182 P. 137 | Or. | 1919
Testimony was introduced upon the respective sides tending in a measure, at least, to support the contention of the respective parties. At the close of the evidence, plaintiff requested the court to instruct the jury as follows:
“It is a rule of law that water cannot be discharged, by one person upon the property of another, without his consent and to his injury by artificial means, in greater quantities than that in which it would naturally flow. Therefore, if you should find that the defendant therein has, by artificial means, increased the flow of water over that which would naturally flow over the property of the plaintiff, to his injury and without his consent, you should find for the plaintiff.”
The plaintiff complains of the refusal of the trial court to so charge the jury. The trial court plainly
“The position of the defendant is that there was a natural watercourse over the property in question through which the drainage which is shown to have taken place was caused to flow; and it is the law, gentlemen of the jury, that one upon whose property there is such a basin containing water of this character may drain the same through a natural watercourse, if one is there, and may, in the course of the drainage, reasonably increase or accelerate the flow of the watercourse, but cannot rightfully increase the quantity or amount of the water within the natural basin in making the drainage.
“One may not by artificial means collect water upon his property and discharge it upon the property of another to his injury; nor may one by artificial means other than through a natural watercourse cause water to flow out and upon the lands of another to the other’s injury; and if you find from a consideration and comparison of the evidence in the case, that there was not a natural watercourse over this property in which the water has been caused to flow by the defendant, and you find that the flowage of water thus caused by the defendant to have been the cause of damage, * * to the plaintiff, as alleged in the complaint, your verdict •should be for the plaintiff.
“You are instructed that defendant, in leveling or improving his property, had a legal right to cause an accumulation or diversion of surface water with the corresponding right to pause said water to flow down on the land of plaintiff, without liability, providing that the surface water' collected in the basin on defendant’s real property followed the way or course provided by nature and any increase in the flowage of such way or course provided by nature, if such increase has been shown, was a reasonable increase.”
If they found “that the defendant did cast water from his property which did permeate the surrounding soil and percolate through the same into and permanently injuring the land of the plaintiff, you should find for the plaintiff.”
“A land owner has the right to protect his premises from surface waters by causing the same to flow by the natural and necessary course to adjoining lands, subject to the limitation that he cannot rightfully collect surface waters on his premises in a reservoir and then discharge the same on to the land of another to his injury.
“A person on whose land surface water coming from his own and other lands collects in a natural basin or depression and there remains except in seasons of drought, has the legal right to rid his land of the water by causing the same, by such means as may be reasonably necessary, to flow in the natural course of drainage on to adjoining lands, though the water may from thence, by natural or artificial means for which he is not responsible, reach and spread out over the lands of others. In such a case the land owner effecting the drainage of his land by means of a ditch is only in the exercise of the right of every person to defend his premises against surface water, and for consequential damages to other land owners the latter have no remedy against the former.”
Plaintiff complains of instructions in regard to the defendant’s counterclaim for damages. In view of the fact that no damages were awarded the defendant, it is unnecessary to consider this question. Other errors are assigned which we have examined and find to be without merit.
The question involved in this case was largely one of fact. It was carefully and plainly submitted to the jury by the trial court according to the principles of law. Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.