Heier v. Krull

SHAW, J.

The defendants appeal from a judgment in

favor of plaintiff.

The object of plaintiff’s suit was to enjoin the defendants from enlarging Old Live Oak Slough and from constructing or maintaining a certain proposed ditch, and from doing any other act or thing whereby any of the waters falling upon the lands northeasterly of a certain alleged ridge, some six miles northerly of plaintiff’s lands, might be precipitated, or the flow thereof accelerated, to or upon the plaintiff’s lands. He also asks for a mandatory injunction requiring defendants to fill up so much of said ditch as had been dug before the suit was begun.

The plaintiff’s lands consist of one hundred and eighty acres. He alleges that about six miles north thereof there is a high ridge of ground which, unless interfered with by the defendants, does and will effectually prevent the water falling upon the land northerly and easterly thereof from flowing down to and upon his own land. He further alleges

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that south of said ridge there extends from said ridge, in a southerly direction, for a part of the distance to his land a slough known as Old Live Oak Slough, with, which is connected an artificial ditch extending therefrom to and through his land, by means whereof the waters of the slough are drained and carried away to lower lands. With respect to the acts of the defendants complained of, he alleges that they are engaged in digging a ditch through said ridge of land, which will cut through the same and drain the waters falling upon the lands northerly and easterly thereof into the slough and through the ditch leading therefrom to and upon the lands of the plaintiff, and that they also threaten to, and, unless restrained, will deepen, widen, and extend the slough from the point where the defendants’ proposed ditch enters the same in a northeasterly direction, thereby bringing into said slough and down to and upon the lands of the plaintiff a vast body of water which falls and accumulates upon lands northeasterly of section 8, in which section said ridge is situated, which water would not at all reach plaintiff’s lands without the doing of said threatened work by the defendants, and that by reason of said additional water coming into said ditch crossing plaintiff’s lands it will be caused to overflow plaintiff’s lands and render them unfit for cultivation, to his great damage.