70 Ky. 403 | Ky. Ct. App. | 1870
delivered the opihioh of the court
The Thornberrys are the joint owners of three hundred acres of land situate in Jefferson County, three miles south of the city of Louisville. The lands lying north and east of the same are owned by Hahn and Harris, the appellants in this appeal.
There extends through the lands of all of said parties, from the north-east to the south-west, a depression or pond, generally known as Lynn’s Pond. The proof as presented by the record warrants us in concluding that the lands of the Thorn
The cause has been carefully and elaborately prepared, much proof having been taken by both the plaintiffs and defendants, and both having had the pond and adjoining lands carefully surveyed and leveled by' surveyors and civil engineers. Upon hearing, the chancellor granted substantially the relief prayed for by the complainants, and Hahn and Harris have appealed to this court asking a reversal of his judgment.
The principles of equitable jurisdiction and relief involved in this appeal have, it is believed, been before this court for adjudication in but one previous case. But in that case (Dumesnil v. Dupont, 18 B. Mon. 800) the power and jurisdiction of courts of equity to afford complete relief in cases of nuisance, whether public or private, was fully recognized.
But where there is “such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance which can not otherwise be prevented, . . . where the injury is irreparable, or where loss of health, loss of trade, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrongful act or erection — in every such case courts of equity will interfere by injunction, in furtherance of justice and the violated rights of the party. . . . The obstructions of water-courses, the diversion of streams from mills, the back flowage on mills, and the pulling down of the banks of rivers, and thereby exposing adjacent lands to inundation, or adjacent mills to destruction,” are all instances in which such relief can be appropriately granted. (2 Story’s Equity Jurisprudence, sections 925, 926, and 927.)
The right of the riparian owner to stop the flow of water upon his own land, and thereby cause it to flow back upon the lands of the proprietor above him, is not a right incident to the ownership of the soil, but an easement which can only be acquired by grant, or by an adverse possession so long continued as to raise a legal presumption of grant. (2 Washburn on Real Property, page 66.)
It is shown by a preponderance of evidence in this case
But the difficulty which presents itself is whether or not the evidence upon which these conclusions are based is “ determinate and satisfactory.” According to the testimony of one, or perhaps two of the engineers, the bottom of the pond upon the lands of Harris, which lie furthest east, is about one 'foot higher than upon those of the appellee’s, and it is argued from this fact that it is improbable, if not impossible, that the water can, under ordinary circumstances, find an outlet in this direction. Many witnesses speak of observing the flow of the water at times when the lands of the Thornberrys were not inundated, and of finding it flowing slowly to the west; and
We entertain no doubt but that the usual flow of the water from the pond has for many years been through the ditch leading westwardly into Mill Creek. But we think it equally clear that after heavy or protracted rains, when the pond is being rapidly filled by the water falling upon the high lands in its vicinity, that this ditch does not possess sufficient capacity to carry it off as fast as it collects. The surface of the ground lying between the western extremity of the pond and Mill Creek is several feet higher than the bottom of the ditch, and in consequence of this fact the water, failing to find an avenue of escape through this artificial channel, is driven back eastwardly to the natural outlet leading into Beargrass Creek. Plere it meets the dams erected by the appellants, and the necessary and inevitable consequence of these obstructions is the inundation of all the adjoining lands, the surface of which is no higher than the top of such obstructions. Every witness whose attention has been called to the flow of the water at times when the lands of the Thornberrys were thus inundated found it flowing rapidly to the east, and escaping by its natural outlet over and around the dams of the appellants.
Several of them found the surface of the water a foot higher west than it was east of the dams, and when the overflow had subsided it was found that the vegetation which had been swept down by the flood was all leaning to the east, and that the remains of the fences which had been swept away were lodged upon obstructions a considerable distance east of where the fences had stood. These indications are unmistakable, and to our mind far more convincing than the scientific theories of engineers, however ingenious and plausible they may be. A single mistake in the premises upon which their
Wherefore the judgment of the chancellor is affirmed.