74 Neb. 66 | Neb. | 1905
Tbe plaintiff brought this action to enjoin the defendant from discharging surface waters which accumulated in a
Under the rule in the Todd case, Avhich seems to be the rule of both the civil and the common law (3 Farnham, Waters, secs. 88S«-889c; also note by H. P. Farnham to Todd v. York County, 66 L. R. A. 561), an owner of land has the right to drain ponds' or basins thereon of a temporary character by discharging the waters thereof by means of artificial channels into a natural surface water drain on his own property, and through such drain over the land of another proprietor, even though the flow in such natural drain is thereby increased over the lower estate, provided he acts in a reasonable and careful manner and Avithout negligence, but he cannot divert the flow of the water in a different direction from the natural course of drainage. An interesting discussion as to the law in such case is to be found in the sections of Farnham on Waters above cited.
The instant case presents the question Avhether the owner of lands, upon which a large quantity of surface water often stands in a pond or basin, may by artificial means cut through the natural barrier Avhich prevents it from reaching the lands of an adjoining proprietor, and drain it into a natural waterway on his oAvn land, and thereby cast a new burden upon the adjoining estate, Avhich the water previously could not reach. .It is argued for the plaintiff that this case is identical Avitli the facts in the case of Davis v. Londgreen, 8 Neb. 43, and that the rule laid down in that case applies that the owner of a natural pond or reservoir, wherein the surface water from the surrounding land accumulates, and from Avhich it has no means of escape except by evaporation or percolation, can
In the state of Nebraska, whose surface consists of more or less rolling plains, the action of the elements has caused by erosion a system of natural drainage channels, locally termed “draws” or “ravines,” usually beginning with a slight depression in the surface, and gradually deepening as they reach well-defined streams and watercourses, which are, as compared with those of more humid states, comparatively few in number. These “draws” form natural drainage channels for surface water, and are largely instrumental in promoting the interests of agriculture and the healthfulness and salubrity of the climate, by furnishing an unsurpassed natural drainage system, and thus quickly removing from the soil any excess of moisture therein caused by excessive rains or melting snows. These channels are usually dry, but are often deep enough with running water after storms to swim a horse. They afford almost the only means of surface drainage available to the husbandman, and his right to the use of the same, reasonably exercised, should not lightly be impaired. We have repeatedly said that the rule of this state with reference to surface waters is the rule of the common law, and that an owner may defend his premises against it by dike or embankment, and if damages result to adjoining proprie
As the water lay on Fleischauer’s land it rendered useless 10 to 15 acres of it, and the odors and exhalations from the stagnant water were noxious and annoying. A few rods away upon his own land was a natural drainage channel leading in the general direction of the drainage of the immediate locality. He drained the pond by a small drain into this waterway in such manner that no excessive quantity was precipitated at one time upon his neighbor’s land. It is true it rendered a portion of Aldritt’s land untillable; but this Avas because the land lay in the channel of a natural waterway, which from time immemorial had carried the drainage of the surrounding land as far as its branches reached. A proprietor cannot shut his eyes to the natural configuration of his land. His right of ownership is not entirely separate and disconnected from the rights of adjoining proprietors, and with it the law confers rights and imposes duties from which he cannot free himself.
To the extent that surface Avater having an accustomed flow in a drainage channel or Avaterway having Avell-defined banks may not be stopped by the erection of an embankment across the channel, so as to divert the waters to the injury of adjoining proprietors, a modification of the broad rule laid down in the earlier cases in this state
The supreme court of Minnesota in Sheehan v. Flynn, 59 Minn. 436, 26 L. R. A. 632, had before it a case in which the facts were almost identical with those in this case. In that case the court examines and distinguishes the prior cases in that state and holds that, under the rule that an owner must so use his own as not unnecessarily or unreasonably to injure his neighbor, it is the duty of an owner draining his own land to deposit the surface water in some natural drain, if one is reasonably accessible, and he is entitled to deposit the same in such natural drain though it is thereby conveyed upon the land of his neighbor, if it does not thereby unreasonably injure him. In that case, as in this, it fairly appeared that the manner of drainage pursued was the only way in which the proprietor could reasonably drain the depression, and that the ravine or waterway in which the ditch emptied was the only nat
We think therefore that, if Aldritt cultivated the natural waterway upon his land, he did it knoAving the contingencies incident to its use in this manner. The natural drainage channel existing upon his own land, and running thence through Aldritt’s land, was apparently the only outlet reasonably accessible to Pleischauer for the drainage of the surface water. It presented, as is said in Town v. Missouri P. R. Co., supra, “many of the distinctive attributes of a watercourse,” and we think he was justified in using the same in a reasonable manner, even though it resulted in injury to his neighbor Aldritt.
We have so far considered the case Avithout reference to the laAV enacted in 1903, which provides: “Owners of land may drain the same in the general course of natural drainage by constructing an open drain or ditch discharging the same into any natural watercourse or into any natural depression or draw whereby it will be carried into some natural watercourse, and when such drain is wholly on the owner’s land he shall not be liable in damage therefor to any person or corporation.” Comp. St. 1903, ch. 89, art.
We recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.