Rehfuss v. Weeks

BEAN, J. 1. A defendant can be required to elect on which of several defenses he will rely only where the facts stated as such defenses are so inconsistent that if' the truth of one defense be admitted, it will necessarily disprove the other: Snodgrass v. Andross, 19 Or. 236 (23 Pac. 969); Farmers’ National Bank v. Hunter, 35 Or. 188 (57 Pac. 424); Fleishman v. Meyer, 46 Or. 267 (80 Pac. 209); Susznik v. Alger Logging Co., 76 Or. 189 (147 Pac. 922, Ann. Cas. 1917C, 700). — 29 — This rule of law is well settled in this state and it only remains to apply it. It will be noticed that the defendant pleaded in effect that from time immemorial there existed a natural outlet to the basin referred to, and that in ancient times a ditch was constructed along the natural depression which served as a drain for a large portion of country lying on either side thereof; that the predecessors in interest of plaintiff have acquiesced in the manner of so draining the surrounding lands for more than twenty years. 2. It might be true that there was such a natural outlet of the basin in question. It might also be true that the natural depression or outlet was changed and lowered by the construction of the ditch as alleged; therefore, it does not follow that if one state of facts pleaded by defendant is true, the other is false. We see no inconsistency in the two statements. The ruling of the trial court denying the motion to elect was correct. Testimony was introduced upon the respective sides tending in a measure, at least, to support the contention of the respective parties. At the close of the evidence, plaintiff requested the court to instruct the jury as follows: “It is a rule of law that water cannot be discharged, by one person upon the property of another, without his consent and to his injury by artificial means, in greater quantities than that in which it would naturally flow. Therefore, if you should find that the defendant therein has, by artificial means, increased the flow of water over that which would naturally flow over the property of the plaintiff, to his injury and without his consent, you should find for the plaintiff.” The plaintiff complains of the refusal of the trial court to so charge the jury. The trial court plainly — 30 — and in detail stated the issues to the jury, and instructed them to determine whether or not the course in which the waters were directed by defendant was a natural course, and charged in substance as follows: “The position of the defendant is that there was a natural watercourse over the property in question through which the drainage which is shown to have taken place was caused to flow; and it is the law, gentlemen of the jury, that one upon whose property there is such a basin containing water of this character may drain the same through a natural watercourse, if one is there, and may, in the course of the drainage, reasonably increase or accelerate the flow of the watercourse, but cannot rightfully increase the quantity or amount of the water within the natural basin in making the drainage. “One may not by artificial means collect water upon his property and discharge it upon the property of another to his injury; nor may one by artificial means other than through a natural watercourse cause water to flow out and upon the lands of another to the other’s injury; and if you find from a consideration and comparison of the evidence in the case, that there was not a natural watercourse over this property in which the water has been caused to flow by the defendant, and you find that the flowage of water thus caused by the defendant to have been the cause of damage, * * to the plaintiff, as alleged in the complaint, your verdict •should be for the plaintiff. “You are instructed that defendant, in leveling or improving his property, had a legal right to cause an accumulation or diversion of surface water with the corresponding right to pause said water to flow down on the land of plaintiff, without liability, providing that the surface water' collected in the basin on defendant’s real property followed the way or course provided by nature and any increase in the flowage of such way or course provided by nature, if such increase has been shown, was a reasonable increase.” — 31 — Over the objection and exception of plaintiff, the court in effect charged the jury that, as a matter of law, defendant Weeks had a right to expel surface waters which naturally accumulated on his premises, upon the land of an adjoining proprietor without subjecting himself to liability, but in no case can a land owner collect the surplus waters upon his lands into a basin by artificial methods and then discharge the water through a ditch upon the lands of another unless such lands form the natural drainage of such waters. 3. It seems that the requested instruction was thoroughly covered and explained by the charge as given by the court to the jury, and that the case was properly submitted to the jury; therefore, the plaintiff has no reason to complain in this respect. 4. Plaintiff requested the court to charge the jury as to the law relating to the defendant’s changing the natural course of the water from one place" to another and restoring the same to its original channel "within the confines of his own land, and assigns error of the court in refusing to instruct so. We find no issue raised in the case to which such an instruction would apply. The plaintiff complains of the defendant’s digging a ditch and thereby causing water to flow to a place from which it will percolate or flow to his land. He makes no complaint of changing the course of a natural stream. There was no error in refusing the request. The charge to the jury taken as a whole, we think is correct. It is entirely fair to plaintiff. 5. It is a matter of common knowledge that small natural streams are straightened and deepened so as to confine the waters thereof within a smaller compass, thereby increasing the tillable ■ land. When this is — 32 — done in a manner so as not to increase the amount, or change the place of the discharge of such water on to a neighbor’s land, that neighbor has no cause for complaint. 6. Plaintiff also requested the court to instruct that— If they found “that the defendant did cast water from his property which did permeate the surrounding soil and percolate through the same into and permanently injuring the land of the plaintiff, you should find for the plaintiff.” 7. The requested instruction ignores the rule as to surface water. A portion of the water in question appears to come within such designation. The defendant as a land owner, had the right to turn or expel upon the land of an adjacent owner, surface water that would naturally flow there, and in such quantities as would naturally drain in such direction, without liability for damages: Whitney v. Willamette Ry. Co., 23 Or. 188 (31 Pac. 472); Davis v. Fry, 14 Okl. 340 (78 Pac. 180, 2 Ann. Cas. 193, 69 L. R. A. 460); 5 M. A. L., § 469, p. 354. The owner o^ upper lands is not prohibited by the rule from cultivating his lands or draining them by artificial ditches, though surface water is thereby precipitated more rapidly upon the lands of the adjacent owner-below, provided he does not cause water to flow on such lands which, but for the artificial ditches, would have flowed in a different direction, and provided he acts with a prudent regard for the interests of such adjacent owner: 30 Am. & Eng. Enc. of Law (2 ed.), 337; Angell on Watercourses (6 ed.), p. 122 et seq.; Anderson v. Henderson, 124 Ill. 164, 170 (16 N. E. 232); Wood v. Moulton, 146 Cal. 317 (80 Pac. 92); Shaw v. Ward, 131 Wis. 646 (111 N. W. 671, 11 — 33 — Ann. Cas. 1139). In the latter report the syllabus is as follows: “A land owner has the right to protect his premises from surface waters by causing the same to flow by the natural and necessary course to adjoining lands, subject to the limitation that he cannot rightfully collect surface waters on his premises in a reservoir and then discharge the same on to the land of another to his injury. “A person on whose land surface water coming from his own and other lands collects in a natural basin or depression and there remains except in seasons of drought, has the legal right to rid his land of the water by causing the same, by such means as may be reasonably necessary, to flow in the natural course of drainage on to adjoining lands, though the water may from thence, by natural or artificial means for which he is not responsible, reach and spread out over the lands of others. In such a case the land owner effecting the drainage of his land by means of a ditch is only in the exercise of the right of every person to defend his premises against surface water, and for consequential damages to other land owners the latter have no remedy against the former.” Plaintiff complains of instructions in regard to the defendant’s counterclaim for damages. In view of the fact that no damages were awarded the defendant, it is unnecessary to consider this question. Other errors are assigned which we have examined and find to be without merit. The question involved in this case was largely one of fact. It was carefully and plainly submitted to the jury by the trial court according to the principles of law. Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.