#### Merkel, Appellant, vs. Town of Germantown, Respondent.

*January 15*

February *2, 1904.*

*Highways: Culverts: Diversion of surface water: Authority of municipal officers.*

1. In an action against a town for damage, alleged to have been occasioned by surface water diverted from its former course, and conducted through a culvert, insufficient in size and improperly located, the complaint considered, and *helcl*to state no cause of action.

2. For the purposes of improving highways, a town has the same right to divert and obstruct the natural flow of mere surface water as private individuals.

Appeal from an order of tbe circuit court for Washington county: Jamies J. Dice, Circuit Judge.

*Affirmed.*

This is an appeal from an order sustaining tbe demurrer to tbe complaint.

Tbe material facts alleged in tbe complaint are as follows: Appellant is tbe owner of premises used for agricultural purposes in tbe town of *Germantown,*Washington county. The premises lie on tbe south side of one of tbe highways of tbe town, and are at such a level, and lie in such relation to tbe lands at tbe north of tbe highway, that tbe waters of a considerable territory would naturally drain over them. Tbe highway for a distance of about 400 feet is practically level, and has an embankment for tbe traveled track over this part of about two feet above tbe level of the land over which it passes. When tbe road was first improved, many years before this action was commenced, a culvert was built at a point where tbe surface slopes slightly in from both directions, at a place about 145 feet east of tbe northwest corner ■of tbe premises. This culvert was about twelve feet wide and two feet high. At a point about 410 feet further east 'was another culvert, about three feet in width and two feet *495in beigbt. Plaintiff’s grantor bad constructed a diteb across bis premises from tbe larger culvert to tbe southwest Corner of tbe premises for tbe purposes of carrying tbe surface water off quickly, and thus protecting tbe lands for agricultural uses. It appears that tbe surface waters from tbe lands lying to tbe north of appellant’s premises were stopped in their flow by tbe raised highway, and flowed through tbe culvert, and but for tbe highway tbe waters would naturally spread and flow over a large part of appellant’s farm. Tbe natural course of tbe water was over the highway at the place and in tbe courses now complained of, but they are intercepted by tbe embankment in tbe highway. That portion over which tbe water came is almost a dead level. On the 13th of June, 1903, tbe town authorities filled up tbe larger culvert, and built a new one to tbe east of tbe place of tbe old one. This new culvert was about three feet and four inches wide by about two feet in beigbt, and is alleged to be insufficient in capacity and improperly located to carry off tbe surface water which collected and flowed over that part of tbe highway north of tbe embankment. On July lltb, during a heavy rainfall, tbe surface water flowed into and filled up tbe ditch upon tbe northern side of tbe highway, and overflowed tbe roadbed of tbe highway between the point where tbe old culvert bad stood and a point about 200 feet east thereof. The waters tore up tbe roadbed and carried tbe gravel into the ditch constructed by appellant to carry tbe water from tbe new culvert, filled tbe ditch, and carried gravel over corn and potato fields. Tbe water also tore up tbe earth and carried off large quantities of it. Plaintiff further alleges that tbe last improvement was negligently planned and constructed, causing him damages to tbe amount of $800. Tbe court sustained tbe demurrer to tbe complaint upon tbe ground that it failed to state a cause of action. From tbe order sustaining the demurrer, this appeal is taken.

*496For the appellant tbe cause was submitted on tbe brief of *P. O’Meara.*

For tbe respondent there was a brief by *Sawyer & Sawyer*and *J. O.*Bussell, and oral argument by *Mr. E. W. Sawyer*and *Mr. Bussell.*

SiebecKER, J.

It is conceded in tbis case tbat town authorities, for tbe improvement of its highways, may grade them by cutting or filling,, and may construct bridges, culverts, and drains to accomplish tbis result, and tbat, if tbe flow of surface water is thereby diverted from or carried onto land out of its natural course, no action for damages arises-therefrom, unless it appears tbat tbe improvement is not authorized in law, or was undertaken or executed in a wanton manner, without reasonable advantage to tbe public, and resulted in injury to private property. In *Champion v. Cran*don, 84 Wis. 405, 54 N. W. 715, tbe opinion exhaustively reviews tbe cases in tbis court upon tbe question. It is there asserted:

> “Tbe power of supervisors to determine upon a plan and method for improving streets and highways, and providing for tbe removal of surface water, is a discretionary one, and a mere error of judgment in respect to tbe plan will not subject tbe town to an action for damages. . . . Tbe authorities are numerous tbat tbe determination of tbe public authority upon tbe plan for doing such a work is conclusive.”' Citing many cases.

Tbe appellant’s complaint-shows tbat tbe surface water collecting on a! large body of land lying to tbe north of the highway naturally, flows over tbe highway onto plaintiff’s-land, and thence to tbe south. Tbe former highway improvement raised tbe traveled track of tbe road about two-feet above tbe natural surface for tbe distance of nearly 400-feet along bis farm premises, and tbe surface water passed through a large culvert in tbe embankment, and thence-flowed on bis premises. In June, 1903, tbe town made im*497provements in tbe highway by removing this culvert, constructing a smaller one to the east. By reason of the change in location and size of the culvert, it failed to conduct the water from the north to the south of the embankment, which resulted in flooding the traveled track, and diverting the water from its former course over the road and his farm, and thereby caused him damages. These allegations furnish no basis of complaint against the town, inasmuch as the undertaking of respondent’s officers was a lawful one, for the improvement of the highway.

Nor can the charge that the officers acted negligently and wantonly in making the improvement and adopting the plan aid the complaint, since the plan adopted to improve the highway is within the lawful right and authority of the town. For the purposes of improving its highways, a town has the same right to divert and obstruct the natural flow of mere surface’ water that the owners of private property have in improving their lands. *Champion v.*Crandon, *supra; Harp v. Baraboo,*101 Wis. 368, 77 N. W. 744; *Hoyt v. Hudson,*27 Wis. 656; *Clauson v. C. & N. W. R. Co.*106 Wis. 308, 82 N. W. 146.

The complaint fails to state a cause of action, and the demurrer was properly sustained.

*By the Gourt.*— Order affirmed.