Opinion
September 17, 1942 —
October 13, 1942.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Reversed.
J. F. Baker and John E. Krueger, both of Milwaukee, for the appellant.
For the respondent there was a brief by the Attorney General, and Newell S. Boardman and H. T. Ferguson, assistant attorneys general, and oral argument by Mr. Ferguson.
This is an action begun on the 24th day of August, 1939, to vacate and set aside a certain order of the Public Service Commission requiring the Chicago North Western Railway Company to construct a culvert under its right of way at a designated point. Upon the trial in the circuit court the order was affirmed and the plaintiff's complaint dismissed. From the judgment entered on December 8, 1941, the plaintiff appeals.
The facts may be briefly stated as follows: The Chicago, Milwaukee, St. Paul Pacific Railroad Company, hereinafter referred to as the "Milwaukee Road," reaches Milton Junction from the southwest. Parallel to the line of the Milwaukee Road and about one quarter of a mile northwest is the Janesville-Fond du Lac line of the North Western Road. The track of the Milwaukee Road divides, one line designated as the east leg of the wye, branching off to Milton, and the other, the west leg, continuing toward the Milton Junction depot to join the main Milwaukee-Madison track and to become the main line of the Janesville-Madison line of the railroad. Paralleling the Milwaukee Road right of way and not more at any point than five hundred feet from it is a concrete highway leading from Janesville to Milton Junction, now a county trunk highway but formerly State Trunk Highway 26. This highway crosses the east leg of the wye at about what might be considered the limits of the unincorporated village of Milton Junction. At a point approximately one thousand feet southwest from the intersection of the so-called Janesville road and the east leg of the wye a highway leads directly west to cross the right of way of the Milwaukee Road, thence northwesterly for perhaps three hundred feet and then westerly again to cross the right of way of the North Western approximately one thousand two hundred feet from the point where it turns west. This is a gravel road and will be so designated. Between the North Western and the Milwaukee Road tracks and to the south of the gravel road is a pothole or pond known locally as Lowry's pond in which some water stands for at least the greater part of the year. This pond is a surface-water pond. It has no inlet nor outlet and in it is collected the moisture falling on an area of approximately two thousand acres. In times of high water the area of the pond is greatly increased. At what is designated as the high-water mark, the pond reaches a level of 97.9 feet or twenty feet above the normal level of the pond which is approximately 77.9. At that height the water reaches the embankment upon which the tracks of the North Western Road rest.
One H. J. Berg and ten other property owners filed a petition with the Public Service Commission, in which it was alleged that the Chicago, Milwaukee, St. Paul Pacific Railroad Company and the Chicago North Western Railway Company had failed and neglected to construct and maintain culverts under their respective rights of way, as directed by sec. 88.39, Stats., and surface waters accumulating as a result of such failure had damaged property in the town of Milton. Upon the hearing the Public Service Commission found that the Chicago North Western Railway Company had so constructed its railroad embankment as to obstruct the natural depression over or through which surface water naturally flowed and percolated and that said obstruction has caused properties of some of the complainants to be flooded, water-soaked, or otherwise damaged; and ordered that a culvert be constructed and plans therefor submitted to the commission within sixty days. This is the order appealed from.
The first contention of the plaintiff is that the Public Service Commission had no jurisdiction because it proceeded upon its own motion which it is not authorized to do under sec. 88.38, 88.39, or 88.40, Stats. The conclusion at which we have arrived makes it unnecessary for us to determine this question. It is considered that in this case the proceedings were taken under the wrong section of the statutes, and we reach that conclusion for the following reason: Sec. 88.38, so far as material here, is as follows:
"Culverts and outlets to permit natural drainage. (1) Whenever any county, town, city, village or railway company shall have heretofore constructed and now maintains or hereafter shall construct and maintain any public highway or road grade through, over and across any marsh, lowland or other natural depression over or through which surface water naturally flows and percolates, and the stopping of the said flow and percolation of said water by said highway or road grade causes any crop or land to be flooded, water-soaked or otherwise damaged, such county, town, city, village or railway company shall construct, provide and at all times maintain a sufficient ditch or ditches, culverts or other outlets to allow the free and unobstructed flow and percolation of said water from said lands, and to prevent said lands from becoming flooded, water-soaked or otherwise damaged by said water. . . ."
