Opinion
No. 38378.
May 19, 1952.
1. Waters — natural water course — destroyed or altered.
A natural water course may not be altered or destroyed to the damage of the upper owner.
2. Waters — natural water course — definition.
A natural water course is one which has a well defined bed and banks of varying width and depth, through which water is conveyed and discharged into some substantial reservoir or body of water.
3. Instructions — assumption of fact in dispute.
Instructions which assume as true a substantially disputed fact are erroneous.
4. Waters — surface waters — rights of lower owner.
A lower proprietor may fend surface waters in a diffused state by any reasonable means which do not result in impeding or obstructing such natural flow or cause it to back up or be impounded upon the lands of the upper proprietor to his greater damage.
5. Waters — limitation upon right of upper owner.
The upper proprietor may not by building an artificial channel cast upon the lower land a greater or more concentrated flow of water than otherwise would have resulted.
6. Waters.
Where the upper proprietor had by artificial means greatly increased or concentrated the flow of water upon the lands of the lower owner, the latter was entitled to build a dam, if reasonably constructed, to fend against the increased flow, and in such case the upper proprietor, being the original wrongdoer, could not complain because the dam caused water to back up on his land, and this remains true even if the lower proprietor could have avoided the damage by constructing a drainage ditch in a particular manner in connection with the dam.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Alcorn County; RAYMOND T. JARVIS, Judge.
Ely B. Mitchell, and Stovall Smith, for appellants.
I. Was the big slough a natural watercourse. Ferris v. Wellborn, 64 Miss. 29; Belzoni Drainage Commission, et al. v. Winn, 98 Miss. 359; 56 Am. Jur., par. 6, p. 495; 27 R.C.L., par. 3, p. 162; 67 C.J., par. 3, p. 676; 160 A.L.R. p. 1134.
II. Did the appellees have a right to build their dam from the high lands on the east to the canal on the west in the fall of 1947. 56 Am. Jur., Sec. 27, p. 517, Sec. 31, p. 110; Board of Supervisors of Quitman County v. Carrier Lumber Co., 103 Miss. 324, 60 So. 326; Leflore County v. Cannon, et al., 81 Miss. 334; Canton A. M. Railroad Co. v. Paine, 19 So. 359; Belzoni Drainage Commission, et al. v. Winn, 98 Miss. 359; Miss. Central Railroad Co. v. Mason, 51 Miss. 234; I.C. Railroad Co. v. Miller, 68 Miss. 760; Thompson Mobile, Jackson Kansas City R. Co., 104 Miss. 651; Miller v. Ervin, et al., 192 Miss. 712.
III. Where two methods of disposing of water are available to the owner of the lower lot each equally efficacious, and neither requiring an unreasonably greater expense than the other, one of which will damage the adjoining property and the other will not, the latter must be adopted by the owner of the lower lot in fending the water therefrom. Holman v. Richardson, 115 Miss. 169; Ala. Miss. R. Co. v. Beard, 93 Miss. 294; Thompson v. M.J.K.C.R. Co., 104 Miss. 651; Miller v. Ervin, et al., 192 Miss. 712; Sinai v. Louisville, N.O. Texas R. Co., 71 Miss. 547; Wm. N. Liles v. Nathan W. Cawthorn, 78 Miss. 559; Canton A. N.R. Co. v. Paine, 19 So. 199; Board of Supervisors v. Carrier Lbr. Co., 103 Miss. 324.
IV. Did the appellants have a right to change the course of the water on their land, when they turned it back into the original watercourse on their own land. 56 Am. Jur., Sec. 14, p. 504; 67 C.J., par. 163, p. 800, par. 172, p. 804; 27 R.C.L., par. 32, p. 1094; Ferris v. Williams, 64 Miss. 29.
