193 Ky. 301 | Ky. Ct. App. | 1921
Opinion op the Court by
Affirming' on original and cross appeals.
Plaintiff and defendant own adjoining farms in Wayne county. A large portion of each farm is flat land, and defendant’s farm is lower than plaintiff’s. There was a natural drain running through plaintiff’s land, then over defendant’s land, and emptying into a sink hole on a farm near defendant’s line. Plaintiff has owned his farm for more than thirty years, while defendant has resided on his farm for about ten or twelve years. More than thirty years ago the former owners of the land constructed ditches in and along the natural water channels, and across the two farms. The ditches have remained in practically the same condition with the exception of certain changes made necessary by the construction of a railroad over defendant’s farm, and each proprietor maintained his portion of the ditch. At the point where the ditch left plaintiff’s land and reached the land of defendant, there was a road or passway which was used by the defendant and the public. When John Hutchinson owned the land there was a foot-log across the ditch at this place. After that time; Tom Hutchinson put in a box culvert about eighteen inches wide and sixteen inches deep. About ten years ago plaintiff constructed a bridge at the same point and put in a culvert. According to plaintiff’s evidence defendant obstructed the ditch over the road by depositing a quantity of rock there. Since then, the water stands in the ditch on plaintiff’s land. On the other hand, defendant says that the bridge constructed by plaintiff washed away and broke down, and that he never obstructed the ditch in any way. He fur
The rule of law applicable to the rights and burdens of the upper and lower proprietor with respect to surface waters is stated in the case of Pickerill v. City of Louisville, 125 Ky. 213, 100 S. W. 873, as follows:
“In other words, this court has, in effect, though not in express terms, adopted in respect to such cases as this the rule of the civil law, which only subjects the lower estate to the easement or servitude of receiving the natural flow of surface water from the upper estate. That is to say, the doctrine seems to be that where two estates adjoin, and one is lower than the other, the lower must necessarily be subject to the natural flow of surface water from the upper one. If this proves to be an inconvenience, it arises solely from the position of the lower estate, and in the nature of the case is unavoidable. Therefore, the owner of the lower ground has no right to erect embankments, or create other obstructions, whereby the natural flow of surface water from the upper ground is stopped or caused to back upon and overflow the upper ground. On the other hand, the owner of the upper ground has no right to make excavations, barriers, or drains upon his ground by which the flow of surface-water is diverted from its natural channel and a new channel made on the lower'ground, nor can he collect into* one channel waters usually flowing off into his neighbor's land by several channels, and thereby increase the flow upon the lower ground.”
Counsel for defendant insist that no relief should have-been granted plaintiff for the following reasons: Plaintiff did not allege or prove the obstruction of the natural flow of the water, but the obstruction of an agreed ditch. That being true his easement did not arise by operation of law, and it was necessary to show that the easement arose in some other way. This he failed to do, because-an easement may never be created by parol, but rests in grant or adverse possession which presumes a grant, and mere permissive use, however long continued, will never ripen into an easement by prescription. Clearly, this is not a case where the upper proprietor made excavations,, barriers or drains upon his grounds, by which the flow of surface water was diverted from its natural channel and a new channel made on the lower ground, nor is it at case where the upper proprietor collected into one channel waters usually flowing through his land and on to his
The point is also made that the judgment in giving plaintiff the right to go on defendant’s land, and construct and maintain the culvert, was unauthorized because it conferred on plaintiff an easement which was acquired by permission and had therefore never ripened by prescription. It appears that there was a passway at the point where the water naturally flowed on to defendant’s land. Thus there were two easements, the right of flowage and the passway. Necessarily each of these easements interfered with the other in that the flow of the water injured the passway and the use of the passway obstructed the flow of the water. More than twenty years ago a log bridge was constructed so as to facilitate travel at that point, and not interfere with the flow of the water. Later on a box culvert was made at that point by the former proprietor of defendant’s land. Still later plaintiff constructed a culvert at that point, which, defendant claim's, was by his permission. Ordinarily, the burden would be on the defendant to see that the natural flow of the water at that point was not obstructed, and that being true, defendant has no ground for complaint that the duty was imposed on plaintiff,
Another contention is that the petition was defective in that it is alleged the obstruction of an agreed ditch, and not the obstruction of the natural flow of the water. It is sufficient to say that no demurrer was filed to the petition, and the case having been fully prepared and tried on its merits, defendant will not be heard to complain of mere technical defects in the petition. Clark v. Isaacs, 182 Ky. 391, 206 S. W. 606.
We cannot say that the chancellor erred in refusing to sustain plaintiff’s claim for damages.
Judgment affirmed on the original and cross appeals.