Summary
In Person v. Roane, 218 Miss. 621, 67 So.2d 534 (1953), the proof showed only that the drainage ditch which ran across the defendant's land had been open for over 10 years, but there was no proof establishing the basis on which the ditch had been constructed and used. Therefore the chancellor found that the use was permissive.
Summary of this case from Dethlefs v. Beau Maison Development Corp.Opinion
No. 38907.
November 2, 1953.
1. Injunction — trespass — adjoining landowners — drainage ditch — obstructing — use of explosives to open — view by Chancellor — injunctive relief proper.
In suit by landowner against adjoining landowner for damages for entering upon landowner's property and there setting off explosives, and for injunctive relief against further trespasses, wherein adjoining landowner filed cross-bill for injunction to restrain complainant from obstructing drainage ditch, decision of Chancellor, who viewed premises, that drainage ditch involved was located on land of complainant, and that adjoining landowner was trespasser, and that neither party had been damaged by other party's actions, and granting injunctive relief to complainant, was supported by the evidence.
2. Waters — adjoining landowners — drainage ditch — evidence — established permissive use of ditch by adjoining landowner.
In such suit evidence established that use of drainage ditch by adjoining landowner and his predecessor in title was with permission of landowner and not under adverse claim.
3. Easements — to establish — claim of right — must be adverse to landowner.
In order to acquire an easement in land of another, the claim of right must be exercised adversely to owner of the servient estate, since no length of enjoyment by his permission, and under a recognition of his right to grant or withhold, at his pleasure, will ripen into an easement.
4. Injunctions — decree granting — sufficiently definite.
In such case decree making permanent injunction as "prayed for in original bill of complaint" and directing clerk of court to issue writ of injunction enjoining, prohibiting, and restraining defendant from entering upon lands of complainant, and from using any explosives thereon to open drainage ditch, was sufficiently definite to inform defendant exactly what he was to refrain from doing.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Yalobusha County; HERBERT HOLMES, Chancellor.
Kermit R. Cofer, John P. Horan, Water Valley, for appellant.
I. The ditch in question was a line ditch running from north to south on the line between the properties of the appellee and appellant, and had been in operation and used more than 20 years at the time the original bill was filed. In such case, the appellant had acquired an easement by prescription or adverse possession in the ditch. Alcorn v. Sadler, 71 Miss. 634, 14 So. 444, 42 Am. St. Rep. 484; Browder v. Graham, 204 Miss. 773, 38 So.2d 188; Cummins v. Dumas, 147 Miss. 215, 113 So. 332; Gano v. Strickland, 211 Miss. 511, 52 So.2d 11; Jenkins v. McQuaid, 153 Miss. 185, 120 So. 814; Lindsey v. Shaw, 210 Miss. 333, 49 So.2d 580; McIntyre v. Harvey, 158 Miss. 610, 128 So. 572, 130 So. 5.
II. The proof in this record shows conclusively that the trespass, if any, complained of by appellee consisted solely in the cleaning out of a line ditch between the parties hereto, which had been in operation and used more than twenty years at the time of the filing of the original bill. This did not constitute trespass because appellant had the right to repair and clean out the ditch for his own protection. I.O.O.F. v. Hyman, 180 Miss. 198, 177 So. 43; Mott v. Underwood, 148 N.Y. 463, 42 N.E. 1048, 32 L.R.A. 270, 51 Am. St. Rep. 711; Parrot Silver and Copper Co. v. Heinze, 25 Mont. 139, 64 P. 326, 53 L.R.A. 491, 87 Am. St. Rep. 386; Power v. Ratliff, 112 Miss. 88, 72 So. 864; 14 R.C.L., Sec. 5 p. 307; Ann. Cas. 1918E, 1146.
III. The injunction granted in this case did not correspond with relief prayed for in the original bill. The original bill charged that the trespass was committed on appellee's land which was not sustained by the proof. The original bill made no mention of the line ditch and the only trespass, if any, consisted in the cleaning out of the line ditch in which some of appellee's land had been used in the construction of the ditch. And the injunction should be so clear and certain in its terms that the defendant may know what he is restrained from doing. And the relief by injunction should be practicable and such that it can be practicably and efficiently enforced. The injunction in this case prohibited the appellant from trespassing on any lands owned by the appellee or in any manner hindering him in the operation of his farm, or in any manner causing him to neglect his farming operations, which is too broad and misleading in its scope. 28 Am. Jur., Sec. 313 p. 485; 43 C.J.S., Sec. 29 p. 459, Sec. 206 p. 932, Sec. 211 p. 941; Griffith's Chancery Practice, Sec. 436 p. 458.
