Opinion
March 28, 1949.
1. Waters and water courses — maintenance of artificial drain.
An owner of land is not required, where he has constructed an artificial drain, wholly upon his own land, to maintain the same when the subsequent acts of nature place an unreasonable or impossible burden on him to do so, and for the purpose of preventing waters from seeking their natural level and following a different course due to causes beyond the control of such landowner.
2. Trial — visiting land for view of the premises — appeal — equity procedure.
It is within the discretion of the chancellor whether he shall visit the land for a view of the premises in question, and his refusal to do so is not reviewable as error.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Tippah County, HERBERT HOLMES, Chancellor.
Hugh N. Clayton, for appellant.
It has been the position of the appellant throughout this whole proceeding, as evidenced by both his pleadings and his proof, that the only thing he is complaining of is the diversion of the water of the Hasting's Spring Branch. He is not complaining of overflows from the Dry Creek Channel or the Hatchie channel, nor is he complaining of flood or vagrant waters. If the court will require the appellee to restore the situation as it existed before the Hasting's Spring Branch was dammed, and the two new artificial drains were dug in 1946, diverting this water, and award the appellant a money judgment for such damages as he may have sustained, he will be content.
A case in Mississippi on this point is that of I.C. Railroad Company v. Miller, 1891, 68 Miss. 760, 10 So. 61, wherein the court said the following: "We gather from the record the general fact that the road bed of the defendant crosses several little swales, or ravines, or small watercourses, in which, in periods of heavy rains, a considerable quantity of surface water is gathered. The roadbed prevents this water from flowing westward as it would naturally do, and a ditch cut by the company along the eastern line of its road gathers all this water and conducts it some half mile to the land of the plaintiff, and, his land being lower than the bed of the ditch, is in times of excessive rainfall overflowed by the water running over the banks of the ditch. The contention of the plaintiff was that the defendant's road-bed intersected and obstructed natural water courses and diverted water therefrom, and caused the same to overflow his land. On the other hand, the defendant contended that its road did not intersect any watercourse, but that the water turned upon the land of the plaintiff was mere surface water, which, obstructed by the road-bed, turned aside, and, following the natural declivity to the north, flowed upon the adjoining land of the plaintiff. We are satisfied that whether the flow of water intersected and diverted by the road-bed was that of streams running in well-defined channels and having banks, or was mere surface water, coming from the adjacent hills, and flowing in sheets across the swales between the hills and the adjacent creek, the defendant is in either event responsible for the injury inflicted upon the plaintiff by the turning of the water upon his lands. If it be conceded that this was surface water, it has been so collected and discharged in injurious volumes upon the lands of plaintiff as to entitle him to compensation for the injury resulting to his property therefrom. The rules of the civil and of the common law in relation to surface water are directly contrary to each other. Under the first, the lower of two adjacent estates owes a servitude to the other to receive the natural drainage, and the other estate cannot withhold from the lower the supply of water flowing naturally. Under the rule of the common law, the owner of the upper estate may withhold, and the owner of the lower estate may repel, mere surface or superficially percolating water upon or from his estate. In the states of Pennsylvania, Illinois, North Carolina, California, and Louisiana, and probably Ohio and Missouri, the rule of the civil law is adopted, while in England, Massachusetts, Maine, Vermont, New York, New Hampshire, Rhode Island, New Jersey and Wisconsin the rule of the common law prevails, at least as to rural estates. Gould, Waters, #265, 266 and authorities in notes. But neither under the rule of the civil nor of the common law is one permitted to collect surface water falling upon his own land or that of another in artificial channels, and to discharge it in undue and unnatural quantities upon the land of another. Gould, Waters #271; Barkley v. Wilcox, 86 N.Y. 148. The defendant has, for the protection of its road-bed dug a ditch, along its eastern line, into which is collected surface water falling upon adjacent lands for a half mile along the ditch, and which, but for the ditch, would have flowed upon lands of other persons, and has discharged the water thus accumulated upon the lands of the plaintiff, which were free from the flow of the water in its natural course. Upon all the authorities this is an unlawful act, and for it, the plaintiff is entitled to recover."
