Title: Menne v. City of Fond Du Lac - Supreme Court of Wisconsin, June 22, 1956
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Permanent Link: http://ufdc.ufl.edu/WL00004470/00001
 Material Information
Title: Menne v. City of Fond Du Lac - Supreme Court of Wisconsin, June 22, 1956
Physical Description: Book
Language: English
Publisher: 77 North Western Reporter, 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Menne v. City of Fond Du Lac - Supreme Court of Wisconsin, June 22, 1956 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 33
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004470
Volume ID: VID00001
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Full Text

Cite as 77 N.W.2d 703

or by proper exercise of the police power.
The court held that the legislation in ques-
tion was in no sense a condemnation law
nor could it 'be sustained as a proper exer-
cise of the police power, because it did not
pretend to serve any public interest but
was for the purpose of promoting the wel-
fare of one citizen by preventing his neigh-
bor from using his own property. So much
of the decision in the Huber case as is ap-
plicable to the facts before us is controlling,
and is the general law of the state.

[9] In addition to sec. 144.03, Stats., our
attention has been called to only one other
section dealing with the subject of water
supply, sec; 66.066(la), Stats., which au-
thorizes municipalities to acquire, own, and
operate a source of water supply and neces-
sary transmission facilities beyond its cor-
porate limits. The ordinances of the town
of Empire conflict with these general laws
of the state, and that is a second reason
for holding that they are invalid.

Order affirmed.


273 Wis. 341
Joseph J. MENNE et al., Appellants,
CITY OF FOND DU LAC, a Municipal
Corporation, Respondent.

Supreme Court of Wisconsin.
June 22f

Rehearing Denied Sept. 11, 1956.
Action for an injunction by town resi-
dents seeking an injunction against a city
from constructing a well and removing or
withdrawing water from the town for com-
mercial sale to noncontiguous territory and
for additional release in the alternative.
From a judgment for the respondent in
the Circuit Court for Fond du Lac County,
Russell E. Hansen, J., the plaintiff appealed.

The Supreme Court, Broadfoot, J., held
that injunction should not issue under the
Order affirmed.
Fairchild C. J., and Currie, J., dis-

1. Common Law =3, 7, 8
The common law in effect at the time
of the adoption of the state constitution is
not confined to English statutes and the
decisions of the English courts and is per-
haps broad enough to embrace customs and
usages and legal maxims and principles in
vogue at the time.

2. Courts =93(1)
Under the rule of "stare decisis" where
property rights are involved, the courts are
reluctant to engage in judicial legislation
and if there is to be a change, it should
come by action of the legislature.
See publication Words and Phrases,
for other judicial constructions and defi-
nitions of "Stare Decisis".

3. Waters and Water Courses e107(2)
In action by township residents to en-
join a city from constructing a well and re-
moving or withdrawing water from the
town for commercial sales to noncontiguous
territory where the results of the proposal
of the city to withdraw water from the un-
derground basin were unknown, an injunc-
tion should not be granted under the cir-
cumstances. Const. art. 14, 13.

This action was commenced by three in-
dividuals on behalf of themselves and all
other residents, taxpayers, owners of real
property, and users of water in the town-
ships 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 non-contiguous territory. In the
alternative, plaintiffs seek an injunction
restraining the city from removing water

Wis. 703

I __


from the water basin under the towns of
Empire, Forest, and Taycheedah to an ex-
tent that would constitute an unreasonable
use thereof -by said city with relation to the
respective property rights of the plaintiffs
and the others whom they represent so as
to control the amount of water to be re-
moved by the city and to assess from time
to time damages caused- by the city by un-
reasonable use thereof, with the court re-
taining 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
City of Fond du Lac v. Town of Empire,
77 N.W.2d 699, and the two cases were ar-
gued together on appeal. The opinion in
that case should be read in connection with
this case for a proper understanding of the

The complaint herein alleges, the pur-
chase of real estate in the town, together
with the option by the city to purchase over
1,100 acres of additional land and the pro-
posals of the city to drill wells in the under-
ground basin now supplying water through
wells to the residents of the three towns.
The complaint describes in detail the num-
ber 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 pur-
chased 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 ad-
dition of new pumping equipment on indi-
vidual wells, and may result in damage to
individual dairy farms;; that the. with-
drawal of large amounts of water by the

city will result in the lowering of the water
level, which will affect a substantial num.
ber 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 low-
ered; that the city has other sources of
water available to it, viz.: Lake Michigan,
Lake Winnebago, and Green Lake, to-
gether 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 ordi-
nances of the town of Empire; that the city
claims the right to use the property pur-
chased or under option for the construction
of wells and a pipeline, 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 com-
plaint, and on May 3, 1956, an order was
entered sustaining said demurrer. The
plaintiffs appeal.

