Walt v. Phillips

Wood, J. J. P. and J. B. Walt, hereafter called appellants, and L. L. Phillips, hereafter called appellee, are adjoining landowners in Jefferson County, Arkansas. The lands of appellants in sections sis and seven are divided from the lands of the appellee in section one by a public road running north and south along the range line between their plantations. Appellants’ lands lie east of the road, in range 7, and appellee’s land lie west of the road, in range 8. The public road has been gradually built up for a period of some fifteen years until it is higher than the lands on either side. This action was instituted by the appellee against the appellants in the chancery court of Jefferson County. The appellee alleged that there is a bayou, known as Brown’s Bayou, which lias its source on the Brown place, near the town of Altheimer, and from thence flows, in the natural course of drainage, through other plantations and through the plantation of the appellee, and across the public road dividing the plantation of the appellee from that of the appellants, and on, throug’h appellants’ plantation, into what is known as Five Forks Bayou; that', if unobstructed, the bayou does not affect or damage the appellee’s lands. It is alleged that the appellants, without regard to the appellee’s rights, were constructing a large levee across Brown’s Bayou, at the point where the same enters appellants’ land, for the sole purpose of preventing the water which flows through Brown’s Bayou from passing through the regular and natural drainage channel; .that, if the levee were permitted to be constructed, it would prevent the flow of water through Brown’s Bayou and cause it to back up on the lands of the appellee, to his great damage. The appellee prayed that the appellants be restrained from constructing such levee. The appellants answered and denied all the allegations of the complaint, and alleged that the levee they were then constructing is a small levee, about 1,400 feet long, on their own lands in section 6, township 5 south, range 7 west, for the purpose of preventing surface waters from flowing across their lands in time of freshet and large rainfalls; that the dividing line between the lands of the appellants and appellee is a public road running north and south, along the side of which, and parallel with the road on the west side thereof, is a canal or ditch twenty feet wide, constructed by the Jefferson County Drainage District No. 2 for the purpose of carrying any water out of Brown’s Bayou and any surface water flowing into such canal into Wabbaseka Bayou; that the appellants are taxpayers of the drainage district, and are taxed solely upon the theory of betterment to their lands in having the water diverted therefrom by the drainage district; that there has never been any culvert across the public road for the purpose of enabling the waters on the west side of the road to cross to the east side, and that it is only in times of unusual freshet that the surface waters from appellee’s plantation overflow said canal and public road So as to put a part of same upon the lands of appellants; that such waters are strictly surface waters, and do not constitute the waters flowing through Brown’s Bayou in a natural stream; that the location of appellants’ levee is in a high state of cultivation, and has been for more than seventeen years;. that the levee was then being- constructed across cotton rows; that there has never been a natural stream running across appellants’ lands at any point along said levee. Appellants prayed that appellee’s complaint be dismissed for want of equity. The cause was heard upon the testimony, by depositions, and also oral testimony before the court, and upon maps and photographs of the locus in quo. The trial court found that Brown’s Bayou is a natural course, through which the water coming into it at its source now flows and has flowed in the same channel for many years; that Brown’s Bayou begins about the Brown place, in Jefferson County, and flows in a southeasterly direction through other plantations and through the plantation of the” appellee, and on in a southeasterly direction through the plantation of the appellants, and continues its flow in a southeasterly direction, after leaving the plantation of appellants, through other plantations and farms, finally emptying into Five Forks Bayou and Fish Lake; that Brown’s Bayou ran across the public road at a certain point between the plantation of appellee and appellants, and continued from that point through the lands of appellants; that the effect of the construction of the levee contemplated by the appellants would be to prevent the flow of water through the channel of Brown’s Bayou and to back the same over a large portion of the land of the appellee, so that no crops could be raised thereon in any years of ordinary rainfall, to appellee’s great damage and irreparable injury. Upon these findings the court entered a decree directing appellants to remove such part of the levee as had already been constructed and restraining them from the further construction thereof. From that decree is this appeal. 