98 So. 403 | La. | 1923
The plaintiff and the defendant are owners of adjoining farms in section 31, township 11 south of range 4 west. The plaintiff owns the southeast quarter, and the defendant the north half, of said section. The land is of the same general character — low semimarsh, with about the same elevation and possessing little natural drainage. For many years the properties have been cultivated in rice.
In 1918 there was an extraordinary amount of rainfall, which, with the irrigation waters, overflowed the two estates, as well as the surrounding country, to such an extent as to cause great damage and destruction to the rice crops.
This suit is the result of the condition produced by the exceptional and abnormal rainfall of that year. Its purpose is to enforce the legal servitude which the plaintiff claims is due his estate by that of the defendant, to receive all of the surplus waters which naturally fall on his estate.
The petition alleges that the surplus waters which fall on the plaintiff’s land, when left unhindered and unobstructed, naturally flow north onto and across the land of defendant, which is alleged to be the lower estate. It is further alleged that the defendant has obstructed the natural flow of water by closing and building up an old
A mandatory injunction was issued, after hearing on a rule nisi, which directed the sheriff to make openings in the levee so as to permit the free passage of the waters from plaintiff’s land into a ditch which the defendant had constructed on his own land, and' by means of which ditch the waters from 'defendant’s land ultimately were emptied into the low or marsh lands northwest of the defendant’s property. The injunction, however, was bonded by the defendant on the same day, and was never executed.
The defendant in his answer admits the construction of the levee between the two properties, but denies that his property owes any servitude of drain "to the property of plaintiff. It is alleged that the natural flow of water from the plaintiff’s land is not in a northerly direction over the defendant’s land, but is in a westerly direction where there exists a sufficient drain for plaintiff’s property which was left open and was not obstructed by the defendant. It is alleged further that the only drain in a northerly direction is a private ditch -constructed by defendant at a heavy expense and which traverses defendant’s property in a northerly course and empties into a larger drain ditch constructed by one Ritchie to drain his own property.
On a final hearing there was judgment recognizing the servitude in favor of plaintiff under certain conditions which will be noticed later, and making the injunction perpetual.
Such an injunction, however, should never issue ex parte, but only after hearing either on rule or on the merits. It was not issued in this case until the defendant was notified and had his day in court. However, the defendant has suffered no injury except in being required to give bond, since the injunction has never been enforced. If on the merits the court shall find that the case is with the defendant, the injunction will be dissolved. Otherwise it will necessarily be perpetuated.
It.is to be observed that both of the estates under consideration are the more valuable for raising of rice. In the earlier history of that agricultural industry in this state, dependence was had entirely upon Providence or the rain for the necessary water to grow the rice. In the more recent years the work of man has established an artificial irrigation system of canals, ditches, and levees, by means of which Water is collected, and the rice fields are flooded at pleasure during the growing season, and the waters released therefrom when the time for harvest approaches. Each of these estates was provided with such instrumentalities by which the necessary water for irrigation, as well as the natural normal rainfall, was collected, cared for, and disposed of for many years prior to this suit without complaint on the part of the owner of either estate as to inadequate drainage, obstructed drainage, or improper. artificial drainage. And it is a fact not disputed that the plaintiff has committed no act to make the servitude of the defendant more burdensome, further than was necessary to the proper cultivation of his land in rice; and the works for that purpose did not increase the volume of water that would naturally flow onto the defendant’s land in seasons of normal rainfall.
It was the unusual rainfall of 1918, as already stated, which caused the plaintiff’s land to overflow, and doubtless the same situation and condition will occur again with a like amount of rain. And this would be the case without the artificial appliances for irrigation purposes.
The plaintiff, however, occupied no worse position - than did the defendant and other rice planters in that section of country. After all, we are not very greatly impressed with any serious difference in the legal rights of the parties by reason of any increase of water on account of or resulting from the artificial flooding of the farms. The defendant does not claim that to open up the ditch in question will impose an increased burden on his estate during normal rainy seasons. His sole contention is that his estate oVes no servitude of drain whatever to plaintiff’s land.
If the natural drain was west and not north, as contended for by the defendant, there would, it seems to us, have been no occasion for the defendant to maintain the
The judgment rendered by the district judge requires the defendant to remove the levee or a portion thereof near the center of the south line of defendant’s property sufficient to allow the free flow of water from plaintiff’s land, or to be permitted to be opened a passageway to the ditch which should allow the waters to flow at all times when the said ditch or the double levees are not being used to their fair capacity for the removal of water from the defendant's land, and when the drainage from the plaintiff’s land to the northwest is being used by the plaintiff to its fair capacity. The judgment is manifestly fair and just and equitable,' alike to both parties, and we can discover no sufficient 'reason for changing the same in favor of either party.
It is therefore ordered that the said judgment be affirmed, at the appellants’ costs.