Case v. Hoffman

The following opinions were filed September 28, 1898:

Newman, J.

The main inquiry on this appeal is whether the evidence establishes the existence of an ancient watercourse across the plaintiff’s land, which was diverted into the logging ditch which was dug by the Goodyears, or whether the water which was gathered into and conducted by that ditch was mere surface and percolating water; for, although the plaintiff does not now complain of the digging of the ditch, but, on the contrary, finds it to be to his advantage and desires it to be maintained and kept in repair in its present location upon his land, still the question whether the *322 ditch diverted an ancient watercourse, or is a mere conduit of surface water, has an important bearing, and may be controlling, upon the question of the right of the defendants to change the course and location of the ditch so as that it shall not cross the plaintiff’s land. If it was, in truth, an ancient watercourse, it is the right of the plaintiff that it be-allowed to flow through his land as it was accustomed afore-time to flow, or, at least, in the substituted channel which the defendants have provided for it. While, on the other hand, if it be mere surface water which is gathered into and conducted by the ditch, its diversion from his land is not such a wrong as affords him ground for an action. If he is damaged by it, it is dartvnvm absque vnjwria. So, the question whether it was an ancient watercourse which was diverted by the Goodyear ditch is the question upon which the case turns, and it is a question of no inconsiderable practical importance to the parties to the present action, not only, but to all that portion of the public which is interested in the culture of cranberries.

Cranberry marshes are improved in various ways, — if too wet, by the drainage of the surface and percolating water; if too dry, by the storage of the surface and percolating water by means of dams, to be used, at the proper time, in irrigation, or to protect the crop from untimely frosts by inundation. If it shall be deemed that a marsh, through which a considerable volume of water is strained by jaereolation, and on the surface of which surface water at times stands or flows, is, in its entire breadth, a natural watercourse and subject to the rules of use and diversion applicable to watercourses, the decision will have an important effect on the improvement of cranberry marshes. It will greatly restrict the mode and possibility of such improvement. This marsh is not, practically, unlike cranberry marshes in general. Such marshes are usually formed and fed by springs which flow in along the margin, or from *323 higher ground, as rills or small watercourses. Tbe water is strained, by percolation, through tbe marsh, supplying moisture as it passes, and, at tbe lower end, assembles, to constitute again a watercourse. Tbe practical question seems to be, Is this water, in its entire course through tbe marsh, to be deemed to be within tbe channel of an ancient watercourse, and is the entire marsh to be deemed to be within the banks of that channel ?

What is essential to constitute a watercourse is well settled and defined by the decisions of this court: “It must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, with sides or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over a tract of land, occasioned by unusual freshets or other extraordinary causes.” Hoyt v. Hudson, 27 Wis. 656; Fryer v. Warne, 29 Wis. 511; Eulrich v. Richter, 37 Wis. 226; Lessard v. Stram, 62 Wis. 112. The bed is the characteristic which distinguishes a watercourse from mere surface drainage, and from percolating water. Gould, Waters, § 41. “'In general, in order to constitute a watercourse, the channel and banks formed by the flowing water must present to the eye, on a casual glance, the unmistakable evidences of the frequent action of running water.” Id. § 264. “ It must have a well-defined and substantial existence.” Eulrich v. Richter, supra.

Nothing which is said in the opinion on the former appeal in this case (84 Wis. 438) is necessarily out of harmony with this definition of a watercourse. The question there decided arose on a demurrer to the complaint. It was whether the complaint stated facts which showed the existence of an ancient watercourse across the plaintiff’s land. The complaint did not, in terms, allege the existence of such a watercourse, but stated facts from which it was claimed the court *324 should infer its existence. The only question presented by that appeal was whether the court could infer the existence of such watercourse from the facts pleaded. On this point, after quoting from the complaint, the court say (page 450): “Would it not be idle and hypercritical to say: 'But this description does not use the words “ bed and banks ” and “ current,” — the language of the books in describing a watercourse ’ ? These waters in such volume could not flow continuously, always in a distinct and plainly marked channel, well defined and established, without making for themselves a bed and banks or sides to the stream in the places mentioned, one of which is on the land of the plaintiff. It is a most reasonable, necessary, and inevitable consequence by the laws of nature. Such a body of water, gathered into a stream and flowing in one channel continuously, could not help from cutting for itself in suitable soil or high ground a watercourse, with banks, bed, and current, any more than it could help from running down an inclined plane.” The ground upon which the decision went is evident from this language. It is that the complaint does, in effect, allege that a considerable stream of water had been accustomed to flow continuously, always in a distinct and plañnly marked chamnel, well defined and established, across the plaintiff’s land, and that such continuous flowing in one channel had inevitably made a channel, with bed and banks; hence that the complaint by irresistible inference alleged facts which would establish the existence of a watercourse. The law of this case, as established by that decision, is that upon proof of the facts deemed to be alleged, the plaintiff will be entitled to judgment.