This case has been followed and cited many times by our courts.
On the subject of "Waters" in 67 Corpus Juris at page 904 at paragraph 336, it is stated as follows: "An owner of land may construct ditches or other artificial watercourses thereon provided, in the absence of any contractual or prescriptive right to do so, they do not impose a burden on the property of an adjoining owner."
In the same legal encyclopaedia it is stated on page 908, paragraph 342 as follows: "An owner has the duty of preventing his ditch from becoming filled up or obstructed where such circumstance will result in setting the water upon the lands of adjoining owners, but he has no such duty where his failure to keep it clear does not breach any duty he owes to others."
In the same legal encyclopaedia on page 911, paragraph 347, the rule is announced: "A proprietor who, without the right to do so, diverts the waters of a natural stream into an artificial channel and discharges them or backs them up upon the lands of another is liable for the injuries occasioned thereby, and it is no defense to his liability to one injured by his wrongful diversion of a natural flood water channel that the storm causing the flood was so unprecedented as to constitute an act of God."
Apparently, the appellee is attempting to justify some of his acts due to the effects of erosion. This defense cannot be availed upon by as is shown in the case of Mississippi and T.R. Co. v. Archibald, 1890, 67 Miss. 38, 7 So. 212.
Robert B. Smith and E.K. Windham, for appellee.
On the question of the change of course of the Hastings Spring Branch, the appellant himself presented two witnesses who testified that they dug the original artificial ditch to divert the waters of the Hastings Spring Branch into the Dry Creek Canal in 1912. These witnesses testified that following the construction of the Dry Creek Canal, that a Mr. Pollard, who then owned said land, employed them to cut said ditch. One of these witnesses who dug this ditch stated that prior to the digging of same that it emptied into the old slough which is now on the north side of appellee's property, and that during times of excessive rainfall, the water from the Spring Branch, back in those years, would go into the old slough, as there was a natural ridge along the channel and the ground back to the west was lower. The uncontradicted testimony of numerous witnesses is to the effect that the artificial ditch dug at the instance of Mr. Pollard filled up every time that Dry Creek Canal reached a flood stage. It is, therefore, submitted that said artificial ditch never became a natural watercourse, as the chief and primary characteristic of a natural watercourse is that it must have permanency, and must follow the natural contour and drainage of the terrain. Our courts have held that it does not of necessity have to have well defined banks, nor does it have to be of a certain shape or diminsion or course, but it must have an element of permanency which was entirely lacking in the dug ditch which carried Hastings Spring Branch from a point on its original course, to Dry Creek Canal. The element of the length of time of its direction of flow is also far less important than the characteristic of permanency. In substantiation of this statement, we find the following rule in Volume 27, Ruling Case Law, Page 1066, as follows: "The test of a watercourse if not the age of the stream, nor the length of time its waters have flowed in a particular channel, but it is whether it has the charcteristics of permanence; it is not essential that it shall have all the characteristics and attributes of every other watercourse."
In 67 Corpus Juris, page 677, the rule is laid down, as follows: "Elements. — a. Size and Antiquity. In determining whether a stream is a natural watercourse, its size is not a material element in respect of the volume of water carried, and while the element of permanence is necessary, great age is not an essential attribute of a watercourse."
The above statements of law are certainly reasonable, for as the term itself applies, a natural watercourse is one established and maintained by nature, and if nature destroys, in times of stress, the watercourse by filling it in with sand, without help from man, and in spite of his efforts to prevent same, such as occurred in this case, then certainly same could not be called a natural watercourse.
An owner of land certainly has no duty, where he has constructed an artificial drain wholly on his own lands, to maintain same, when the subsequent acts of nature place an unreasonable or impossible burden on him. A statement of this rule is laid down in 67 Corpus Juris, Pages 873, 874 and 875, as follows: "Rights in Artificial Drains. A person making an artificial drain on his land for the discharge of surface water has been held not obliged to keep it open as an artificial drain for the purpose of draining the lands of others; and where an upper owner constructs a drain which has the effect of relieving the lower owner from the burden of drainage, such lower owner has been held to get no right to the continuance of this immunity, or to prevent the upper owner from restoring the water to its original course . . ."