1. The issue presented by the pleadings is whether Brown’s Bayou is a natural stream or watercourse which ran through the lands of the appellee and across the public road, on to the lands of the appellants, at a point where the latter are constructing a levee, and whether this levee, when constructed as contemplated by the appellants, will so obstruct the natural watercourse or stream as to injure and damage the lands of the appellee. The appellants contend that the photographs showing the premises at the point in controversy demonstrate that no bayou runs through at the point where the appellants are constructing their levee, and that the testimony of the engineer, Bennett, in connection with the drawing prepared by him and attached to his deposition, also demonstrates that Brown’s Bayou does not flow across the public road on to appellants’ land at the point where the appellants are constructing their levee, and that this fact is also shown by the testimony of nineteen other witnesses. These witnesses appellants name, and say they are white men, and, because of their high standing and personal familiarity and knowledge of the matters involved, are peculiarly qualified to testify, and that their testimony establishes the fact that Brown’s Bayou does not cross the road where appellants are building their levee. On the other hand, the appellee contends that the facts testified to by appellants’ witnesses aré controverted and rebutted by Engineer W. J. Parlies and twenty-one witnesses on behalf of the appellee, who were also white persons, and, by reason of their familiarity and knowledge of the premises, are equally reputable as the witnesses for the appellants and as worthy of belief; that the testimony of these witnesses' shows that they were better acquainted with the country through which Brown’s Bayou flows, and with the course of the bayou, than weré the white witnesses for the appellants, and that, in addition to these, the appellee has adduced the testimony of nine negro witnesses, all of whom were worthy of belief, and, on account of their familiarity with the matters in controversy, were in a position to know as much, if not more, than the majority of the witnesses who testified for the appellants. This is an immense record of nearly seven hundred pages. ¡We have carefully examined and weighed the testimony, including photographs and maps, with a view of determining, if- possible, where the preponderance lies as to the essential facts in controversy. While numbers are to be considered, the preponderance is not to be determined alone by numbers, neither can- it be determined by'the color or character of the witnesses; but 'all elements are tó be considered in connection with the subject-matter of the testimony of each witness, such as the intelligence of the witness, or lack of intelligence, his.'character, his interest, and relationship to the parties, his means of information, and his opportunity for knowing the facts to which he testified. It is wholly impractical to set out and discuss in detail the testimony of •the witnesses. After duly considering and weighing , all these elements, it occurs to us that the facts of this record present a typical case for the application of the doctrine announced in the case of Leach v. Smith, 130 Ark. 465-470, and other cases, to-wit: “Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive.” In all such oases the findings of fact by the chancellor will not be disturbed, but his findings will be adopted by this court. 2. The trial court found that Brown’s Bayou is a natural watercourse, and that the levee which appellants were building, if completed, would prevent the flow of water through the channel of Brown’s Bayou and overflow the appellee’s land, to his damage and irreparable injury. The issue was a mixed one of law and fact. “A watercourse is defined to be a running stream of water, a natural stream, including rivers, creeks, runs and rivulets. There must be a stream usually flowing in a particular direction, though it need not flow continuously. It may sometimes be dry. It must flow in a definite channel and have a bed and banks, and usually discharge itself into some other stream or body of water. It -must be something more than mere surface drainage over the entire face of the tract of land occasioned by unusual freshet or other extraordinary causes.” Boone v. Wilson, 125 Ark. 364. The finding that Brown’s Bayou was a watercourse was warranted, under the evidence, and was in accord with the above definition. The law is well settled that “equity will grant relief in the case of the raising of 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. The reason is that, where the defendant maintains a dam and continues to flow the land of plaintiff, asserting his right to do so, he is in the -situation of a party maintaining a nuisance.” Taylor v. Rudy, 99 Ark. 128, and authorities there cited. The decree is correct, and it is therefore affirmed.