Case v. Hoffman

• Decision Date: 21 March 1893
• Citation: 54 N.W. 793,84 Wis. 438
• Parties: CASE v. HOFFMAN ET AL.
• Court: Wisconsin Supreme Court

84 Wis. 438

54 N.W. 793

CASE

v.HOFFMAN ET AL.

Supreme Court of Wisconsin.

March 21, 1893.

Appeal from circuit court, Jackson county; A. W. Newman, Judge.

Action by Russell Case against Frederick J. Hoffman and others to restrain the diversion of a water course, and to recover damages caused by such diversion. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Winslow and Pinney, JJ., dissenting.La Follette Harper and Roe & Zimmerman, (H. W. Chynoweth, of counsel,) for appellant.

Bushnell, Rogers & Hall, (Gardner & Gaynor, of counsel,) for respondent.

ORTON, J.

This is an appeal from the order of the circuit court sustaining a demurrer to the complaint, on the ground that it did not state a cause of action. The facts stated in the complaint are substantially as follows: The plaintiff is the owner of 440 acres of land in sections 21 and 22, town 20, range 1 E., purchased and suitable for the cultivation of cranberries. “There is a natural stream of water known as ‘Beaver Creek, with clearly-defined banks and a fixed channel, varying in depth, but always with a steady flow of the waters in an easterly direction, bearing south, through the northern portion of said town 20, at a distance of about two miles from the plaintiff's said lands, and, after passing the eastern line of the town, bends its course so as to flow in a southerly and southwesterly direction for a considerable distance below the south line of said town. There were always and still are in the northwestern portion of said town living springs, which continuously flow and discharge their waters by a well-defined stream into a natural lake, of about sixty acres in extent, situated in section 8 of said town, known as ‘Big Lake.’ From said lake the waters so gathered flowed under natural conditions upon the surface and beneath the surface of the lands lying to the southeast of said lake to and across the said lands of the plaintiff, and thence easterly, until they discharged themselves and were again collected in said Beaver creek. The said natural flow or stream of water from said lake in section 8 was well defined and established, and in places, one of which was upon the land of the plaintiff, had made for itself a distinct and plainly-marked channel, pointing and showing the natural flow of the water; and said stream was known and called by the name of the ‘West Branch of Beaver Creek.’ At the time of the purchase by the plaintiff of his said lands in section 22, the actual flow and source of the water above described from said Big lake still continued as in a state of nature across the lands of the plaintiff as aforesaid, discharging to and upon the lands lying to the east of the plaintiff, and to some extent to the south of the lands of the plaintiff, and were to considerable extent dispersed over a large area of land drained by Beaver creek. The plaintiff's lands were also supplied with water from surface springs, northward therefrom, in large numbers, constant in their supply, furnishing a large quantity of living water, moving in a southeasterly direction through and across the lands lying between said springs and plaintiff's land, and over, through, and across said lands, though not usually in perfectly-defined channels. At the time of the purchase of said lands in section 22 by the plaintiff as aforesaid, immemorially theretofore and thereafter continuously, until about the year 1883, the waters of said West Branch, together with the other waters last aforesaid, were sufficient in volume adequately to irrigate and supply waters sufficient to moisten said lands, and make them suitable to the cultivation of cranberries.” Immediately after the purchase of the lands in section 22, the plaintiff began the cultivation of cranberries on said land, and cut ditches across the same to make available the natural flow of said waters, and has continued to improve said lands for such purpose by an expenditure of a large sum of money; and that the improvements so made are of the value of $12,000, and the lands, with said improvements, are now of the value of $20,000. The complaint then states, in substance, as follows: About 1883, D. A. and C. A. Goodyear built a sawmill about a mile south of plaintiff's land, and for the purpose of getting logs from near said Big lake to their mill, they obtained an act of the legislature, by chapter 271 of the Laws of 1883, and claimed to act in accordance with the same, and made a ditch or canal from 6 to 12 feet wide, and 4 feet deep, from Big lake along the general course of the West Branch aforesaid, down through a portion of the plaintiff's lands, and to said sawmill, and floated logs to said mill; but they so conducted their business and managed their ditch so as to greatly injure the lands of the plaintiff and others. They then entered into a contract with the plaintiff to make such ditches on his land with supply gates, so that he could make the same use of the waters of said West Branch as before said large ditch was made. The cutting of this ditch not only used all the waters of said West Branch along their natural channel and bed, but diverted the same as it left the plaintiff's land into another direction to said mill, and southeastwardly to a stream called “Silver Creek,” a long distance from Beaver creek, into which it formerly ran and was a tributary thereof. A branch ditch was also cut into Beaver creek northwardly, which diverted a portion of its waters also to the said mill and into Silver creek. The plaintiff continued to enjoy the advantages of said contract until the said mill and the floating of logs to it through said big ditch were abandoned, and the Goodyears sold out all their interest in the same to the defendants in 1889. The defendants then closed up the plaintiff's gates by which he was wont to obtain sufficient water for his cranberry culture, and cut ditches from the main ditch outside of plaintiff's lands and around the same, and diverted all the water of said West Branch and of said main ditch around and away from the same to said mill and Silver creek, and thereby nearly destroyed the use of the lands and improvements of the plaintiff. But some water escaped through the east banks out of repair and beneath the broken gates, which he used to irrigate his lands to a limited extent. The defendants then constructed ditches, dams, and embankments, solely for the purpose of removing and diverting said water course wholly from and off the plaintiff's lands, intending thereby to deprive the plaintiff from receiving a supply of living water from any source whatever for his lands. The plaintiff's cranberry crop is now liable to destruction from the want of water. The plaintiff prays that his rights may be established to said water; that the Goodyear contract be specifically performed; that the defendants be enjoined from diverting said waters, and be required to remove said obstructions to the natural flow thereof; and that the plaintiff be permitted by the order of the court to cut through said dam, and allow the waters to pass through the plaintiff's land; and, finally, for damages of $3,500, and for other relief.