Therefore it can readily be seen that an owner of land could not be shouldered with the duty and responsibility of continually fighting the forces of nature simply to protect the property of an adjoining land owner in a situation of this kind, and the appellee was certainly justified, after making many and repeated efforts to direct the course of the Hastings Spring Branch to Dry Creek Canal, in allowing nature to take its course and direct the current of the Hastings Spring Branch in whatever direction it desired, so long as same was not interfered with by appellee. Therefore, the learned chancellor was authorized, under the record in this case, to decide, as he did decide, that on the question of the diversion of Hastings Spring Branch, that the appellant had failed to sustain his case, and, therefore, his exclusion of the evidence was proper.
It is clear in the record that whatever ditches were dug, or made by the appellee, carrying the water of the Hastings Spring Branch towards the old slough, were made after the artificial ditch or ditches which carried same to Dry Creek Canal, had filled in by the act of nature. And it was only after the water from the Hastings Spring Branch had turned towards the old slough and was travelling in that direction, and actually emptying into the old slough and running through and onto the Barnett lands and across the appellant's lands, that any ditching was done by appellee in that direction. It is the well established law that a land owner, in the interest of good husbandry or to otherwise improve and obtain a benefit out of his land, may widen, deepen or otherwise improve natural watercourses or the course of a natural stream. Without citing the many cases approving this principle of law which have been handed down throughout the various jurisdictions of the United States, it is sufficient to cite the case of American Sand and Gravel Company v. Rushing, 184 So. 60, which states the principle.
This suit is brought in the Chancery Court by the appellant, Will J. Brinkley, for injunctive relief against the appellee, C.O. Eaton, and for the recovery of damages which are claimed to have been sustained on account of the alleged diversion of waters by the defendant from his lands onto the lands of the complainant.
At the conclusion of the evidence offered by the complainant, including the testimony of the defendant who was introduced as an adverse party under the authority of Section 1710, Code of 1942, with the right of contradicting him, the trial court sustained a motion of the defendant to exclude the evidence and render a decree in his favor dismissing the bill of complaint. And it appears that all of the material facts on the issues involved were developed both pro and con on the questions involved in the presentation of the complainant's case.
The proof discloses that the defendant Eaton owns more than 100 acres of land which is bounded on the east by the Dry Creek Canal, an artificial water channel, which was constructed during the year 1912; that the complainant owns 88 acres of land to the west and immediately adjacent to that of the defendant; that one Barnett, who is not a party to the suit, owns approximately 100 acres of land lying to the north of that of the defendant and immediately adjacent thereto; that the complainant also owns 100 acres of land lying immediately north of his 88-acre tract and west of that belonging to Barnett and adjacent thereto; that for many years and long prior to the year 1912 the Hastings' spring branch, a natural water course, flowed from the hills which were west of the complainant's 88-acre tract of land, and across the said tract and into the land of the defendant, and then turned northward into a slough which began on the land of the defendant, near the north boundary thereof, and extended across the southwest portion of the Barnett land to the 100-acre tract of the complainant lying immediately west of the Barnett land; and that during the year 1912 when the Dry Creek Canal was dug, or shortly thereafter, there was also cut an artificial ditch on the defendant's land, from where the Hastings' spring branch at that time turned northward into the slough, so as to carry the water from the branch eastward to the said Dry Creek Canal.
The proof further discloses that after the defendant purchased his land from one Pollard in 1941, and cleared the same and put it in cultivation, the ditch extending from where the Hastings's spring branch turned northward into the slough on said land to the said Dry Creek Canal became filled up with sand and other obstructions caused largely by overflow waters from the said Dry Creek Canal, and that this caused the waters from the Hastings' spring branch to again follow its former natural course northward into the slough; that the defendant thereupon cut another ditch across his land from near the said point on the spring branch and into the Dry Creek Canal but that this additional ditch likewise was caused to fill up and failed to carry the waters from the turn in the spring branch to the said Dry Creek Canal; that the defendant cleaned out these ditches several times and did all that he could to keep the waters flowing through them to the Dry Creek Canal, but without avail; and the trial court so found this to be a fact, from a preponderance of the testimony offered at the trial.
