State v. Deetz

• Decision Date: 20 December 1974
• Docket Number: No. 235,235
• Citation: 224 N.W.2d 407,66 Wis.2d 1
• Parties: STATE of Wisconsin, Appellant, v. James E. DEETZ et al., Respondents.
• Court: Wisconsin Supreme Court

Page 407

224 N.W.2d 407

66 Wis.2d 1

STATE of Wisconsin, Appellant, v. James E. DEETZ et al., Respondents.

No. 235.

Supreme Court of Wisconsin.

Dec. 20, 1974.

Robert W. Warren, Atty. Gen., John E. Kofron, Asst. Atty. Gen., Madison, for appellant.

Walter H. Erbach, Madison, for respondents James E. Deetz, Patricia J. Deetz, and Wildwood Bluffs Estates Assoc., Inc.

Miller & Miller, Portage, for Town of Dekorra.

HEFFERNAN, Justice.

The principal question presented on this appeal is whether this jurisdiction should adhere to the 'common enemy' doctrine in respect to surface waters, or abandon it in favor of the 'reasonable use' doctrine, as numerous other jurisdictions have done. Other subsidiary issues are raised on this appeal.

This action was brought by the State of Wisconsin against James E. and Patricia J. Deetz, the Wildwood Bluffs Estates Association, Inc., and the Town of Dekorra, for the purpose of enjoining those defendants from permitting the deposit of materials in Lake Wisconsin and on adjacent roads, and also asking for forfeitures under secs. 30.15(1) and 30.15(3), Stats. ¹ The action arises because James and Patricia Deetz and other individuals purchased a large area of land on a bluff overlooking Lake Wisconsin, a portion of the Wisconsin river, and, on top of the bluff, platted and developed a residential area. This development project disturbed the top soil and necessitated the construction of roads and drives. Prior to the development of this residential area, the bluff had been used for crops and for pasture land. Erosion and run-off was minimal until construction began. After that time, adjacent landowners, who held property below the bluff, noticed an unusual amount of sand washing down from the bluff. By October of 1972, as a result of this erosion, in one place a sand delta of over 6,000 square feet had formed in the lake. Prior to the commencement of this erosion, this portion of the lake was navigable; but at the time of trial, one of the adjacent landowners testified that, because of the silting, he was unable to launch a boat from a 32-foot pier extending out into the lake. Other substantial sand deltas formed along the lakeshore. One of the witnesses testified that another delta covered more than 8,000 square feet of the lake bottom.

There was substantial evidence that the adjacent landowners below the bluff and the public no longer could fish or boat in the immediate area, that swimming was precluded, and that vegetation had commenced to grow in the silted area. One of the roads at the bottom of the bluff on several occasions had been covered by sand, in some places to a depth of eight inches. The testimony left no doubt that the construction of the roads at the residential development site resulted in the flow of surface waters that carried away earth and sand from the top of the bluff to the lakeshore property below and to the lake. When the below-bluff property owners complained to Deetz, they were told there was nothing he could do about the problem.

The action was commenced by the State of Wisconsin. It brought the action under sec. 280.02, Stats., which provides that an injunction can be brought by the attorney general to abate a public nuisance.

As a separate cause of action, the state alleged that the defendants had violated sec. 30.15, Stats., supra, by unlawfully obstructing navigable waters. At trial it was urged that the defendants had also violated sec. 29.29(3). ²

After submission of the plaintiff's case, the trial judge granted the motion to dismiss the complaint. The trial judge concluded that the statutes which prohibit the unlawful obstruction of navigable waters were irrelevant to this case, because the silt that blocked the roadways and filled in portions of the lake was not 'deposited' by the defendants, but resulted from the flow of surface water from the development area. This, the trial judge concluded, was damnum absque injuria, because the damage had been done as a result of a legally sanctioned right of a property owner to fight surface waters, the 'common enemy,' in whatever way that might be appropriate. In the event that an adjacent landowner was damaged, there could be no recovery. The trial judge relied upon the accepted statement of Wisconsin law, as it appears in Freeman v. Lake Mills (1943), 243 Wis. 537, 539, 11 N.W.2d 181. Therein, this court quoted from Manteufel v. Wetzel (1907), 133 Wis. 619, 114 N.W. 91:

'. . . the one in position of upper proprietor caused surface water to flow in its natural direction so as to get it off his land, and although an annoyance to the adjacent owner, no resulting liability rested upon the upper proprietor for damages, nor was a nuisance created.'

