76 So. 136 | Miss. | 1917
Lead Opinion
delivered the opinion of the court.
Appellant and appellee own and reside upon adjoining lots in the city of Macon,* that óf appellee bounding appellant’s lot on the north and west. The level of appellee’s lot is higher than that of appellant’s, and there is a large swale or hollow beginning on appellant’s premises some distance from and extending down to the line separating the two lots. This swale or hollow is not a natural drain in the sense that by it water is collected in or confined to a well-defined natural channel, but because of it, however, a large volume of water is at times collected at the point where it touches appellant’s lot. At this point a ditch, dug many years ago by a gentleman who then owned both lots, conducts the water across appellant’s lot to a public drain along the street which bounds appellant’s lot on the south. Two or more underground tile drains accelerate the flow of the water from, appellee’s lot to the head of this ditch across appellant’s, lot, but discharge no water thereon other than such as.
Two questions are presented'to us by this record: First, to what extent, if any, may appellant obstruct the natural flow of rainwater in a diffused state from appellee’s premises over and across her own? Second, what right, if any, has appellee to collect rainwater falling "upon his premises by means of artificial drains and discharge it on the premises of appellant?
Any discussion of the rules of the civil and of the ancient common law with reference to the right of one
A corollary to this rule necessarily is, that where two methods of disposing of such water are available to the •owner of the lower lot, each equally efficacious and neither requiring an unreasonably greater expense than the •other, one of which will damage the adjoining property and the other will not, the latter must be adopted by the owner of the lower lot in fending the water therefrom. The decision in Sinai v. Railroad Co., supra, turned upon this express proposition, as was pointed out in Railroad Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L. R.
“A company having a right to construct its railroad may not, in regard of the rights of- adjoining proprietors, so construct its roadbed as to destroy the value of the lands of- third persons, even though the injury be occasioned by turning bach surface water upon such lands, if, with due regard to the duty it owes to the public, and in the reasonable use of its own property, and at no undue expense, it can, by putting in trestles,, culverts, or other openings, provide a way through which such water .may safely be allowed to escape.”
It is true that in the cases wherein this court has. heretofore dealt with this question the offending party was a railroad company, but there can be no distinction in this regard between the rights and duties of such a company and of an individual as pointed out in 3 Farnam on Waters, section 904, except, as set forth in Railroad Co. v. Davis, supra, such as may be caused by the fact that since a railroad company is authorized by law to construct its embankment, it may not be liable at all for damages which necessarily result to an adjoining landowner from a proper construction thereof, and, we may add further, except such difference as may be caused by the provision of section 17 of our present Constitution, that “private property shall not be . . - damaged for public use, except on due compensation being first made to the owner or owners thereof,” which section, however, had no influence on those decisions.
Applying this rule in the case at bar, it necessarily follows that the appellant is without right to prevent this surface water from crossing her land in a diffused state by means of a brick wall, thereby causing it to pond on appellee’s land, for she can at no greater expense fully protect herself by digging a ditch across the north and down the west boundary of her lot to the public drain hereinbefore referred to and at the same time
Coming now to the second question. Appellee’s claim Is that he has acquired the right by prescription to collect this water in the underground tile drains complained of and cast it over and across appellant’s land through the ditch extending from the end of the swale ■or hillside hollow to the public drain on the opposite ■side of her lot. It is unnecessary for us to determine whether or not such a right may be acquired by prescription, for the reason, if no other, that the existence of these underground tile drains was unknown to appellant until about three years before the beginning of this litigation, and their existence in the very nature of the thing was not open and notorious.
It appears, however, from the evidence that the conformation of the surface of appellee’s lot is such that the underground tile drains complained of do not cause any more water to collect at the head of and flow through the ditch across appellant’s lot than would so ■do without them, and it does not appear that they accelerate the flow of the water to such an extent as to thereby damage appellant more than she'would be without them, from which it necessarily follows that she has no ■ground of complaint because of their existence.
The decree of the court below having taken a much broader scope than is warranted by the foregoing views was erroneous, so that we committed no error in reversing it, but the cause should have been remanded instead ■of judgment final being entered here. Our former judgment, therefore, will be set aside, the decree of the court below will be reversed, and the cause remanded. The former opinion herein rendered will be withdrawn.
