Hansen v. Crouch

| Or. | Nov 23, 1920

McBRIDE, C. J.

The common law is the rule by which we must test the respective rights of the parties to the present litigation. But for the willful stubbornness of plaintiff’s husband and the defendant, the attorneys for the respective parties could have settled this dispute without resort to the courts, and at a tithe of the expense that the parties have incurred here. They laudably counseled this course, but the litigants seemed disposed to stand upon their technical legal rights, and we are now compelled to settle here a small dispute which should have been adjusted in a neighborly manner without resort to the law;

1, 2. If this stream is a watercourse within the meaning of the common law, defendant had no right to obstruct it without providing some equally convenient method by which plaintiff’s land could be drained of its surplus water. While the stream in question is small and the amount of water flowing through it is comparatively insignificant, we think that it has the dignity of a watercourse as distinguished from the flow of mere surface .water which is confined to no well-defined channel.

“A watercourse consists of bed, banks, and water; yet the water need not flow continually; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken in law between a regular, flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water, which, in times of freshet, or melting of ice and snow, descend from the hills and inundate the country. To maintain the right to a watercourse or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. It need not be shown to flow continually, as stated above, and it may at times be dry; but it must have a well-defined and substantial existence”: Angelí on Watercourses (6 ed.), §4.

In Earle v. De Hart, 12 N. J. Eq. 283 (72 Am. Dec. 395), it is said:

“A watercourse is defined to be a ‘channel or canal for the conveyance of water, particularly in draining lands.’ It may be natural, as where it is made by the natural flow of the water, caused by the general superficies of the surrounding land from which the water is collected into one channel, or it may be artificial, as in case of a ditch, or other artificial means, used to divert the water from its natural channel, or to carry it from low lands, from which it will not flow, in consequence of the natural formation of the surface of the surrounding land. It is an ancient watercourse, if the channel through which it naturally runs has existed from time immemorial. Whether it is entitled to he called an ancient watercourse, and, as such, legal rights can he acquired and lost in it, does not depend upon the quantity of water it discharges. Many ancient streams of water which, if dammed up, would inundate a large region of country, are dry for a great portion of the year. If the face of the country is such that it necessarily collects in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel, which the force of the water has made for itself, and which is the accustomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural watercourse.”

The stream here in question has all these qualities. It has existed from time immemorial. Witnesses testify that it was in existence more than thirty years ago. It was made by the flow of water arising from seepage from the hills or collected in one channel by the general slope of the surrounding country. It has well-defined banks through which water is accustomed to flow, and it serves the useful purpose of carrying away water that would otherwise accumulate upon the lands of plaintiff. Although its flow is not continuous, it appears to be fairly regular, and not the offspring of sudden and unusual freshets.

3. Without discussing at length the authorities which the learning and industry of counsel have presented, we think that plaintiff has fully established her right to the use of this stream or its equivalent for the purpose of drainage. It does not follow, however, from this position, that plaintiff has the right to prescribe the method by which defendant must control the water flowing from plaintiff’s land to his own. Plaintiff’s rights are negative to the extent that all she can claim is that defendant shall not so use the water when it reaches his land or so arrest its flow as to cause it to turn back upon her premises. That defendant can avoid this at very small expense to himself is shown by the testimony of Mr. Cathcart, and, indeed, by his own, by constructing a ditch along the boundary line between himself and plaintiff, and thence to the slough, as indicated in Mr. Cathcart’s testimony on cross-examination. He should be permitted to do this but at his own cost, as an alternative to removing the fill that he has placed in the old channel.

4. It is urged on defendant’s behalf that to cause him to open up the old channel would result in his losing about four acres of improved land worth $800, while the land of the plaintiff is unproductive and her injury comparatively trivial. Although the courts in some instances will weigh the comparative injury to the respective parties, in determining whether or not an injunction must issue, yet we are not inclined to apply this rule in the case of a continuing trespass. It is true that the injury caused so far is not great, but it is shown that plaintiff had only recently become the owner of her tract, and that she intended to improve it, but is prevented by conditions arising out of defendant’s obstruction of her means of draining it. It is plain that the remedy by successive actions for nuisance would be inadequate in this case. And it is also manifest that defendant could have avoided the necessity of removing the fill which he has placed in the old channel, by digging a few feet of ditch on his own land and permitting plaintiff to use it, instead of haggling about “royalty” for its use after the first year.

The decree of the court will be modified by permitting defendant to retain the fill he has placed in the old channel, on the condition that he construct a ditch northerly along the line between himself and plaintiff, and ,thence as indicated by Mr. Cathcart’s testimony, adequate to carry off the water passing through the old channel from plaintiff’s premises, this to be done within four months from the date of the mandate; and, in default of compliance with this order, the defendant will be required to remove completely the obstruction in the old channel, as provided in the original decree, and plaintiff shall have leave to apply to the Circuit Court at the foot of the decree herein for such order as may be necessary to compel compliance with our order. The decree as to costs and disbursements in the Circuit Court will be affirmed, and neither party will recover costs in this court. Modified.

Benson, Burnett and Harris, JJ., concur.