Monday, January 6, 2014

State v. Michels Pipeline Construction, Inc. case brief

State v. Michels Pipeline Construction, Inc. case brief summary
217 N.W.2d 339 (1974)

Plaintiff State of Wisconsin, upon a motion for a rehearing denied, sought review of an order from the Circuit Court for Milwaukee County (Wisconsin), which granted the demurrer of defendants, a utility pipeline construction company and sewer utility. The demurrer was based upon the premise that there was no cause of action for interference with ground water. The State contended that certain unreasonable harm should have been actionable.


  • In 1972, Metropolitan Sewerage Commission of Milwaukee County granted Michels Pipeline Construction, Inc. an easement to construct a sewerage in the town of Greenfield, Wisconsin. 
  • Starting in September 1972, Michels began pumping water from Greenfield wells, which caused the ground water table to lower considerably. 
  • As a result of this, the nearby residents who drew the same water from private wells experienced the drying of their wells as well as subsidence of the soil near their homes. 
  • Michels demurred on the grounds that Huber v. Merkel, 117 Wis. 355 (1903) ruled that a cause of action did not accrue for the interference with ground water. 
  • The trial court sustained Michel’s demurrer.
The trial court held that defendants were not liable for nuisance against the State, which based its decision on the English common-law precedents that a defendant had an absolute right to percolating waters, and that any harm caused by his use of percolating waters were not actionable.


  • Overruling its adherence to the common-law rule, the court adopted a new proposed "reasonable use rule," which preserved the basic expression of a rule of nonliability, but also recognized that there was usually water for all users so that apportionment was not necessary, and that an exception to the basic expression of nonliability was needed. 
  • The exception was that use of ground waters that caused unreasonable harm was actionable and that use for beneficial purposes was not liable for interference unless the use of water by caused unreasonable harm. 
  • Beneficial uses of percolating ground waters became actionable, unreasonable harm when a defendant's withdrawal: (1) lowered the water table or reduced artesian pressure, (2) formed an underground stream, or (3) substantially and directly effected the water of a watercourse.
The court reversed the trial court's grant of defendants' demurrer, and the cause was remanded to determine the issues consistent with the opinion and the court's adopted reasonable use rule and unreasonable harm exceptions for liability with regard to use of percolating waters.

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