r

Keller vs. The Town of Gilman.

tion or settle any bill of exceptions, to enable the supreme court to review any alleged error, which would, without a bill of exceptions, appear upon the face of the record." The statement of the trial judge of the ground upon which the new trial was granted, though properly transmitted with the return, is no part of the record upon or in respect to which error may be assigned. The defendant had lost its right to appeal directly from the order granting a new trial, by failing to perfect such appeal before judgment was rendered on the verdict given on the second trial, and in which both parties participated. Victor Sewing Machine Co. v. Heller, 41 Wis. 657. The judgment appealed from rests upon the pleadings and the verdict in favor of the plaintiff, and we think that it cannot be said that the order granting a new trial "necessarily affects the judgment" appealed from. It is therefore no part of the record, and not reviewable on appeal from the judgment, unless the order and the matter on which it was founded were made a part of the record by a bill of exceptions. The case of Donkle v. Milem, SS Wis. 33, 37, 38, and cases there cited, is conclusive on the point. It was there held that "mere interlocutory motions and orders, not involving the merits and necessarily affecting the judgment appealed from, are no part of the record or judgment roll for the purposes of an appeal from the judgment, unless made so by a bill of exceptions."

The defendant should have settled a bill of exceptions, making such former order, and the minutes of the court upon which it was founded, a part of the record. For the want of such bill, we are unable to notice the points assigned to show that the order granting the new trial was

erroneous.

By the Court. The judgment of the circuit court is affirmed.

Borchsenius vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

BORCHSENIUS, Respondent, vs. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Appellant.

Surface waters: Artificial accumulation by construction of railroad: Failure to construct culverts: Negligence: Pleading.

1. Where the owner of land permits surface waters to accumulate thereon he must either confine them or transmit them to adjacent lands in such a manner as to cause no material injury thereto; and if they escape through his negligence he is liable for injury occasioned thereby.

2. In an action against a railroad company for an injury to land occasioned by accumulated surface water breaking through its roadbed, mere failure of the company to construct culverts or drains to permit the passage of surface water from the upper to the lower side cannot be imputed as negligence, unless such disposi tion of the water would have been in substantial accord with its natural flow.

3. Where a railroad company constructs a roadbed which it could foresee would act as a dam to obstruct the passage of surface water, it is its duty to construct it at such a place and in such a manner as to withstand the waters which would accumulate against it in all ordinary storms, so as to guard against all damages, which could be reasonably foreseen, to lower proprietors. 4. A complaint in such a case alleging that plaintiff's damage “was caused solely by the negligent and unskilful manner in which said roadbed was constructed, and by the obstruction of the natural drains occasioned through the negligence and carelessness of said defendant in the construction of said roadbed," is held sufficient, as against a general demurrer, to show that defendant had failed in such duty.

APPEAL from an order of the circuit court for St. Croix county: E. B. BUNDY, Circuit Judge. Affirmed.

Appeal from an order overruling a demurrer to the complaint. The complaint alleges that the defendant has constructed the roadbed of its railroad along the side of the plaintiff's land at an elevation above the natural surface of the ground of from four to eight feet; that the land on the

Borchsenius vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

north or upper side of its roadbed and right of way is a natural watershed for a large area, from which the waters, in time of rains or melting snows, naturally come down to defendant's roadbed, and, before the construction of the roadbed, passed upon the lands below; that the roadbed formed a dam or reservoir for such surface water, and prevented its passage to the south side of the roadbed, and caused it to accumulate in great quantity on the upper side of the roadbed; that no gutters or other means for carrying off such waters as should accumulate were provided; that during a great storm of rain the defendant's roadbed gave way, opposite the plaintiff's land, and the pent-up waters broke loose and passed over the plaintiff's land, carrying away the top soil and greatly damaging the land; that the washout and damage were caused solely by the negligent and unskilful manner in which the roadbed had been constructed, and by the obstruction which it caused to the natural drainage of the land. The defendant demurred to the complaint. The trial court overruled the demurrer, and the defendant appeals.

For the appellant there was a brief by L. K. Luse, attor ney, and Thomas Wilson, of counsel, and oral argument by Mr. Luse.

