24 S.D. 216 | S.D. | 1909
This action comes before this court upon an appeal from the judgment of the trial court and from the order of such court denying a' new trial herein. The action was tried in the lower court before a judge without a jury, and the said trial court at the close -of' the plaintiff’s testimony,- upon motion of the defendant, dismissed the complaint therein and
This action was brought to restrain the defendant from continuing the maintenance of a certain ditch or trench, through which it is claimed by the plaintiff a continuous stream of water is discharged upon and injuring the plaintiff’s land. There being no question raised as to the sufficiency of the pleadings, it only becomes necessary to consider the facts as shown by the evidence. It appears undisputed: That the defendant is the owner of the northwest quarter of a certain section of land; that the plaintiff is the owner of the southeast quarter of said section; that a third party owns the southwest quarter of said section;' that running in a somewhat easterly and westerly direction along the center line of said.section is a ridge which slopes to the south haying on its southern slope some depressions or drains, by which the rainfall and water from melting snow is carried to the lower land to the south; that one of these depressions or draws is situated near the southeast corner of defendant’s land, and this depression slopes rapidly toward the south extending onto the land of the third party, above referred to; that in the draw just mentioned, and near the southeast corner of said northwest quarter, the defendant in the year 1900 sunk a wellhole, and in 1903, for the purpose of watering his stock without drawing water from said wellhole, the defendant dug a small basin near said well and south of it, and connected this basin by a ditch with the said well, cutting the side of said well to the depth of two or three feet, and by so doing allowing the standing water in said well to flow into said basin. It appears without dispute' that, at the
We are unable to find any conflict in the testimony of plaintiff’s witnesses, or anything to indicate that their testimony was not truthful. The trial court, among other findings, found that the spring above referred to was fed by surface water percolating through the soil, and that said spring or well was not maintained in such a way as to collect water and discharge any quantity of water upon the land of the plaintiff, and the court found that the water was allowed to escape from said well and flow the natural course of drainage leading from the place where said spring was located, and further found that there was a natural
A careful reading of the evidence shows clearly the facts as contended for by the plaintiff, so that there was error in the findings as made by the court. It seems, however, to be the theory of the respondent that, even under the facts as claimed by the plaintiff, the plaintiff would not • be entitled to the relief prayed for; it being the contention of the respondent that he had the right, for the purpose of using said water for his stock, to ditch the same. from said well or spring into the drinking hole, even if, by so doing, water escaped onto plaintiff’s land causing damage. Respondent, in his brief, takes the position that the water coming from this spring was surface water, and that he had a right to handle the same as such. He cites authorities holding that water from springs spreading over land is and may be ■treated the same as surface water. While we agree that water
Even if the water in question were . considered as surface water and subject to all rules of law relating thereto, yet under the authorities there would be grave doubts as to the rights of defendant to dig a ditch through which the same could flow onto the land of others, when such water would not otherwise have reached such other parties’ land. It .is impassible to harmonize the authorities upon this point. In 19 L. R. A. (N. S.) 167, we find the case of Manteufel v. Wetzel, a Wisconsin case (133 Wis. 619, 114 N. W. 91), holding that an upper landowner may collect in a ditch, following the usual surface drainage, the surface water which spreads over the surface, and by so doing hasten the flow of such water onto the land of the proprietor below. Following this case is to be found a very complete note upon this question; the authorities therein cited supporting the holding of the Wisconsin case, but apparently with this limitation; That the owner of the higher land has no right to remove natural barriers, and let onto the lower land waters which would not otherwise naturally flow in' that direction. Following this case is also an extensive note on the right to drain ponds and marshes where such ponds or . marshes are fed by surface water, and there appears to be, under the decisions noted, a conflict as to whether or not one can deepen the natural.drain from the pond..and thus allow water...to escape therefrom. which. would not otherwise .flow .out. _ In the case of Krupke v. Stockard, 103 Minn. 349, 115 N. W. 175, it was held that, where surface water had accumulated in a pond permanent in its character, the water therein lost its character as
This same question of drainage of marshes and ponds was passed upon in the case of Davis v. Fry, 14 Old. 340, 78 Pac. 180, 69 L. R. A. 460, 2 Am. & Eng. Ann. Cas. 193, wherein the court takes the position that surface water collecting in a natural basin or depression, and escaping therefrom only by percolation or evaporation, and forming a lake or pond permanent, loses the character of surface water and cannot be drained onto the lower estate, thus supporting directly the 'position of the Minnesota case above mentioned, and sustains the rule that in any case, to allow such' drainage, the water must be, strictly speaking, “surface water.” In this case the court quotes with approval the charge of the trial court which was given by the Ohio court in the case of Butler v. Peck, 16 Ohio St. 336 (88 Am. Dec. 452), as follows: “The sole question made by that part of the charge to the jury which is complained of is .this: 'Whether an owner of land having upon it a marshy sink or basin, as to a considerable portion of -the water which collects within it has no natural outlet, may lawfully throw such water by artificial drains itpon the land of an adjacent properietor. We are clear that no such right exists. It would sanction the creation by artificial means of a servitude which nature has denied. The natural easement arises out of the relative altitude of adjacent surfaces as nature made them, and these altitudes may not be artificially changed to the damage of an adjacent proprietor; and it makes no difference that, in the hypothetical case on which the charge of the court below complained of is based, in times of high water, a portion.of the water of the basin would overflow along a natural swale to and upon the .lands of the plaintiffs below, for as to those waters which naturally could not surmount nor penetrate the rim of the basin, bu-t were compelled to pass off by evaporation or remain where they were, the case is.the same as if the basin had no outlet.”
We are therefore fully of the opinion that the learned trial court erred in its findings of fact, and that, under the facts as they appear by the undisputed evidence, the conclusions of the trial court are wrong.
It is therefore ordered that the judgment of the trial court and order denying a new trial be, and the same are, hereby reversed.