Champion v. Town of Crandon

• Decision Date: 21 March 1893
• Citation: 54 N.W. 775,84 Wis. 405
• Parties: CHAMPION v. TOWN OF CRANDON.
• Court: Wisconsin Supreme Court

84 Wis. 405

54 N.W. 775

CHAMPION

v.TOWN OF CRANDON.

Supreme Court of Wisconsin.

March 21, 1893.

Appeal from circuit court, Forest county; John Goodland, Judge.

Action by I. G. Champion against the town of Crandon to recover damages for diverting and discharging surface water on plaintiff's premises. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

This is an action to recover for damages sustained by the plaintiff by reason of the alleged negligent, careless, and unskillful manner and defective plan upon which the streets and highways in the village of Crandon had been constructed near plaintiff's house, by which the surface water falling upon said streets and highways of the defendant town was diverted from its natural course towards the house, and upon the premises of the plaintiff. The complaint alleges, in substance, that the house was built of good material and in a workmanlike manner, at a cost of $1,500, and had a safe and sufficient cellar under it for the storage of vegetables and goods; that the defendant town, by and through its supervisors, did certain road work upon the streets and highways near the plaintiff's house in a negligent, careless, and unskillful manner, and upon a very defective plan, by means of which the surface water arising from the rains and melted snows falling upon said streets and highways was diverted from its accustomed course, and, falling upon said streets and highways, by said work was caused to flow towards the house and into the cellar of the plaintiff, to his great damage; that in three succeeding years thereafter said town continued to do road work in a negligent, careless, and unskillful manner, and upon a very defective plan, upon said streets and highways, by which the water falling thereon was more and more diverted from its natural course, and towards the plaintiff's house, and the town board of said town utterly refused to protect plaintiff's house from the flow of water artificially turned upon it, or to provide a channel and outlet by which it could escape from said house, although repeatedly urged by the plaintiff to give him relief from said surface water; that, by reason of the premises, the plaintiff had suffered damages by injuries to said house and the contents of its cellar, and it was inconvenient and often nearly impossible for him to carry on his business in the lower story of said house, so that his customers could not enter the same to purchase goods, and that his trade was seriously injured, the water often standing to the depth of more than one foot in places, and claimed damages in the sum of $500. The defendant demurred to the complaint. The court sustained the demurrer, and the plaintiff appealed.Samuel Shaw, for appellant.

E. Wyman and Alban & Barnes, for respondent.

PINNEY, J., (after stating the facts).

In Hoyt v. Hudson, 27 Wis. 656, it was settled that cities, towns, and villages, as owners of lands for highways and other public purposes, have the same right as private owners to obstruct or repel the flow of surface water collecting thereon from snow and rain as other proprietors. Pettigrew v. Evansville, 25 Wis. 223. In Allen v. City of Chippewa Falls, 52 Wis. 433, 9 N. W. Rep. 284, Cole, C. J., says: “It seems needless to observe that the city, under its charter, had the undoubted right to establish the grade of its streets, and in the execution of the grade the existing drainage of surface water might be changed or destroyed.” Towns clearly have the same rights. In Hoyt v. Hudson, supra, the right of a proprietor to divert surface water falling on his land so that it may be cast or flow upon the land of a proprietor on a lower level seems to be denied upon the authority of Pettigrew v. Evansville, supra. But the question here involved was not presented in that case, and the case itself has since been limited and explained in Heth v. City of Fond du Lac, 63 Wis. 228, 23 N. W. Rep. 495, in which many later cases in this court are cited. In Pettigrew v. Evansville the defendants proposed, by digging a ditch, to drain the waters of a natural reservoir which gathered into it from a considerable distance from the surface of the surrounding country, and thence escaped only by percolation or evaporation, and turn them immediately upon the plaintiff's land, to his great injury, and for the purpose of draining such standing water in and upon the plaintiff's premises, when it was not necessary to drain said water, either to improve the streets of the village or for any purpose connected with the duties of that corporation; and it was said by the court: “This is a direct injury, as direct as if the defendants had proposed, without compensation, to throw upon the plaintiff's land earth, gravel, stone, or other material, which it became necessary for them to remove from the street in order properly to improve it.” While the town, through its authorities and agents, would not be authorized to collect a body of surface water and cast it, or a body of water already collected, in a channel made for that purpose, in a considerable stream or volume, on the lands or lots of a proprietor adjoining a public street, it clearly has the right to determine the grade of its streets or highways, and to construct gutters along them, and culverts under or across them, not entering upon or disturbing the soil of the adjoining proprietor, in order to drain from the streets and highways or public grounds surface waters which have fallen or flowed over or upon the same. There is in such case no direct invasion of the proprietary rights of the lot owner, and the inconvenience which he suffers is purely consequential, and the result of the lawful exercise of a power necessarily vested in the town or city for public purposes. Radcliff's Ex'rs v. Mayor of Brooklyn, 4 N. Y. 195. In Heth v. City of Fond du Lac, 63 Wis. 228, 23 N. W. Rep. 495, it was declared, after a review and citation of numerous authorities in this and other states: “The resident owner of a lot fronting upon a public street in a city cannot be permitted to restrain such municipality from constructing...