Miller v. Hayden

91 Ky. 215 | Ky. Ct. App. | 1891

JUDGE PRYOR

delivered the opinion of the court.

In the year 1876 the defendants in the court below and appellants in this court were interested in draining what was marshy, wet land, and known, as Grassy Flat. The appellee purchased land adjacent to or near this swamp, and there is testimony conducing to show that a remote vendor, while in the possession of the land sold the appellee, united with the other parties in interest for the purpose of digging a ditch that would drain this swamp land. There is an elevation between the swamp and the land of the appellee, and through this elevation the ditch had to be dug so as to cause the drainage. When through the elevation the land of the appellee was several feet lower than the land above, where the swamp was located. The ditch never reached the land owned now by the appellee but then owned by his vendor, but was dug through the elevated ground to such a distance as caused the drainage from the swamp to overflow and seriously injure the land now in the possession of the appellee. The parties interested were endeavoring to cut a ditch in a southerly direction through the ridge to Panther creek, where the water from this swamp could flow into this natural channel without injuring the lands south of the ridge that were lower than the lands above. The ditch was cut through the ridge, and there the work stopped, and, as the proof conduces to show, for the want of means to complete it. The result of the failure to complete the work was the overflow of Mattingly’s land-(now owned by the appellee), and the destruction of his crop of tobacco and a part of his crop of corn. After this, Mattingly threatening to sue, the work was abandoned; the sides of the ditch caved in, trees and limbs of trees falling into it until, in many places, it was nearly filled up.

In the year 1885 the appellee became the owner of this Mattingly land, or parts of it, and in December, 1887, the appellants began to work on this ditch by cleaning it out and removing the obstructions, so that the water from the swamp might flow through it, and the appellee obtained his injunction, preventing them from cleaning out the ditch, and asked that the appellants, on final hearing, be compelled to replace the dirt and obstructions that had been taken from it.

It is insisted by the appellants that Mattingly, who owned the land of the appellee when the ditch was being dug, consented that it should be done, and that the appellees, when they purchased, knew that the ditch had been dug, and all are, therefore, estopped from interfering with the appellants in their effort to clean it out. It is apparent that the understanding between the parties who owned these lands when the excavation was made was that the ditch should extend to Panther creek, and in this way drain the lands both north and south of the ridge into that creek, and in this mode all the wet lands would be reclaimed. It is of vital importance to these appellants to have their land drained, but equally as important to the appellees to prevent the flow of the water from the appellants’ lands on to their lands. It is manifest that Mattingly’s complaint was listened to at the time he threatened to sue for the injury to his crops, as the facts indicate that no effort has been, made to extend the ditch, and those interested, including the appellants, have permitted the ditch to' fill up as much as two and a half feet at many places, and there has been no complaint of an injury to the lands or crops south of the ridge by reason of -that ditch for many years, or at least there is an absence of proof on that subject, which fact tends strongly to show that the filling of the ditch has lessened the injury to the lands south of its terminus. Besides, it appears that, the entire lands now submerged with this standing water could be relieved of their burden by a small expenditure, and with so many interests involved, and with land of such value, no- reason appears for benefiting the lands above the ridge at the expense and injury of the land-owner below.

“An owner of land has no right to rid his land of surface water or superficially percolating water by collecting them in artificial channels, and discharging it through or upon the land of an adjoining proprietor.” (Could on Waters, page 471, sec. 271.)

In a well-considered case, reported in 21 Iowa, 160, of Livingston v. McDonald, it was held that a ditch constructed by the owner of land which increased the flow of water on the lower lands below, and in a different manner from which the water would have naturally flowed, was liable for the injury. This doctrine seems to be universally recognized, and when applied to the facts of this case it results that the chancellor, looking to the damage that would follow if the ditch was reopened, properly entertained jurisdiction in granting the relief' asked. In perpetuating the injunction the chancellor has gone too far in his order to the appellants, mandatory in its character, by which, the appellants violate the injunctio] if they permit the ditch heretofore opened to reman open, made or cut. The language is: “Or permit t remain open the ditch heretofore opened; nor shal the defendants permit any water to flow through sail ditch on plaintiffs' lands."

In order to obey this injunction the appellants, wouk be compelled to fill up the ditch, or to erect a dam s< as to prevent the flow of water on to the land of tin appellees. They might have been required to replaci the dirt and debris they had taken from the ditch i that contributed to the flow of water; but it appear,' that the work had scarcely begun when the prelim! nary injunction was obtained, and the evidence doe’! not show that any greater flow of water would pas; through the ditch by reason of this attempt to move the dirt and logs that had, filled it up. It appear: from the entire testimony that water still flows througl this ditch, and to require the appellants to prevent i is not authorized from the testimony before us. I seems to have been an enterprise common to all tin owners of land above and below this ridge that divide: the low land from the marsh land above, and aftej expending what money had been raised for the im provement the scheme was abandoned, and the ditcl: neglected for years, until it was nearly filled up. Mat tingly, who owned this land at the time, consented tc it, but with the understanding that it would be ex tended, and the appellees becoming the owners from the vendees of Mattingly, and knowing the condition of the ditch when they purchased the land, can only complain of the attempt or purpose of the appellants to clean out tlie ditch, so as to make it capable of carrying off the water in larger quantities, on to their land. To require the appellants to stay the flow of water altogether, when the original owner of the land had participated in this scheme of draining, or at least consented to it, would be compelling the appellants, by their own labor, to enhance - the value of appellees’ land, when, at the time the appellees purchased it, the ditch had been dug, and was carrying off small quantities of water from the land above, a fact well known to them, and one that no doubt entered into the contract, or was considered by them when they made the purchase. The injunction should have prohibited the appellants from cleaning out the ditch, or from reconstructing it in any way, so as to increase the flow of water on appellees’ land.

Judgment reversed, and remanded for proceedings consistent with this opinion.