Monteith v. Honey

HART, J., (after stating the facts). It is a well settled rule of the common law that the waters of a natural stream or watercourse may not be so obstructed by a lower proprietor as to flow back to the detriment of those above him. In Taylor v. Rudy, 99 Ark. 128, we recognized this rule of the common law, and held that every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water and to have it flow in its natural and accustomed course without obstruction, diversion, or corruption. It was also held in that case that equity would grant relief in the case of the raising of the water in a watercourse by means of a dam to the injury of upper riparian lands, where the injury is substantial and permanent, even though the rights have not been established at law. It is first contended by counsel for the defendant however, that Johnson Creek ceased to be a natural watercourse when the drainage district was established and constructed. There is nothing in the record, however, which shows that there was any intention that Johnson Creek should be abandoned as a watercourse by the construction of the drainage district. On the other hand its situation and relation to the drainage ditch show that it was intended that it should be used as a part of the laterals of the drainage ditch and should continue to be a natural watercourse. Again, it is contended by counsel for the defendant that Johnson Creek ceased to be a natural watercourse on the defendant’s land when the cut-off or scraper ditch was constructed. The record shows that Johnson Creek was a very crooked stream and drained about 800 acres of land in this neighborhood. The land owners whose lands were drained by Johnson Creek raised a fund by subscription for the purpose of straightening the creek on the defendant’s land, and by common consent the money raised for that purpose was applied in constructing what the parties called the cut-off or scraper ditch. This was done about ten years before the institution of this suit, and was used by the parties as a part of the channel of Johnson Creek for several years. The cut-off in question was dug at the joint expense of the owners of the land, and by common consent' was used as a part of the channel of Johnson Creek and remained open as a watercourse for several years thereafter. It has been held in such cases that the same rule governs that applies in the cases of other watercourses. Freeman v. Weeks (Mich.), 7 N. W. 904; Meir v. Kroft (Iowa), 80 N. W. 521; Brown v. Honeyfield (Iowa), 116 N. W. 731, and Rait v. Furrow (Kan.), 10 A. &. E. Ann. Cas. 1044. Johnson Creek had a well defined channel with bed and banks in which there was running water. The testimony on both sides shows that Johnson Creek was a natural watercourse before the cut-off' or scraper ditch was constructed. In the application of the principles above announced we think that the cut-off became a part of Johnson Creek and was therefore a part of the natural watercourse. It is true the plaintiff and defendant were not owners of the land at the time the cut-off was constructed, but they are bound by the agreement of their predecessors in title. The principle of law above announced was recognized and applied by this court in the case of Wynn v. Garland, 19 Ark. 23. There parties in possession of contigous unsurveyed public lands entered into an agreement to dig •certain ditches for the purpose of draining their lands. The ditches were dug according to their agreement and a main ditch was constructed to be the boundary line between them. Afterwards the land was surveyed by the government, and the lines of the public survey differed from those agreed upon. One of the parties entered the lands and, disregarding the boundaries agreed upon, closed the ditch and threw up embankments so as to obstruct the water and back it upon the land of the other party. It was held that the agreement between the parties to construct the ditch was in the nature of a license which, having been accepted and acted upon, could not be disregarded. It was further held that, though the agreement was for an interest or privilege in land and rested in parol, the performance on the part of the plaintiff constituted it an executed contract, and that the defendant had no right to close the ditch. Therefore, the decree will be affirmed.