Nelson v. Wirthele

Letton, J. The plaintiff and defendant are owners of adjoining tracts of land. This controversy arises from the fact that in the spring of 1907 the defendant contemplated damming a drainage channel, partly natural and partly artificial, but upon his own land, and digging a ditch from the point of obstruction in such a manner that the water would be diverted from its former channel and cast upon the lands of plaintiff. The work had been begun and partly completed when this action was begun. The petition contains the usual allegations as to irreparable damage and lack of adequate remedy at law, and prays for an injunction to restrain the construction and maintenance of the dam and ditch by which the waters might be diverted. The answer was a general denial. The court found for the plaintiff and granted a permanent injunction. Defendant has appealed. The questions involved in the appeal are purely questions of fact. __ It is conceded that the defendant contemplated and had begun the construction of the dam and [596] ditch and the diversion of the water. The real matters in controversy are as to whether the proposed ditch would cast the diverted waters upon the plaintiff’s land, or whether, as the defendant maintains, the waters would not reach plaintiff’s premises but be earned thereby over defendant’s land and into a ditch upon the right of way of the Missouri Pacific Railway; and, also, whether or not the construction of the contemplated dam and ditch had been abandoned and matters restored to their original condition by the demolition of the dam and the filling of the new ditch before this action was commenced. As to both of these questions there is a sharp conflict in the testimony. After considering the relations existing between the different witnesses and the probable interest which each may have in the result of the suit, we are inclined to take the same view'of the evidence as did the district court and to find that the execution of defendant’s plan would have caused such damage to plaintiff’s property as to warrant an injunction. The same considerations apply to the evidence upon the question whether the proposed enterprise was abandoned before the beginning of the suit. It is unnecessary to set out the evidence at length. We are satisfied that it warrants granting the relief prayed. The judgment of the district court is Affirmed.