Meixell v. Morgan

Opinion by Mb. Chief Justice Paxson, This was an action of trespass by the owner of the servient tenement against the owner of the dominant, to recover damages for collecting all the waters which would pass from the dominant to the servient, to one spot, by artificial underdrains, and discharging them there. Upon the trial below, the court was requested by the plaintiff’s second and fifth points, to instruct the jury that if they believe that underdrains were made and concentrated to one point, that said underdrains discharged a larger quantity of water at that point than by surface discharge would naturally flow, -the plaintiff is entitled to recover; and that it makes no difference in such case whether there was a ditch at that point of the discharge or not. The court refused these points, and for further answer referred to the answer to plaintiff’s first point. It is therefore necessary to examine the first point, and the answer thereto, in order to ascertain whether the jury were property instructed. The first point is as follows: “ That while the Meixell land is bound to receive all the surface water from Morgan’s land, which would naturally go that way by the inclination of the land, and all the water that may be led by superficial cultivation, that a different principle obtains in cases of artificial, concealed or mole drains; that Morgan cannot concentrate all the water bjr underground drains and discharge them at one point. “ Answer.: Refused as put. The defendant had a right to lay an artificial drain on his land to carry off the ordinary rainfall and discharge the water at one point, if the jury find that point was the natural watershed for both tracts of land, and further find that there was an open ditch on the plaintiff’s land into which the waters from the defendant’s land naturally descended, and further find that the water from the drains did not materially increase the flow of water upon the defendant’s land and work injury to him. If the point of discharge of the defendant’s drains was not the natural outlet for the water [418] from the defendant’s land over that of the plaintiff, and there was no ditch at the point of discharge on the plaintiff’s land to receive and carry off the water, and the defendant collected the water on his own land by underdrains, and discharged it on the plaintiff’s land in greater volume than it would naturally flow there, and thereby injured the plaintiff, then we affirm the point, and plaintiff can recover.” This ruling was as favorable to the plaintiff as he had any right to expect. It is settled law that, “ for the sake of agriculture, a man may drain his ground which is too moist, and discharging the water according to its natural channel, may cover up and conceal the drains through his lands; may use running streams to irrigate his fields, though he thereby diminishes, not unreasonably, the supply of his neighbor below; and may clear out impediments in the natural channel of his streams, though the flow of water on his neighbor’s land be thereby increased : ” Kauffman v. Griesemer, 26 Pa. 407; Penna. Coal Co. v. Sanderson, 113 Pa. 126. If it were the law, that under no circumstances could the flow of water from the dominant to the servient tenement be increased, it would seriously iriterfere with agricultural and mining operations. The very act of draining land necessarily increases the flow of water, whether such drainage is caused by open ditches or underground tiles. In doing so, however, care must be taken not to cause unnecessary injury to the owner of the servient tenement. The water must not be diverted from its natural channel by the opening of new or different channels. Judgment affirmed.