25 S.D. 513 | S.D. | 1910
Lead Opinion
This is an appeal by the defendant from the order granting a temporary injunction. An action was instituted by the plaintiff to enjoin the defendant from constructing" a ditch or drain for the purpose of draining the water from a sink bed or slough on the premises of said defendant onto- and over the premises of the plaintiff, and from in any manner draining the said sink hole or slough on the premises of the defendant so as to conduct the water therefrom onto and over the premises of the said plaintiff. An order to- show cause was issued upon the verified complaint, and oh the return day the defendant served upon the said attorney for the plaintiff, and presented to the court, his answer herein, and moved the court to make an order denying the temporary injunction upon the ground that no- affidavits had been served with the summons and complaint, and that the order to show cause was based exclusively upon the complaint, the equities of which were fully denied by the answer. This motion was denied by the court, to which ruling the defendant excepted.
It is disclosed by the complaint and affidavits that the plaintiff was the owner of 80 acres of land adjoining the premises of the defendant, and having- within its borders a portion of a lake embracing some 250 acres; that the premises of the plaintiff were less elevated than those of the defendant; and that upon the defendant’s premises, near the line between the adjoining premises, there was a slough upon the defendant’s premises embracing about 30 acres, and that between that slough and the premises of the plaintiff there was a ridge or elevation; and that the defendant had excavated a tile drain some 40 rods in length through a portion of said slough and through the elevation or ridge between the slough and the premises of the plaintiff, making the ditch at said elevation about 12 feet' in depth, and that the water when discharged through said ditch would, by means of a depression in the natural surface, pass onto and over the land of the plaintiff. At the time the suit was instituted the ditch or drain had been practically completed ; the defendant having been occupied about a month in its construction. The slough on the defendant’s land was during some seasons dry, and the land cultivated, but at the time the suit was instituted this slough, embracing, as before stated, about 30 acres, was coveted with water to a depth of from 4 to 8 inches, and therefore was not in a condition to be used for farming purposes, unless drained. It may be added that the water when flowing from said slough through the ditch or drain and onto the plaintiff’s premises would by means of a depression in the surface of
Mr. Farnham in his'work on Waters and Water Rights, vol. 3, p. 2623, in discussing- this question, says: “A landowner is not permitted to use the land of his neighbor to relieve his own land of a burden naturally resting upon it. Therefore he cannot, in case the surface is such as to collect and hold water in ponds and marshes, dispose of it 'by simply turning it upon the property of his neighbor. As said by the Rhode Island court, the right to fight surface water does not go so far as to justify a man’s draining the puddles of his own land into the well and cellar of his neighbor. Therefore, if an artificial pond has been created on the property of one owner, he cannot cast the water onto lower property, nor can he drain natural ponds onto the property of his neighbor if injury will thereby be caused to him, nor can a marsh or swamp be drained under these circumstances. And under no circumstances can the water be removed by draining- it in a direction in which it would not naturally run. Injunction is an appropriate remedy to protect a landowner from injury by such acts, but, if the land on which the stagnant water rests can be relieved of it without injury to the adjoining property, it may be
In Miller v. Laubach, 47 Pa. 154, the Supreme Court of Pennsylvania in its opinion says: “No doubt.the owner of land through which a stream flows may increase -the volume of water by draining into it without any liability to damages by a lower owner. He must abide the contingency of increase or diminution of the flow in the channel of the stream because the upper owner has the right to all the advantages of drainage or irrigation reasonably used as the stream may give him. But that is an entirely different thing from draining the water standing on the lands of one through artificial channels onto that of another. That cannot be done without his consent, and this was the substance of the charge below.” To the same effect are the following cases: Adams v. Walker, 34 Conn. 466; Miller v. Laubach, supra; Nevins v. City of Peoria, 41 Ill. 502; Schuster v. Albrecht, 98 Wis. 241, 73 N. W. 990; Gregory v. Bush, 64 Mich. 37, 31 N. W. 90; Kauffman v. Griesemer, 26 Pa. St. 407; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Noonan v. City of Albany, 79 N. W. 475; Breen v. Hyde et al., 130 Mich. 1, 89 N. W. 732; Foot v. Bronson, 4 Lans. (N. Y.) 47; Vernum v. Wheeler, 35 Hun. (N. Y.) 53; Anderson v. Henderson, 124 Ill. 164, 16 N. E. 232; Crabtree v. Baker, 75 Ala. 91; Dayton v. Drainage Com'rs, 128 Ill. 271 N. E. 198. On rehearing in the Pettigrew Case, supra, it was contended by the petitioners that the water in that case by means of the ditch was not turned directly upon the property of the adjoining owner, but was allowed to be discharged from the ditch at some distance from