It is not here questioned that such a volume of water, flowing continuously across the plaintiff’s land, in a distinct and plainly marked channel, well defined and established, would constitute a watercourse. The question now presented is whether the evidence given on the trial did estab- *325 list the .existence of such a stream, flowing continuously or usually across the plaintiff’s land, in a distinct and well-defined channel. There is no conflict or uncertainty in the-evidence bearing upon this question, nor are the facts as found by the trial court difficult to reconcile with the evidence. The court finds, that the water from Big Lake was discharged by a channel or outlet to the southeast, and thence, “ though not by a continuous surface channel, but with a definite and clearly marked flow, in a southeasterly direction,” across the intervening lands, into Beaver Creek; “ that though, under natural conditions, the water spreads out in places and flows over and through the peat and moss, . . . it in many places made for itself channels, with bed and banks, some of which channels still exist” The evidence shows that this condition of the marsh was more than three miles long, and more than two miles wide. Some of these supposed channels were upon the plaintiff’s land, some were upon the lands to the north, and some to the south, of plaintiff’s land. They were not continuous in any particular direction, as being parts of the same continuous channel. The evidence shows with satisfactory clearness that these supposed channels were in truth no channels at all. They were mere depressions in the surface of the marsh, into Avhich surface water gathered and stood until it evaporated or found way through the soil by percolation. The moss and vegetation were killed by the standing water; but there was no evidence of erosion by running water. These pseudo and discontinuous channels were widely dispersed over the marsh, and bore no such relation to each other as to indicate that they had constituted together one continuous channel of a watercourse across the marsh. Nor are they more numerous on the plaintiff’s land than they are upon the lands to the north and to the south of his. If these are to be deemed channels of streams, then this marsh is the seat of many watercourses, and it would be difficult to iden *326 tify and locate one as tbe plaintiff’s watercourse. It is inconceivable that, if even a considerable part of tbe water wbicb was gathered into tbe logging ditch bad been accustomed to flow continuously or usually across tbe plaintiff’s land in a definite channel, it should not have made for itself, through that soft and easily eroded soil, a distinct and plainly marked channel, such as would present to the eye, upon a casual glance, the appearance of a continuous watercourse. One would suppose that it would at least have killed the vegetation in the line of its flow. As said by the court in the former opinion, the making of a distinct mid plainly marleed chawnel for itself was an inevitable consequence of such a flow of such a volume of water across the plaintiff’s land. The inference is irresistible that there has been no such accustomed and continuous flow of any appreciable current of water, either across the plaintiff’s land or across any part of the marsh., In ordinary conditions, there is no appearance of running water upon the surface of the marsh, yet in many places the foot sinks into water beneath the vegetation; but it is not running water and has no appreciable current.

