleadings, verdict, and finding no question of liability for discharging upon the land of the respondent surface water accumulated in a pond or reservoir, nor of allowing surface water to escape from a negligently defective sewer after the corporation has taken the water into the sewer and assumed the carrying of it to the place of discharge. On the contrary, there is no liability shown, because in line with the cases herein cited a municipal corporation cannot be held in damages by a landowner for changing the natural flow of and increasing the volume of surface water by the construction of streets and gutters, nor because the sewer was inadequate by reason of negligence in adopting plans in the first place, or by reason of negligently failing to maintain the sewer in good working order thereafter to carry off the surface water so accumulating as fast as it accumulated.' 141 Wis. at pages 55-56, 122 N.W. at page 743.

We cannot find that Peck v. Baraboo, supra, has ever been discredited in this state. On the contrary, it was quoted with approval as recently as Gibeau v. Pratt, 256 Wis. 617, 620, 42 N.W.2d 286. In...