Reversed and remanded.
Concurrence Opinion
(specially concurring). I agree in the result reached by the court, that is, the order reversing and remanding the cause. I do not concur in the reason-of the majority in the opinion this day delivered on the-suggestion of error. I agree with Judge Cook in the-interpretation which he has placed upon previous decisions of this court, and, in the main, I agree with the views expressed in his concurring opinion. It is perfectly manifest to me that the process of reasoning iir the majority opinion completely changes the law of waters in Mississippi and substitutes a rule that has-never before been recognized in this state. I think the eourt should at least declare in express language that previous holdings of our court are overruled.
Much importance is given by the court to the maxim that one must so use him own as not unnecessarily to injure another’s. This might be termed the “golden rule” which the law applies to the every day affairs of men. I fully recognize this broad principle of .justice, but the principle is erroneously applied in the instant case. As applied to the present case it is made to say that Mrs. Holman, as the owner of the lower estate,, must receive and at her own expense dispose of the surface water flowing from the upper estate, simply and' solely because she, at a reasonable expense, can drain-off or dispose of these surface waters. The record shows-conclusively that Mr. Richardson, as the owner of the upper estate, can ditch and drain off his own surface waters at a reasonable expense. The majority say that the obligation must be borne by Mrs. Holman, the owner of the lower estate. I say that the obligation is the primary obligation of Mr. Richardson, the owner of the upper estate. I fail to see the justice of permitting a well-to-do landlord to install a system of underground tiling and by means thereof to concentrate at one point and project surface water upon the humble garden spot of a helpless widow. Yet this is the very action which the
“The owner of the lower lot may fend the water therefrom, provided he does so for proper objects and exercises reasonable care to prevent unnecessary injury to the higher lot.”
There is little consolation in this statement of the •court when it is followed by the express holding that the lower tenant must pay the expense. Of course, the lower tenant can always fend off the water by appropriating his own land for necessary ditches and paying all the expense himself. If this is a natural right it is a very costly one.
There is neither claim nor showing that the curb or wall being constructed by Mrs. Holman is a “spite wall.” Her attempt to improve her property should be encouraged.
Dissenting Opinion
(dissenting). As I have always considered and still consider the settled law to be in this state, the opinion of the court in this case has destroyed the rule. Judge Campbell, speaking for this court in Alcorn v. Sadler, 66 Miss. 229, 5 So. 695, had this to say:
“He may arrest its flow over his land and divert it before it gets to rest in the reservoir or lake or whatever the body of water may be called, but after it loses its casual and vagrant character as surface water diffused over his land, and reaches the place of rest and becomes a body or collection of water, owned chiefly by another, he cannot lawfully drain it and destroy what belongs to that other in order to clear of water that part of his own land covered by it.”
“By the recognized law of this state surface water may be appropriated to his own use by the landowner, or he may expel it from his land. ‘Surface water is. regarded as a common enemy, which every proprietor may fight or get rid of as best he may; but a landowner has no right to rid his land of surface water by collecting it in artificial channels and discharging it through or upon the land of an adjoining proprietor/ G-ould on Waters (3 Ed.), sec. 271.”
The opinion of the court cites several cases decided by this court to support its decision, which I will briefly review. The first case cited is Railroad Co. v. Miller, 68 Miss. 760, 10 So. 61. In passing it will be noted that the court in the case cited expressly approves the rule announced in Harvey v. Railroad Co., supra, but aside from the fact that this case involved the diversion of natural water courses, the gist of the decision may be found in this paragraph:
“The defendant has, for the protection of its roadbed, dug a ditch along its eastern line, into which is collected surface water, falling upon adjacent lands for a half mile along the ditch, and which but for the ditch would have flowed upon lands of other persons, and has discharged the water thus accumulated upon the lands of the plaintiff, which were free from the flow of the water in its natural course. Upon all the authorities this is an unlawful act, and for it the plaintiff is entitled to recover.”
