145 Ky. 358 | Ky. Ct. App. | 1911
Opinion'of the' Court by
Reversing.
G. H. Harrison owns a/farm of some 2ÓÓ. acres in Mason County. ' R. G> Bullock owns about 60 acres of land lying, 'between Harrison’s and tbe public' highway, and Harrison has á right of way over Bullock’s land out to the highway! A creek flow's through Bullock’s 60 acre tract, and'Harrison’s right .of ’ way or' road was in the bed of the creek for a considerable distáncé until about ten years ago, by consent of parties^ the; road was changed so as to cross tlae creek at riglit' angles instead of following the bed of the creek as it had formerly done. Harrison changed the. road and in making the change he came Upon this difficulty. There was a ledge of rock about two feet high which jutted out above'the creek-and instead of blasting out the rock he filfed'in the bed of the creek, with large stones and put crushed rock on top of them in ordér to make a road down from the 'top of the ledge to the bottom, of the bed of the creek. To prevent the stream from washing out' thm rock and destroying his road he put a log from the Bank out beyond a sycamore tree which stood some twenty feét from the bank,
Counsel for appellee insists that the case turns simply on á question of fact and' that this court will not disturb the judgment of the.Chancellor on a question of fact. But'we have often held''that where the testimony preponderates for one side or the other in such a way as .to convince the court that the chancellor erred, his judgment wall be reversed. His judgment is entitled to some weight, yet this court in equity cases will weigh and judge of the sufficiéncy of the evidence for itself and decide according to the evidence, where on the whole case the truth of the matter is not doubtful. Wé will not reverse the chancellor on a mere matter of the credibility of the witnesses, dr where under all the evidence the truth of the matter is doubtful, and the court cannot say that the chancellor erred. (Farmers’ Bank v. Stapp, 97 Ky., 435; Stephens v. Dickinson, 19 R. 1224; Sebree Deposit Bank v.. Clark, 20 R. 1157; Lutes v. Raymond, 20 R. 1736.) The rule announced in these cases has been since' steadily adhered to by the court.
The truth of the matter here is not doubtful. While there is some conflict in the testimony on minor details, the salient 'and'controlling facts'are clearly established. Harrison put the first obstruction in the channel of the
“But when appellees seek equity, they must themselves do equity. Relief in equity will only be granted on equitable terms, and as the chancellor had the parties before him he should have settled the entire controversy so as to do justice between them. It is clear from the evidence that a greater burden has been imposed on appellant than his land by nature should bear. * * * * While appellant should be required to remove the dam, which is necessarily an obstruction to the natural flow of the water, appellee should also be required ,to fill up the two ditches they have cut and restore the ground to the condition it was in by nature, as near as it can reasonably be done, and not divert any of the water from its natural flow. ’ ’
The same principle must be applied here. Harrison is only entitled to equitable relief upon equitable terms, and when Bullock is. required to cut down his dam Harrison must remove his. Neither had any right as against the other to put any obstruction in the channel of the creek. Each should be required to remove from the bed of the creek as it was when Harrison made the road in question all the obstructions that they have placed in it. By the bed of the creek is meant the space between the banks as they were at that time. Bullock should not be required to cut down so much of his dam as is not in this space. But all the remainder of it should be removed.
Judgment reversed and cause remanded for a judgment and further proceedings as above indicated.