V. Argument of the assignments of error. Liles v. Cawthorn, 78 Miss. 559 — Quo. 564; 56 Am. Jur., Sec. 27, p. 217, Sec. 31, p. 520; 27 R.C.L., par. 37, p. 1101; Board of Supervisors v. Carrier Lbr. Co., 103 Miss. 325; Belzoni Drainage Commission, et al. v. Winn, 98 Miss. 359; Miss. Central R. Co. v. Mason, 51 Miss. 234; Illinois Central R. Co. v. Miller, 68 Miss. 760; Thompson v. Mobile, Jackson Kansas City Railroad Co., 104 Miss. 651; Miller v. Ervin, et al., 192 Miss. 712; 56 Am. Jur., par. 14, p. 504, par. 32, p. 522, par. 99, p. 581; 67 C.J., pp. 679-680, par. 163, p. 800, par. 172, p. 804; Bathgate v. Irvine, (Cal.), 77 A.S.R. 158; Stratton v. Mt. Hermon Boys School, 49 L.R.A. (N.S.) p. 57; Cook v. Seaboard Airline R. Co., 10 L.R.A. (N.S.) p. 966; Holman v. Richardson, 115 Miss. 169; Alabama-Mississippi R. Co. v. Beard, 93 Miss. 712; Sinai v. Louisville N.O. Texas R. Co., 71 Miss. 547; Liles v. Cawthorn, 78 Miss. 559; Board of Supervisors v. Carrier Lbr. Co., 103 Miss. 324; 27 R.C.L., p. 1064, pp. 1105-1106, par. 39, p. 1106, Sec. 24, pp. 1108, 1109; N.O. N.E.R. Co. v. Burdette, 183 So. 915.
VI. Contradictory and conflicting charges. 56 Am. Jur., Sec. 4, p. 504; 67 C.J., par. 163, p. 800, par. 172, p. 804; 27 R.C.L., par. 32, p. 1094; Ferris v. Wellborn, 64 Miss. 29; Graham v. Brummett, 182 Miss. 580; 14 R.C.L., Sec. 45, pp. 777-778; House v. Fultz, 3 S. M. 39; Southern Ry. Co. v. Kendrick, 40 Miss. 374; Miss. Central Railroad Co. v. Miller, 40 Miss. 45; I.C.R. Co. v. McCowan, 92 Miss. 603; Godfrey v. Meridian Ry. Light Co., 101 Miss. 565; Ellis v. Ellis, 160 Miss. 345; May v. Culpepper, 177 Miss. 811.
VII. Instructions considered together. L. N.R. Co. v. Cuevas, 162 Miss. 521; Russell v. Williams, 168 Miss. 181; Wallace v. Billups, 203 Miss. 853.
W.C. Sweat, and J.S. Finch, for appellees.
I. Appellants were not entitled to peremptory instruction on liability. Holman v. Richardson, 115 Miss. 169, 76 So. 136; Sinai v. Railway Co., 71 Miss. 547, 14 So. 87; Canton A. N. Co. v. Spain, 19 So. 199; Millard v. Irwin, 192 Miss. 712, 6 So.2d 910; Toler, et al. v. Bear Creek Drainage District, 141 Miss. 851, 106 So. 88; Y. M.V.R. Co. v. Brown, 99 Miss. 88, 54 So. 804; Tuthill v. Scott, 43 Vt. 525, 5 Am. Rep. 301; Pierce v. Kinney, 59 Barb. (N.Y.) 56; Gould on Waters (3rd Ed.), Sec. 204; Liles v. Cawthorn, 78 Miss. 559, 29 So. 834; 39 Am. Jur., Sec. 191, pp. 467-468; 56 Am. Jur., Sec. 14, pp. 504-505.
II. Was the big slough a natural watercourse? Ferris v. Wellborn, 64 Miss. 29, 8 So. 165; Belzoni Drainage Dist., et al. v. Winn, 98 Miss. 359; 56 Am. Jur. Sec. 6, p. 496.
III. Did the appellees have a right to build their dam on the high lands on the east to the canal on the west? Leflore County v. Cannon, 81 Miss. 334, 33 So. 81; Board of Supervisors of Quitman County v. Carrier Lbr. Co., 103 Miss. 324, 60 So. 326; Canton A. N.R.R. Co. v. Paine, 19 So. 199; Belzoni Drainage Commissioners v. Winn, 98 Miss. 359; Chap. 183, Laws 1910; Miss. Central R.R. v. Mason, 51 Miss. 234.
