Case v. Hoffman

• Citation: 100 Wis. 314,72 N.W. 390
• Parties: CASE v. HOFFMAN ET AL.
• Decision Date: 28 September 1897
• Court: United States State Supreme Court of Wisconsin

100 Wis. 314

72 N.W. 390

CASE

v.HOFFMAN ET AL.

Supreme Court of Wisconsin.

Sept. 28, 1897.

Appeal from circuit court, Jackson county; W. F. Bailey, Judge.

Action by Russell Case against Frederick Hoffman and others. From a judgment for plaintiff, defendants appeal. Reversed.

This is an action in equity to restrain the defendants from diverting the course of a ditch or alleged water course from the plaintiff's lands, and to enforce the performance by the defendants of an alleged contract to maintain the ditch in its present location on plaintiff's land, for the benefit of plaintiff's cranberry marsh. The parties are all owners of land on a large marsh, many miles in extent, and covering the greater part of a government township of land. The marsh is generally nearly level, but dips to the east and to the south, but more to the east than to the south. The land is adapted to the culture of cranberries, and is valuable for that purpose, but is of little worth for any other purpose. The surface of the marsh is principally covered by a growth of moss, several inches in depth, with some grass and other vegetation, above a layer of peat of considerable but varying thickness, and all resting on a substratum of sand. The marsh is, in considerable part, made and fed by springs which arise towards the northeastern part of the township, and flow, in channels, into and form a small lake, of some 40 acres in area, called “Big Lake.” The waters of the lake flow out, through depressions in its low banks, to the east and to the south. One such depression to the southeast bears some resemblance to a natural channel of a water course, for a short distance from the lake, where the apparent banks subside into and are lost in the general surface of the marsh. The plaintiff's lands lie to the southeast of the lake, a distance of something over two miles. This depression, or natural channel from the lake, is lost and disappears about two miles above plaintiff's land. The waters disappear from sight beneath the moss and vegetation, if not beneath the surface of the marsh, to reappear at a distance of a mile or more below the plaintiff's land, where they are gathered together, and form a distinct water course, which is known as the “West Branch of Beaver Creek.” In this distance, of three miles or more, intervening the points where the supposed channel from Big Lake disappears, and the point where the “West Branch” becomes a definite stream, there is nothing which resembles the “well-defined and substantial existence” of a water course. There is no channel, with bed and banks. At most seasons of the year, there is no appearance of water above the vegetation. At times of melting snow and great rains, water spreads over a great part of the marsh for several miles in breadth, not only over the plaintiff's lands, but over the lands of adjoining proprietors, to the north and to the south of him. This water does not flow from or across the marsh in any defined current or channel, but stands in depressions, until it disappears by evaporation or percolation. In such places the vegetation is killed, but the surface of the marsh is not broken by a water channel, nor do these places have, in any respect, the appearance of the continuous channel of a water course. They are widely dispersed over the surface of the marsh, and not in such relation to each other as to indicate a continuous channel across the marsh. They were designated by some of the surveyors as “pot holes.” Some of these “pot holes” were upon the plaintiff's land, some were to the north of it, some were to the south of it. There were no more distinct evidences of the existence of a water course across the plaintiff's lands than upon the lands of adjoining proprietors to the north or to the south, while the general dip of the marsh would seem to indicate that the larger part of the water would, in natural conditions, pass to the north.

