Lattimore v. Davis , 14 La. 161 ( 1839 )

Morphy, /.,

delivered the opinion of the court.

The plaintiff seeks to recover damages, alleging that by defendant’s illegal acts and omissions he has brought together and concentrated all the waters of his plantation in a certain pool or pond, not a common drain, lying and extending on both their premises; that afterwards he has, by cutting through a causeway on his (plaintiff’s) plantation, let into his field of cotton such a body of wateras has overflowed it, and rendered all cultivation impossible. , The defendant denies that he has done any injury to plaintiff, and' claims damages in reconvention, averring that plaintiff has illegally erected a levee or embankment on his land, and done other acts, whereby the natural flow1 of his waters has been obstructed, and his (defendant’s) land covered with water. This case has been before two juries who,brought in verdicts for the plaintiff, and judgment having been entered upon the last verdict, the defendant appealed.

The parties are owners of adjacent tracts of land fronting the Mississippi, and extending back to Lake Concordia, on which they also have a front. From.both fronts there is a slope or descent towards a certain bayou, situated some way between, but nearer the lake. It is admitted that plaintiff’s -tract is situated below that of defendant,‘and must receive the waters which naturally flow from it; but plaintiff contends that the natural drain of both plantations, and through which he was bound to receive on his estate defendant’s waters,was the large bayou situate in the rear of their lands; that defendant by improperly or insufficiently ditching his plantation, has caused the waters to accumulate in a pond between the bayou and the front of their plantations, instead of running into the bayou, which is lower than said pond ; that to avoid injury and loss to himself from this accumulation of water, defendant has cut through a causeway or levee that had been on his land for years, and thus let in a larorer body of water than would naturally have flowed on . J J his plantation. .The evidence on these points, as well as on the defendant’s adverse allegations, is voluminous and somewhat contradictory. The law of the case presents' no diffi-J * culty. The nature and extent of the servitude due by plaintiff’s land, are clearly defined by our Code, article 656. We have been referred to the case of Martin vs. Jett, 12 Louisiana Reports, 503. It determines, very correctly we think, that the clearing of land, and the fitting it for agricultural purposes, by proper ditches and canals, cannot be considered as an act rendering a servitude of this kind more onerous, and that a different interpretation would condemn the superior estate to sterility, and be contrary to the interests of agriculture. Here the facts alleged are widely different, and would tend, in our opinion, to render the servitude due by plaintiff more burdensome. As to the sufficiency of the evidenCe on these facts, and the extent of the injury com-3 4 j j plained of, the jury were the legitimate judges. They were acquainted with the premises ; nay, the evidence shows l^at' ^ey had a view of them from the very court-house where they sat in judgment between the parties; and it would require strong evidence indeed, to induce us, without any knowledge of the localities but what the record furnishes, to disregard the finding of two juries of the immediate . . ¶ . , neighborhood,

The estate below, owes a ser■vitude to that cei°ve the waters whieh naturally flow from the upper estate; and beiow^is^crtat liberty to raise a dam, or make any worktopre-ventthisrunning of the water; bat this must be a natural servitude not created by the industry of man. The clearing of land, and fitting it for agriculture, by cutting ditches and canals, cannot be considered as making this servitude more onerous, if it pm-drains. B'rietorofthe upperestatecuts makes drains on without "following the natural druins and flow of the waters, he wiirbe liable for all damages sus-ta'med by the overflow of the waters.

It ■ is, therefore, ordered, adjudged and decreed, that the . . judgment of the District Court be affirmed, with costs.