Opinion
No. 37585.
November 6, 1950.
1. Waters — diversion — burden of proof.
In a suit for injunction and for damages on the allegation that defendants have diverted water from a natural water course and had thereby flooded and damaged complainant's land, the burden was upon her to establish such facts as were necessary to impose liability upon the defendants.
2. Evidence — aerial photographs.
In a suit for diversion of water from its natural water course upon complainant's land it was not reversible error to refuse to admit aerial photographs when their accuracy and correctness were not sufficiently shown, and when other photographs and much oral testimony had made such a full disclosure of the entire physical surface appearance of the involved area that aerial pictures would have been of little if any further aid.
Headnotes as approved by Roberds, P.J.
APPEAL from the chancery court of Marshall County; HERBERT HOLMES, Chancellor.
Smith Hurdle, and Fant Bush, for appellant.
I. The evidence showed that the appellees had constructed the new drain complained of and divested water in a concentrated form upon the lands of the appellant.
(1) The land drained naturally to the East.
(2) There was a small line ditch along the appellant's South boundary.
(3) There was no other ditch on appellant's land before the actions complained of.
(4) The appellees twice asked permission to ditch water on appellant's land, which permission was denied.
(5) Appellees constructed a brush dam.
(6) Appellees excavated a new ditch.
(7) Thereafter appellant's land was washed out in a chasm.
(8) The old dry creek had long been filled on appellee's land so that it carried no water.
(9) Appellee's land had been heavily eroded.
Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925; I.C.R.R. Co. v. Miller, 68 Miss. 760; Ferris v. Wellborn, 64 Miss. 29, 8 So. 165; K.C.M. B.R.R. Co. v. Lackey, 72 Miss. 881, 16 So. 909, 48 Am. St. Rep. 589; Harvey v. I.C.R.R. Co., 111 Miss. 835, 72 So. 273; 67 C.J. 877.
II. The lower court tried this cause entirely on the theory that the waters were what is termed "vagrant flood waters". Seufert v. Cook, 241 P. 418, 420 (Calif.); Thomson v. La Fetra, 183 P. 152 (Calif.); Thomson v. Public Service Commission, 5 N.W.2d 769, 771, (Wis.); Everett v. Davis, 115 P.2d 821, 223; Week v. Los Angeles Flood Control District, 181 P.2d 935; Indian Creek Drainage District v. Garrott, 123 Miss. 301, 85 So. 312; Jones v. George, 126 Miss. 576, 89 So. 231; Whitfield v. Rodgers, 26 Miss. 84; Annotation, 7 A.L.R. 770; Annotation, 106 A.L.R. 693.
III. Even conceding that the waters were vagrant flood waters, appellees had available another means of disposing of the waters without damage to the appellant. Toler v. Bear Creek Drainage District, 141 Miss. 851, 167 So. 88; Sinai v. L. N.R.R. Co., 71 Miss. 547; Holman v. Richardson, 115 Miss. 169, 76 So. 136; Miller v. Ervin, 192 Miss. 712, 6 So.2d 910.
IV. The court erred in excluding from the evidence a certain aerial photograph. Howell v. George, 201 Miss. 783, 30 So.2d 603; 20 Am. Jur. 609.
Robert B. Smith, and Fred B. Smith, for appellees.
Cited the following cases: American Sand Gravel Co. v. Rushing, 184 So. 61; Brinkley v. Eaton, 39 So.2d 491; Conn v. Conn, 184 Miss. 863, 186 So. 646; Ferris v. Wellborn, 64 Miss. 29, 8 So. 165; Harvey v. I.C.R. Co., 111 Miss. 835, 72 So. 273; Howell v. George, 201 Miss. 783, 30 So.2d 603; I.C.R. Co. v. Miller, 68 Miss. 760; Kansas City, Memphis Birmingham R. Co. v. Lackey, 72 Miss. 881, 16 So. 909, 48 Am. St. Rep. 589; Langston v. Farmer, 176 Miss. 820, 170 So. 233; San Gabriel Valley Country Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200; Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925.
Appellant and appellees own a quarter section of land, the eighty acres of appellant lying immediately north of the eighty acres of appellees.
Appellant filed her bill in this cause alleging that appellees had diverted water from a natural water course and had thereby flooded and damaged her land. She prayed for an injunction and money damage.
Appellees denied the allegations of fact and the claim for liability set out in the bill, and, by cross-bill, asserted Mrs. Buchanan herself had obstructed a natural water course and diverted the water therefrom over and across the land of cross-complainants, and they prayed, for personal decree for damages resulting from such action. The chancellor dismissed the original and the cross-bills. Mrs. Buchanan appeals. The Hurdles did not appeal. Therefore, only the rights of Mrs. Buchanan and the liability of the Hurdles to her are before us.
The chancellor, after hearing and considering some four hundred and twenty-five pages of testimony purporting to establish the alleged wrongful acts of appellees, and which testimony included many photographs of the terrain and the drains and so-called obstructions, found that the Hurdles had not changed, or diverted water from natural water courses and had not, by such acts, flooded the land of appellant. Existence of such facts was necessary to impose liability upon appellees. (Hn 1) She bore the burden of establishing them and we cannot disturb the findings of the chancellor unless they are clearly and manifestly wrong. We cannot say he did not have ample testimony to support his findings. Indeed, we think them amply supported by the evidence.
Complaint is directed to the refusal of the chancellor to admit in evidence aerial photographs of the surrounding terrain. That action, in our opinion, was not error — (Hn 2) certainly not reversible error — for the reasons, first, the accuracy and correctness of the photographs were not properly and sufficiently shown, and, second, because the record contains many pictures and much oral testimony descriptive of ditches and watercourses and alleged obstructions, the contour and physical surface condition of the land, the evidence of damage thereto, and whether in cultivation or susceptible of being cultivated. By such oral evidence and the photographs, so admitted into evidence, the chancellor had, and we have, a clear over-all picture of the drains, water courses, the soil, and the physical surface appearance of the territory involved in the litigation. The aerial pictures would have thrown little, if any, light upon the essential facts, in addition to that disclosed by the other evidence — certainly not enough to work a reversal and re-trial of this cause.
We find no reversible error and the cause is therefore affirmed.
Affirmed.