103 Minn. 349 | Minn. | 1908
Appellants were the owners of certain tracts of land upon which were located three sloughs or ponds. The upper one contained ninety acres, and in extremely high water overflowed, the water finding its way through a depression to the second or middle slough, which consisted of about sixty acres. The waters of this slough, also, when very high, overflowed, and found their way into a third slough, consisting of about six acres; where in dry seasons the water disappeared. There was no natural outlet or inlet to any of the sloughs. The upper slough at times contained water to a depth of six or eight feet,, and once or twice in the period of thirty years was practically dry. The second slough was not so deep, but. as a usual thing contained several feet of water, except in dry seasons. There was no natural outlet from the small slough, but in rainy seasons the water overflowed and ran through a natural depression, finding its way into a dry run, or ravine, and finally reached the lands of respondent. For the purpose of draining and improving their lands, appellants constructed a ditch from the upper to the middle, and from the middle to the lower slough, following the course which the
The trial court granted an injunction permanently restraining appellants from maintaining the ditch. Among other things the court found that large quantities of water were transferred by the ditch upon the lands of respondent, which from the natural topography of the country there was no means of getting rid of; that the three sloughs mentioned were permanent bodies of water, constituting natural receptacles ' or reservoirs, although they were maintained solely by the accumulation of surface waters arising from rains and melted snow.
The principal question in the case is whether the finding that the waters sought to be drained were not surface waters is sustained by the evidence. We are of opinion that the findings of the court are sustained by the evidence in this particular, and it will be unnecessary to consider the other questions suggested and argued.
The case differs essentially from Gilfillan v. Schmidt, 64 Minn. 29, 66 N. W. 126, 31 L. R. A. 547, 58 Am. St. 515. In that case the pond, or marsh, was treated as surface water, although the court was particular to state that it did not wish to be understood as holding that all lakes or ponds fed by surface waters were of that character. In reference to the pond then under consideration the court used the following language: “This so-called pond, or lake, was merely a large marsh in which large quantities of surface water collected at certain seasons of the year and mostly disappeared at others, but remained long enough to render the lands upon which they rested, and the adjacent low lands, unfit for use.” In that case there was a natural outlet and water course running through a series of ponds and lakes into Lake Minnetonka, and the defendant did no more than to deepen the outlet from the pond and straighten portions of the waterway. In the case of Werner v. Popp, 94 Minn. 118, 102 N. W. 366, the twenty five or thirty acres which were drained by the construction of the ditch was conceded to be surface water, which disappeared annually in dry seasons and, except in unusually wet seasons, was sub
Affirmed.
