Du Breuille v. Town of Ripley

LEWIS, J. Appellant was the owner of one hundred sixty acres of land bordering on the east line of section 29. John Odette was the owner of one hundred twenty acres in section 28, and there was a traveled highway on the section line. Respondent St. Onge owned a tract of land in section 21, immediately adjoining Odette’s farm on the north. Appellant, acting upon the belief that St. Onge and Odette had unlawfully constructed ditches which caused the water upon their land to flow upon appellant’s premises, to her damage, constructed a dike, or dam, about two hundred feet in length, at or near the east line of her premises, the result of which was to hold the water back at certain times. The town authorities cut the dike and let the water out. Appellant repaired it, and brought this action to enjoin the town of Ripley, St. Onge, and Odette from interfering with the dam, requiring St. Onge and Odette to fill up their ditches, and to enjoin them from draining water from their premises upon her land. The action was dismissed, by consent, as to respondents Joseph Laborie and Eric Poissant, and the trial court granted a motion to dismiss the case as to the town of Ripley and St. Onge, for the reason that the evidence was not sufficient to make out a cause of action. Odette, [514] for some reason, is not a party to this appeal, and the only parties now-before the court are the town and St. Onge. On the motion to dismiss the question was whether, under the pleadings and the undisputed evidence, the rule of the common law, as modified by Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462, 26 L. R. A. 632, justified appellant in maintaining a dike, or dam, at the point indicated, as a reasonable means of getting rid of the surface waters. The learned trial court apparently considered the evidence conclusive that there was a natural waterway from St. Onge’s land, across Odette’s premises, leading through appellant’s premises, and that in digging the ditches referred to St. Onge and Odette were acting within the doctrine of Sheehan v. Flynn, and held that appellant had no authority to build a dam, and thereby hold the waters back from the course which they would otherwise naturally take. There was some evidence to the effect that a ravine led from the northeast to the southwest, through a part of Odette’s land, and that it continued onto appellant’s land; but we find no evidence that it was a general watercourse through the country, or that it passed beyond appellant’s land, or connected with some established or natural channel. The evidence was conflicting as to whether the ravine continued northeasterly, across the highway between sections 28 and 21 to St. Onge’s land. One witness at least testified that the roadway on that section line was built upon a natural ridge, through which a ditch had been cut, thereby permitting the waters accumulating upon St. Onge’s premises to run to the south and find their way to appellant’s land. There was some evidence tending to show that the St. Onge land might readily be drained to .the east, instead of the south, and it was not clearly shown that Odette and the town had no other reasonable means of getting rid of the surplus water turned in by the ditches mentioned than by permitting it to flow over appellant’s premises. . _ . The court made no findings. It is not sufficient that the evidence would sustain a verdict or finding for the defendant. It must be such as, to require, as a matter of law, a verdict or finding against the plaintiff. Herrick v. Barnes, 78 Minn. 475, 81 N. W. 526; Tharalson v. Wyman, 58 Minn. 233, 59 N. W. 1009. We direct a new trial [515] in order that the disputed questions of fact may be definitely settled, and shall not attempt to discuss the principles of law which may possibly be applicable. Reversed.