Opinion
Decided November 21, 1934.
Railroads — Drainage — Mandatory injunction — Railroad required to make and maintain ditches along right of way, when — Section 8908, General Code.
A mandatory injunction should be decreed by a court of equity to require a railroad company to make and maintain ditches along its right of way, adequate to insure natural drainage from the adjoining land, where the injuries from failure to provide such outlet for drainage in accordance with Section 8908, General Code, are reoccurring, the remedy at law is not adequate, and an injunction will prevent a multiplicity of suits.
APPEAL: Court of Appeals for Holmes county.
Messrs. Waters, Andress, Wise, Roetzel Maxon and Mr. W.F. Garver, for appellant.
Messrs. Cary, Estell Kuhn, for appellees.
The appellees Hallie and Frank Henicle, being the plaintiffs in the court below, brought their action against the Pennsylvania Railroad Company, alleging that it failed to comply with the provision of Section 8908, General Code, which provides as follows:
"Except where the road-bed of a railroad extends through or by swamp land, the company or person operating the road shall make and keep open ditches or drains along such road-bed of depth, width, and grade sufficient to conduct water accumulating at the sides of the road-bed from the building or operation of the road, to some proper outlet."
They allege that they are the owners of land adjacent to the road bed of the defendant company, and that there is no outlet under or through the right of way along said premises for the drainage of water therefrom; that formerly the defendant maintained a ditch along said right of way, to take care of said drainage, but that the same has become filled up, and that by reason thereof water accumulates upon the premises of the plaintiffs, to their damage in the sum of one thousand dollars for the year 1933, and they also prayed that defendant be required to open and maintain a ditch along the south side of its right of way adjoining the plaintiffs' land, of sufficient depth and grade to conduct the waters to a proper outlet.
The defendant's answer is in the shape of a general denial.
The issues thus made up were submitted to a jury, and on April 20, 1934, the jury rendered a verdict for the plaintiffs for damages in the sum of fifty dollars.
The equity matter, that is the prayer for mandatory injunction, was reserved to the court.
A motion for a new trial was filed on April 23, and on April 30 the plaintiffs moved for a hearing on the equity matter, which was set down to be heard on May 16, at the same time that the motion for a new trial was heard.
The defendant maintains that there is no authority for the issuance of a mandatory injunction in cases of this kind; that plaintiffs' rights, if any, are fixed by statute, to-wit, Section 8908, General Code, and that the plaintiffs have an adequate remedy at law.
They make the claim that Sections 8909, 8910, 8911 and 8912 of the General Code have been declared unconstitutional; that the statute makes no provision for enforcing the construction of such a ditch.
We do not agree with this contention. If the defendant's position were logical, and the courts had intended to abrogate the civil law rule of surface drainage, as applied to railroads, the courts would also have declared Section 8908 unconstitutional; but this they did not do. We are of the opinion that the civil law rule with regard to drainage, as modified and restated in Section 8908 of the General Code, is applicable.
The civil law rule is well settled in Ohio, and may be stated as follows:
"The owner of land cannot, by artificial means, divert the natural flow of the surface water off his land, nor can he, by an embankment or otherwise, divert the natural flow of the surface water off the higher land in a manner different from its natural flow onto his land." Nagy v. City of Akron, 27 Ohio App. 250, 253, 161 N.E. 226. See, also, Butler v. Peck, 16 Ohio St. 334, 88 Am. Dec., 452; Tootle v. Clifton, 22 Ohio St. 247, 10 Am.Rep., 732.
We find from careful reading of the testimony submitted to the court and jury in the damage action that such testimony clearly shows that for at least more than thirty-five years a spring flowed in the same course it now flows from the Henicle buildings directly over to the railroad right of way; and the record also shows that the railroad company, as claimed by the plaintiffs below, did maintain a ditch along their right of way, which they allowed to become filled up, thereby damming back the water which naturally found its way to the right of way.
The evidence is ample in the record, not only by the witnesses for the plaintiff below, but by the witnesses and former employees of the railroad company, that the land in question is not swamp land, and that water on the Henicle premises will naturally flow directly over towards Killbuck Creek and the railroad right of way. We note that this testimony is supported by the exhibits in the case, to-wit, the blue prints and the photographs attached to the record; and the record further shows that the natural flow of the waters on this land is towards the railroad, and that when the water accumulates there, having no outlet, it is naturally thrown back upon the Henicle land.
The record clearly shows that the defendant company recognized its duty by digging a ditch for a Mr. Ling, on the west of the Henicle land; and that it also recognized its duty to a Mr. Quillin on the east, by providing a culvert for him under its right of way, and the record shows that it has just as much fill along its right of way on those premises as it does opposite Henicle's; that it recognized its duty to the Henicle tract when the railroad was constructed by digging a ditch along its right of way, but now, after it has thrown up dirt on the Henicle land in the construction of that ditch, and has been the direct cause of damming back the natural drainage, it would hold the natural drainage of this land from Killbuck Creek, and declare this to be swamp land, and establish it as such for years and years to come, depriving the owner of his right to cultivate the farm, as was possible when it maintained the ditch along its right of way.
It is apparent from the record before us that the condition presented is a continuing condition, and that so long as a ditch is not provided, or a proper outlet given, the lands of the plaintiff will continue to be overflowed and damaged each year. Thus, this condition warrants a court of equity to intervene and require construction of this ditch by a mandatory order.
It is a well established principle of equity that equity will intervene by injunction where the remedy at law is inadequate to avoid a multiplicity of suits, to restrain a continuous trespass, or to abate a nuisance.
The principle of law is well discussed in McKiernann v. Grimm, 31 Ohio App. 213, 165 N.E. 310; 14 Ohio Jurisprudence, 1037, Section 292.
The record before us well warrants a court in finding that the injuries complained of are reoccurring injuries, that the remedy at law for damages is inadequate, and that by reason thereof, and to prevent a multiplicity of suits, a mandatory injunction should issue in accordance with the prayer of the petition.
Entertaining these views, the finding and judgment of this court will be for the appellees.
Decree for appellees.
SHERICK, P.J., and MONTGOMERY, J., concur.