Spelman v. City of Portage

WateRCOUrses: Cities. Damages to land from obstructing flow of water, by highway. When a city constructs a street in a negligent and unskillful manner (as without proper culverts or drains), so as to prevent the waters of a neighboring river, in times of high water, from passing in their natural course into another neighboring' river, and thus causes land to be overflowed and injured, it is liable in damages to the owner of the land. Alexander v. Milwaukee, 18 Wis., 64; Pettigrew v. Evansville, 25 id., 223, and Iloyt v. Hudson, 27 id., 656. distinguished.

APPEAL from the Circuit Court for Qohinnbia County. The complaint alleges that the defendant city, in 1874, constructed a highway within its municipal limits, about two miles in length, raised about four feet above the general level of the ground, across a flat tract of marsh land dividing the ■Wisconsin and Baraboo rivers; that the Wisconsin river frequently overflows its banks, and from time immemorial it lias been the natural course of tbe water to pass over a portion of said flat land, and flow from tbe Wisconsin, river to tbe low land, beyond tbe place where said bigbway is constructed, and tbence to tbe Baraboo river, “ and southwesterly back again to tbe channel of the Wisconsin river; ” that in all times of high water, or whenever tbe waters of the Wisconsin river overflow its low-water banks, tbe course of tbe water is over a portion of said flat land, and tbe same is tbe water-course of said river; that defendant negligently and unskillfully constructed said bigbway, without providing it with sufficient culverts, bridges and sewers, so as to enable tbe water to pass through and flow in its natural and accustomed course, etc.; and that, solely by reason of tbe negligent and unskillful construction of said bigbway, tbe waters were obstructed during April, 1875, and caused to flow back upon and submerge certain described lots in said city, of which plaintiff was in the possession, and to destroy certain described personal property of tbe plaintiff, to bis damage, etc. Tbe answer denies that there was any natural water-course across any portion of tbe lands where said bigbway was constructed; and alleges that tbe raising and grading of said bigbway was necessary, in order to render it safe and convenient for tbe public. On tbe trial, defendant objected to tbe admission of any evidence under tbe complaint, on tbe ground that it did not state a cause of action; but tbe objection was overruled. Tbe evidence need not be stated. Tbe court instructed tbe jury that if tbe city bad so constructed a street within its limits, as to cause tbe waters of tbe Wisconsin river, in one of its usual high stages of water, to set back and over lots upon which plaintiff resided, when, but for such street and its manner of construction, it would not have done so, and that, as a direct consequence of such flowage, certain personal property of bis, kep* on such lots, was injured while be was exercising such care of it as persons of ordinary caution and prudence usually exercise under like circumstances, then plaintiff was entitled to a verdict for the amount of the damages so suffered. Verdict and judgment for the plaintiff; and defendant' appealed. 1. It is evident from the complaint and the evidence, that the waters which caused the damage have not the character of a water-course or natural stream, as defined by law. Hoyt v. ,,Hudson, 27 Wis., 656; Shield v. Arndt, 3 Green’s Eq., 234; Lather v. Wvnnisimmet Gownty, 9 Cush., 171; Washb. on Easem., 209, 210. It appears that a portion of the low fiat land, between the two rivers, is platted as a part of the city of Portage; that it is occupied by actual residents; and that streets are laid out upon and across it. This does not indicate a natural channel or water-course. It appears, moreover, that plaintiff has buildings and hay-stacks upon the tract, and he fails to show what right he has to obstruct the water-course, if there be one, at that place. Moreover, if this is a watercourse, then, should the city of Portage, or the owner of higher lands on the bank of the Wisconsin, construct a levee along that river, to prevent the overflow of these lower lands, plaintiff might complain that his lands had been cut off from the natural water-course, and claim damages for such obstruction. These waters are in fact mere surface waters; and .the proprietor of the lower tenement or estate may lawfully 'obstruct their natural flow, and in so doing may turn them back upon the lands of other proprietors, without liability for injury thence ensuing (Hoyt v. Hudson, swpra); and this principle is, applicable to villages and cities interrupting the flow of surface water across lands held by them for public uses, for the purpose'of improving streets, etc. Angelí on W. C., 4, 5, 138; Badeliff’s Ex’rs v. Mayor, 4 Corns., 195; Mills v. Brooklyn, 32 U. Y., 489; 0osier v. Mayor, 43 id., 399; Wilson v. Mayor, 1 Denio, 595; Alexander v. Milwaukee, 16 Wis., 256; Pettigrew v. Evansville, 25 id., 223. 2. This street was improved under the authority of the city of Portage, by its officers and agents. Their acts were judicial; and even if they were done unsHllfully, the city Avould not be liable-to a private action for damages accruing from that cause. 4 Term, 799; Mills v. Brooklyn and Cosier v. Mayor, sioprag Stapler v. Milwaukee, 34 Wis., 98. They cited, in support of the judgment, Smith v. Milwaukee, 18 Wis., 63; Pet-tigrew v. Evansville, 25 id., 223; Parker v. Milwaukee, 30 id., 365; Arimond v. G. B. & ML. Canal Co., 31 id., 316; Rochester White Lead Co. v. Rochester, 3 Corns., 463; Nims v. Mayor, 59 if. Y., 500; Thurston v. St. Joseph, 51 Mo., 510; City of Bloomington v. Brokaw, 77 Ill., 194.