Farris v. Dudley

SOMERVILLE, J. The bill in this case .was filed by the complainant, Dudley, for the purpose of abating an alleged nuisance, consisting in a levee or earthen embankment erected by the defendants, Farris & McCurdy, upon their own lands, in such manner as to cause the waters of a large creek to overflow the lands of the complainant, to his detriment. The bill seeks also, incidentally, to recover damages caused by such overflow to the lands and crops of complainant. . The case, in our judgment, depends upon two well settled principles of law, as to which there can be no serious controversy in this State since the deliverance of this court in the ease of Nininger v. Norwood, 72 Ala. 277. The first of these principles is, that the owner of higher ground has a legal and natural servitude upon all lower estates, by which he is entitled to have discharged all surface-water, or running streams, from the higher upon ' the lower estate, and the owner of the lower estate has no lawful right to obstruct the natural flow of such water, to the serious in jury of the superior proprietor. The only recognized exception to this rule is said to be in the case of buildings erected upon city or village lots. — Nininger v. Norwood, supra; Crabtree v. Baker, 75 Ala. 91; Hughes v. Anderson, 68 Ala. 280 ; Wood on Nuisances (2d Ed.), pp. 440, 446, 456. [127] The second principle is strictly analogous, and applies to ordinary water-courses, without regard to any question of the superior altitude of one adjacent estate to that of another. This rule is, that a riparian proprietor, whether he be the owner of one or both banks of a running stream of water, has no lawful right to build any obstruction which, in times of ordinary flood, will operate to throw the waters of such stream upon the lands of another proprietor, so as to overflow and damage 'them. Nininger v. Norwood, supra; Gerrish v. Clough, 48 N. H. 9 ; s. c., 2 Amer. Rep. 164; 2 Kent’s Com. 439. The whole law of nuisances rests upon the maxim of the common law, Bio utere tuo ut Icedas non alienum — every man must so use his own property as not to injure that of his neighbor. So, the whole law of water-courses is founded on the maxim, Agua currit, et ourrere debet — water naturally runs, and must be allowed to run in its natural course. As said in Butler v. Peak, 16 Ohio St. 334, “where two parcels of land, belonging to different owners, lie adjacent to each other, and one parcel lies lower than the other, the lower one owes a servitude to the upper, to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitude ;” or, as otherwise expressed in the same case, “ the owner of the upper parcel of land has a natural easement in the lower parcel, to the extent of the natural flow of water from the upper parcel to and upon the.lower.” This is in accordance with the established rule in England, and with the weight of American authority, and, as said by this court in Nininger v. Norwood, 72 Ala. 283, supra, “ any interference with, or obstruction of the servitude by the lower owner, to the injury of the owner of the dominant estate, subjects him to liability for the resulting damages.” Wood on Nuisances (2d. Ed.), p.454,§396. It is said by Mr. Angelí in his treatise on Water-Courses, § 333, that a riparian proprietor “has no right to build anything which, in times of flood, will throw the waters on the grounds of another proprietor, so as to overflow and injure them.” So, in like manner, as observed by Mr. Wood, “the owner of a servient heritage has no right, by embankments, or other'artificial means, to stop the natural flow of the surface-water from the dominant heritage, and thus throw it back upon the latter,” — Wood on Nuisances, p. 453, §394; Gould on Waters', §§ 209, et seg. The rule as to surface-water- and running streams is essentially the same — the two classes of cases being dependent upon identical principles, at least according to the rule of the civil law, which had been established in this State. In Nininger v. Norwood, 72 Ala. 277, supra, adhering to these principles, we sustained a bill filed to abate as a nuisance certain levees or embankments, which had been erected on the [128] lands of defendant, so as to cause the waters of a creek to flow over and flood the land of the complainant, during certain periods of heavy rains, rendering such lands less fit for cultivation, and otherwise injuring them. Incidental damages were also allowed, upon an issue submitted for determination by a jui-y. In Wallace v. Drew, 57 Barb. (N. Y.) 413, it was decided that a riparian owner, who constructed embankments upon his own land, in order to prevent the water of ordinary floods washing the bank and overflowing his lands, was liable for damages caused by the waters of the creek being made to flow upon the lands of the plaintiff, in a manner and volume they were not previously accustomed to flow. And in Gerrish v. Clough, 48 N. H. 9 (s. c., 2 Amer. Rep. 165), a defendant was likewise held liable, who, owning land on one side of the Merrimac River, constructed a break-water to prevent the water from enroaching upon his land, and which operated to throw the current upon and wash away the lands of the plaintiff on the opposite shore. The lands pf the defendants in this case are shown to lie on both sides of Big Swamp creek, in Lowndes county in this State, but being chiefly situated on the east side. The lands of the complainant lie adjacent on the west side of the same stream. These lands are partly swamp, and partly arable, and portions of them are subject to periodical overflow in times of ordinary freshets. The testimony satisfies us that the arable lands of the