Roberts v. Vest

SHATÍPE, J. To protect a land-owner against constant or frequently recurring injuries from the wrongful diversion of water, equity has jurisdiction concurrent with courts of law, and will enjoin the wrongdoer without regard to his ability to respond in damages since a single action at law would not furnish an adequate remedy and a multiplicity of suits can be avoided by proceeding in chancery.—Nininger v. Norwood, 72 Ala. 277; Farris & McCurdy v. Dudley, 78 Ala. 124; Beach on Inj., § 1113; Pomeroy Eq. Jur., § 1350, and note; Stevens v. Stevens, 11 Metc. 248; 45 Am. Dec. 203. When for such purpose jurisdiction has been assumed in equity, the court, to settle the whole controversy, will ascertain and award damages to the injured party.—Farris & McCurdy v. Dudley, supra; Beach on Inj., §1400;Cedar Lake etc. Co. v. Cedar Creek Co., 79 Wis. 297; Stadler v. Grieben, 61 Wis. 500. The present bill was brought by its allegations well within those principles and was not subject to the demurrer. The substantive law of the case is contained in a single maxim which, expressed in English, is: “Water [360] runs, and ought to run as it was accustomed to run.” From the proof it appears that the complainant is in possession of a tract of land, having bought it in 1897, from one Breedlove. While Breedlove owned the land, the defendant, who owned an adjoining and higher tract, cut a ditch heading within a few yards of Neal’s-Creek, a natural stream, and leading to another ditch .which ran across the Breedlove tract. For several years the defendant’s ditch served him for sipe wate^ and surface drainage, and it was made and emptied into Breedlove’s ditch, with Breedlove's oral consent, but it is not shown that Breedlove ever consented that the water of Neal’s Creek might be turned into it. Less than ten years before the bill was filed a connection was formed between the creek and the head of defendant’s ditch, since when, from the flow of water, together with occasional clearings by the defendant, the ditch in its whole length has increased to more than double its original capacity and now carries about half the water, which had formerly run in the creek, to and upon the complainant’s land, causing his ditch, field and crops to he frequently overflowed. By what means the creek water first found its way across the space between the ditch and the creek does not clearly appear. .There is evidence tending to -show that the defendant desired to empty the creek of part of its water, and that a depression was spaded- across by him, but he denies this, and says he only kept the ditch cleaned out, and that he used a roadway across the space in question until water overflowing from the creek formed the connecting channel. In this the defendant’s testimony is not without corroboration, but we think it not essential to find the precise means which led to the diversion. If the ground was lowered by attrition from travel over the road maintained by the defendant, or from other use or act of his, ulterior to the purpose of such diversion, apart from the question of punitive damages, the defendant is liable for the result as if it had been intended. The fact that [361] the ditch was maintained for several years without the-invasion of creek water goes far to show that the diversion was from some adventitious cause, and not from any natural formation of the ground. The proof is convincing that the defendant has assisted the flow of creek water by keeping the ditch and the connecting channel cleared of sediment and of growths which might have retarded the water, and by placing a log-which had fallen into the creek so as to divide the stream and cause it to run partly in the old and partly in the new channel. Upon the whole evidence we are satisfied that the-chancellor did not err in the conclusion that the defendant is responsible for the unnatural servitude to which the complainant’s land has been subjected, and that such rights as he may have acquired hy user, whether adverse or permissive, are confined to drainage of surface and sipe water, according to the original plan. The defendant having acquired no easement or other right to discharge creek water on the complainant’s-land, the complainant did not take the land burdened with the rightful existence of such servitude, and notwithstanding the cause of his injury, was put in operation before his purchase, yet each recurring overflow of his land is a fresh nuisance in respect of which the-complainant has the same right his vendor would have-had if he had retained ownership of the land.—Mayor etc. of Troy v. Coleman, 58 Ala. 570; O’ Brien v. The City of St. Paul, 18 Minn. 176; Craig v. Lewis, 110 Mass. 377; Cobb v. Fisher, 121 Mass. 169; Stevens v. Stevens, supra. Let the decree be affirmed at appellant’s cost.