75 Tenn. 739 | Tenn. | 1881
delivered the opinion of the court.
This suit is commenced before a justice of the peace of Hamilton county. The cause of action stated is “for wrongfully and unlawfully digging and constructing ditches and streets so as to flood the property of plaintiff with water, rendering said property unavailable for use,” etc.
The case is as follows: The plaintiff owns and was in possession of a house and lot in the city of Chattanooga. Some two or three blocks from this lot there is a pond, and in the pond was a sink or hole under ground, which carried off the surplus accumulation of" water in the pond. In 1878, during the prevalence
The question is, whether a municipal corporation, by virtue of its ownership, control, and duty to open, improve and repair the public streets of a city, can inflict such injuries as are complained of, and whether they are but the incidental damages naturally resulting from the exercise of its ownership and powers?
The principle on which the right of the corporation rests is thus stated by Judge Turley, in the case of Humes v. Mayor and Aldermen of Knoxville, 1 Hum., 407: te Every proprietor of land, where not restrained by covenant or custom, has the entire dominion of the soil and the space above rand below to any extent he may choose to occupy if, and in this occupation he
We think this principle sound. • It is one repeatedly approved by this court. See cases cited in head notes, 1 Hum., 403, Cooper’s edition.
But it does not justify the intentional and purposed draining of the water of a pond from another part- of the city property into the one hard by the plaintiff’s property, by which the water is so increased in quantity as to work injury to the owner of property otherwise free from the water of such pond. His Honor, the circuit judge, charged substantially in accord, with this view, and we think correctly.
The injury that results incidentally and as the result of the proper use of one’s own property, is not the subject of an action, as illustrated by the cases cited, where in grading a street, with proper care, the foundations of a house hard by were injured. The general rule is stated to be, that the owner of the higher land, for instance, has no right, even in the course of use and improvement of his land, to collect the surface water into a drain or ditch, increasing it in quantity or in a manner different from the natural flow upon the lower lands of another, to the injury of such lands: Beard v. Murphy, 37 Yer., 99; 21 Iowa, cited in Wait’s Act. and Def., vol. 4, 741. Surface water is’a 'common enemy, which such landowner may reasonably get rid of in the best way
In this case the damages were not the incidental result of the improvements, such as changing grade of streets, or even of digging drains to carry off the water, but the water was drained from one pond into another, thereby changing its location, so as to produce the injury complained of.
We think his Honor correctly told the jury that the city could not lawfully cut ditches and canals so as to empty the waters from other ponds in such a manner as to accumulate this water to the point of flooding plaintiff’s lot, and not be responsible for the damages. If this could be done' on the plea of public benefit by the . work done, or as the proper use of one’s own property, then on the same principle it might overflow the plaintiff’s property entirely, turn it permanently into a pond, and thus deprive her of the use of it practically altogether. The principle that would sustain the right to do so temporarily, would equally justify doing it for all time.
For these reasons we hold the charge of the court not to be erroneous and affirm the judgment.