St. Peter & Hauer, Fond du Lac, for ap-
pellants. t :
Frederick K. Foster, Corp. Counsel
Worthing & Calhouin, Sp. Counsel, Fond
du Lac, for respondent.:" ;' Y '-
Willink & Thompson, Madison, amicus
curiae. '
Roy W. Thiel, Fond du Lac, for Town
of Taycheedah, amicus curiae.

To sustain their cause of action the plain-
tiffs attack the decision in Huber v. Merkcl,
117 Wis. 355, 94 N.W. 354, 62 L.R.A. 589,
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

704 Wis.

Cite as 77 N.W.2d 703

therein was not based upon the police pow- la
er; (2) that the decision does not correctly ai
state the common law; (3) that the decision ai
has been severely criticized by writers and m
by the courts of other states; (4) that the o0
decision was based upon a lack of under- la
standing of underground water; (5) if it ob
is decided that the Huber case correctly tf
stated the common law, it should be re- el
versed. aa
It is true that the legislation attacked in c
the Huber case was not based upon the le
police power. That issue was discussed s
in the companion case.

It is contended that the Huber case did tl
not correctly state the common law; that l
Acton v. Blondell, 12 M &'W 324, 152 Re- o
print 1223 (1843) was the first English de-
cision determining the rule as to the rights c
to subterranean waters as between adjacent w
land owners, and that the common law is
restricted to English statutes and decisions
in effect at the time of the American revolu-
tion. Art. XIV, sec. 13 of our state consti- n
tution reads as follows:

"Such parts of the common law as c
are now. in force in the territory of
Wisconsin, not inconsistent with this
constitution, shall be and continue part t
of the lawof.this state, until altered or! t(
suspended by the legislature." b
[1,2] .-The common law in effect at the s
time of the adoption of our state constitu-
tion 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, 122 A.L.R. 272 reference tl
was made to Michigan statutes that were in c
force at that time. Perhaps the term "con- 3
mon law" 'is broad enough to embrace cus- c
toms and usages arid legal maxims and d
principles in vogue at that time. We do
not find that the decision of Acton v. Blon-:
dell, supra, .was mentioned in the Huber: e
decision. It: is true that it'was cited in the tl
appellant's brief along with decisions from d
some of the eastern states. Assuming, how- ti
ever, but without' deciding, that the Huber n
decision did not correctly state the common' p
77 N.W.2d-45

iw, it did state a rule that was reached
nd is adhered to in several other states
nd which is often referred to as the com-
ion-law rule. It determined that these
f percolating water.underneath an owner's
Lnd is a property right and that water o
obtained could be sold. We have operated
lereunder for more than 50 years. Prop-
rty rights thereunder have been acquired
nd sold. Under the rule of stare decisis,
'here property rights are involved, the
courts are reluctant to engage in judicial
gislation. If there is to be a change, it
lould come by action of the legislature.
ie know that the legislature is studying
he problem and we can expect such legis-
Ltion as it deems advisable in the interests
f 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
t the determination therein that an owner
lay waste water with malice toward his
neighbor as his motive. It is unnecessary
Give attention to such criticism because
either waste nor malice are issues in the
ase before us.

[31 We must agree with the trial court
iat the'result of the proposal of the city
Withdraw water 'from the underground
asin is unknown and that an injunction
should not be granted, under the circum-
Order affirmed.

FAIRCHILD, Chief Justice (dissenting).;
The majority opinion is grounded upon
he thoroughly discredited decision of this
ourt in Huber v. Merkel, 1903, 117 Wis.'
55, 94 N.W. 354, 62 L.R.A. 589, which I
consider, it is the duty of this court to repu-
iate by expressly ,overruling the 'same.

The plaintiffs in this case seek the aid of
quity in protecting their property rights in
he percolating waters from which they
raw their water supply. They are entitled
o such protection regardless of whether or
ot the legislature ever exercises its police
ower-to regulate percolating waters.

