Opinion
12-10-1889
DAVIDSON v. HUTCHINSON.
A. S. Appelget, for complainant. Samuel M. Schenck, for defendant.
On application for rehearing. For former report, see 15 Atl. Rep. 257.
A. S. Appelget, for complainant. Samuel M. Schenck, for defendant.
BIRD, V. C. After I had expressed my views as to the rights of the parties in this case, the counsel for complainant expressed a desire to have a rehearing, insisting that I had misunderstood the testimony of one of the complainant's witnesses, to the prejudice of the complainant. As the testimony of this witness (Reed) would speak for itself, I have looked into it as reported by the stenographer, which is more complete than my notes. Judging of the case from his testimony alone, I should still be inclined to adhere to my former conclusions. It is true, he says he opened the old ditch an inch or two before he laid the drain tile therein, but asserts that the ditch was five or six feet deep, and repeats the assertion, saying that he was sure of it. But notwithstanding the emphasis with which this witness expressed himself, and the conviction that the complainant was bound by what he said, although there was a manifest contradiction in his statements, in that he said the old ditch, which was only two or three feet deep, had been cleared outan inch or two, and also that the ditch was five or six feet deep, yet, it being the duty of the court to judge of the case according to the merits upon the whole evidence, I have with great care reviewed the testimony of the witnesses. I am now convinced that the tiles were not laid five or six feet below the surface. This is established by the testimony of both of the surveyors; not that they speak upon the point directly, but of the inclination of the land in which the drain is cut. Unless, in this case, the laws of gravity operate contrary to the general rule, if these tiles were five or six feet beneath the surface the water collecting therein would have to flow upward from six to eighteen inches, if not more. This is apparent when it is considered that the mouth of the tile drain is about thirty inches below the surface, and that the inclination of the land above the tile for the whole distance of the ditch does not exceed four inches. The testimony of Mr. Morton, the surveyor, who was produced by the defendant, and who made a very careful and accurate snap of the premises, seems to establish this fact beyond a peradventure; and hence, when the tiles were laid thirty-four inches beneath the surface at the beginning of the drain, they would be upon the same level with the point at which the water flowed therefrom. I think it is perfectly safe to conclude that, if the tiles were laid below the point at which the water was expected to find its exit, no damage could possibly come to the defendant. Being thus convinced that there was error in my former conclusions, and that, too, from the testimony as it then stood, a rehearing will be denied, because wholly unnecessary. I think the complainant is entitled to an injunction, and will so advise, with costs.