Holman v. Richardson

Smith, C. J., delivered the opinion of the court. Appellant and appellee own and reside upon adjoining lots in the city of Macon,* that óf appellee bounding appellant’s lot on the north and west. The level of appellee’s lot is higher than that of appellant’s, and there is a large swale or hollow beginning on appellant’s premises some distance from and extending down to the line separating the two lots. This swale or hollow is not a natural drain in the sense that by it water is collected in or confined to a well-defined natural channel, but because of it, however, a large volume of water is at times collected at the point where it touches appellant’s lot. At this point a ditch, dug many years ago by a gentleman who then owned both lots, conducts the water across appellant’s lot to a public drain along the street which bounds appellant’s lot on the south. Two or more underground tile drains accelerate the flow of the water from, appellee’s lot to the head of this ditch across appellant’s, lot, but discharge no water thereon other than such as. [178] would be so discharged without them. In addition to the water collected at the head of this ditch water also Rows from appellee’s lot on and across appellant’s lot for practically the entire length of the line dividing "them. The volume of water which now flows from appellee’s lot across that of appellant’s is less than it was when appellee purchased his, because of certain artificial ■drains, other than those here complained -of constructed by him, which conduct a portion of the water in another direction. The flow of this water across appellant’s lot is damaging to her, and if it should remain on Appellee’s lot will damage him. In order to prevent this water from Rowing across her lot appellant commenced the erection ■of a solid brick, wall extending the full length of the line separating it from appellee’s lot, the effect of which would be to cast the water back upon appellee’s lot. A ditch can be dug along the north and west line of appellant’s lot at a cost not exceeding that of this brick wall which would conduct the water to the public drain on the south side of appellant’s lot, into which the ditch which now crosses her lot flows, by means of which the water would be prevented from damaging either of the parties hereto. After appellant began the erection of this brick1'wall and before its completion appellee filed .his bill in the court below praying that she be enjoined from building and maintaining it. A temporary injunction was granted in accordance with the prayer of the bill, which injunction on final hearing was made perpetual. Two questions are presented'to us by this record: First, to what extent, if any, may appellant obstruct the natural flow of rainwater in a diffused state from appellee’s premises over and across her own? Second, what right, if any, has appellee to collect rainwater falling "upon his premises by means of artificial drains and discharge it on the premises of appellant? Any discussion of the rules of the civil and of the ancient common law with reference to the right of one [179] •landowner to obstruct the flow of surface water from the land of an adjoining owner on and across his and the difference, if any such in fact exists, between the rules of those two systems of law will be of no value here for the reason that the rule with us, as will appear from examination of the cases from this .court herein•after cited, is that when adjoining lots owned.by different persons are on a different level, so that there will be a natural flow of rainwater in a diffused state from the higher to the lower level, the owner of the lower lot may fend the water therefrom, provided he does so for ■proper objects and exercises reasonable care to prevent unnecessary injury to the higher lot. Railroad Co. v. Miller, 68 Miss. 760, 10 So. 61; Sinai v. Railroad Co., 71 Miss. 547, 14 So. 87; Railroad Co. v. Smith, 72 Miss. 677, 17 So. 78, 27 L. R. A. 762, 48 Am. St. Rep. 579; Railroad Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L. R. A. 262, 55 Am. St. Rep. 562; Railroad Co. v. Paine, 19 So. 199; Railroad Co. v. Wilbourn, 74 Miss. 284, 21 So. 1; Railroad Co. v. Daniels, 108 Miss. 68, 66 So. 324. ’That the rule applied in these cases above announced was so understood by Mr. Freeman will appear from the note to Mizell v. McGowan, 85 Am. St. Rep. 724. This rule, which also prevails in several other states (3 Farnam on Waters, section 890, p. 2616, and authorities there cited), is based upon and is simply a concrete application of the maxim that, “One must so use his own as to not unnecessarily injure others.” A corollary to this rule necessarily is, that where two methods of disposing of such water are available to the •owner of the lower lot, each equally efficacious and neither requiring an unreasonably greater expense than the •other, one of which will damage the adjoining property and the other will not, the latter must be adopted by the owner of the lower lot in fending the water therefrom. The decision in Sinai v. Railroad Co., supra, turned upon this express proposition, as was pointed out in Railroad Co. v. Davis, 73 Miss. 678, 19 So. 487, 32 L. R. [180] A. 262, 55 Am. St. Rep. 562, wherein the court, in approving the holding in that case, said: “A company having a right to construct its railroad may not, in regard of the rights of- adjoining proprietors, so construct its roadbed as to destroy the value of the lands of- third persons, even though the injury be occasioned by turning bach surface water upon such lands, if, with due regard to the duty it owes to the public, and in the reasonable use of its own property, and at no undue expense, it can, by putting in trestles,, culverts, or other openings, provide a way through which such water .may safely be allowed to escape.” It is true that in the cases wherein this court has. heretofore dealt with this question the offending party was a railroad company, but there can be no distinction in this regard between the rights and duties of such a company and of an individual as pointed out in 3 Farnam on Waters, section 904, except, as set forth in Railroad Co. v. Davis, supra, such as may be caused by the fact that since a railroad company is authorized by law to construct its embankment, it may not be liable at all for damages which necessarily result to an adjoining landowner from a proper construction thereof, and, we may add further, except such difference as may be caused by the provision of section 17 of our present Constitution, that “private property shall not be . . - damaged for public use, except on due compensation being first made to the owner or owners thereof,” which section, however, had no influence on those decisions. Applying this rule in the case at bar, it necessarily follows that the appellant is without right to prevent this surface water from crossing her land in a diffused state by means of a brick wall, thereby causing it to pond on appellee’s land, for she can at no greater expense fully protect herself by digging a ditch across the north and down the west boundary of her lot to the public drain hereinbefore referred to and at the same time [181] inflict no damage upon appellee. Appellant, of course, has the right to erect and maintain this brick wall, but in so doing she must exercise reasonable care to prevent the water being thereby caused to pond on appellee’s lot to his damage. Coming now to the second question. Appellee’s claim Is that he has acquired the right by prescription to collect this water in the underground tile drains complained of and cast it over and across appellant’s land through the ditch extending from the end of the swale ■or hillside hollow to the public drain on the opposite ■side of her lot. It is unnecessary for us to determine whether or not such a right may be acquired by prescription, for the reason, if no other, that the existence of these underground tile drains was unknown to appellant until about three years before the beginning of this litigation, and their existence in the very nature of the thing was not open and notorious. It appears, however, from the evidence that the conformation of the surface of appellee’s lot is such that the underground tile drains complained of do not cause any more water to collect at the head of and flow through the ditch across appellant’s lot than would so ■do without them, and it does not appear that they accelerate the flow of the water to such an extent as to thereby damage appellant more than she'would be without them, from which it necessarily follows that she has no ■ground of complaint because of their existence. The decree of the court below having taken a much broader scope than is warranted by the foregoing views was erroneous, so that we committed no error in reversing it, but the cause should have been remanded instead ■of judgment final being entered here. Our former judgment, therefore, will be set aside, the decree of the court below will be reversed, and the cause remanded. The former opinion herein rendered will be withdrawn. Reversed and remanded.