Zblewski v. Jackson Milling Co. ( 1923 )

Eschweiler, J.

It is confidently asserted by appellants that the testimony demonstrates that the water found standing in the basement and garden at plaintiff’s premises is either the result’ of underground drainage coming through the territory north and east, or else that such situation is caused by the checking of such underground drainage by reason of the increased level in the subterranean waters in the soil between plaintiff’s premises and the Wisconsin river, and for which such result they claim there is no legal liability on their part. It is further contended that in any event the result reached by the jury in their answer, to the first question of the verdict is so entirely a matter of speculation or conjecture that no judgment in plaintiff’s favor can find proper justification, and that the situation in that respect is similar to and is controlled in their favor by the holding in Application of Gehrke, 176 Wis. 452, 186 N. W. 1020.

A great amount of testimony was taken as to the nature of the surface and subsoil at and surrounding plaintiff’s premises and to a considerable distance north and east. Levels were taken as to the height of the water found to stand in borings made in the territory, and, because the height of such underground waters was higher than that maintained at the dam, defendants claim that it necessarily follows that the results on plaintiff’s premises could not be chargeable to the level maintained by defendants by the increased height of the dam. That there is natural drainage from north and east of plaintiff’s premises for a considerable extent of territory through the soil itself and by small watercourses or drains into the slough, rather than first into the Wisconsin river, is demonstrated. The testimony also shows that during the latter part of the time in question the water in the slough had been kept, by means of pumping, at a lower level than the water in the dam, and that there was a close connection between any raising of the height of the water in the slough with any increase in rainfall, thereby indicating that there was very little and but slow, if any at all, seepage or underground passage of water from the dam into the slough similar to that which, under plaintiff’s theory, kept the water on her premises at the additional height of which she complains; defendants claiming that this fact shows that there can be no seepage from the river to plaintiff’s premises still more distant than is the slough.

From the record here presented, however, we think there is a situation disclosed from which a reasonable inference may be drawn in support of the jury’s findings. The fact that property to the north and east of plaintiff’s lot is undoubtedly affected by the underground drainage from the north and east more than from seepage from the river-is not at all conclusive that the result on plaintiff’s premises was from the same cause because the conditions are not all the same.

Plaintiff’s lot was situated on a small sandy knoll at what might be considered the peak of a water-shed with natural drainage both to the east away from and to the west towards the river. Between this lot and the river was land filled up with material, permitting possible seepage through to this lot. There is testimony to support a finding that a long continued standing of the water on plaintiff’s premises during times other than at flood periods was subsequent to the raising of the height of the dam. The inference that it is consequent as well as subsequent is legitimate and permissible. We consider the facts here to be so substantially different from those presented in the decision upon which defendants strongly rely, of Application of Gehrke, 176 Wis. 452, 186 N. W. 1020, supra, that such decision is not applicable here.

The questions of fact being thus disposed of, we see no escape from the conclusion that defendants were properly held responsible for the consequent damages under the ruling in Wells v. Wis. River P. Co. 167 Wis. 345, 167 N. W. 445, rather than as being within the field of the law presented in the case of Huber v. Merkel, 117 Wis. 355, 94 N. W. 354, and kindred cases here called to our attention. No showing is made in this case, either by original charter or by any special acts of the legislature with reference to the construction or maintenance of this dam on the navigable Wisconsin river, that there is any restriction upon or lessening of the liability that follows from the erection and maintenance of such a structure under the general law as embodied in secs. 1777 and 1777e, Stats., the subject of consideration and decision in the case of Wells v. Wis. River P. Co., supra.

By the Court. — Judgment affirmed.