Peck v. Peterson

Water Bights—Diversion of Surface Water—Injunction and Damages — Complaint and Cross-complaint — Finding Against Evidence.—In an action to enjoin defendant from maintaining a ditch on his higher land so as to collect surface water thereon and make it flow out of its natural course over plaintiff’s land to his damage, in which defendant, besides joining issue, sought by cross-complaint to enjoin plaintiff from maintaining a dam alleged to obstruct the flow of said water in its natural course, and alleging that for two years plaintiff had plowed deep furrows across said natural course, so as to back water on defendant’s land to his damage, and the findings were against plaintiff and in support of the cross-complaint, it is held that the finding that plaintiff plowed such furrows is against the evidence, which necessitates the reversal of an order denying a new trial to plaintiff.

Id.—Plowing of Furrows by Tenants of Plaintiff—Plaintiff not Besponsible.—Where the evidence showed that the furrows were plowed on plaintiff’s land solely by tenants in possession under a lease from plaintiff upon their sole responsibility, without any direction or control of them by plaintiff, the plaintiff had no responsibility therefor.

Id.—Materiality of Finding as to Plowing of Furrows—Question of Damages.—Where the court found that defendant was damaged by the action of the plaintiff, and that such damage was caused in part by the alleged cross-plowing of the furrows by the plaintiff, and it does not appear how much damage was done thereby, the finding is material upon the question of damages.

Id.—General Finding as to Flow of Hatural Watercourse Controlled by Special Finding.—It is held that a general finding in the language of the cross-complaint as to the flow of a natural watercourse over the lands of plaintiff and defendant without indicating its direction is immaterial where the court finds specially, upon ample evidence, as to a further allegation of the cross-complaint, “that the said land of defendant is higher in elevation than the land of plaintiff, and the surface water caused by heavy rains naturally flows, and is accustomed to flow and to discharge itself, from defendant’s land over and across plaintiff’s land.”

Id.—Easement of Owner of Upper Land for Flow of Surface Water. Under the established law of this state, the owner of upper land has an easement over lower and adjacent land for the discharge of surface or rain water, as it is accustomed to naturally flow; and it is immaterial whether such water flows through a watercourse, strictly speaking, or through a simple depression in the surface of the earth.

Id.—Limitation upon Eights of Upper Owner.—Notwithstanding such easement, such upper land owner has no right to obstruct such natural flow, or to increase the burden upon the servient tenement, by causing the natural mode of its discharge on the lower land to be changed to the injury of the servient tenement, by conducting it into the new channels in greater quantities onto particular parts of the lower land. It is held that there is much evidence in .the record tending to show that defendant, in the first instance, violated this rule to plaintiff’s injury.