Alcorn v. Sadler

66 Miss. 221 | Miss. | 1888

Campbell, J.,

delivered the opinion of the court.

The injunction should not have been dissolved. The evidence tends strongly to show that there is a body of water covering five or six hundred acres of land owned for the most part by Alcorn, and that a small part of it is owned by Sadler; that this existed naturally because of the conformation of the earth in that region, and that the excavation proposed and about to be made by Sadler would drain this water and destroy the collection. It matters not that the water comes from the surface of adjacent lands owned by Sadler. He may arrest its flow over his land and divert it before it gets to rest in the reservoir or lake or whatever the body of water may be called, but after it loses its casual and vagrant character as surface water diffused over his land, and reaches the place of rest and becomes a body or collection of water, owned chiefly by another, he cannot lawfully drain it and destroy what belongs to that other in order to clear of water that part of his own land covered by it.

We approve the decision of Schaefer v. Marthaler, 34 Minnesota 487, and in the absence of such precedent would not hesitate to announce a rule so obviously just and harmonious with the rules of law applicable to water.

There are other questions in this'ease, but we decline to decide them at this stage of the controversy since the above disposes of this appeal.

Reversed and remanded.

Afterward D. A. Scott and Calhoon & Green, on behalf of appellee, filed a suggestion of error, in which the testimony was reviewed at length, and it was contended that the court had erred in the application of the principles of law to the facts. It was also urged that the court in ruling on the question as to the dissolution of the injunction seemed to have disposed of the main question of fact in the case against the appellee, before formal proof taken, and to the prejudice of appellee at the final hearing on the merits. Under the authorities previously cited, and in accordance with the decision in Schaefer v. Marthaler, 34 Minn. 487, approved by the court, it was strenuously insisted that Sadler had the right, at least, to drain his land, if he did not thereby drain Alcorn’s, and put it as it would be without the dam erected by Alcorn across the natural outlet.

To the suggestion of error, the following response was made :

Per Curiam.

We have adjudicated nothing in this case, except that the injunction should be retained until further investigation is had, or at least opportunity for it is given. We are satisfied with the legal principle announced in the opinion and adhere to it, but further than this have not intimated the view that should be taken of the case on a future hearing.

Denied.