Sec. 88.39, Stats., provides:
"Connecting ditch or sluiceway across railroad right of way. Whenever the owner or owners of any land desire to drain the same by a blind or open ditch, and to properly drain such land, a connecting ditch or sluiceway should be constructed across the right of way of any railroad company, such owner or owners shall file with the depot agent of such company nearest to said land a written petition stating the kind of ditch proposed to be built by such owner or owners and requesting the railroad company to construct a ditch or sluiceway across its right of way which will conform thereto. Within sixty days after the filing of such petition the railroad company shall construct such ditch or sluiceway and the petitioners shall pay the labor cost of such construction."
Sec. 88.40, Stats., provides as follows:
"Hearings regarding culverts, etc. In case of the failure or refusal of any railroad company to comply with any of the provisions of sections 88.38 and 88.39, the person, firm or corporation or the town, village or city aggrieved thereby may file a complaint with the public service commission setting forth the facts. The commission shall investigate and determine the matter in controversy, in accordance with the provisions of chapter 195, and any order it shall make in said proceeding shall have the same force and effect as an order in any other proceeding properly begun under and by virtue of the provisions of said chapter."
The Public Service Commission treated the petition of Berg and the ten other property owners as a petition to enforce sec. 88.38, Stats. No attempt was made on the part of the petitioners to proceed under sec. 88.39. While the railway company is required to construct a culvert under either section, under sec. 88.39 the petitioners must pay the labor costs while under sec. 88.38 the railway company must bear the cost.
There can be no doubt but that the two sections apply to two entirely different situations. A considerable part of the respondent's brief is devoted to a discussion of floodwaters and the duty of riparian owners in respect thereto. This case deals solely and wholly with surface water. The term "surface waters" is defined in Restatement, Torts, p. 333, sec. 846, as follows:
"The term `surface waters,'. . . comprehends waters from rains, springs or melting snow which lie or flow on the surface of the earth but which do not form part of a watercourse or lake."
Comment b is as follows:
"The term `surface waters' is used to describe those casual waters which accumulate from natural sources and which have not yet evaporated, been absorbed into the earth or found their way into a stream or lake. The term does not comprehend waters impounded in artificial ponds, tanks or water mains."
Whether the plaintiff was required to anticipate and provide for floodwaters is a question not presented by the facts in this case. In this case we are dealing with strictly surface waters. Floodwaters are those which break away from a stream under conditions which do not usually occur. Everett v. Davis (1941) 18 Cal.2d 389, 115 P.2d 821. The law governing floodwaters has no application to the facts of this case.
The question for decision is whether the petitioners should have proceeded under sec. 88.38 or under sec. 88.39, Stats. It requires no argument whatever to demonstrate the fact that the situation dealt with in this case is not that described in sec. 88.38, — a situation which is created not by surface water but by an unusual condition of the ground in the basin. The Public Service Commission found:
"Witnesses are all agreed that it was the combination of frozen ground and the precipitation that caused the flood conditions. Unquestionably the situation was abnormal but not unnatural."
A condition which occurs but three times in twenty-eight years is not the condition described in sec. 88.38, Stats., which deals with a situation where a public highway or railroad grade is established — "over and across any marsh, lowland, or other natural depression over . . . which surface water naturally flows and percolates."
If the situation disclosed by the evidence in this case could be dealt with under sec. 88.38, Stats., there would be no reason for enacting sec. 88.39.
In this case it appears that the railroad was built in 1859; that the sidetrack under which the proposed culvert will pass was constructed in 1905; that from 1860 to 1937, a total of seventy-eight years, February precipitation was in excess of that of 1938 some twenty-two times; that from 1906 to 1937, thirty-two years, February precipitation was in excess of that of 1938, some nine times. The abnormal condition complained of which resulted from the freezing of the bottom of the basin rather than from the falling of the rain or melting of the snow is one not within sec. 88.38, Stats.
By the Court. — The judgment appealed from is reversed, with directions to set aside the order of the Public Service Commission.