Watters v. National Drive-In

• Decision Date: 06 April 1954
• Docket Number: I,DRIVE-I
• Citation: 266 Wis. 432,63 N.W.2d 708
• Parties: WATTERS et ux. v. NATIONALnc.
• Court: Wisconsin Supreme Court

Page 708

63 N.W.2d 708

266 Wis. 432

WATTERS et ux. v. NATIONAL DRIVE-IN, Inc.

Supreme Court of Wisconsin.

April 6, 1954.

M. J. Levin, Morton Gollin, Milwaukee, of counsel, for appellant.

Clayton A. Cramer, Waukesha, for respondents.

MARTIN, Justice.

The characteristics of surface water and the law with respect to it are set forth in Case v. Hoffman, 1893, 84 Wis. 438, 444-445, 54 N.W. 793, 794, 20 L.R.A. 40:

'Surface water is such as its name indicates. It spreads over the surface of the ground. It has its origin most commonly in rains and melted snow. It may stand in swamps, or it may percolate through or under the soil. It is as well defined, and the law applicable to it stated as well, in Hoyt v. [City of] Hudson, 27 Wis. 656, as in any case in the books. 'The doctrine of the common law,' says Chief Justice Dixon, 'is that there exists no such natural easement or servitude in favor of the owner of the superior or higher ground or fields as to mere surface water, or such as falls or accumulates by rain or the melting of snow; and that the proprietor of the inferior or lower tenement or estate, may, if he choose, lawfully obstruct or hinder the natural flow of such water thereon, and in so doing may turn the same back upon or off onto or over the lands of other proprietors, without liability for injuries ensuing from such obstruction or diversion.' Nearly the same language is used by the same learned chief justice in Pettigrew v. [Village of] Evansville, 25 Wis. 223. It is further described as 'waters flowing in hollows or ravines, from rain or melting snow;' or, 'drainage over the land occasioned by unusual freshets or other extraordinary causes,' and are not permanent, but soon pass off or dry up when the cause ceases. Fryer v. Warne, 29 Wis. 511; Eulrich v. Richter, 37 Wis. 226; Allen v. City of Chippewa Falls, 52 Wis. 434, 9 N.W. 284; O'Connor v. Fond du Lac, A. & P. R. Co., 52 Wis. 530, 9 N.W. 287; Hanlin v. Chicago & N. W. R. Co., 61 Wis. 515, 21 N.W. 623; Lessard v. Stram, 62 Wis. 112, 22 N.W. 284. 'Surface water lies upon or spreads over the surface, or percolates the soil, as in swamps, and does not flow in a particular channel. The owner may expel surface water from his own land to that of another without wrong.' Gould, Waters, § 263. 'But one may do so only to protect himself, or to benefit his own land, but no further.''

In Shaw v. Ward, 1907, 131 Wis. 646, 654, 111 N.W. 671, 674, the court quoted with approval the following statement of the rule by the Massachusetts court in Gannon v. Hargadon, 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."

and the following language used in Borchsenius v. Chicago, St. P., M. & O. R. Co., 1897, 96 Wis. 448, 450, 71 N.W. 884, 885:

'Surface water is recognized as a common enemy, which each proprietor may fight...