| Ark. | Mar 11, 1899
(after stating the facts.) This is an action to recover damages for the obstruction of the natural flow of surface water, caused by the construction of a levee across a swale or depression which extended across the lands of both plaintiff and defendant, and along which the surface water passed in times of rain and melting snow. These lands, at rare intervals, were subject to overflow from White river, but it was not shown that the levee caused injury by holding back the flood waters which came from the river. The injury, if any, arose from the obstruction of ordinary surface water only.
At the common law, each proprietor had the right to protect his land against surface water flowing upon his soil, and, under the strict rules of that law, plaintiff would have no right of action. But this court, after what seems to have been a full consideration of the question, adopted a rule materially different from that of the common law. In the case of Little Rock & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463" date_filed="1882-11-15" court="Ark." case_name="Little Rock & Fort Smith Railway Co. v. Chapman">39 Ark. 463, it held that the right of a landowner to obstruct the natural drainage or flow of surface waters was not absolute, and that if such proprietor unnecessarily injure the land of upper proprietors by the erection of an embankment or levee, when by reasonable care and expense he might have avoided the injury, he becomes liable for damages thus occasioned. The rule, as declared by this court, is similar to that followed by the courts of several of the states. Speaking of this question, Judge Dillon, of the supreme court of Iowa, said: “We recognize the fact, to use Lord Tenderden’s expression, that surface water or slough water is a common enemy which each landowner may reasonably get rid of in the the best manner possible; but, in relieving himself, he must respect the rights of his neighbor, and cannot be justified by an act having the direct tendency and effect to make that enemy less dangerous to himself and more dangerous to his neighbor. He cannot make his estate more valuable by an act which unnecessarily renders his neighbor’s less valuable.” Livingston v. McDonald, 21 Iowa, 160" date_filed="1866-06-28" court="Iowa" case_name="Livingston v. McDonald">21 Iowa, 160.
The instructions given by the circuit judge in this case do not state the law correctly, for they are to the effect that the defendant had no right under any circumstances to obstruct “a natural flow or drainage of water.” There is no pretense or claim here that the defendant obstructed a stream or watercourse. The levee was constructed across a slight but broad depression, along which the surface water was drained from lands of upper proprietors. But the court, in the third instruction, told the jury that “if the evidence in the ease shows to the satisfaction of the jury that there was a natural flow and drainage of water aeeummulating by rainfall or otherwise' from the surrounding country, by which the water in its natural flow was carried off from the lands of the plaintiff across the lands of the defendant, and that, by the erection of the embankment complained of, the flow was prevented, and land of the plaintiff caused to be overflowed, then the defendant would be responsible in damages to the plaintiff, to the extent of the injury caused thereby to his property.” This instruction seems to have been copied from one given by the circuit judge in ease of L. R. & Ft. S. Ry. Co. v. Chapman, supra. But this court said in that case that, in order to recover, the obstruction must be shown to have' been unnecessary, and called attention to the defect in the instruction. It, however, affirmed the judgment, for the reason that there was in- that case a special finding that the obstruction was unnecessary. Now, under the rule established in that case, if the landowner, by the use of a ditch or drain, instead of a levee, could protect his own land from water, and avoid injury to the adjoining proprietor, he should do so. But he would not be required to go to an unreasonable expense to protect the lands of the adjoining proprietor, and would not be liable for damages occasioned by holding back surface water if such levee was the only practical method of protecting his lands' from such surface water. L. R. & Ft. S. Ry. Co. v. Chapman, 39 Ark. 463" date_filed="1882-11-15" court="Ark." case_name="Little Rock & Fort Smith Railway Co. v. Chapman">39 Ark. 463. This third instruction seems also in conflict with the seventh and eighth instructions, which were too favorable to defendant. Neither of these instructions stated the law correctly, and, taken together, tended to confuse and mislead the jury.
The landlord’s right to possession being usually suspended during the term of the lease, his liabilities in respect to the possession are, as a general rule, suspended as soon as the tenant takes possession. It follows that, for a nuisance committed by the tenant during his term, the landlord, as a general rule, is not liable; for he has no legal means of abating the nuisance. He cannot interfere with the possession of the tenant for that purpose, but, when the term expires, he has then the right of entry and power to abate the nuisance, and if he fails to do so his liability commences. Ingwersen v. Rankin, 47 N. J. Law, 18, 54 Am. Rep. 109.
We are therefore of the opinion that the judge should, as requested by defendant, have told the jury that if the defendant had rented his land to Busby during the year 1894, and had neither possession or control over the same, he would not be responsible for the act of his tenant in closing the cut in the levee, if he neither licensed or consented to said act. If Busby was the .agent or manager of defendant, and acting for him, the defendant would, of course, be responsible for his acts done within the. scope of his agency. But if Busby had rented the land during 1894, and had exclusive possession and control over same, defendant would not be liable for his act in closing the levee, unless he advised or licensed the same, or unless he afterwards renewed the lease or granted another lease with the levee in such condition. 2 Wood’s Landlord & Tenant, (2 Ed.) § 526; 1 Taylor’s Landlord & Tenant, (8 Ed.) § 175; Haizlip v. Rosenberg, 63 Ark. 430" date_filed="1897-02-06" court="Ark." case_name="Haizlip v. Rosenberg">63 Ark. 430.
The levee complained of in this' case was composed of dirt, and less than two feet high, and only a few feet thick. It could easily be cut and opened so as to allow the passage of water. It was not a part of a railroad bed or other permanent structure. It had been cut and opened for the passage of water, and so remained for several years until 1894. It was closed by the tenant who occupied the place for that year, to protect the land from surface water .during that year. When we consider the ease with which this' small embankment could be opened or closed, and also the purpose of the tenant in closing the same, it seems clear that the act of such tenant did not constitute a permanent injury to plaintiff’s land. The opposite view might make the defendant liable for large sums in the way of prospective damages, even though there was no intention to permanently close the levee, and though he should wish to remove the obstruction and obviate the injury. As the levee eould easily be opened, and such prospective injury avoided, it would be unjust, as well as unreasonable, under such circumstances, to presume conclusively that the nuisance would be continued, and the injury made permanent. Mitchell v. Darley Main Colliery Co., L. R. 14 Q. B. Div. 125; Uline v. N. Y. C. & H. R. R. Co., 101 N.Y. 98" date_filed="1886-01-19" court="NY" case_name="Uline v. New York Central & Hudson River Railroad">101 N. Y. 98.
We think, therefore, as the complaint alleges the levee to have been erected in 1894, and as this action was commenced in that year, the recovery must be limited to such damages as accrued up to the bringing of the action. We are therefore of the opinion that the court erred in his instruction defining the measure of damages. For the errors indicated, the judgment is reversed, and a new trial granted.
'As the appellant did not set out the instructions of the court in his abstract, as required by the rule of this court, no costs will be taxed for such briefs.