IV. The appellee put dirt, tree tops, and other debris, in the line ditch, which had been in operation and used by the appellant and his predecessors as a water drain in protecting his land and crops for more than twenty years. In such case, the appellant was entitled to injunctive relief. Alcorn v. Sadler, supra; Browder v. Graham, supra; Gano v. Strickland, supra; Lindsey v. Shaw, supra; Quin v. Sabine, 183 Miss. 375, 384, 183 So. 701. Jesse L. Yancy, Jr., W.V. Byars, Bruce, for appellee.
I. A lower landowner has no right to trespass upon the lands of his neighbor and blow same up by using dynamite in order to improve his own land from waters. Heier v. Krull, 160 Cal. 441, 117 P. 530; Holeman v. Richardson, 115 Miss. 169, 76 So. 136; Martin v. Jett, 12 La. 501, 32 Am. Dec. 120; Steed v. Kimbrough, et al., 197 Miss. 430, 19 So.2d 925; 44 Words Phrases 724.
II. The lower Court was correct in dismissing the injunction requested on behalf of the appellant.
III. The writ of injunction issued by the Court below is clear in its meaning and should not be dissolved. 28 Am. Jur., Sec. 314 p. 485.
Appellee brought suit against appellant alleging that appellant had entered upon appellee's land and had set off explosives thereon and he asked for damages as a consequence thereof and for an injunction to prevent appellant from further trespassing thereon. Appellant answered and averred that he did not enter upon any land belonging to appellee but that he merely opened up a drainage ditch which was situated not upon appellee's land but upon appellant's land; he also filed a cross-bill in which he alleged that appellee had filled in the ditch in question and he prayed for an injunction to prevent appellee from obstructing the same, claiming that the ditch was used to drain surface water from the lands of both parties.
Upon the hearing the chancellor found as a fact that the ditch in question is situated on lands of appellee, that appellant was a trespasser in entering the same and exploding dynamite therein, and that the damage which both parties had sustained resulted not from the diversion or impounding of surface waters but from the backing up of flood waters on their lands from an adjacent natural water course. In consequence of these findings the chancellor dismissed the cross-bill and granted the injunction prayed for in the original bill, but declined to award appellee any damages, finding as a fact that appellee was not damaged by the explosions.
By agreement of both parties the chancellor went out and viewed the premises with counsel for both parties present and pointing out their respective contentions. In his findings the chancellor stated that it would have been difficult to reach a conclusion without seeing the premises, but he observed the ditch in controversy, the flow of water in the natural water course, and the drifts which had been deposited by the waters upon the lands of the parties, and he found as a fact that the whole controversy was precipitated by flood waters and not by surface water.
In Clements v. Town of Carrollton, 216 Miss. 859, 63 So.2d 398, and in other cases therein cited, we held that (Hn 1) when the chancellor viewed the premises in such cases as here presented, great weight is attributed to his findings, and they will not be disturbed on appeal unless it appears that his decision is not supported by substantial testimony delivered by sworn witnesses. We find here that the learned chancellor is amply supported by the testimony of sworn witnesses. The case involved purely a question of fact for his solution.
Appellant contends that he had acquired an easement in the ditch by virtue of its having been in existence over a period of more than ten years by agreement between appellee and appellant's predecessor in title. The proof does establish that the ditch was opened up about twenty years ago, but the proof is in conflict as to its having been used by appellant's predecessor in title for such length of time and in such manner as to establish an easement therein, and it should be noted that appellant did not acquire the adjoining land until the year 1945 so that such use as he has made of the ditch has been for less than the statutory period. The proof preponderates in favor of appellee to the effect that such use as has been made of the ditch by appellant and his predecessor was with the permission of appellee and not under an adverse claim. It was said in Lanier v. Booth, 50 Miss. 410, 415-416, (Hn 3) "And all the cases concur in the doctrine that the right must be exercised adversely to that of the owner of the servient estate, since no length of enjoyment by his permission, and under a recognition of his right to grant or withhold it, at his pleasure, will ripen into an easement." This authority supports the conclusion of the chancellor in appellee's favor.
Appellant further contends that the injunction should be so clear and certain in its terms that appellant may know what he is restrained from doing, and that the decree and injunction herein do not comply with this rule. (Hn 4) The bill of complaint described appellee's land by governmental subdivisions. The first decree directed the issuance of a temporary injunction "as prayed for in the original bill of complaint" and the final decree adjudicated "The preliminary injunction heretofore issued be and the same is hereby made permanent and the clerk of this court is directed to issue writ of injunction, enjoining, prohibiting, and restraining Greer Person from entering upon the lands owned by H.C. Roane, and from using any explosives thereon to open the ditch known as the Lantrip Ditch . . ." This is certainly sufficiently definite to inform appellant exactly what he is to refrain from doing.
Affirmed.
McGehee, C.J., and Holmes, Arrington and Ethridge, JJ., concur.