36 Minn. 53 | Minn. | 1886
The substance of the complaint in this case is that the defendant, in July, 1884, entered upon the public highway where the same crosses his farm, and then and there dug a ditch along the travelled track, a distance of about 30 rods in length, and at the south end of the ditch built an embankment, whereby the waters ihat naturally, and have from time beyond memory, passed west of
The defendant was overseer of roads in that road-district at the time of the wrongful acts complained of by plaintiff, which he alleges consisted merely in extending the ditch which plaintiff had made on the west side of the highway in a north-westerly direction to the top of what is known as “Finch Hill,” over which the road passes, for the purpose of conducting the waters gathered in the ditch across the same, through a culvert into a creek below, — the materials for which culvert the plaintiff refused to furnish, but proceeded to fill up the ditch so made by him as such overseer, and again turned the waters upon defendant’s premises; and that thereafter defendant proceeded to remove such obstructions, and built an embankment on his own land to keep the water from overflowing the same.
The object of this action is to restrain the defendant from interfering with the work of the supervisors, and from interfering to prevent the flow of water from the highway upon his premises. Several special findings of fact were made by the jury, upon which the trial court ordered judgment for the plaintiff. The defendant contends that such judgment was not justified by the findings, and that several of the findings were not justified by the evidence.
The material question in the case would seem to be the right of the-defendant to protect his land from the overflow of the surface-water
As respects such surface-water, the supervisors could not lawfully collect it in artificial drains or ditches out of its natural course, and cause it to flow upon the defendant’s lands, to his damage, nor in a greater volume or quantity than it would naturally or otherwise do. Beard v. Murphy, 37 Vt. 99; Hogenson v. St. Paul, M. & M. Ry. Co., 31 Minn. 224, (17 N. W. Rep. 374;) Washb. Easem. *356.
The natural effect of improving the highway in question, which forked into two roads upon the hill, with the grading and ditching incident thereto, would be to collect and retain in the ditches or ravine through which the highway was constructed surface-water which would otherwise be scattered in other directions, or spent over the surface of the ground.
The findings are not sufficient; independent of the evidence and the map of the premises which is made a part of the record, to present the case fully and intelligently; but waiving this, and considering them as aided by the record, and we think it clear that, under the rule above stated, the plaintiffs are not shown to be entitled to the injunction asked for. The findings do not show where the surplus surface-water escaped upon the lands of the defendant lying beyond the highway before the ditches were constructed, but the plaintiff’s evidence shows that it entered his field about where his barn now stands,
But there are two other findings which, to the mind of the trial court, so far qualified the preceding as to warrant the conclusion to which the court came. One is that “the volume of water which has fo flow through the culvert by defendant’s house, and down to the ■end of. the ditch, has not been materially increased by the digging of 4he ditches above said culvert,” and another is “that the water which ■flowed down this hill, and over the road near defendant’s house, gathered in a body, and flowed as a stream down to what is described as the ‘ sag ’ between the culvert and the Finch hill, before this highway was constructed.” It will be observed, however, that in the first of these findings the attention of the jury is confined to the question of the amount of water which passes through the upper culvert, and the jury do not take into account the quantity directed into the east
Judgment reversed, and new trial ordered.