complainant, Dudley, are higher than the adjacent lands of the defendants, and that the natural course of this creek, in periods of overflow, is northward from its junction with Ash creek, over the lands of both parties in section 29 and 30, but flooding several hundred acres more of defendants’ arable lands than of complainant’s, and largely more of their unarable swamps lands. We are satisfactorily convinced, moreover, from the testimony, that the construction of the levee in question by the defendants has tended to divert the waters of Big Swamp creek from their natural course, so as to throw their current towards the north-west, and in such manner as to materially increase both the depth and the area of the overflow upon complainant’s land in times of ordinary freshets. The inference from the evidence is fair, that the area of overflow has been at least doubled, and the level of the water raised to a height greater by from one to two feet than before the erection of the levee. It is true that the defendants have reclaimed for themselves more land than they have been instrumental in submerging periodically for the complainant. But this is, in our judgment, no excuse for their wrongful act. The law requires of them that, in reclaiming their own land, they should not have seriously injured their neighbor. They have no [129] right to maintain the obstruction, because it works irreparable hurt, inconvenience, and damage to an adjacent proprietor, whose estate they are not permitted to destroy that they may benefit themselves. — Wood on Nuisances, p. 373. It is a fair inference from the testimony in the cause, that the damage shown to be suffered by the complainant is irreparable without a vast expenditure of money by him, and without himself being guilty of erecting an obstruction which a court of equity would probably be compelled to declare a nuisance as against one Bobinson, who is an adjacent proprietor, owning lands above those of complainant on the west side of the creek in section 30. The decree of the chancellor is correct, in so far as it requires the abatement of the alleged nuisance. But it is erroneous in failing to determine the question of damages, which could have been done either by the chancellor himself, or by reference to the register for report, or else it could have been submitted to the determination of the jury. We find nothing in the case of Hughes v. Anderson, 68 Ala. 280, or of Crabtree v. Baker, 75 Ala. 91, which conflicts with the foregoing principles. We fully recognize the principle, that all questions arising under these rules should be weighed and decided with a proper reference to the value and necessity of the improvement to the superior heritage, contrasted with the injury to the inferior; “a license which,” it was said by Stone, L, in the first mentioned of the above cases, “ must be conceded with great caution and prudence.” The alleged variance between the description of the levee as contained in the bill, and that established by the proof, does not seem to us to be material. The chief, if not the only purpose, of the rule requiring certainty in description, is identity. The one proved to have been erected is shown to extend from section 33, through section 32, and partly through section 29, for nearly two miles on the east side of the creek, and about parallel with its channel. The alleged variance lies in the averment of the bill, that this levee extends as far north as section 20, which is adjacent to section 29. It affects, therefore, merely the question of its ■ length; and this, under the facts of the case, is not fatal as a matter of identification. The levee described can not be confounded by the court with any other shown to exist, nor could the defendants, as it seems to us, have been misled by it. The decree must be reversed, and the cause remanded, on the cross-appeal taken by Dudley. The costs of the appeal, in this court, and in the court below, will be taxed against the appellants, Farris & McCurdy. Clopton, J., not sitting. [130] Note by Reporter. — On a subsequent day of the term, in response to an application by appellants’ counsel for a rehearing, and for a modification of the opinion, the following opinion was delivered: SOMERVILLE, J. Upon application for a rehearing, we are satisfied that exact justice between the parties litigant in this cause requires the opinion to be modified. We hold, accordingly, that the complainant is entitled to have the levee in question declared a nuisance, and subject as such to abatement, so far only as to obviate the continuance of such nuisance, and of the damage which may result from it. The complainant has a right to be placed practically in statu quo, so far as his lands are affected by the increased overflow of Big Swamp creek and its tributaries, which may be produced by the construction of the levee. It not appearing, however, from the testimony in the record, to what extent this abatement is necessary, or how much and what particular portions of the levee should be demolished in order to accomplish the desired result, the cause will be remanded, in order that the chancellor may direct a reference to the register, to take testimony and report to the court his conclusions on this matter of reference, in connection with the subject of damages already occasioned by such overflow. The investigations of the register will be confined alone to these particular points of inquiry. The decree of the chancellor was erroneous, and will be reversed and the cause remanded, that the reference may be made to the register for the purposes specified. The costs of appeal in this court and the court below will be equally divided between the parties.