Waters v. Vill. of Bay View

• Decision Date: 16 December 1884
• Citation: 61 Wis. 642,21 N.W. 811
• Parties: WATERS v. VILLAGE OF BAY VIEW.
• Court: Wisconsin Supreme Court

61 Wis. 642

21 N.W. 811

WATERS

v.VILLAGE OF BAY VIEW.

Supreme Court of Wisconsin.

Filed December 16, 1884.

Appeal from circuit court, Milwaukee county.

Charles M. Bice, for appellant.

W. J. Turner and Burton Hanson, for respondent.

ORTON, J.

The village of Bay View, in grading Potter avenue, allowed an old culvert to remain, or constructed a new one, (and it is no matter which,) under the street, to carry off the surface water which sometimes accumulated on the adjoining lands of one Link, and the lands of the plaintiff and others beyond the lands of Link, and which usually passed off through a ravine down to and through this culvert. The culvert became obstructed, and thereby the surface water was caused to flow back and injure the lands of the plaintiff. The complaint alleges that this flow of water was a natural water-course. The special verdict of the jury negatives this allegation, and finds that the damage to the plaintiff was caused by the surface water which had been so obstructed.

The lands of the plaintiff are not adjoining Potter avenue, and were not directly affected by the improvement of that street, so as to entitle the plaintiff to compensation for lands taken for public use, but were so remote as to make the injury merely consequential from the back flow of surface water so caused. It has been too often decided by this court that such an injury is damnum absque injuria to be an open question, and such are the decisions elsewhere, where the common-law rule prevails. “According to that rule, no natural easement or servitude exists in favor of the owner of the higher ground for 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 damage therefor.” “An owner has the right to obstruct and hinder the flow of mere surface water upon his land from the land of other proprietors, and he may even turn the same back upon or onto the land of his neighbor, without incurring liability for injuries caused by such obstructions.” “Mere surface water which is supplied by rains or melting snow flowing in a hollow or ravine on the land is not a water-course.” O'Connor v. Fond du Lac, A. & P. Ry. Co. 52 Wis. 526;S. C. 9 N. W. REP. 287. In that case the chief justice reviews the previous decisions of this court on that question, and no difference is made between the case of a railroad company grading its track, and a municipal corporation grading...