89 Neb. 129 | Neb. | 1911
This is an action for an injunction to restrain the defendant from interfering with the flow of water. The defendant asked for an injunction to restrain the plaintiff from discharging water upon the defendant’s premises. The plaintiff prevailed and the defendant appeals.
The plaintiff is the owner of the southeast quarter of section 26, and the defendant owns the west half of the southwest quarter and the south half of the northwest quarter of section 25, in town 7, range 8, in Clay County. There is a public highway between the respective farms. The plaintiff purchased his property in 1892, and the defendant acquired his farm by inheritance in 1902 or 1903. These farms, and the other tracts of land in their vicinity are flat, but there is a slight depression about 12 inches lower than the surrounding territory in the east half of section 26 wherein the surplus water accumulates. In a state of nature this water would flow north and east so as to cross the section line north of the east quarter corner, from thence it would pass on to the defendant’s land into a sag, and after that depression was filled the water would spread north and east over the surrounding land. About 40 rods east of this sag there is another shallow basin, and about 120 rods further eastward there is a draw. These sags are dry the greater part of the year, the beds are cultivated, and crops are usually grown therein. More than ten years before this suit was commenced, the plaintiff constructed, and subsequently has maintained a shallow ditch parallel and close to the' northern boundary of his farm from a point on the highway westward about 100 rods, and from that point southwestward to the west line of his farm. This ditch diverts water from the sag so that it will flow to the highway about 140 yards south of the point where it would otherwise pass from section 26, but it continues northward on the west side of the highway to the point where it has ever flowed onto section 25. ■ Until about four years be
The plaintiff, on the other hand, asserts that the natural course of drainage for a considerable territory, including his farm, is along a line which is covered by the straw stack; that no more water has been cast upon the defendant’s premises than it would have received if the prairies had remained unbroken; that by constructing a ditch at a slight expense the defendant can relieve his land of the water of which he complains; and that he has acted maliciously for the sole purpose of injuring the plaintiff.' The plaintiff also pleads that the defendant’s father for many years recognized the plaintiff’s right of drainage over the premises now owned by the defendant, and that he acquired his heritage subject to an easement of drainage appurtenant to the plaintiff’s premises.
We are satisfied with the court’s finding that there is a natural tendency for the water falling upon section 26 to flow along the line marked by the culvert in the highway and onto section 25. The defendant does not have an unqualified right to exclude surface water from his premises, but, if he exercises that privilege, must use ordinary care so as to not unnecessarily injure his neighbor. This principle of law has been repeatedly announced by
The defendant was not protecting his own premises against the flow of diffused surface water or of polluted water. The water had been assembled by the force of gravitation, and was flowing in a body in the course of natural drainage before it reached his premises. The obstructions interposed by the defendant were not mere incidents accompanying improvements which he was making upon his own premises, but they were created for the sole purpose of preventing the movement of water in a natural drain provided by nature and utilized by his neighbors for the drainage of the surrounding territory. In constructing dikes in the path of that drain and in the highway, and by filling in the culvert that was laid for the purpose of improving the public way, the defendant was not, in the light of the evidence in this case making a reasonable use of his own property.
The defendant contends that the plaintiff by constructing the ditch along the northern boundary of his farm
It may be that the ditches and the culvert accelerate and slightly increase the flow of water upon and over the defendant’s premises, although there is evidence to the contrary. Assuming for the sake of argument that ■such is the fact, there is no evidence to sustain a finding that those improvements were negligently constructed or are improperly maintained, but the evidence clearly proves that they are in the interest of good husbandry and art' necessary for the improvement of the highway, and that the defendant at a slight expense to himself may not only pass on this water, but as well the water which flows from his own fields into this sag. The plaintiff therefore was within his rights. Aldritt v. Fleischauer, 74 Neb. 66; Manteufel v. Wetzel, 133 Wis. 619, 19 L. R. A. n. s. 167.
A careful consideration of the record convinces us that the judgment of the district court is right, and it is
Affirmed.