O'Connor v. Fond Du Lac, Amboy & Peoria Ry. Co.

• Decision Date: 04 June 1881
• Court: Wisconsin Supreme Court
• Parties: O'CONNOR v. THE FOND DU LAC, AMBOY & PEORIA RAILWAY CO.

52 Wis. 526

9 N.W. 287

O'CONNOR

v.THE FOND DU LAC, AMBOY & PEORIA RAILWAY CO.

Supreme Court of Wisconsin.

Filed June 4, 1881.

Appeal from circuit court, Fond du Lac county.

D. Babcock and R. M. Bradford, for appellant.

Geo. P. Knowles, for respondent.

COLE, C. J.

The gravamen of the complaint is, as we interpret its allegations that the defendant company, in making its road-bed, filled up a ditch, which drained or carried the surface water from the plaintiff's premises to the river. We do not understand that any stream of water, or water-course proper, was interrupted, crossed, or changed by the company in building its road, though there is some language which would almost warrant such an inference. But the better, and, as we think, true construction of the complaint, is that the action is brought for damages caused the plaintiff in consequence of the defendant filling up a drain by its road-bed in the vicinity of the plaintiff's land, “thereby preventing the free passage of the surface water from her premises and the adjoining lands eastward to the river.” Assuming this to be the cause of action intended to be stated, the question arises, does it show a legal injury? We are of the opinion it does not. True, it is averred that the company, unmindful of its duties in that regard, wrongfully and negligently filled up a culvert which it first built in its road-bed, and thus stopped the flow of water through the ditch. But this only raises the question whether the defendant was bound to provide a way for the escape of mere surface water from the plaintiff's premises. That question has already been settled in this state adverse to the claim of plaintiff.

In Hoyt v. City of Hudson, 27 Wis. 656, it was in effect decided that under the rule of the common law which exists here an owner has the right to obstruct and hinder the flow of mere surface upon his land from the land of other proprietors; that he may even turn the same back upon or onto the land of his neighbor, without incurring liability for injuries caused by such obstructions. The same doctrine was laid down in Pettigrew v. Village of Evansville, 25 Wis. 223, where the question is very fully considered; also in Fryer v. Warne, 29 Wis. 511. There is a discrepancy in the decisions of the different states upon this subject, because some follow the rule of the civil law, which gives a servitude on the lower in favor of the superior estate. But here the rule of the common law has been already adopted, and we see no good reason for changing it. According to that rule no natural easement or servitude exists in favor of the owner of the higher ground to the flow of mere surface water over the lower estate, but the owner of the latter may detain or divert the same without rendering himself liable in damages therefor. But this rule does not apply to a water-course, which implies a stream usually flowing in a definite channel, though it may at times be dry. Enbrick v. Richter, 37 Wis. 226. But a water-course does not include mere surface water which is supplied by rains or melting snow flowing in a hollow or ravine on the land. Hoyt v. Hudson, supra.

We place our decision upon the distinct ground that the complaint fails to show that any natural water-course, properly speaking, has been obstructed or interfered with by the defendant. The company has only obstructed a ditch which drained or carried off surface water from the plaintiff's premises. We do not think the defendant was bound to keep that ditch open on its own land for the convenience of the plaintiff; in other words, the owner of land is under no legal obligation...