Eulrich v. Richter

37 Wis. 226

• Court: Wisconsin Supreme Court
• Decided: January 15, 1875
• Status: Published

Opinion

Cole, J.

We think the learned circuit court erred in charging, as a proposition of law, that the locus in quo was a natural watercourse. The jury were told that there was no substantial conflict in the testimony with reference to the character of the stream, and that as a matter of law it was a watercourse, which the defendant had obstructed.

The definition of a watercourse, as given by Mr. Angelí, and which has been substantially adopted by this court, is, a stream of water consisting of a bed, banks and water; though the water need not flow continually, and there are many watercourses which are sometimes dry. There is, however, a distinction in law between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water, which, in times of freshet, or melting of snow and ice, descend from the hills and inundate the country. To maintain the character of a watercourse, it must appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. It need not be shown that the water flows continually; the stream may at times be dry; but it must have a well defined and substantial existence. Angell on Watercourses, § 4; Hoyt v. The City of Hudson, 27 Wis., 656; Fryer v. Warne, 29 id., 511.

According to our understanding of the testimony, there is considerable doubt whether it proves a watercourse, within this definition; or whether it did not appear that the water was mere surface water, descending from higher to lower ground, in no defined channel, in times of rain or the melting of snows and ice in the spring. If it was mere surface water, caused by rain or snow, which naturally flowed down the hollow or ravine, but in no defined natural channel having a bed and banks, then it was not a watercourse, and the defendant had the right to use such means as she might deem necessary to keep it off her land. Eor this court has adopted the common law rule, that the owner of the superior or higher ground has no natural easement or servitude to discharge mere surface water, such as falls or accumulates by rain or the melting of snow on his land, upon and over the land of his neighbor which may happen to be on a lower plane (Pettigrew v. The Village of Evansville, 25 Wis., 228; Hoyt v. The City of Hudson, supra); but that such neighbor has the right to obstruct or change the flow of such water by preventing it from coming within his boundaries.

There was testimony which tended to show that the flow of water down the hollow or ravine from the plaintiff’s to the defendant’s land was not in any regular channel; that it was only occasional, and did not prevent the cultivation of the ravine, or the growing of grass there. The plaintiff’s land was rolling, and considerably higher than the defendant’s, and of course all surface water caused by rains or the melting of snow was discharged from the higher through the lower ground. But there was testimony from which the jury might have found that this flow of water did not constitute a watercourse within the sense of the law ; that it had no well defined channel with a bed and banks, which extended from the land of the plaintiff upon and across the land of the defendant. And this question, whether there was a watercourse there or not, should, we think, have been submitted to the jury upon the evidence, instead of being decided as a proposition of law. Had there been no dispute as to the facts, nor any testimony which tended to show that the locus in quo was not a watercourse, and that the rights and duties of proprietors on such a stream had no application, the charge of the court might have been proper. But, upon the testimony, the question should have gone to the jury to determine whether there was a watercourse within the legal definition.

We shall go into no examination of the evidence at the present time, nor express any opinion as to what inference should be drawn from it. The facts of the case are not so clear and undisputed as to warrant the court in withdrawing from the jury the question, whether the locus in quo was a natural watercourse.

We therefore think there must be a new trial.

By the Court.— The judgment of the circuit court is reversed, and a new trial awarded.