22 Kan. 352 | Kan. | 1879
Lead Opinion
On July 10th, 1876, plaintiffs in error •filed their petition in the district court of Atchison county, •claiming damages of the defendant in error for unlawfully •digging ditches and erecting and maintaining certain dams and obstructions in a certain channel and natural watercourse, whereby the water was turned off the land of the defendant, and over the lands of the plaintiffs. The plaintiffs asked judgment in the sum of $2,000 for damages caused by acts of defendant, and further prayed an abatement of the nuisance, and an injunction to prevent further damages. The defendant’s answer was a general denial. At the November term of court, 1877, the cause came on for hearing before a jury. After the plaintiffs had introduced their evidence, the •defendant interposed his demurrer thereto. This was sustained, and the jury discharged. The plaintiffs now bring the case here on error for review.
Counsel for defendant claim the demurrer was rightfully ■sustained, for two reasons: First, They allege the evidence wholly failed to establish any natural water-course where the obstructions were erected, and only showed the defendant protected his premises by ditches and dams from surface-water, which they insist he had the right to keep off his own lands. Second, That plaintiffs were not entitled to recover, because they allege the proof established that the plaintiffs ■had no joint interests in the tracts of land named in the petition, or the possession or occupancy thereof, or the emblements thereon.
The testimony upon the question concerning whether there was a natural water-course upon the premises of defendant, was as follows — one witness testifying:
“ I knew of a stream of water flowing from the bluff into "Waddell’s land, and out of the western boundary. The ■source is a mile above the fence. Water don’t flow all seasons through it. At its source it flows all the year, but lower down it does not. It runs all the year, except during August. The course of the water could always be traced. Previous to*354 the dam, the water went down through Waddell’s farm into the old creek-bed; this bed flowed into Palmer’s and back into Waddell’s. There was a regular channel to the old creek when I first knew it, in 1859.”
Another said:
“Have known Waddell’s land sincé 1854. I moved near Oak mills in the fall of 1854. I knew the stream spoken of; it is the natural outlet of the water that flows on about a section of land. It is a little over a mile from its source to where it was dammed up by Mr. Waddell, near Oak mills. There was a ditch running square across Waddell’s field before the dam was made. Before the ditch was made the water ran down to the bottom, and when it got to the bottom it spread, and as it flowed, it went out to the creek-bed and flowed across Waddell’s place. It rah from the creek-bed down the bottom, and then into the Missouri river. I have known it was accustomed to run in this way since 1855 and 1856.”
On cross-examination this witness said:
“Whenever it rained, more water flowed down over Wad-dell’s lands than any other time. The flowing of the water generally occurred in the spring of the year. The water that flows from the upper country and runs down there, is the water that flows during the heavy falls of rain. The ravine drains the upper country. There are some springs up the hollow — three, I believe. The water flows about 100 to 200 yards from these springs — that is, in an ordinary dry time it runs from 100 to 200 yards from the springs; in rainy seasons the water runs three months down to Waddell’s farm.”
Another testified that—
“The obstruction was placed over what is called a branch. I have known it twelve or fifteen years. It is a mile or a mile and a quarter long, and drains 300 or 400 acres. The branch is fed by the rains that fall.”
On cross-examination, this witness said:
“The water flows from above, and the falling of rain. There are some springs. The water only flowed on the Wad-dell land after the falling of rain; it was only surface-water.”
One of the plaintiffs testified as follows:
“The stream runs in an easterly direction. From the dam to the head of it, it was a mile or over. Water had been running there since 1859. The water came down out of the*355 hollow above Oak mills. The stream had banks from a foot up to five feet high; it was five or six feet wide in some places — some places, ten to twelve feet wide. Part of the stream runs the year round, part does not. The stream is fed by springs. Before the erection of the dams, the water ran right across Waddell’s land to the creek-bed, and went round down the creek-bed towards Kickapoo. In 1875, the water came all the way down in the months of March, April and May. In 1876, the water flowed from the first of March until sometime in July. That season was wetter than 1875.”
Other witnesses gave similar testimony.
In the case, supra, it was held that the question whether an outlet for water is a water-course, does not depend upon the quantity of water it discharges. If the face of the country is such as necessarily collects in one body so large a quantity of water, after heavy rains or melting snows, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel which the force of the water has made for itself, and which is the accustomed channel through which it flows and has flowed from time immemorial, such channel is a natural water-course. The evidence in this case clearly tended to show that in times of heavy rains and in the spring seasons of every year, as far as the memory of man runs, the surface of the ground, back a mile and over from the Missouri river, is such as to collect the water falling on a large section of country to such an extent as requires an outlet to the river through the bottom or low lands at the foot of the bluffs, and
In the case of Reid v. Gifford, Hopk. 416, where several proprietors of different lands and mills, and of separate parts of the natural water-course at the outlet of a lake, sought to restrain a nuisance, caused by an artificial channel cut by the defendant upon his own land, the effect of which was to draw off the water of the lake, it was decided that as the acts of the defendant complained of were a common injury to all the complainants, there was such a common interest in the subject of the suit as to authorize them to join in one bill. (Blunt v. Hay, 1 Barb. Ch. 59; Blunt v. Hay, 4 Sandf. Ch. 362.)
The code declares, that when the question is one of common or general interest to many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. (Code, § 38.) This provision, with the ones immediately preceding, substantially reenacts the old equity rules on the subject of parties, and where one general right is claimed, and where there is one common interest among all the plaintiffs in the subject of the suit, the objection to improper parties cannot be maintained. (11 Barb. 516; Tate v. Railroad, Company, 10 Ind. 174; Pomeroy on Remedies, § 269, p. 317; Peck v. Elder, 3 Sandf. 126; Foot v. Bronson, 4 Lans. 47; Brady v. Weeks, 3 Barb. 157.) See, also, under the statute of the state relating to torts, Bridge Company v. Wyandotte, 10 Kas. 326; Gilmore v. Norton, 10 Kas. 491; Gilmore v. Fox, 10 Kas. 509.
If the main purpose of the plaintiffs is to recover damages for the injuries to their lands, crops and property, it would be better to amend the petition before another trial, and unite as plaintiffs only those who have a joint or common interest in the property damaged. On the other hand, if they rely wholly upon their claim for equitable relief, such portions of the petition as have no connection therewith should be eliminated ; and it would be more satisfactory pleading to state clearly and distinctly the title or interests of each plaintiff
The judgment of the district court will be reversed, and .a new trial granted.
Concurrence Opinion
I concur in reversing the judgment in this case, but upon some of the propositions stated in the •foregoing opinion of the Chief Justice, I do not wish to express any opinion.