Miller v. More

SHAW, J.

The appeal is from the judgment below. It was taken within sixty days after the entry thereof, and the evidence is brought up in a bill of exceptions.

The complaint states a cause of action to enjoin the further interference by the defendant with the waters of a stream flowing through his land, known as Maria Ygnacia Creek, and to recover damages alleged to have been caused to the plaintiff’s land by the interference referred to. Judgment was given for the plaintiff for damages in the sum of one thousand five hundred dollars and enjoining the defendant from thereafter diverting the waters of the creek in such a manner as to cause the same to overflow the lands of the plaintiff. The complaint alleges two causes of action, one on account of

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a change in the course of the creek made in 1908, the other on account of a second change made in 1909. The court found in favor of the defendant with respect to the changes of 1908, and the injuries resulting therefrom. The judgment is based wholly upon the second count of the complaint. This count avers that in the fall of 1909, the defendant cut a new channel in the creek from a point about two hundred feet northerly from the northwest corner of the plaintiff’s land and extending from that point southerly to a point beyond the southwest comer of plaintiff’s land. This new channel lies between the creek and the plaintiff’s land and about one hundred and forty feet west of plaintiff’s land at the northwest corner, but approaching within about twenty feet, at the southwest corner. It does not re-enter the old channel of the creek but ends abruptly at some distance southerly of the plaintiff’s south line, at a place where there is a dense growth of willows sufficiently large to obstruct drift carried down said new channel. About half way along its course the old channel took an abrupt turn to the west. At this point defendant constructed a dam or obstruction in such a manner as to turn the water of the old channel into the new channel. As the result of these changes in the course of the water down the stream, the debris and driftwood, carried therein during a heavy flood, lodged against the willows at the end of the new channel and thereby caused the flood waters to flow in large quantities over the southern part of plaintiff’s land, destroying the crops and covering it with sand to a depth varying from one to five feet. The plaintiff’s land consists of a tract of twenty-five acres. The defendant’s land adjoins the same on the west and also on the south.