It is difficult to find in the ease just discussed any authority for the holding of the majority in-the present case. The next case cited by the court is Sinai v. Railroad Co., 71 Miss. 547, 14 So. 87. Judge Woods, after-stating the facts, opens his opinion with these words:
*186 “The question presented is resolvable by the application of common-law principles to new and changed conditions. At the ancient common law every landowner fought and fenced against surface water as suited his necessities. It was a common enemy, which the landowner dealt with according to his own pleasure, for his ■own protection. But this strict rule had its origin when the soil was used for agricultural purposes. In that primeval day of the law’s birth and growth, a railway ■corporation . . was undreamed of.”
So it was in that case the court wisely, I think, modified the rule to fit unforeseen and undreamed-of conditions. It was an adjustment of the law to a “new order of society.” This case left undisputed the gen-oral rule — the common-law rule which had theretofore heen applied to the known conditions. But the court ■•applies to this case the maxim that each person must so use his own property as not to do unnecessary harm to another.
. In the present case we have nothing new; the situation here is the same everywhere in the rolling lands of the state, and the effect of the decision is to totally destroy the rule — -to make the lower estate the servient ■estate. In other words, the maxim is made much more potent than the rule of law heretofore recognized by the courts of this state, and if the decision of the court is to be the law, the civil law with regard to surface ■waters will hereafter prevail, for it is difficult to imagine a case wherein to fight surface water would not be •denied, upon the theory of injury to the upper proprietor. I confess, in the light of the ruling of this ■court in the present case, that I have never understood the Sinai Case. The court, in that case, as I have airways understood, was undertaking to uphold the common-law rule with such limitations as the unique conditions manifestly demanded. It will be noted, however, that the railroad company was held liable in that case, ‘but not the appellee in this case, who did a similar act;
This decree can only be defended upon the civil law theory that the upper estate is the dominant estate and the lower estate is the servient estate; a reversal of the Mississippi rule, as I understand it. The next case cited by the court for its opinion is Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579. This is another railroad case, and deals with flowing streams and the overflow waters of same, and, this "being true, it has no application to the present case for the reasons mentioned above. But the Smith Case needs no interpretation, and we will quote from the ■opinion therein a statement of the conditions then under consideration, viz.:
In Sinai v. Railroad Co., supra, we declared that the supposed rule of the common law, under which it was there claimed that each proprietor had the absolute right •of excluding surface water from his premises, regardless of any injury to an adjoining proprietor, could not "be invoked (if it in fact existed) by a railroad company ■asserting a right to submerge hundreds of acres of adjoining land with surface water by its embankment. It Is apparent that a rule intended to regulate the correlative rights of adjoining landowners whose property*188 is devoted to agriculture or residence purposes could not be applied to the same extent, either in favor or against a railroad company owning a strip of land one hundred; feet wide and hundreds of miles long.”
Again, the majority opinion cites Railroad Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L. R. A. 262, 55 Am. St. Rep. 562. I do not think this case has the remotest application to the present case. It was held in that case that the company had presumably paid for all damages-flowing from the proper construction of the road, in the eminent domain proceedings, and that the company was under no duty to so construct its roadbed as' to provide against all except unprecedented overflows. The Daniels Case, 108 Miss. 68, 66 So. 324, did not involve the questions here discussed, and this manifestly appears from a reading of the opinion, and this is true of Railroad Co. v. Paine, 19 So. 199.
Having discussed all the cases cited in the majority opinion, and believing that not one of these cases afford any authority for the holding of the court, I will add a word about the case decided. The court has stated the ease most favorably for Mr. Richardson, not more so than the evidence offered by him warrants, and in my opinion the statement does not entitle him to' the relief accorded him.
Having the utmost respect for the learning and ability of the members of the court concurring in the opinion, I nevertheless believe that they have entirely misconceived the principles announced in the cases relied on» These were all railroad cases, and in all of them this-court was at pains to explain that they were exceptional cases and called for a modified rule; an equitable and' just rule to meet modern conditions. Of course, there was no thought of applying one rule to a railroad corporation and a different rule to private persons similarly situated, for the obvious reason that private persons, unless they engage in the business of building and operating commercial railroads, can never find themselves in
I concur in the judgment of the court reversing the -decree of the chancellor, hut dissent from the rules of law announced in the opinion.
This change in the common law of the state is a legislative function, and if I correctly interpret the rules of law controlling this case, the court has assumed the role of legislators, which, in my opinion, is always dangerous, and in this case of doubtful wisdom, to put it mildly.
