107 N.Y. 650 | NY | 1887
The court found, in substance, the following facts:
“ The parties are adjoining proprietors, the plaintiffs’ farm lying north and defendant’s south of the center of a certain highway.
“ There is a sluice across this highway on the lands of the parties, through' which there is an old natural channel and watercourse for the flow of waters from the defendant’s land at the south on to the plaintiffs’ lands, and thence by a ditch and natural way across the lands of plaintiffs and over one or two other owners northerly, and easterly into a ditch ■ called the “ Sodus Ditch,” which drains this section of the county into Sodus Bay on Lake Ontario.
“At the south end of this sluice and on the defendant’s land there is a small pond, hole or depression of land in which the waters accumulate before running over and through said sluice. From this pond or depression there is a water-course or channel ascending gradually through a hollow or ravine on the defendant’s land, southerly, a distance of four hundred and eighty feet to another sluice in a stone fence, running east and west, through which sluice and into the channel below there has always been a flow and escape of the surface waters falling or collecting upon the defendant’s land south of said stone wall for a distance of about twenty rods, at which distance south of
“ The court further found that between the stone wall and the ridge was a depression in the soil, usually dry in dry weather, but which in times of heavy rains filled with surface water from the adjacent lands, and the overflow found its way into the sluice by the stone wall down the ravine and across the highway on to plaintiff’s land; that defendant dug a ditch from the ravine or water-way to said depression, which drained off the surface waters and emptied them into ‘ the open water channel ’ whence they flowed northerly into the pond, and after filling the same thence northerly through the sluice across the highway into ‘ an open ditch and watercourse which has existed on plaintiff’s land for the flow of surface waters for a period of time immemorial.’ ”
Further facts are stated in the opinion, which is given in full.
“ The principal force of the appellants’ argument is directed to the point that there was no evidence of the existence of a water-course upon the defendant’s land, into which his ditches drained, and so the finding of the trial court to that effect was error. The argument would be irresistible if the finding' meant or was intended to mean that there existed on defendant’s land a water-course as defined in the law. That means a living stream, with defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water. (Barkley v. Wilcox, 86 N. Y. 140,144.) There was no proof in the case of the existence of such a stream. Everybody agrees that all the water running over defendant’s premises was surface water and the product of rains or melting snow. But we do not so under
. “ But upon the finding thus understood the appellants claim that they should have recovered, and that the judgment for the defendant was erroneous. In considering this question it is needed that we understand the issues presented and the course of the trial. The plaintiffs’ cause of action was distinctly and definitely stated in their complaint. They alleged that a ridge of high ground runs east and west across defendant’s farm, and north of the swamp outlet and basin to which the new ditches ran, and such that all surface waters south of the barrier naturally flowed to the south or remained stagnant and evaporated, and none of them flowed north toward plaintiffs’ farm, or could so flow, except by the aid of artificial changes in the surface of the ground; that this protecting ridge or plateau was about twenty rods south from plaintiffs? line; and that the defendant cut his ditch through this ridge and thus turned upon them water which never before ran that way. The defendant denied that he had cut through any such ridge or brought down upon his neighbors a new and unaccustomed drainage, and the issue thus framed was the issue tided and to which the findings were directed. The plaintiffs made no claim in their pleading that the defendant’s ditch increased the natural and usual flow over their land, and so they were injured, but claimed damages for a diversion of waters upon them which naturally ran elsewhere. They obtained a temporary injunction. The affidavit filed for that purpose states the case exactly as does the complaint, and seeks to shut off a foreign and artificial drainage. A perusal of the plaintiffs’ proofs shows that they were confined to the issues pleaded. That evidence established that the surface water upon some part of defendant’s land had always drained to the north, crossing the highway in a sluice which had long been maintained, thence following a ditch across plaintiffs’ land and that
“ We find no error in the judgment, and it should be affirmed, with costs.”
reads for affirmance.
All concur.
Judgment affirmed.