The principal contention of the learned counsel of the respondent in support of the demurrer is that the waters coming to the plaintiff's lands, and for the diversion of which the plaintiff complains, are mere surface waters, which the defendants had the right to deal with on their own land and for their own benefit, as they saw fit, and that their alleged diversion thereof from the plaintiff's lands does not give him any right of action therefor. The learned counsel of the appellant contends that such waters are of a natural water course and living stream, in which he has the right of a riparian proprietor, and that, therefore, he has in this action the right to recover for the diversion thereof by the defendants. The distinction between mere surface waters and a natural water course is wide enough to be readily discerned, and to determine which the complaint describes is not difficult. We will first briefly examine the law and the authorities as to the peculiar and indispensable elements and characteristics of each, and then make application of them to the complaint.

First. Surface water is such as its name indicates. It spreads over the surface of the ground. It has its origin most commonly in rains and melted snow. It may stand in swamps, or it may percolate through or under the soil. It is as well defined, and the law applicable to it stated as well, in Hoyt v. Hudson, 27 Wis. 656, as in any case in the books. “The doctrine of the common law,” says Chief Justice Dixon, “is that there exists no such natural easement or servitude in favor of the owner of the superior or higher ground or fields as to mere surface water, or such as falls or accumulates by rain or the melting of snow; and that the proprietor of the inferior or lower tenement or estate, may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon or off onto or over the lands of other proprietors, without liability for injuries ensuing from such obstruction or diversion.” Nearly the same language is used by the same learned chief justice in Pettigrew v. Evansville, 25 Wis. 223. It is further described as “waters flowing in hollows or ravines, from rain or melting snow;” or, “drainage over the land occasioned by unusual freshets or other extraordinary causes,” and are not permanent, but soon pass off or dry up when the cause ceases. Fryer v. Warne, 29 Wis. 511;Eulrich v. Richter, 37 Wis. 226;Allen v. City of Chippewa Falls, 52 Wis. 434, 9 N. W. Rep. 284;O'Connor v. Railway Co., 52 Wis. 530, 9 N. W. Rep. 287;Hanlin v. Railway Co., 61 Wis 515, 21 N. W. Rep. 623;Lessard v. Stram, 62 Wis 112, 22 N. W. Rep. 284. “Surface water lies upon or spreads over the surface, or percolates the soil, as in swamps,...