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Show WISCONSIN 805 tion,48 and that littoral rights may be acquired by dedication on a dammed nonnavigable stream which creates a lake.49 Such rights may arise immediately if the stream was navigable to begin with. On the other hand, an artificial lake on a single tract of land does not neces- sarily carry littoral rights if the shoreland is subsequently subdi- vided.60 3.6 Springs There appear to be no Wisconsin cases dealing with the classifi- cation of spring water for the purpose of determining how disputes among rival water users should be resolved. If the source of the spring is an underground stream, or if the source is a percolating ground water aquifer and a surface watercourse is formed which runs through the land of other landowners, it is likely that the law of riparian rights would govern. The law of diffused surface waters may govern if the springflow is intermittent and there is no definite channel. On the other hand, the rule of absolute ownership of perco- lating ground water established in Huber v. 'Merkel,51 discussed in section 4, infra, might govern if the aquifer is below the land of one owner and the spring surfaces on the property of another.62 One statute confers upon the "general public" the right to use spring water running across public highways, provided such use does not interfere with appropriate drainage of such lands.53 3.7 Diffused Surface Waters The Wisconsin court has dealt with conflicts between landowners with respect to diffused surface water primarily in the agricultural setting.5* Since 1870, it has adhered to the common enemy approach,65 with some qualifications, although the limitations on the common enemy rule are not entirely clear.56 A lower owner may prevent diffused surface water from coming onto his land.57 On the other hand, the upper owner, in discharging these surface waters or in altering their flow onto lower land, must not act maliciously 68 or negligently.59 Nor may he bring waters from another watershed and discharge them onto the lower property.60 Also, any improvements of the upper land must be reasonably neces- sary to his enjoyment of the property.61 These general qualifications «See Weatherby v. Meiklejohn, 56 Wis. 73, 13 N.W. 697 (1882). *" See Ellis et al., note 2,_at 95. 60 Mayer v. Grueoer, 29 Wis. 2d 168, 138 N.W. 2d 197 (1965). 61117 Wis. 355, 94 N.W. 354 (1903). 62 These various possibilities are suggested by Ellis et al., note 2, at 93. 83 Sec. 86.17. "Waiters v. National Drive-In, Inc., 266 Wis. 432, 63 N.W. 2d 708 (1954) illustrates how the principles which have evolved seem particularly inappropriate to large-scale urban improvements. The court refused, however, to develop separate rules for urban land. 68 See Pettigrew v. Village of Evansville, 25 Wis. 233 (1870). 66 See particularly W. IT. Dolson, Diffused Surface Water and Riparian Rights: Legal Doctrines in OonMot, 1966 Wis. L. Rev. 58. See also Note, 5 Wis. L. Rev. 239 (1929). 67 See, e.g., Harvie v. Town of Caledonia, 161 Wis. 314. 154 N.W. 383 (1915) which Indicates that it is probably immaterial if he acts maliciously, although there was no evidence that this was the case. **Hoyt v. City of Hudson, 27 Wis. 565 (1871). ™Manteufel v. Wetzel, 133 Wis. 619, 114 N.W. 91 (1907). Whether it is negligent to increase the volume of water discharged is not clear. Compare Laur v. City of Mil- waukee, 1 Wis. 2d 561, 85 N.W. 2d 349 (1957) and Tideman v. Village of Middleton, 25 Wis. 2d 443, 130 N.W. 2d 783 (1964). «" Tideman v. Village of Middleton, 25 Wis. 2d 443. 130 N.W. 2d 783 (1964). 61 Shaw v. Ward, 131 Wis. 646, 111 N.W. 671 (1907). |
