Summary
In Watters v. National Drive-In (1954), 266 Wis. 432, 63 N.W.2d 708, the complaint alleged that the defendant constructed a drive-in theater and in so doing he caused the land to be graded and filled up in such a manner as to change its natural contour so that surface waters which formerly had drained off in another direction now drained onto the adjoining lands of plaintiff.
Summary of this case from Laur v. City of MilwaukeeOpinion
March 4, 1954 —
April 6, 1954.
APPEAL from an order of the circuit court for Waukesha county: ALLEN D. YOUNG, Circuit Judge. Reversed.
For the appellant there was a brief by M. J. Levin, attorney, and Morton Gollin of counsel, both of Milwaukee, and oral argument by Mr. Gollin.
For the respondents there was a brief and oral argument by Clayton A. Cramer of Waukesha.
Action commenced by plaintiffs William E. Watters and Ella D. Watters, his wife, against defendant National Drive-In, Inc., for the recovery of damages resulting from the drainage of surface waters and effluent from defendant's land onto plaintiffs' land. Defendant demurred to the complaint and from an order overruling the demurrer, defendant appeals.
The complaint states that plaintiff's and defendant are owners of adjoining lands in Waukesha county, and:
"5. That the above-described premises owned by the defendant are adjacent to the premises owned by the plaintiffs and are located on the east side thereof; that the land acquired by the defendant had certain natural depressions and slopes thereon which caused waters accumulating thereon from melting snows and rainfall to accumulate on the property and a portion thereof percolated into the soil on defendant's property and the remainder ran off therefrom to the south and east thereof, due to the natural slope of the land being on the south and east; that subsequent to the purchase of the above-described premises by the defendant, the said defendant has constructed a drive-in theater upon said premises, together with the attending facilities for the parking of cars of patrons of said theater, and has also constructed certain driveways and sewage-disposal facilities thereon, and the defendant did, prior to the construction of said facilities hereinabove described cause the land to be graded and filled up in such a manner so as to change the natural contour of said land, which has caused the artificial and unnatural flow of surface waters heretofore accumulating thereon as hereinabove described, to drain onto the plaintiffs' land adjacent to the premises owned by the defendant; that the defendant has also installed tile drains upon premises owned by it for the carrying off of surface waters and effluent from its sewage-disposal system which has been so constructed so as to cause the drainage therefrom to go on the plaintiffs' land, all of which has caused damage to the plaintiffs as hereinafter described;
"6. That as the direct and proximate result of the defendant's carelessness and negligence in diverting the waters accumulating on its property as hereinabove described upon the plaintiffs' land as hereinabove described, the plaintiffs have been required to reconstruct an existing roadway upon their premises extending from the public highway to the buildings and residence of the plaintiffs, which roadway extends along near the west line of the defendant's premises, by elevating the same to a height of approximately three feet in order that the same might be accessible and usable to the plaintiffs by virtue of the waters being deposited upon plaintiffs' land by the defendant as hereinabove described; that the plaintiffs have expended the sum of $3,000 for the reconstruction of said roadway, which has been made necessary solely by the waters being deposited upon their land by the defendant as hereinabove described; that as the further result of the waters being deposited on plaintiffs' land as hereinabove described, the plaintiffs have lost the use of certain area of their property lying between the east edge of the existing roadway and the east line of their property, due to inundation thereof from the waters being deposited upon the plaintiffs' land by the defendant, to plaintiffs' damage in the amount of $2,000; making a total damage to the plaintiffs in the amount of $5,000."
In overruling the demurrer the trial court stated:
"In the above-entitled action the defendant has demurred to the plaintiffs' complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges damage resulting from surface water and sewerage flowing onto the land of the plaintiffs.
"The question in regard to damage resulting from the flow of surface water may be doubtful, but the complaint as drawn states a cause of action in regard to the flow of sewerage."
The characteristics of surface water and the law with respect to it are set forth in Case v. Hoffman (1893), 84 Wis. 438, 444, 54 N.W. 793:
"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. 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. 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. Chippewa Falls, 52 Wis. 434; O'Connor v. F. du L., A. P. R. Co. 52 Wis. 530; Hanlin v. C. N.W. R. Co. 61 Wis. 515; Lessard v. Stram, 62 Wis. 112. `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, sec. 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, the court quoted with approval the following statement of the rule by 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.'
and the following language used in Borchsenius v. Chicago, St. P., M. O. R. Co. (1897), 96 Wis. 448, 450, 71 N.W. 884:
"`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.'"
It is pointed out in the Shaw Case that the general rule has its limitation, as declared in Pettigrew v. Evansville (1870), 25 Wis. 223, that one landowner may not collect surface water on his premises in a reservoir and then discharge it directly onto the land of another to his injury; but ( Shaw v. Ward, p. 655):
"The mere change of the surface of one's premises where reasonably necessary to cause surface water to flow therefrom by the natural course of drainage, even to the extent of causing it to pass onto adjoining premises in a ditch, is not understood to be the accumulation of water and casting it upon adjoining land within the doctrine of Pettigrew v. Evansville, . . ."
This rule has been followed and quoted with approval in Leininger v. County Highway Committee (1935), 217 Wis. 61, 258 N.W. 368, and in Freeman v. Lake Mills (1943), 243 Wis. 537, 11 N.W.2d 181. Under the established law of this state the 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 may be that the plaintiffs have a cause of action as to damages resulting from the flow of effluent from the defendant's sewage-disposal system, but the complaint fails to state the necessary facts with any degree of clarity. As pointed out in Dishneau v. Newton (1895), 91 Wis. 199, 203, 64 N.W. 879, it is necessary that the pleader make a plain and concise statement of the facts constituting the cause of action so that they may be understood by defendant, court, and jury. Sec. 263.27, Stats., directs that pleadings be liberally construed "with a view to substantial justice between the parties." In our opinion the ends of substantial justice in this instance will be better served by allowing plaintiffs to plead over with respect to damages allegedly caused by the drainage of effluent.
By the Court. — Order reversed and cause remanded with instructions to sustain the demurrer.