It further appears that on account of the fact that the lands in the vicinity where the spring branch had formerly turned northward into the slough were lower than that along the west bank of the Dry Creek Canal, and also on account of the further fact that the Dry Creek Canal had itself become partially filled up, the defendant was unable to prevent the waters from the western hills which came through the spring branch from following their former natural course northward into the slough, and causing the slough to become filled with water so as to overflow onto the 100-acre tract belonging to the complainant west of the Barnett land, on which the damages complained of are alleged to have been occasioned; that it was not until after the waters from this spring branch had already changed their course northward into the slough across the land of the defendant that he dug two small ditches in a northerly direction from points on the branch and over his own land so as to converge into the slough. It is the digging of these two ditches and the banking of some of the dirt therefrom at the western end of the ditch which had formerly extended eastward into the Dry Creek Canal (but which had theretofore almost filled up according to the proof in the case) that is complained of as the basis for recovery of the damages to complainant's 100-acre tract of land, and for which he seeks injunctive relief against the defendant to compel him to restore the status which existed before the ditch, which extended eastward into the Dry Creek Canal, had become largely filled up.
We are of the opinion that in view of the topography of defendant's land and the fact that the complainant's 100-acre tract of land is lower than the lands near the Dry Creek Canal, it would impose too great a burden on the defendant to require him to restore and to keep cleaned out the former ditch which extended eastward into Dry Creek Canal, and which he had cleaned out as many as five times a year during 1941 and 1942 in an unsuccessful attempt to keep the waters of the spring branch flowing eastward to the said Dry Creek Canal, instead of allowing these waters to follow their former and natural northward course into the slough.
The two small ditches dug by the defendant from points on the spring branch northward into the slough over his own land were evidently dug for the purpose of confining within narrow limits the waters which would otherwise spread out over his land from the branch into the slough before these ditches were dug, this being the natural inference in the absence of any proof to the contrary.
In the case of Illinois Central R. Co. v. Miller, 68 Miss. 760, 10 So. 61, relied on by the complainant, the Railroad Company had constructed a long levee which stopped the natural flow of surface waters across a wide area, collected them in a ditch, and diverted the same in a manner which was unnatural so as to cause damage which would not have otherwise occurred. Therefore, we do not think that this case or the other decisions which announce the principles of law relied upon by the complainant are controlling under the facts of the present case. (Hn 1) On the other hand, we are of the opinion that an owner of land is not required, where he has constructed an artificial drain wholly on his own land, to maintain the same when the subsequent acts of nature place an unreasonable or impossible burden on him to do so, and for the purpose of preventing waters from seeking their natural level and following a different course due to causes beyond the control of such landowner. Compare 67 C.J. 873, et seq., on "Rights in Artificial Drains"; American Sand Gravel Co. v. Rushing, 183 Miss. 496, 184 So. 60, and the cases therein cited; also Indian Creek Drainage Dist. No. 1 v. Garrott, 123 Miss. 301, 85 So. 312. See especially those cases for the principles of law applicable to the issue involved in the instant case. Holman v. Richardson, 115 Miss. 169, 76 So. 136, L.R.A. 1917F, 942; Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 25.
It appears that a greater portion of the water which overflowed the farm lands of the complainant during the years complained of came from the overflow of the Dry Creek and Hatchie Drainage Canals, and it could not therefore be determined with reasonable certainty what portion of such damages was caused by waters from the Hastings' spring branch, even if the complainant was entitled to recover damages for the acts of the defendant herein complained of. But as hereinbefore stated, we are of the opinion that the complainant is not entitled to recover damages or obtain the injunctive relief prayed for under the facts and circumstances of this case.
(Hn 2) Nor do we think that there was any reversible error committed by the trial court in refusing to visit the land for a view of the premises in question, since this was a right to be exercised or not in the discretion of the trial judge when found expedient or necessary to a proper understanding of the issues of fact involved.
We are therefore of the opinion that the decree of the trial court should be affirmed.
Affirmed.