Robertson v. Daviess Gravel Road Co.

Opinion op the cotjet by JUDGE O’REAR iAppiemino. Appellant is the owner of a tract of land lying adjacent to appellee’s gravel road near Owensboro. Tbe land in that immediate neighborhood is low, and nearly level, but it lays so that its surface drainage is naturally toward the gravel road. More than 15 years before this suit her land and other lands lying back of it were drained by a ditch through her land, which emptied into another ditch running alongside the road. She alleges that before appellee acquired the road, and while it was operated as a public highway by Daviess county, the county kept the latter ditch open so as to accommodate the water1 drawn off by her ditch. Her complaint then continues: “Plaintiff states that defendant has reconstructed said road in front of her land, and has raised the roadbed to a higher grade than the grade which was maintained and existed while the same was in control of Daviess county as a public road, so as to render it impossible for the water falling on her and the Hathaway lands' and flowing into her ditch above mentioned to drain over said road [916] as reconstructed by defendant, and so as to cut off all escape for the water thus accumulating in her said ditch, except as the defendant might have opened and kept open at all times a sufficient ditch running parallel with its said reconstructed road of sufficient width and depth to have carried off said water. This the defendant could have done. . . . That within the last five years the defendant! has failed and refused to construct, keep, or maintain along or across its said road in front of her land any drainage sufficient to carry off and discharge the accumulations of water in her ditch above mentioned, which flows to and against defendant’s said road, but, instead of doing this, as it was its duty to do, it wrongfully, unlawfully and against plaintiff’s protest suffered and permitted such inadequate drainage as exists along its roadway to become filled up and so obstructed as to capse the water flowing in time of rains from her own and said Hathaway land to overflow her ditch above mentioned, and to back up so as to overflow her house, yard,” etc. A demurrer was sustained to appellant’s petition, and it was dismissed. Although appellant was entitled to have the natural drainage of the surface water from her land and the lands lying back and above it to flow off and over appellee’s land, as was held by this court in Stith v. L. &. N. R. R. Co., 109 Ky. 174; 22 R. 653; 58 S. W. 600, this right did not extend further than to burden the lower estate with the .surface water of the upper as nature had done it. Appellant’s contention is that she has the right to collect not only the surface water from her own land, but that from adjacent land which would otherwise flow over hers, into an artificial channel, and then to thereby carry it in its accumulated quantity and accelerated force and cast it all upon the lower land of appellee at one point, requiring appellee to there receive it, and to provide for its subsequent disposal so that it would not damage her property. [917] The only authority cited in support of the proposition is Stith’s case, supra, which does not at all warrant the deduC’ tion. This case is much nearer like Grinstead v. Sanders (22 R. 51) 56 S. W. 665, where the right was denied. But appellant claimsthat she had so maintained and used her ditch for 15 years, and that by such user she had acquired the right to so gather and precipitate all the surface water from her land at the point named. Though this be so, it does' not follow that the owner of the lower estate was bound to keep open a ditch to receive the water, even if he had done so for a period. The gravamen of the complaint is not that appellee has raised its roadbed, but that it has suffered a ditch alongside its road to fill up so that it will not accommodate the the flow from appellant’s ditch in rainy seasons Although it is alleged that the county, prior to appellee’s acquisition of the road, did keep the ditch clean, it is not charged that this was done for such length of time as would constitute an easement in favor of appellant’s estate. Nor is it charged that appellee or the county had suffered the wmter from appellant’s ditch to run over the road for any length of time. If any easement whatever has been acquired by appellant over appellee’s property under the facts stated in her petition, it is merely to use the ditch alongside its road to receive the water from her ditch. If one acquires the right to use a passway over another’s land, the owner of this right must repair the way, in the absence of contract to the contrary. That which the owner of the dominant estate acquires is the right to use the servient estate for a designated purpose appurtenant to the dominant. The owner of the servient estate can not interfere with the enjoyment of the right. But this right applies only to the realty, and not to the personal service of the owner of the servient estate. If appellant has [918] acquired tbe right by prescription to use tlie ditch alongside appellee’s road, to that extent, and as an appurtenant to her land, it is her ditch, and she may clean it when necessary for its proper enjoyment. It is not claimed that she has been denied this right. Wherefore the judgment must be affirmed.