Fryer v. Warne , 29 Wis. 511 ( 1872 )

LyoN, J.

It is contended on behalf of the plaintiffs:

I. That the line or channel along which the water from Mrs. Fryer's land originally flowed across the land of the defendant was a natural water course; and that the ditch having been adopted in place thereof by the former and present owners of the respective lands, became thereby a water course, which the defendant cannot lawfully obstruct to the injury of Mrs. Fryer.

II. If not a water course, the various licenses from occupants and alleged owners of the lands in section 5, to construct, clean out and open the ditch, and the expenditures by the plaintiffs pursuant thereto, operate as a valid grant of the right to maintain and use such ditch perpetually, or at least estop the defendant from denying that such grant exists.

III. That Mrs. Fryer has a prescriptive right to maintain and use this ditch, growing out of a visible, recognized user thereof for more than ten years.

These propositions will be considered in their order.

I. Was such original line or channel a watercourse ? An-gelí, in his excellent treatise on the subject, says: “ A watercourse consists of bed, banks and water; yet the water need not flow continually; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken 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 ice and snow, descend from the hills and inundate the country. To maintain the right to a watercourse or brook it must be made to appear that the water usually flows in a certain direction, and by a regular channel with banks and sides. It need not be. shown to flow continually, as stated above, and it may at times be dry; but it must have a well defined and substantial existence. A mere right of drainage over the general surface of land is very different from the right to the flow of a stream or brook across the premises of another.” Angelí on Watercourses, § 4. This definition was substantially adopted by this court in Hoyt v. The City of Hudson, 27 Wis., 656; and the cases on the subject, including all those cited by the learned counsel for the plaintiffs, with great unanimity hold that it is the legal definition of a watercourse.

The evidence upon which the circuit court made the order dissolving the injunction fails to show that the channel in question was a watercourse. It does not satisfactorily appear that it had bed or banks, and it affirmatively appears that there is also wanting the usual flow of water, which is an essential element of a watercourse. Indeed, the flow of water in such channel is the exception and not the rule. It occurs only in times of freshets, or after considerable rains, and is exclusively surface water. The evidence of the existence of a watercourse is no stronger than it was in the case of Hoyt v. The City of Hudson, and we held that there was no watercourse as claimed by the plaintiff in that action.

The original channel not being a watercourse, it follows necessarily that a ditch, which was substituted therefor, is not a watercourse.

It may be observed here that the question of the right of the defendant to interrupt the natural flow of the surface water from the land of Mrs. Fryer, and thus throw it back upon her land, is not in the case. The averment in the complaint is, that the defendant was about to stop “ the natural channel of said watercourse so deepened and improved by the plaintiff,'’ etc. It contains no direct averment that the filling of the ditch will interrupt the natural flow of the surface water as it flowed before the ditch was dug, or that it will render the condition of Mrs. Fryer's land any worse than it would have been had the ditch never been dug. It is true, there are statements in some of the affidavits tending to show that such would be the result of filling the ditch; but, in the absence of averments to that effect in the complaint, those statements have no significance in the case.

II. Were these alleged parol licences revocable by the defendant at his pleasure ? This question has been answered in the affirmative by at least two decisions of this court, and is no longer open for discussion in this state. French v. Owen, 2 Wis., 250; Clute v. Carr, 20 id., 531. See also Hazelton v. Putnam, 8 Chand., 117. It is quite unnecessary to refer to tbe adjudications of other courts on this question.

If those licenses were ever valid, the defendant revoked them, as he lawfully might do, and the fact that they had been given did not interfere with his right to fill the ditch.

III. There are two insuperable obstacles to the successful assertion of the claim of Mrs. Fryer that she has a prescriptive right to maintain and use the ditch in question. By analogy to the statute of limitations (R. S., ch. 188, secs. 8, 9 and 10), to constitute a valid prescription, Mrs.-Fryer and her grantors must have been in the peaceable and uninterrupted adverse enjoyment of this easement on the land of the defendant for twenty years. Here the user was not adverse, but permissive; and had it been adverse, it was for a period of less than twenty years. Rooker v. Perkins, 14 Wis., 79.

The order of the circuit court, dissolving the injunction, must be affirmed.

By the Court. — Order affirmed.