IV. Where two methods of disposing of water are available to the owner of the lower lot each equally efficacious and neither requiring unreasonably greater expense than the other, one of which will damage the adjoining proprietor and the other will not, the latter must be adopted by the owner of the lower lot in fending the water therefrom.
V. Did appellants have a right to change the course of the water on their land when they turned it back into the original watercourse? 56 Am. Jur. Sec. 14, p. 504, Sec. 16, p. 508, Sec. 344, pp. 780-781; 67 C.J., Sec. 172, p. 805; Illinois Central R.R. v. Miller, 68 Miss. 760, 10 So. 61; Kay v. Kirk, (Md.), cited in A.L.R., 35 Am. St. Rep. 409.
VI. Appellants' assignment No. Seven regarding instruction No. Seventeen given appellees.
VII. Appellants' assignment of error No. Six and No. Nine regarding instruction No. Five. Gulfport Miss. Coast Traction Co. v. Raymond, 157 Miss. 439, 128 So. 327; McKay v. Taylor, 2 So.2d 837; Evans Motor Freight Lines v. Fleming, 184 Miss. 808, 185 So. 821; Pearl River Valley R.R. Co. v. Moody, 178 Miss. 1, 171 So. 769; Stephens v. Lock, 156 Miss. 182, 125 So. 529; New Orleans Northeastern R.R. Co. v. Hedgewood, 155 Miss. 184; Kirk v. Kirk, 206 Miss. 668, 40 So.2d 548; Koestler v. Burton, 207 Miss. 40, 41 So.2d 362.
VIII. Appellants' assignment of error No. Ten and No. Eleven based on charges A and D refused. Thrasher v. Gillespie, 52 Miss. 840; Lackey v. St. Louis San Francisco R.R. Co., 102 Miss. 339, 59 So. 97.
IX. Appellants' assignment No. Eight referring to charge No. Seven given for appellees. Cannon Case, 81 Miss. 334, 33 So. 81; Carrier Case, 103 Miss. 324, 60 So. 326; Jones v. George, 126 Miss. 576, 89 So. 321; New Orleans Northeastern R.R. Co. v. Burdette, 183 So. 915; M. O.R.R. v. Tays, 142 Miss. 743, 107 So. 871; Indian Creek Drainage District v. Garrott, 123 Miss. 301, 85 So. 312; Cubbins v. Mississippi River Commission, 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041.
X. Appellants' assignment No. Nineteen, being refusal of charge B requested by appellants. 56 Am. Jur., Sec. 99, p. 581; Jones v. Walker, 44 So.2d 466; Board of Drainage Commissioners of Bolivar County v. Board of Drainage Commissioners of Washington County, 130 Miss. 764, 95 So. 75, 28 A.L.R. 1250; Jones, et al. v. George, et al., 126 Miss. 576, 89 So. 231.
XI. Appellants' assignment of error No. Twenty-Four alleging that the court erred in overruling a motion of appellants for a new trial.
XII. Appellant contends that charge No. Six, given for the appellants, and charge No. Seventeen, given for the appellees, were contradictory.
XIII. Was there conflict in instruction No. Three, given for the appellees. Lamar v. Williams, 39 Miss. 342; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; City of Meridian v. King, 194 Miss. 162, 11 So.2d 205; Hunt v. Sherrell, 195 Miss. 688, 15 So.2d 426.
XIV. Does instruction No. Fourteen given for appellants conflict with instructions No. Twelve and No. Nineteen given for appellees? Russell v. Williams, 168 Miss. 181, 150 So. 528.
XV. The instructions given for appellants and appellees when read together as one completed whole, each supplementing or modifying another, correctly stated the applicable law of the case to the jury. Haynes Walker Lbr. Co. v. Hankins, 141 Miss. 55, 105 So. 858; Bass v. Burnett, 151 Miss. 852, 119 So. 827; Gibson v. Wineman Son, 141 Miss. 573, 106 So. 826; Mutual Life Ins. Co. v. Vaughan, 125 Miss. 369, 88 So. 11; Gilmer v. Gunter, 46 So.2d 477; New Orleans Northeastern R.R. Co. v. Bolivar, 44 So.2d 527; John Mansville Products Co. v. Cather, 208 Miss. 268, 44 So.2d 405; Teche Lines v. Keller, 174 Miss. 527, 165 So. 303.