Clearly, this falls far short of establishing such a “well-defined and substantial existence ” as is essential to constitute a surface watercourse. If so, which one of all these pseudo and discontinuous channels is the true, definite, and manifest watercourse ? Nor is there evidence of the existence of such a subsurface stream as is recognized to be a watercourse. To be such, a subsurface stream must follow a definite and Imown channel. Subsurface currents or per-colations which do not follow definite and known channels are not governed by the rules respecting the use and diversion of watercourses, but, although of considerable volume, are treated in law the same as surface water. The water is deemed to be a part of the soil itself, and, to the same extent, subject to whatever disposition the owner of the land *327 may choose to make; and, if some damage happens to an adjacent proprietor by the interception of some subterranean current, that is dammub absque injuria. This is established by the great weight of authority. Goodale v. Tuttle, 29 N. Y. 459-466; Delhi v. Youmans, 45 N. Y. 362; Phelps v. Nowlen, 72 N. Y. 39; Barkley v. Wilcox, 86 N. Y. 140-147; Bloodgood v. Ayers, 108 N. Y. 400; Greenleaf v. Francis, 18 Pick. 117; Davis v. Spaulding, 157 Mass. 431; Bassett v. Salisbury Mfg. Co. 43 N. H. 569; Swett v. Cutts, 50 N. H. 439; Chatfield v. Wilson, 28 Vt. 49; Roath v. Driscoll, 20 Conn. 533; Frazier v. Brown, 12 Ohio St. 294; Hanson v. McCue, 42 Cal. 303; Southern P. R. Co. v. Dufour, 95 Cal. 615; Gould v. Eaton, 111 Cal. 639; Wheatley v. Baugh, 25 Pa. St. 528; Haldeman v. Bruckhart, 45 Pa. St. 514; Coleman v. Chadwick, 80 Pa. St. 81; Mosier v. Caldwell, 7 Nev. 363; Taylor v. Welch, 6 Oreg. 198; Chesley v. King, 74 Me. 164; Ocean Grove Camp-Meeting Asso. v. Comm’rs of Asbury Park, 40 N. J. Eq. 447; Acton v. Blundell, 12 Mees. & W. 324; Rawstron v. Taylor, 11 Exch. 369; Chasemore v. Richards, 7 H. L. Cas. 349.

There is one passage in the former opinion which may seem on first view to be at variance with this statement of the rule of percolating waters, as applicable to this case; but it is believed that, on analysis, it will appear that there is no necessary conflict. The passage immediately follows the portion above quoted. It is: “Admit that the complaint shows that this stream spreads over wide reaches of marsh and swamp lands, and percolates the soil in many and most places between Big Lake and Beaver Creek, or in all places except those mentioned, where the ground was suitable for cutting a well-defined channel, as above described; according to the above authorities, such spreading of a stream through marshes and swamps, on or below the surface, does not militate against its being a watercourse in every essential particular, if it can be traced or identified as the same stream.” This is plainly ambiguous. "What is intended by *328 the phrase “ can be traced or identified as the same stream” ? Did the court intend to decide that, if the water which passed through the marsh in invisible and unknown channels could be traced or identified as the same water which flows through Big Lake, then it can be deemed a watercourse throughout that long and wide interval where the stream is lost to vision, and subject to the rules applicable to surface watercourses ? Or did it mean that, if the water which forms and flows through the west branch of Beaver Creek can be traced or identified as the same water which flows through Big Lake, it should be deemed to be the same stream, with the consequences which flow from such identity. If the former was intended, it is absurd; if the latter, it is inconsequential. The authorities referred to by the court as “ the above authorities ” seem to make it reasonably clear that the court intended the latter proposition. The authorities cited are Gould, Waters, § 264 (evidently a miscitation for section 263); Munkres v. K. C., St. J. & C. B. R. Co. 72 Mo. 514; Hebron Gravel Road Co. v. Harvey, 90 Ind. 192;. Robinson v. Shanks, 118 Ind. 125. The passage cited from Gould on Waters is: “ But if a well-defined natural stream empties into a swamp or lake, where all definite channel is lost, and emerges again into a well-defined channel below, it is a question of fact, dependent upon the extent of the swamp or lake, whether it is the same stream; and if it is, the owners of land upon the lower stream have riparian rights, and the owner of land on the stream above the swamp or lake is not entitled to divert water therefrom to their injury.” The cases cited are not in point. No one of them is a case of a stream lost in a swamp. The rule stated is not, by its terms, of universal application. Whether it is to be applied in a particular case depends, it seems, upon the extent of the particular swamp. It seems to be implied that, it is inapplicable in the case of a swamp which is of large extent. It seems that a swamp which is several miles in *329 length, and of equal breadth, would properly be classified as a large swamp. So, it would seem that the rule is not properly applicable to the marsh exhibited in the proofs, but, if it be deemed applicable, it brings us no nearer to a solution of the question in controversy; for it is entirely irrelevant to that controversy if the stream which issues from the marsh below is the same stream which enters it from Big Lake, for neither is the plaintiff a riparian owner on the lower stream, nor does the defendants’ ditch divert water from the lower stream. It simply leads the water which it collects to the defendants’ cranberry lands or other parts of the marsh, where, after use, it is left to find its way through the marsh, to contribute to the lower stream.

