Opinion
June 4, 1956 —
June 22, 1956.
APPEAL from an order of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellants there was a brief by St. Peter Hauer of Fond du Lac, and oral argument by George M. St. Peter and Albert J. Hauer.
For the respondent there was a brief by Frederick K. Foster, corporation counsel, and Worthing Calhoun, special counsel, and oral argument by Mr. Kenneth E. Worthing and Mr. Foster.
A brief was filed by Willink Thompson of Madison, for the Wisconsin Farm Bureau Federation, Co-operative, as amicus curiae.
This action was commenced by three individuals on behalf of themselves and all other residents, taxpayers, owners of real property, and users of water in the townships of Empire, Taycheedah, and Forest, in Fond du Lac county. Plaintiffs seek an injunction enjoining the city of Fond du Lac from constructing a well and removing or withdrawing water from the towns of Empire and Taycheedah for commercial sale to noncontiguous territory. In the alternative, plaintiffs seek an injunction restraining the city from removing water from the water basin under the towns of Empire, Forest, and Taycheedah to an extent that would constitute an unreasonable use thereof by said city with relation to the respective property rights of the plaintiff's and the others whom they represent so as to control the amount of water to be removed by the city and to assess from time to time damages caused by the city by unreasonable use thereof, with the court retaining jurisdiction for those purposes.
In addition to representing as a class the residents of said townships, plaintiffs allege that they have been appointed, in writing, as agents for the purpose of this action, by over 200 owners of real estate and users of well water in said towns.
This is a companion case to the case of Fond du Lac v. Empire, ante, p. 333, 77 N.W.2d 699, and the two cases were argued together on appeal. The opinion in that case should be read in connection with this case for a proper understanding of the issues.
The complaint herein alleges the purchase of real estate in the town, together with the option by the city to purchase over 1,100 acres of additional land and the proposals of the city to drill wells in the underground basin now supplying water through wells to the residents of the three towns. The complaint describes in detail the number of farms, residences, industries, and mercantile establishments within, together with the number of wells now serving the residents of those townships; that the lands purchased and proposed to be purchased by the city lie approximately six miles east of the city. It is alleged that the city's plan to pump water and transport it to its mains in Fond du Lac will reduce the availability of water to private well owners in the three towns; that such action by the city will require expenditures of funds by a substantial number of private users of well water in said area in sinking new wells, deepening existing wells, and the addition of new pumping equipment on individual wells, and may result in damage to individual dairy farms; that the withdrawal of large amounts of water by the city will result in the lowering of the water level, which will affect a substantial number of well owners within said water basin; that the residents within the area have no other supply of water available to them, and if their lands are deprived of access to water necessary for the beneficial use thereof the owners of wells in said basin may be irreparably damaged and the value of their properties may be substantially lowered; that the city has other sources of water available to it, viz: Lake Michigan, Lake Winnebago, and Green Lake, together with another underground water basin northwest of the city; that the city has refused to make application to the town board of the town of Empire for permission to drill the wells or for the contemplated use of the real estate to be purchased, as provided by certain ordinances of the town of Empire; that the city claims the right to use the property purchased or under option for the construction of wells and a pipe line, and to operate said wells no matter what effect removal of water has upon the remaining wells and well owners.
The city filed a demurrer to the complaint, and on May 3, 1956, an order was entered sustaining said demurrer. The plaintiff's appeal.
To sustain their cause of action the plaintiffs attack the decision in Huber v. Merkel, 117 Wis. 355, 94 N.W. 354, which was discussed in the companion case. It is contended that the decision in that case should not control in the present case for several reasons: (1) That the decision therein was not based upon the police power; (2) that the decision does not correctly state the common law; (3) that the decision has been severely criticized by writers and by the courts of other states; (4) that the decision was based upon a lack of understanding of underground water; (5) if it is decided that the Huber Case correctly stated the common law, it should be reversed.
It is true that the legislation attacked in the Huber Case was not based upon the police power. That issue was discussed in the companion case.
It is contended that the Huber Case did not correctly state the common law; that Acton v. Blundell (1843), 12 Mees. W. 324, 152 Reprint 1223, was the first English decision determining the rule as to the rights to subterranean waters as between adjacent landowners, and that the common law is restricted to English statutes and decisions in effect at the time of the American Revolution. Sec. 13, art. XIV of our state constitution reads as follows:
"Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature."
The common law in effect at the' time of the adoption of our state constitution is difficult of definition. We do not think that it is confined to English statutes and the decisions of English courts. In Feiges v. Racine Dry Goods Co. 231 Wis. 270, 285 N.W. 799, reference was made to Michigan statutes that were in force at that time. Perhaps the term "common law" is broad enough to embrace customs and usages and legal maxims and principles in vogue at that time. We do not find that the decision of Acton v. Blundell, supra, was mentioned in the Huber decision. It is true that it was cited in the appellant's brief along with decisions from some of the eastern states. Assuming, however, but without deciding, that the Huber decision did not correctly state the common law, it did state a rule that was reached and is adhered to in several other states and which is often referred to as the common-law rule. It determined that the use of percolating water underneath an owner's land is a property right and that water so obtained could be sold. We have operated thereunder for more than fifty years. Property rights thereunder have been acquired and sold. Under the rule of stare decisis, where property rights are involved, the courts are reluctant to engage in judicial legislation. If there is to be a change, it should come by action of the legislature. We know that the legislature is studying the problem and we can expect such legislation as it deems advisable in the interests of all of the people in the state.
