48 La. Ann. 466 | La. | 1896
The opinion of the court was delivered by
The plaintiff alleging that defendant has erected a dam and otherwise obstructed adrain to carry the water from plaintiff’s land over defendant’s plantation to the low lands in the rear, sues to remove the obstructions and for damages for loss of crops alleged to have been caused by the water accumulated on plaintiff’s land owing to the obstructions. The answer of defendant is in substance, that the drain, the stoppage of which is the basis of plaintiff’s demand, was abandoned prior to the acquisition by the plain
The injunction obtained by plaintiff was dissolved and the dam complained of by him was thus maintained. The judgment of the lower court was in favor of plaintiff, reinstating and making perpetual his injunction. Prom that judgment defendant appeals, and answering the appeal the plaintiff asks for an amendment giving him the damages claimed by him and refused by the lower court.
The plaintiff’s plantation fronts on the Bayou Lafourche. In the rear is that of defendant. The natural drainage of plaintiff’s land it is claimed, was designed to be effected by a bayou passing through his plantation to that of defendant’s, thence to the swamp in the rear. The testimony shows the bayou to be thirty feet wide where it enters defendant’s land; in some places in his field to be partially
The contention of defendant is founded on the agreement of 1862, and insists plaintiff is confined to the drainage then established. The contracting parties were four planters owning plantations on the Bayou Lafourche, lower down than that now owned by plaintiff. That drainage suited them, the canal then cut carrying the water from their places to the Company Canal, back in the swamp, as the witnessess express it, in or near the rear of the plantations of the four contracting parties. ' It was stipulated in this agreement that the expense of the proposed drainage should be borne proportionately by the four parties, and their agreement should embrace any future addition or enlargement of their then existing plantations. The plaintiff acquired his property forty years after this agreement. He holds by subsequent conveyances under one of the contracting parties who, after the agreement, became the owner of the land afterward acquired by plaintiffs, and it is insisted that land was bound for its part of the drainage expense under the stipulations that enlargements should contribute. The owner of forty years ago being bound, it is claimed the plaintiff succeeding to the ownership is in like manner bound. - .
The ownership of the land now belonging to plaintiff, preceding his, was that of Landreaux, owning the Trinity plantation. The plaintiff’s land is above the Trinity, and above all the other places whose owners entered into the agreement of 1852. Moreover, plaintiff’s land does not adjoin Trinity. The drainage of 1862 was
The defendant urges that all the water, from plaintiff’s land, whether or not flowing through the bayou the defendant obstructed, is bound to find its way to the Company Canal through the connecting canal cut in 1852. If this is so, it is solely because of this connecting canal on defendant’s land, which we infer from the record crosses the bayou in its course through the swamp. It seems to us it is no concern of plaintiff how the lower estate disposes of the water it receives from the superior estate. It may be, as defendant claims, that if the water from plaintiff’s lands flows into the company dams, lessening the capacity of that canal, it will expose the lands of others to overflow. Here again it may be said, that is for the owners of all these lands lying below plaintiff to protect themselves by suitable drains. Neither defendant or any of these proprietors of the lower estate can, in our view, stop the natural flow of water from the superior estates on the ground that water will overflow their lands. It is their obligation to receive such water and their burden to provide means of disposing of it.
We can find in none of the contentions of defendant any justification for the dam erected by him. The text of the Code creating the servitude of the lower estate forbids the erection of such obstruc - tion. C. C., Arts. 660-661. If, indeed, the agreement of 1852 could be construed to require a contribution from plaintiff for the use of the canal drainage, we are clear that did not authorize the stoppage of all his drainage, whether by the bayou, to the swamp or to the canal or in any mode.
If the defendant, as we hold, had no right to close the dam, and in consequence plaintiff lost his crop, in our view damages are due plaintiff. The judgment of the lower court is against plaintiff on his demand for damages. The judgment in that respect is placed on the ground that plaintiff took the law into his own hands by removing the dam .first erected. The plaintiff testifies he supposed that the dam was on his land.' Whether right or not, in this respect, his supposition deserves consideration in our appreciation of the act. In view of the fact that defendant replaced the dam since maintained,, the first removal by plaintiff of that he deemed an unlawful obstruction, afterward - reinstated and maintained, can not afford protection to defendant now sought to be held for his unlawful act.
We have examined the plaintiff’s proof as to his damages. We think an allowance for one hundred tons of cane at eighty five cents, and one hundred dollars for the corn planted, will compensate plaintiff for his loss on crops. As to the wood claimed to have been cut but not sold, by reason of the flooding of the land, we do not find.the basis for any judgment. We think, too, the attorney’s fee of one hundred dollars should be allowed plaintiff.
We are asked to give punitive damages. We have not felt at liberty to accede to this. The reasonable belief of his right of defendant enclosing the dam, though his appreciation of his right was entirely wrong, should, we think, protect him from punitive damages.
It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to allow the plaintiff damages, and it is therefore ordered, adjudged and decreed that plaintiff do have and recover from defendant three hundred and twenty-seven dollars and fifty cents, and as thus amended the judgment of the lower court be affirmed with costs.