In the years 1880 and 1881, Messrs. D. A. and C. A. Goodyear dug a ditch through a part of this marsh, above the plaintiff's lands, extending to Big Lake. The primary object of this ditch was to enable the Goodyears to float pine sawlogs to their sawmill, which was situated near the southeastern part of the marsh. In 1883, the legislature, by chapter 271 of that year, sanctioned the digging of the ditch, and gave a franchise to maintain it for a period of 10 years. The ditch was of sufficient magnitude to successfully float logs to the mill. In its course the ditch ran through a corner of land belonging to the plaintiff. In times of freshet it gathered more water than would be contained by its banks. It would then overflow, to the damage of adjoining owners of the marsh. It became convenient to the Goodyears to accommodate this overflow by a lateral ditch across the land of the plaintiff. In October, 1885, they made an oral agreement with the plaintiff, whereby they agreed to permit the plaintiff to take water for his cranberry culture from the principal ditch, in consideration of his permission to dig the lateral ditch upon his land. This agreement was not reduced to writing until February 21, 1891, when the Goodyears gave the plaintiff a statement, in writing, that such an agreement had been made, and the substance of its provisions. The plaintiff's privilege and the consideration are stated as follows: “Russell Case was to be permitted to have the privilege of using such amount of water from the said logging ditch as might be necessary for his use upon his said premises in the cultivating and raising of cranberries, whenever the same might be needed for such purpose. The consideration for the said privilege of using such water was the permission, granted by said Russell Case to said D. A. and C. A. Goodyear, to enter upon his said land, and to construct a ditch through and over the same; the said ditch to be used as an outlet in times of high water, for the safety of certain dams, * * * and to prevent overflow on the adjacent cranberry marshes.” The Goodyears constructed the contemplated ditch, and the plaintiff used water from the logging ditch until near the time of the commencement of the action. The Goodyears used the ditch for the floating of logs to their mill until the supply of logs was exhausted, in 1888. In October, 1889, they sold the ditch to the defendant Hoffman, who bought it with the design to use it to supply water for the irrigation of cranberry lands on the marsh belonging to him and the other defendants. The other defendants had some interest in the purchase of the ditch. Hoffman agreed with the Goodyears to keep the ditch in repair, to furnish water to irrigate Goodyears' cranberry lands, and to save and keep the Goodyears “free and harmless from all cost, liability, or damage on account of said ditch, or the construction, maintenance, and repair thereof, or for any want of repair thereof.” There was a succession of dry seasons, which made a supply of water for the irrigation of cranberry lands in that neighborhood very desirable. The defendants deemed it to be to the advantage of their cranberry interests on the marsh to change the course of the ditch where it crossed the plaintiff's land. There was some claim that he took more water from the ditch than he was entitled to. In 1891 they commenced the digging of a new ditch across the lands of the defendant Stickney, above the plaintiff's land, with the intention to divert the ditch entirely from the plaintiff's land. This action was then brought to restrain the defendants from making the proposed change in the course and location of the ditch, and to compel the defendants to maintain and keep it in repair in its old location, so as to furnish the plaintiff with so much water as should be needed for the use of his cranberry marsh. The trial court gave judgment, whereby it permanently enjoined the defendants from changing the course and location of the ditch, and directed them to maintain and keep the ditch in repair, so that the plaintiff could perpetually draw therefrom a supply of water for his cranberry land. From this judgment the defendants appeal.

Cassoday, C. J., and Marshall, J., dissenting.

Bushnell, Rogers & Hall, for appellants.

La Follette, Harper, Roe & Zimmermann, for respondent.

NEWMAN, J. (after stating the facts).

The main inquiry on this appeal is whether the evidence establishes the existence of an ancient water course across the plaintiff's land, which was diverted into the logging ditch which was dug by the Goodyears, or whether the water which was gathered into and conducted by that ditch was mere surface and percolating water; for, although the plaintiff does not now complain of the digging of the ditch, but, on the contrary, finds it to be to his advantage, and desires it to be maintained and kept in repair in its present location upon his land, still the question whether the ditch diverted an ancient water course, or is a mere conduit of surface water, has an important bearing, and may be controlling, upon the question of the right of the defendants to change the course and location of the ditch, so as that it shall not cross the plaintiff's land. If it was, in truth, an ancient water course, it is the right of the plaintiff that it be allowed to flow through his land as it was accustomed aforetime to flow, or, at least, in the substituted channel which the defendants have provided for it. While, on the other hand, if it be mere surface water which is gathered into and conducted by the ditch, its diversion from his land is not such a wrong as affords him ground for an action. If he is damaged by it, it is damnum absque injuria. So, the question whether it was an ancient water course which was diverted by the Goodyear ditch is the question upon which the case turns, and it is a question of no inconsiderable practical importance to the parties to the present action, not only, but to all that portion of the public which is interested...