Warfel v. Cochran

The opinion of the court was delivered by Lowrie, C. J. We do not discuss the question of fact relative to the natural course of this brook, because that does not seem to us to be material. The question is, how may the public authorities dispose of the brook, in relation to the road. No lapse of time can absolutely fix a given course for it, as a servitude or encumbrance on the public rights of highway. However long it may have crossed the road in a given manner, it may be changed to meet the demands of public convenience. That it has run in one channel for ten or twenty years, may be evidence that that is its best course; but it may, on the other hand, afford the proof of experience that it is not so. Road commissioiiers, or supervi [384] sors, ought not to change the drainage of the country to the injury of any one, whether the existing form of it be new or old, unless the public rights really require it. If they do so with recklessness, partiality, or malice, it is but just that they should answer for it. This bill charges the defendants with intending and beginning to change the usual course of this brook, in order to oppress and injure the plaintiff, by throwing the water back upon his land. The defendants deny this entirely, and aver that it is necessary to make the change, because the brook, in its old course, had so washed out the road as to make it • dangerous, and that they intended to convey the water along and on the east, instead of the west side of the road, and then across it by a culvert, at the crossroad close by, and back into its old channel; and that their plan could be carried out without any injury to the plaintiff. We do not discover anything unlawful in the intention of the road commissioners. Possibly, their plan is impracticable, but we have no evidence of it. We must presume the work is needed, until the contrary is proved. It may occasion some injury to the plaintiff, during its execution, by reason of some unavoidable necessity, or for want of care and skill in those employed about it, but this will not justify an injunction to stop it. The road commissioners are intrusted with the jurisdiction of such matters, and are to decide both upon the need of such work, and upon the mode of doing it; and we are not clear, that we ought, in any case, to control them by injunction, where they have authority to act. In this case, certainly, the plaintiff has shown no equity entitling him to the relief prayed for. Decree of the Common Pleas reversed, and it is now here adjudged and decreed, that the plaintiff’s bill be dismissed, with costs to the defendants; and the cause is remitted to the Common Pleas for execution.