Nye v. Kahlow , 98 Minn. 81 ( 1906 )

ELLIOTT, J.

From the findings of the trial court it appears that the plaintiff and defendant, respectively, are the owners of adjoining tracts of land in Le Sueur county. On the plaintiff’s land, which lies south of the dividing line, there is a road which runs about parallel with and near the line. Seventy feet north of the line a ravine commences, and extends south-wardly across the line and through the plaintiff’s land. Where the road crosses this ravine the plaintiff has for her own convenience constructed a bridge, by filling the ravine with dirt and logs. Upon the land of the defendant there is a long marsh, with an area of about ten acres. The south end of this marsh is fifteen rods north of the line which divides the land of the plaintiff from that of the defendant. The natural course of the waters from the marsh is in a northerly direction, across the lands of the defendant, into a creek, and thence into the Minnesota river. Between the north end of the ravine and the marsh there is a high strip of land, and the natural flow of the water to the north of this high land is over the marsh, into the creek, and thence into the river. The waters south of this divide flow naturally south into the ravine and thus over the plaintiff’s land. In the year 1900 the defend- ■ ant dug a ditch from the south end of the marsh across the high strip of land between the marsh and the head of the ravine. This ditch was ten rods long, three feet deep, and eight feet wide at the top, and was wholly on the defendant’s land. By reason of this ditch the waters in the marsh on the defendant’s land were diverted from their natural course and caused to flow upon the land of the plaintiff. Water which naturally rested upon the defendant’s land was thus transferred to the plaintiff’s land. As a result, the water washed out a part of the bridge which the plaintiff had constructed over the ravine, and also washed away a part of the soil. The court found that, “unless said-ditch so dug by the defendant is closed up, the land and premises of the plaintiff will be hereafter injured by the waters flowing through said ditch upon her land.”

Upon these facts the court found that the plaintiff was entitled to recover $25 damages, and enjoined the defendant from further maintaining the ditch. The appeal is from an order denying the defendant’s motion for a new trial.

1. The appellant malees four assignments of error, but as the second and third were not specified in the motion for a new trial, and are made in this court for the first time, they cannot be considered. