Klein v. Power ( 1920 )

Clark, J.

Plaintiffs, owners of land traversed by a creek, not disputing that their land has the servitude of waters collected arid carried by a tile drain in the upper and adjoining land of defendants, complain, seeking relief by injunction, that defendants have by the tile drain cast into the creek and upon the premises of plaintiffs, to their damage, malodorous, noisome and deleterious matter, particularly by connecting the tile draip with a toilet room and sink in the dwelling of defendants. After answer and hearing the circuit court dismissed the bill of complaint and plaintiffs have appealed. In plaintiffs’ behalf there was testimony of witnesses to the presence of the aforesaid matter in the creek and in a catch basin which is a part of the tile drain, which testimony was contradicted by witnesses for defendants. Defendants had neither toilet room nor sink in their dwelling. Plaintiffs were mistaken in their allegation in that regard. We think the record fails to sustain the material allegations of the bill and we are confirmed in this opinion by the action of the trial judge who saw the witnesses and heard their testimony.

The decree is affirmed, with costs to the defendants.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, JX, concurred.