The court was considering a complaint which it deemed to allege, by necessary inference, a stream of water continuously flowing across the marsh, in a definite and plainly marked channel, except in certain places where the soil was. unfavorable to the cutting of a channel, which could be traced and identified with both the upper and the lower stream. It was not considering the actual stream as it appears in the proofs, so utterly lost in the marsh as not to have left a vestige of a true channel to mark the line of its onward course. No such case was presented by the complaint, no such case was decided. It would be unwarranted to assume that, in that situation, the court had decided that the lost stream was a watercourse throughout the interval in which it remained lost to sight, between the points of its disappearance in the marsh and its reappearance as the west branch of Beaver Creek. A decision of the question was uncalled for by the pleadings. Such a decision would be absurd in law, and disastrous in its consequences. It would be, in effect, to hold that the entire marsh, in its whole area, is the single bed of a watercourse; for it cannot be known how widely through the marsh the percolating water is dispersed,, and no true channel can be definitely located. Every part *330 ■of the marsli is the cbannel, as mucb as any part. This is .an absurd, result. The effect of such a decision would be disastrous, for it would greatly embarrass and limit the possibility of the improvement of such lands. Diligent search has failed to discover even one case which gives support to that proposition.

So, it is considered that the court did not intend, in that decision, to announce any doctrine which is not in harmony with the view which the court now takes on the proofs of the actual situation. The opinion is not, at least necessarily, out of harmony with the present decision. How the court would have decided the question if it had been presented as in the proofs taken on the trial can be properly inferred only from the standpoint of the law itself. Even if, by dubious inference or specious argument, it could be m-ade to seem plausible that the court intended to embrace such a proposition within the scope of its decision, its judgment would not be, to that extent, res judioatco. A judgment makes only that which was in issue and decided res judicata. The reasons given by the judges, whether few or many, are not res judicata. Nor is the effect of the judgment as an estoppel either restrained or enlarged by the reasons given, nor can its effect as res judicata extend to any matter only incidentally cognizable, or which. is to be inferred by argument from the judgment. Freeman, Judgments (4th ed.), §§ 249-258; Williams v. Williams, 63 Wis. 58-71; Braun v. Wis. Rendering Co. 92 Wis. 245. Whatever may have been intended by that passage, it clearly is not here binding on the court as res judñcata. So, it is considered that the defendants might lawfully dig and maintain their ditch on their own land, and are not liable to the plaintiff, even if the ditch does collect and divert from his land surface and subsurface water which would have come there, whether by surface drainage or by percolation through the soil, but for the ditch. If such diversion caused him damage, it gives *331 him no ground of action. It is not caused by an unlawful act. It is damnum absque vnyu/ria..

But, as before stated, the right to construct and maintain the ditch is not the essential point in controversy in the action. It was, nevertheless, needful to be determined, because upon it the point directly in controversy seems necessarily, in great measure, to turn. The plaintiff is willing and desires the ditch to be maintained, as at present located, across his land. It is to his advantage that it be so maintained. It brings to his land a supply of water, which is useful in the prosecution of his cranberry industry, and at the cost of the defendants. The defendants propose to remove the ditch from plaintiff’s land, by changing its course so that it shall not cross his land but shall cross the land of the defendant Stickney, above the plaintiff’s line. This is partly to be relieved of the burden of furnishing water to the plaintiff’s cranberry marsh, and partly to better serve their own interests. The action is to prevent the proposed change in the course of the ditch, and to require the defendants to maintain and keep it in repair, in its present location, for plaintiff’s benefit. The trial court held and adjudged that the ditch diverted a watercourse, and had bécome a legal watercourse in its present location, and could not lawfully be diverted to another course, away from the plaintiff’s land, without the plaintiff’s consent, and that the plaintiff was entitled to have it maintained and kept in repair forever, so that the plaintiff may perpetually receive therefrom water to irrigate his cranberry marsh; and the defendants are forbidden to change the course of the ditch, or to divert its current from the plaintiff’s land, and are enjoined to keep the ditch in repair, so that the plaintiff may receive his needed supply of water from it perpetually. This right is claimed for the plaintiff on two principal grounds. (1) That by the diversion of an ancient watercourse the defendants *332 have established a legal watercourse in the present location of the ditch, which they may not divert to the plaintiff’s injury; and (2) that by the Goodyear contract and the assumption of the performance of its stipulations by the defendants, the defendants are under contract obligation to the plaintiff to maintain the ditch and keep it in repair in its present location forever, for the benefit of his cranberry industry.

