Freeman v. City of Lake Mills

• Citation: 11 N.W.2d 181,243 Wis. 537
• Parties: FREEMAN v. CITY OF LAKE MILLS.
• Decision Date: 12 October 1943
• Court: Wisconsin Supreme Court

243 Wis. 537

11 N.W.2d 181

FREEMAN

v.CITY OF LAKE MILLS.

Supreme Court of Wisconsin.

Oct. 12, 1943.

Appeal from a judgment of the Circuit Court for Jefferson County; Jesse Earle, Judge.

Reversed.

Suit in equity begun August 12, 1940, by Ralph E. Freeman against the city of Lake Mills, to abate a nuisance and for damages. From a judgment requiring defendant to “clean out and properly maintain the Rock Creek portion of its sewer system to its proper level and efficiency” and awarding plaintiff damages, defendant appeals.

The complaint shows that the premises of plaintiff abut upon a natural water course; that at the time plaintiff acquired his real estate the storm sewer system of defendant discharged surface water into Rock Creek about 80 feet west of plaintiff's property; that at all times material to this action, the city has exercised and maintained dominion and control over the creek and has used the same for the purpose of carrying off surface water from the streets and public places in said city; that the city has negligently caused to be washed into the creek “large accumulations of oil, grease, sand, gravel, twigs and other debris”, resulting in the raising of the bed of the creek on plaintiff's premises and so obstructing the flow that it was hindered and the “stream was backed up and water piled up in said stream and the bed of said stream raised a considerable distance above its natural level.” The answer admits that some storm water from the city streets empties into the stream 80 feet west of plaintiff's property; denies that the sanitary sewer system of the city or any part thereof at any time mentioned in the complaint emptied into the stream at or near plaintiff's property and denies that Rock Creek was, during any of the times mentioned in the complaint, used by the city as part of its sanitary sewer system. Admits only that the city has used said creek as an outlet for its storm water.

The trial court found as facts: That at the time plaintiff acquired his real estate, much of the sanitary and storm sewer system of the city discharged into Rock Creek 80 feet west of plaintiff's property and flowed past it; that after the purchase and building by plaintiff the defendant city has carelessly, recklessly and negligently caused or permitted debris to accumulate and be deposited in said Rock Creek with the result that about the year 1928 and on various dates subsequent thereto, there was a large amount of debris accumulated and deposited in said creek and upon the bed of said creek sufficient to raise the bed of the stream several inches and to raise the stream to such an extent that the surface of the water was above the outlet of plaintiff's tile drain to not only cause a flow into his basement but also to cause seepage through the ground from the stream in his basement. The damages were fixed at $300.

H. A. Schmidt, of Lake Mills, for appellant.

Grady & Dakin, of Watertown, for respondent.

FAIRCHILD Justice.

The point first to be considered is as to whether any liability rests upon the appellant for using Rock Creek in the way it does as an outlet for its surface waters. It must be conceded that the appellant, a city, has the same right with reference to surface waters as an individual would have although the rule is usually phrased to read that the municipality has no greater rights than the individual. Hoyt v. Hudson, 1870, 27 Wis. 656, 9 Am.Rep. 473. This rule has been recognized in Wisconsin as well as in other states. Roe v. Howard County, 1906, 75 Neb. 448, 106 N.W. 587, 5 L.R.A.,N.S., 831; Pettigrew v. Evansville, 1869, 25 Wis. 223, 3 Am.Rep. 50;Jordan v. Benwood, 1896, 42 W.Va. 312, 26 S.E. 266,36 L.R.A. 519, 57 Am.St.Rep....