Wis. 705



3 Farnham, The Law of Waters and
Water Rights, p. 2718, sec. 938, makes this
observation with reference to Huber v.
"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 sub-
jects, and the later and better con-
sidered cases are beginning to recog-
nize correlative rights in percolating
waters and confine landowners to a
reasonable use of it."
Even more caustic is the following com-
ment of the Minnesota court in Erickson v.
Crookston Water Works Power & Light
Co., 1907, 100 Minn. 481, 111 N.W. 391,
394, 9 L.R.A.,N.S., 1250:
"The merits of that opinion [Huber
v. Merkel] justify little more than ref- .
erence to it."

In the case of Hathorn v. Natural Car-
bonic Gas Co., 1909, 194 N.Y. 326, 87 N.E.
504, 509, 23 L.R.A.,N.S., 436, property own-
ers, who were obtaining water from nat-
urally flowing springs, brought an action
in equity to restrain the defendant corpora-
tion 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 in-
junction. The defendant corporation ap-
pealed aid 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 there-

"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 dis-
closed 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 de-
cision 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 6A, American Law of Prop-
erty, 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 et alienum non laedas. When
the balance is upset by an activity
which exceeds the bounds of reason-
ableness and does substantial and dis-
proportionate injury to the peaceable
possession of others, such activity is
said to be a nuisance and is action-
able 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. City of Ann Arbor,
1917, 196 Mich. 75, 163 N.W. 109, L.R.A.
1917f, 684. 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 augment-
ing the city's water supply.. Test wells were
driven by the city and some 3,700,000 gal-:
Ions of water were pumpeddaily for awhile
from such wells. As a result the wells of
some of the adjoining land owners went
dry and the water supply in other nearby
wells was seriously diminished. The plain-
tiff was an adjoining land owner and
brought an action against the city for an in-
junction. 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 non-adjacent property, but that such
was subject to the reasonable user rule.

Cite as 77 N.W.2d4 707

The judgment below was modified by di-
recting the circuit court to retain juris-
diction in equity so as to permit the plain-
tiff 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. City of 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 interposi-
tion 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.

273 Wis. 313
Joseph NECHODOMU, Jr., a minor, by John
R. Cashman, his guardian ad item, et al.,
Wilbert LINDSTROM, Jr., et al., Appellants.
Supreme Court of Wisconsin.
SJune 22, 1956.
Rehearing Denied Sept. 11, 1956.
See 78 N.W.2d 417.
An action under the attractive nuisance
doctrine against owners of realty and inde-
pendent contractor, who performed work on
building on realty, and his employee, to re-
cover for injuries sustained when child
placed hand in mixer machine, top of which
was open, so'as to expose the revolving
blades. From a judgment of the Circuit
Court, Manitowoc County, F. H. Schlicht-
ing, J., in favor of the plaintiffs the defend-
ants appealed. The Supreme Court, Martin,
J., held, inter"alia, that the evidence pre-
sented question for jury under all the cir-
cumstances as to whether machine was in-
herently dangerous to children and con-
stituted an attractive nuisance.
See also 269 Wis. 455, 69 N.W.2d 608.

I. Negligence el136(19)
In action for injuries sustained when
child placed hand in "mud mixer" machine,
top of which was open, so as to expose the
revolving blades, whether the machine was
inherently dangerous to children and con-
stituted an attractive nuisance was for jury.

2. Negligence eg=23(l)
The "attractive nuisance" doctrine is
limited to things which are. dangerous to
children because of likelihood that children
will meddle with them, and does not extend
to things which become dangerous only
when adults set them in motion.
See publication Words and Phrases,
for other judicial constructions and defi-
nitions of "Attractive Nuisance".

3. Negligence =134(4)
In action for injuries sustained when
child placed hand in "mud mixer" machine,
top of which was open, so as to expose re-
volving blades, evidence, including showing
that blades were very close to wall of drum,
that rods at the top were neither deterrent
nor protection to children who might reach
into the drum, and that height of opening
from ground made it easily accessible to
"children of age and size of those who were
playing on the premises, -sustained jury's
finding that machine was inherently danger-
ous to children and hence constituted a'n
attractive nuisance.

4. Trial 4352(6)
In action for injuries to child who
placed hand in "mud mixer" machine, top
of which was open, so as to expose revolv-
ing blades, submitting question in special
verdict inquiring whether defendants were
negligent in respect to maintaining or al-
lowing to exist "a machine inherently dan-
gerous to children upon such premises"
was not error on ground that form of ques-
tion would lead jury to believe that machine
was inherently dangerous instrumentality,
where jury could not answer "yes" to ques-
tion unless jury had first determined from
evidence that machine was inherently dan-
gerous, and court's instruction made that

Wis. 707

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