To determine the first ground on which this claim is founded, it became necessary to ascertain and determine whether it was, in truth and in law, an ancient watercourse which had been diverted into the ditch, and whether it continued to be a legal watercourse in its new course and location, or whether it was the mere diversion and leading away of mere surface or percolating waters; for it may well be that parties who divert a watercourse into and through a new and artificial channel should, be deemed only to have established a new course and channel for the same watercourse, which is subject to the same rules, as to its use and diversion, as applied to it in its ancient channel (Gould, Waters, § 225; Wood, Nuisances, § 399; Stevens Point Boom Co. v. Reilly, 44 Wis. 295-298); while mere surface water does not become a watercourse by being gathered into a ditch and led away (Wood, Nuisances, § 401; Fryer v. Warne, 29 Wis. 511; Stanchfield v. Newton, 142 Mass. 110). Since it is considered that it was mere surface and percolating water which was gathered into this ditch, it follows that it was still subject to be used and disposed of, for his own purposes, by the proprietor of land upon which it came. Wood, Nuisances, § 402 et seq.; Curtiss v. Ayrault, 47 N. Y. 73-82. The proposed new ditch upon the land of the defendant Siiehney, above the plaintiff’s land, was not a violation of any right of the plaintiff. Stielmey had the right to dispose of such surface and percolating water as came to his land for his own purposes, and in such manner as best suited his inter *333 ests or choice. The other defendants might well stand on his right, for they are in privity with him. So, the first ground of this claim is untenable.

It remains to be considered in what measure, if at all, the plaintiff’s rights in this ditch, and to the use of its water, have been strengthened by the Goodyear contract. It cannot, of course, be claimed that the defendants are under any greater or different obligation to the plaintiff in respect of the maintenance and repair of the ditch than rested upon the Goodyears at the time of the sale to Hoffman; for the defendants, at most, have agreed only to save the Goodyears harmless against their obligations to the plaintiff at that time. At that time the contract still rested in parol. The defendants could not be made liable on a contract subsequently made. The contract is noticeable for what it omits. It does not specify that the Goodyears shall maintain the ditch, nor that they shall keep it in repair. They promise nothing, except that the plaintiff may get water from the ditch. Nor does the contract specify for how long the plaintiff shall be permitted to take the water. It might be a question of some difficulty to determine how far it was intended to bind the Goodyears. Yet it may be fairly assumed that the parties contemplated some benefit to the plaintiff from it. But it is not necessary to inquire what the precise measure of the obligation was which the Goodyears intended to assume, for it seems clear, in any aspect, that the contract was void under the statute of frauds, and not binding at all on the Goodyears. If it was intended to give the plaintiff some interest in, and control over, the ditch, it was invalid for that purpose because not made in writing. R. S. 1878, sec. 2302. The ditch is land within the meaning of the statute. R. S. 1878, sec. 4971; 3 Kent, Comm. 401; 1 Washb. Real Prop. 4. If the contract could not, according to its terms and the intention of the parties, be completely performed within one year from its making, it is *334 void because not in writing. R. S. 1818, sec. 2307; White v. Hanchett, 21 Wis. 415; Jilson v. Gilbert, 26 Wis. 637; Doyle v. Dixon, 97 Mass. 208. Whichever horn of this dilemma the plaintiff may choose to take, the result is the same to him. If the contract was to be completely performed within one year and so was valid, then it had been fully performed and discharged before Hoffman bought the ditch. If it was not intended that it should be completely performed within a year, but that its performance should be continuous through a series of years, then it was void, and not binding upon Goodyear, at the time when Hoffman bought. In neither case is the plaintiff’s case made stronger by reason of the contract.

On the whole case, it is considered that the evidence fails to show an. ancient watercourse across the plaintiff’s land; that the ditch diverted no ancient watercourse, but intercepted and collected only surface and percolating water; that this was not a wrong of which plaintiff can complain; that the ditch did not become a legal watercourse; that the water conveyed by the ditch did not cease, in legal contemplation, to be surface water, subject to be used or disclosed of by the owners of the land upon which it came; and that the defendants are under no contract obligation to maintain the ditch or keep it in repair for the plaintiff’s benefit.

By the Oowrt.— The judgment of the circuit court is reversed, and the cause is remanded with direction to dismiss the complaint. The printed case is needlessly large. The cost of printing the case, to be taxed, is limited to 500 pages.