James A. Frear, for the respondent, to the point that the railroad company was liable for the damage occasioned by the water breaking through its roadbed, cited Sinai v. L., N. O. & T. R. Co. 71 Miss. 547; Galveston, H. & S. A. R. Co. v. Parr, 8 Tex. Civ. App. 280; Sentman v. B. & O. R. Co. 78 Md. 222; Kansas City, Ft. S. & M. R. Co. v. Cook, 57 Ark. 387; Texas & P. R. Co. v. Snyder, 18 S. W. Rep. 559; Ill. Cent. R. Co. v. Ileisner, 45 Ill. App. 143; Bastable v. Syracuse, 8 Hun, 587; Gould, Waters, § 273; Thomp. Neg. 1; Lincoln & B. H. R. Co. v. Sutherland, 44 Neb. 526; Jacobson v. Van Boening, 48 id. 80; Kearney v. Themanson, id. 74; Fletcher v. Rylands, L. R. 1 Exch. 265; Cooley, Torts, 570.

VOL 96-29

Borchsenius vs. Chicago. St. Paul, Minneapolis & Omaha R. Co.

NEWMAN, J. Surface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises for such interference, even if some injury occurs, causing damage. Bowlsby v. Speer, 31 N. J. Law, 351; Pettigrew v. Evansville, 25 Wis. 223; Hoyt v. Hudson, 27 Wis. 656; Lessard v. Stram, 62 Wis. 112; Wendlandt v. Cavanaugh, 85 Wis. 256. This general rule is, however, limited by the exclusion from its application of the case of surface water which falls or accumulates on the proprietor's own land. He may repel such water from coming from his neighbor's land to his; but, such water being upon his land, he may not divert it or cause it to flow upon the land of another in unaccustomed volume, to his injury. This limitation of the rule is stated in Pettigrew v. Evansville, supra, and Hoyt v. Hudson, supra. It is said in Pettigrew v. Evansville: "It is the duty of every owner of land, if he wishes to carry off the surface water from his own land, to do so without material injury or detriment to the lands of his neighbors; and, if he cannot, he must suffer the inconvenience arising from its presence, and cannot complain that others refuse to allow it passage over their lands. Such is the sound and wholesome doctrine upon this subject; and although it does not go so far as to require the owner to resort to any artificial means to prevent the surface water from his lands flowing on to the land of another, when such flowing is produced by natural causes, yet it will prevent him from using such means for the purpose of making it flow there whenever the same would be materially injurious to the proprietor thereof." It is recognized that some latitude is given as to the manner in which owners of estates shall improve or change them, as regards surface waters, so that not every slight or immaterial change would afford ground for an action. This limitation of the general rule is stated in Cairo & V.

Borchsenius vs. Chicago, St. Paul, Minneapolis & Omaha R. Co.

R. Co. v. Stevens, 73 Ind. 278, in these words: "Such waters as fall in rain or snow on his land, or come thereon by surface drainage from or over contiguous lands, he must keep within his boundaries, or permit them to flow off without artificial interference, unless within the limits of his land he can turn them into a natural watercourse."

To cast such accumulated waters purposely upon an adjoining proprietor is a direct injury, for which an action in trespass will lie. To permit them negligently, by means of artificial constructions, to become accumulated and discharged upon him in unusual quantities, to his injury, causing indirect and consequential damages, may render the negligent party liable for the damages caused, in an action. on the case for negligence. Having permitted the surface waters to accumulate on its right of way, it then became the defendant's duty to either confine them there, or to transmit them to adjacent lands in such a manner as to cause no material injury to such lands. If they escaped through its negligence, it is liable.

It is not quite clear that the complaint states facts which show that the defendant was negligent in the construction of its roadbed. The negligence more particularly alleged and claimed was the absence of culverts or drains to permit the passage of the water through or under the roadbed from the upper to the lower side. It is not clear that this could be imputed as negligence, because it is not clear that to let surface water through culverts at that place would have been permissible. If that would let the water down upon adjacent proprietors at unaccustomed places and in unusual quantities, to their material injury, it would not be permissible, while if that disposition of the surface water would be in substantial accord with its natural flow it might be permissible. Johnson v. C., St. P., M. & O. R. Co. 80 Wis. 641. The complaint fails to state facts which show that the omission of culverts was negligence.