Accordingly, the motion of Deetz and the other defendants to dismiss the action was granted.

Although the defendants do not dispute that a public nuisance would have been created if the disposal of the surface waters constituted a tortious act, their argument is that they committed no wrong because they were acting within the rights of a landowner seeking to cope with surface waters.

The record makes clear that only the 'common enemy' rule stands in the way of the state's efforts to secure an injunction against further damage to the shoreline and the water bed area of Lake Wisconsin.

The 'common enemy' doctrine has been stated in its strict form by S. V. Kinyon and R. C. McClure, Interferences with Surface Waters, 24 Minnesota Law Rev. 891, 898 (1940):

'(A) possessor of land has an unlimited and unrestricted legal privilege to deal with the surface water on his land as he pleases, regardless of the harm which he may thereby cause to others.'

Although the common enemy rule is sometimes thought to be of ancient origin, deriving from the English common law, the article by Kinyon and McClure convincingly demonstrates that there was no true common law of surface waters and that the law in that respect has been developed, both in the United States and in England, since 1850. Nevertheless, the common enemy doctrine has long been applied and followed in Wisconsin. Shaw v. Ward (1907), 131 Wis. 646, 654, 111 N.W. 671, 674. In that case, this court quoted with approval the statement of the Massachusetts court in Gannon v. Hargadon (1865), 92 Mass. (10 Allen) 106, 109:

"The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface or flowing onto it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow."

In Borchsenius v. Chicago, St. Paul, Minneapolis & Omaha R. Co. (1897), 96 Wis. 448, 450, 71 N.W. 884, 885, we said:

'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.'

The common enemy rule was given a complete application in the case of Watters v. National Drive-In, Inc. (1954), 266 Wis. 432, 63 N.W.2d 708. In that case, the defendant constructed a drive-in theater adjacent to the plaintiffs' property. It changed the grade of the land, filled up natural potholes, and prevented, by grading and gravelling, the natural absorption of surface water into the soil. This resulted in a large amount of water being drained onto the plaintiffs' land, to the extent that it was necessary to reconstruct an existing roadway. Because of the deposit of water on the plaintiffs' land, some areas could not be used. Nevertheless, in its Draconian application of the common enemy rule, this court said, at page 436, 63 N.W.2d at page 711:

'(T)he plaintiffs have no cause of action for damages caused by drainage of surface waters, either because of the installation of tile drains or by changing the natural flow of such waters.'

It is apparent that, under the common enemy rule, the trial judge in this case correctly concluded that the state had failed to prove a cause of action recognized by the law of Wisconsin--although there was an admitted injury, it was occasioned by the defendants' privileged activity, and accordingly no remedy would be afforded by the law.

On this appeal the state argues, incorrectly we conclude, that the common enemy rule is irrelevant. The state argues that, under the 'public trust' doctrine, a cause of action arises merely because the state is the trustee of stream beds or lake beds underlying navigable waters. It appears to argue that, under the 'public trust' doctrine, any interference with the public's right to use the state's navigable waters, irrespective of the cause of such interference, is a nuisance and must be abated.

While the attorney general argues that the public trust doctrine per se creates a legal right, we conclude that that doctrine merely gives the state standing as trustee to vindicate any rights that are infringed upon by existing law.

The origin of the public trust doctrine has been given the most careful consideration in Muench v. Public Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55 N.W.2d 40. Therein we said:

'(T)he state holds the beds underlying navigable waters in trust for all its citizens, subject only to the qualification that a riparian owner on the bank of a navigable stream has a qualified title in the stream bed to the center thereof.' (P. 501, 53 N.W.2d p. 517)

The public trust doctrine has...