Laur v. City of Milwaukee

• Decision Date: 08 October 1957
• Citation: 85 N.W.2d 349,1 Wis.2d 561
• Parties: Joseph LAUR et al., Appellants, v. CITY OF MILWAUKEE et al., Respondents.
• Court: Wisconsin Supreme Court

Page 349

85 N.W.2d 349

1 Wis.2d 561

Joseph LAUR et al., Appellants, v. CITY OF MILWAUKEE et al., Respondents.

Supreme Court of Wisconsin.

Oct. 8, 1957.

Walter J. Mattison, City Atty., and Peter M. Stupar, Asst. City Atty., Milwaukee, for City of Milwaukee.

Bendinger, Hayes & Kluwin and Becker, Kinnel, Doucette & Mattison, Milwaukee, for H. Kuphal.

BROWN, Justice.

Lands of the plaintiffs are separated from those of defendant Hackbarth by the right-of-way of the Chicago and Northwestern Railroad. In their original state both parcels were low and swampy. Surface water originally flowed from the Laur to the Hackbarth property. The railroad's right-of-way which separates plaintiffs' property from that of Hackbarth is 100 feet wide. In 1890 the railroad built an embankment on it to carry its tracks across the lowland. The embankment is approximately 50 feet wide and 15 feet higher than the natural surface of the land.

Sec. 88.38, Stats., provides:

'Culverts and outlets to permit natural drainage (1) Whenever any county, town, city, village, railway company or the state highway commission shall have heretofore constructed and now maintains or hereafter shall construct and maintain any public highway or road grade through, over and across any marsh, lowland or other natural depression over or through which surface water naturally flows and percolates, and the stopping of the said flow and percolation of said water by said highway or road grade cause any crop or land to be flooded, watersoaked or otherwise damaged, such county, town, city, village, railway company or the state highway commission shall construct, provide and at all times maintain a sufficient ditch or ditches, culverts or other outlets to allow the free and unobstructed flow and percolation of said water from said lands, and to prevent said lands, from becoming flooded, watersoaked or otherwise damaged by said water. The foregoing shall not apply to public highways or road grades now or hereafter used to hold and retain water for cranberry purposes.

'(2) Any county, town, city, village or railway company which shall fail to provide such necessary ditches or culverts or other outlets shall be liable for all damages caused by reason of such failure or neglect.'

Obedient to the statute the railroad installed a culvert under its embankment. Through this culvert the Laur surface waters escaped, flowing first from Laurs' property to that of the railroad and thence to and over the Hackbarth's.

Pursuant to an agreement between Hackbarth and defendant city in 1951 or 1952 the city commenced to fill the low-lying Hackbarth land. This built the level of the Hackbarth property up to the level of the railroad embankment. Thereafter the Laur surface water no longer flowed over Hackbarth's land but, on the contrary, Laur testified that as early as 1952 the Hackbarth land drained into the culvert and onto Laurs' property, causing the damage of which plaintiffs complain.

In 1955 Mr. and Mrs. Laur brought the present action against Hackbarth and the city. Their complaint alleged that prior to 1922 defendant Hackbarth cut and thereafter maintained a ditch across her land which ditch drained plaintiffs' land and made it dry and serviceable; that plaintiffs and their predecessors in title had used the ditch for that purpose adversely and continually for thirty years prior to 1952 when, by the filling operation just referred to, the defendants obstructed the ditch and stopped the flow of plaintiffs' surface water through it.

Wisconsin has long adhered to the common law, or 'common enemy', doctrine in its treatment of surface waters. In Borchsenius v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 1897, 96 Wis. 448, 450, 71 N.W. 884, 885, we stated the principle thus: 'Surface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises for such interference, even if some injury occurs, causing damage.'

In thus repelling Laurs' surface water neither Hackbarth nor the city, which filled Hackbarth's land with Hackbarth's permission, incurred liability to the Laurs for their consequential damage.

Because of the fill it appears that Hackbarth surface water now comes upon Laurs' lands which would not have happened except for the change in the elevation of the Hackbarth property. This presents a somewhat different question, in that we must consider the altered...