Applying the doctrine as laid down by Farnham and by the authorities which we have cited to the case at bar, it necessarily follows that the defendant had no legal right to relieve his own premises of surface water by constructing an artificial ditch or drain to carry it off onto the land of the plaintiff to the plaintiff’s material damage. The counsel for the defendant quoted from the opinion of this court in the case of Quinn v. Chicago, M. &. St. P. Ry. Co., 120 N. W. 884, 22 L. R. A. (N. S.) 789; but it will be noticed in that case that the railroad had constructed an embankment which prevented the water running in its natural channel causing it to flow back upon the land of the plaintiff, and thereby caused the plaintiff injury to his property and the loss of crops. There is no analogy, however, between that case and the case at bar. Plere there was no- natural water course from the defendant's land extending over the land of the plaintiff. The water accumulating in the slough of the defendant could only .find an outlet over the plaintiff’s premises by the construction of an artificial ditch, there being no natural channel in which the waters could flow from the slough over and onto the premises of the plaintiff.
It is further contended by the defendant that the plaintiff was guilty of laches in not sooner instituting the action to enjoin the defendant, but in our opinion there is no merit in this contention.
It is further contended by the defendant that an injunction was not the proper remedy, and that the plaintiff had an adequate remedy at law to recover damages, but we are of the opinion that the trial court was right in taking the view that the case was one proper for the issuance of an injunction, for the reason' that the act or trespass complained of by the plaintiff was necessarily to be a continuing act or trespass upon the rights of the plaintiff. This point was raised in the Pettigrew Case, supra, and in discussing it the court saj^s: “Another and the last objection arises a question, perhaps, of more doubt. It is whether the proceedings by injunction can be sustained to prevent the injury. This depends altogether upon the nature of the injury. If it be permanent, or such as will continue to operate in all future time, then the proceeding can be sustained; but if only temporary, or such as will cease when the waters of the pond are once drawn off, then it cannot.” It has long been the policy of the law to prevent a multiplicity of actions, and where a trespass is a continuing trespass, in order to prevent such multiplicity of suits, a court will enjoin the continuance of the same. Clearly, in the case at bar, if the ditch or drain were permitted to be used by the defendant, it will continuously, or at such times at least as waters accumulate in the said slough, discharge them upon the premises of the plaintiff. In view of the facts as presented by this record, we are of the opinion that the case was a proper one for an injunction, and that the plaintiff should not be required whenever the waters are discharged from such ditch over his land to institute an action
The contention of the defendant that the court upon the coming in of the answer denying the equities of the complaint should have dismissed the action is not tenable under our system of procedure. In the case of Huron Waterworks Co. v. City of Huron, 3 S. D. 610, 54 N. W. 652, this court held as appears by the headnotes that: “A dissolution, like the granting of injunction, is largely a matter of judicial discretion, which must be determined by the nature of the particular cause under consideration. While it is a well-settled rule that, when the sworn answer fully and unequivocally denies all the material allegations of the complaint upon which the complainant’s equities rest, the injunction will be dissolved, yet such rule is not without exception, and a court may in the exercise of a sound discretion refuse a dissolution when there is ground for apprehending some irreparable injury or great hardship, if the injunction is dissolved before the hearing of the case upon the merits. When the rights of the defendant are protected by a good and sufficient bond, so that no injury can result from a continuance of the injunction,, its continuance is to some extent a matter of discretion, and this discretion should be exercised in favor of the party most liable to be injured.” In the case at bar it will be noticed that the court, instead of dissolving the temporary injunction, permitted the plaintiff and defendant each to file additional affidavits, and upon the hearing the court denied the motion-to dissolve. Clearly under the authority of the case above cited of Huron Waterworks Co. v. City of Huron the court was fully justified in denying the defendant’s motion. But, in the view we take of defendant’s answer, his contention that all the equities of the complaint were denied cannot be sustained. The defendant in his answer admitted that the plaintiff was the owner, and in possession of
Concurrence Opinion
I concur only in the conclusion that the order appealed from should be affirmed.