The action is in tort for the recovery of damages to land and crops allegedly caused by the wrongful act of the appellees in constructing a dam across their lands whereby the adjacent lands of appellants were flooded. From a verdict and judgment for the defendants, this appeal is taken.
From a voluminous record the following facts may be gleaned. Appellants own lands lying south of that of appellees and the trend of drainage is generally northward. The area in which all these lands are located is served by the Tuscumbia Canal which was constructed along the general course of the Tuscumbia River in Alcorn County. This canal, which flows northward, is intersected at several points by cross ditches, one of which, known as Hinkle Canal, drains northwestwardly into the Tuscumbia Canal on its west side. One count of the declaration is based upon the claim that appellees had unnecessarily dug another canal south of the Hinkle Canal, thereby so accelerating the floodwaters on the west side as to cause the water to cross the canal and overflow plaintiffs' lands.
The dam, which was built by appellees, was about thirty-five feet at its base and approximately seven feet high. It was constructed upon the south side of appellees' lands just north of the line between the parties. It ran from the Tuscumbia Canal on the west and extended east for a considerable distance near the north line of appellants' lands. Its course intersected a slough in crossing which no bridge was built, but there was laid a four-inch tile drain to take care of such water as may collect in this slough.
An important factor in the picture is a stream or natural watercourse which came out of the hills to the southeast of the Palmer lands, and which formerly had been drained across the lands westwardly into the Tuscumbia Canal. This was sought to be accomplished first by a ditch which was found to be partly on the Massengill land. A second was constructed which, like the first, drained into the canal. There is a dispute whether the drainage from these ditches went into the slough or into the canal. A third so-called dragline ditch was cut by appellants which eliminated a sudden deviation of the course of the stream southwestward and projected its flow in a more direct line. This dragline ditch was about 950 feet long. It was not extended to the canal and there is a factual issue whether it extended to the bed of the slough or was left open at its west end, thereby casting its flow upon the surface of the land and overflowing the land of the appellees. On this issue there was testimony that it was extended to the slough by an inconsequential continuation constructed by hand. Appellees testified that the waters were cast at large upon the surface of the Palmer land just north of the Massengill tract, and that the latter built the dam to fend off these vagrant waters.
The slough followed a course generally northward, and the issue whether it was a natural watercourse was sharply conflicting. We need not detail the evidence supporting the respective contentions. The issue was important, however, inasmuch as its identity as a natural watercourse would require the application of established legal principles. The course of the slough was north and practically parallel with the canal and at right angles to the dragline ditch and the dam.
The dam impounded floodwaters to a depth of about seven feet. It gave way in several places and was rebuilt. In its construction a ditch or borrow pit was dug along its north side. Appellants contend that this ditch could have been as easily and economically placed upon its south or upper side, thereby draining all the waters on the Palmer land, including any caused by the dragline ditch, into the canal, and that, therefore, it was the duty of appellees to so construct it as to minimize the damage to them.
The assignments of error are directed chiefly to the giving and refusing of instructions which purported to inform the jury of the respective rights and duties of the parties.
We examine first the instructions dealing with the slough as a natural watercourse. If it is such, (Hn 1) it may not be destroyed or altered to the damage of the upper owner. Liles v. Cawthorn, 78 Miss. 559, 29 So. 834; Ferris v. Wellborn, 64 Miss. 29, 8 So. 165; Board of Supervisors of Quitman County v. Carrier Lbr. Co., 103 Miss. 324, 60 So. 326. (Hn 2) A natural watercourse is one which has a well defined bed and banks of varying width and depth, through which water is conveyed and discharged into some substantial reservoir or body of water. Ferris v. Wellborn, supra; Belzoni Drainage Commission v. Winn, 98 Miss. 359, 53 So. 778. It is not necessary that there be a continual flow.