The Huber decision has been severely criticized by some courts and by several writers. Most of that criticism is directed at the determination therein that an owner may waste water with malice toward his neighbor as his motive. It is unnecessary to give attention to such criticism because neither waste nor malice are issues in the case before us.
We must agree with the trial court that the result of the proposal of the city to withdraw water from the underground basin is unknown and that an injunction should not be granted under the circumstances.
By the Court. — Order affirmed.
The majority opinion is grounded upon the thoroughly discredited decision of this court in Huber v. Merkel (1903), 117 Wis. 355, 94 N.W. 354, which I consider it is the duty of this court to repudiate by expressly overruling the same.
The plaintiff's in this case seek the aid of equity in protecting their property rights in the percolating waters from which they draw their water supply. They are entitled to such protection regardless of whether or not the legislature ever exercises its police power to regulate percolating waters.
3 Farnham, Waters and Water Rights, p. 2718, sec. 938, makes this observation with reference to Huber v. Merkel:
"There is absolutely no principle on which that decision can be founded. It is opposed to good morals, good sense, and all common-law principles which are applicable to analogous subjects, and the later and better considered cases are beginning to recognize correlative rights in percolating waters and confine landowners to a reasonable use of it."
Even more caustic is the following comment of the Minnesota court in Erickson v. Crookston Waterworks Power Light Co. (1907), 100 Minn. 481, 489, 111 N.W. 391:
"The merits of that opinion [ Huber v. Merkel] justify little more than reference to it."
In the case of Hathorn v. Natural Carbonic Gas Co. (1909), 194 N.Y. 326, 87 N.E. 504, property owners, who were obtaining water from naturally flowing springs, brought an action in equity to restrain the defendant corporation from accelerating, or increasing by means of pumps and other apparatus, the flow of water and carbonic-acid gas from their own deep wells so as to destroy or diminish the flow of water in plaintiffs' springs. The lower court entered an order granting to the plaintiffs a preliminary injunction. The defendant corporation appealed and cited Huber v. Merkel. The New York court of appeals affirmed, and in its decision it reviewed Huber v. Merkel, and made this statement with respect thereto (p. 339):
"If, however, some of the broad statements made in the opinion [in Huber v. Merkel] should be deemed pertinent to such facts as are disclosed here and to sustain the right of a proprietor to use at will subterranean waters under the circumstances disclosed in this case, it must be said, as was intimated in the Wisconsin case itself, that the courts of this state and of that one disagree on this subject."
The rationale of the Huber v. Merkel decision was that a property owner has the unlimited right to make whatever use of his own property he sees fit. This is directly counter to the principle so long recognized in the law of nuisance that one must not so unreasonably use his own property as to injure that of another. This principle is well stated in 6-A American Law of Property, p. 65, sec. 28.22, as follows:
"Since the rights of neighbors are correlative, the uses of one must not impair the substantially equal uses of the others. The balance between their interests is struck by the maxim — sic utere tuo ut alienum non laedas. When the balance is upset by an activity which exceeds the bounds of reasonableness and does substantial and disproportionate injury to the peaceable possession of others, such activity is said to be a nuisance and is actionable by those whose property interests it impairs."
The case whose facts are probably most nearly parallel to those of the instant case is that of Schenk v. Ann Arbor (1917), 196 Mich. 75, 163 N.W. 109. In that case the city of Ann Arbor acquired 130 acres of land in a marsh area some three miles distant from the city, under which were beds of water bearing gravel, for the purpose of augmenting the city's water supply. Test wells were driven by the city and some 3,700,000 gallons of water were pumped daily for a while from such wells. As a result the wells of some of the adjoining landowners went dry and the water supply in other near-by wells was seriously diminished. The plaintiff was an adjoining landowner and brought an action against the city for an injunction. At the time of trial the city was then not pumping water, and, therefore, plaintiff was sustaining no damage. Because of this the lower court denied an injunction. The Michigan supreme court held that the city had the right to drill and remove water from nonadjacent property, but that such was subject to the reasonable-user rule. The judgment below was modified by directing the circuit court to retain jurisdiction in equity so as to permit the plaintiff and all members of the class to apply for relief in the event of sustaining future harm from the further pumping operation of the city.
I believe that the rule laid down in Schenk v. Ann Arbor provides a precedent which should be followed by this court in the instant case. As this matter comes to us as the result of the interposition of the demurrer by the defendant city, such demurrer should be overruled and a trial be had on the merits.
I am authorized to state that Mr. Justice CURRIE joins in this dissent.