54 Ind. App. 146 | Ind. | 1913
This suit was brought by appellee to enjoin appellant from constructing a drainage ditch which would divert water from a stream flowing through appellee’s land, to his damage. A perpetual injunction was granted as prayed. It is assigned that the court erred in each of its conclusions of law upon its special finding of facts, and in overruling appellant’s motion for new trial. This motion was upon the grounds, among others, that the finding of facts was not sustained by the evidence and is contrary thereto, that certain specific findings are not sustained by the evidence and are contrary thereto, and that the finding of facts is not full enough and does not state all the facts.
Briefly stated, the court found the following facts: (1) plaintiff owns a certain described tract of land in Huntington County, defendant owns another described tract bordering on the east of the land of the plaintiff; (2) from time immemorial a natural watercourse having a well-defined channel, and natural bed and banks having its source on the lands to the south and east of the lands of plaintiff and defendant, has flowed across plaintiff’s lands, thence across the western part of the defendant’s lands, thence across the eastern part of plaintiff’s lands and thence again across defendant’s lands into the Wabash Biver. There are several natural springs of water on the defendant’s land from which the water naturally issues and flows for the entire year, and in addition to the other natural supply of water, the water from said springs flows into said natural watercourse. Plaintiff uses his land for pasturing cattle and raising hogs and uses said watercourse to supply said animals with water, and has arranged his fences and fields for that purpose. The location of said lands, watercourse, springs, fields and fences and certain boggy land and the proposed drain are shown by the plat annexed. 3. That prior to the commencement of this action defendant intended and threatened to construct a six-inch tile drain on her land, commencing at said stream on the north end of said land, and to Sxtend the same up over her land and under said natural watercourse to a point in said boggy land and near said spring, said proposed drain being indicated by a dotted line on the above plat, to drain said boggy land and to conduct the water from said spring down near her house into a basin or pond to be used for ducks and geese and other purposes. There is a natural ridge or bank to the north of said spring and boggy land which prevents the water from naturally flowing down over the line of said proposed tile drain. The only natural way to drain and
menced the construction of said described tile drain and would have constructed the same if she had not been restrained from so doing. The land to the south of said spring and under said boggy land and to the north thereof and under said watercourse from said spring down below the
The court stated the following conclusions of law: (1) the law is with the plaintiff; (2) the defendant has no right to divert the water in said watercourse; (3) the defendant ought to be perpetually enjoined from constructing said proposed drain and from diverting in any other manner the water in said natural watercourse.
Note.—Reported In 102 N. E. 875. See, also, under (1) 29 Cyc. 951; (2) 40 Cyc. 604; (3) 40 Cyc. 555. As to right of riparian owner to the use of water and to the natural flow of the stream, see 79 Am. Dec. 638. On the question of correlative rights of upper and lower proprietors as to diversion of water, see 41 L. R. A. 744. As to the nature of riparian rights and lands to which they attach, see 9 Ann. Cas. 1235; Ann. Cas. 1913 E 709.