With these principles in mind as well as the fact of a conflict in testimony on the point, we quote the following instruction: "The Court instructs the Jury for the Defendants that unless the old slough has a continuous channel, well defined, and well defined banks from Plaintiffs' land to Tuscumbia Canal, it is not a natural watercourse." The objection is that it restricts the requirement that it must ultimately empty into some body of water. Yet, the answer filed by the appellant alleged that this slough does drain into this canal. Moreover, a witness for appellant stated this to be a fact. There was no contention that it emptied into any other body of water. The assignment is not well taken.
(Hn 3) There was no error in refusing instruction number eight requested by the appellants, since it assumed that the slough was a natural watercourse.
Instruction number five requested by appellants is as follows: "The Court instructs the jury for the Plaintiffs that the Defendants had no legal right to construct a dam on the south side of their land adjoining the north boundary line of the Plaintiffs' land so as to throw the water back on the land of the Plaintiffs." It was properly refused since it is peremptory in its assumptions that the slough was a natural watercourse which could not legally be obstructed, and that there was no authority for, but negligence in, the construction of the dam.
Other instructions properly presented the factual issue whether the dam was reasonably and not negligently constructed, and whether the placing of a four-inch tile where it crossed the bed of the slough was reasonable.
The following considerations lead to the conclusion that the instructions given to both parties substantially informed the jury as to the applicable legal principles, and that the charges refused to the appellants were inapplicable or covered by those given.
In Holman v. Richardson, 115 Miss. 169, 76 So. 136, L.R.A. 1917F, 942 and Steed v. Kimbrough, 197 Miss. 430, 19 So.2d 925, we have held that (Hn 4) a lower proprietor may fend surface waters in a diffused state by any reasonable means which do not result in impeding or obstructing such natural flow or cause it to back up or be impounded upon the lands of the upper proprietor to his greater damage. The Holman case dealt only with damage by surface waters, and the Steed case reannounces the principle that (Hn 5) one in the position of appellants may not, by building an artificial channel, cast upon one in the position of appellees a greater or more concentrated flow than would otherwise have resulted. Whether and to what extent in the instant case the dam impounded vagrant surface waters is not shown. The jury was amply justified in its finding that there was a greatly increased flow cast upon the surface and onto the lands of appellees by the digging of the dragline ditch by appellants.
(Hn 6) There remains the inquiry whether the jury were authorized to resolve the issues as to the reasonableness of the construction of the dam as a defense against an artificially accelerated flow cast upon the lands of the appellees by the appellants.
If the damage was caused by the building of the dam to fend waters cast upon appellees by the dragline ditch, the only remaining issue of fact is whether it was reasonably constructed. If such was found to be the case, there was no duty upon appellees to serve the interest of appellants by giving to them a drainage ditch to protect them against the consequences of a wrong committed by them. In this connection, there was a dispute whether appellees offered to place the ditch on the south side of the dam if appellees would share the expense. The instructions properly submitted the right of appellees to protect their lands by a dam reasonably built in order to fend an increased flow resulting from the diversion of a natural watercourse. As stated in the early case of Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424: "If it be apparent that the dam or embankment has increased the quantity of water which may flow or stand upon the roads or lanes referred to in the original bill, and that it is of peculiar injury to the complainants, they are not now in a condition to complain of it. They are the original wrongdoers, and the injury is one of the results of their wrongful act in flooding the lands of the defendant." See also Farnham, Waters and Water Rights, Sec. 887, page 2579. This is not a case involving the duty of a lower proprietor to select a method of defense most favorable to the upper owner. Compare Board of Drainage Commissioners, etc., v. Board of Drainage Commissioners. et., 130 Miss. 764, 95 So. 75, 28 A.L.R. 1250, and Toler v. Bear Creek Drainage District, 141 Miss. 851, 106 So. 88. The latter case, as well as Holman v. Richardson, supra, dealt chiefly with surface waters. The instructions, as well as our discussion, relate in like manner to both counts of the declaration.
We have examined all the assignments and find that the issues were not improperly submitted to the jury and that its verdict is supported by the testimony.
Affirmed.
Roberds, P.J., and Hall, Holmes and Arrington, JJ., concur.