Clendenin v. White

FINCH, P. J.

The complaint alleges that the plaintiff and defendants are adjoining land owners, plaintiff’s land being higher in elevation than that of defendants; that there are certain springs on plaintiff's land from which water

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flows over and across plaintiff’s and defendants’ lands through a ditch constructed “in a well-defined depression where the water from said springs formerly flowed before the construction of said ditch”; that more than twenty years ago, “plaintiff and defendants by mutual consent and with the express understanding and agreement that said ditch should be used jointly across the lands of. plaintiff and defendants for the purpose and use of carrying the water from said springs off from and over the lands of plaintiff and defendants . . . constructed said ditch . . . along and over the lands which the water was accustomed to flow from said springs”; that the water from such springs has been conducted through the ditch for more than twenty years and that the ditch is necessary for the drainage of plaintiff’s land; that each year since the construction of the ditch it has become filled with sediment and that plaintiff and his agents have gone upon defendants’ land and “with the acquiescence and assistance of said defendants have cleaned out said ditch to the depth of about two feet and to its natural condition when first built”; that in the year 1921 the defendants for the first time forbade plaintiff’s repair or use of the ditch; and that plaintiff has been damaged thereby in the sum of $1,000 by reason of the consequent accumulation of water on his land. The prayer is for a judgment establishing plaintiff’s right to repair and use the ditch, restraining defendants from interfering therewith and for damages in the sum of $1,000. The answer denies the alleged facts upon which plaintiff’s right to the use of the ditch is based. The court found that the land alleged to belong to defendants is the property of defendant Josephine White and that Chester White is her husband and her manager and agent. The other facts were found in accordance with the allegations of the complaint. Judgment was rendered awarding plaintiff damages in the sum of $368 and granting other relief as prayed for.

The evidence shows that from the year 1877 to 1899 there was a ditch running through the lands of the parties for the purpose of carrying away water from the springs mentioned in the complaint. This ditch followed a different course through defendants’ land from that of the ditch here in controversy. It seems not to have served its purpose effectively. Plaintiff testified that up to the year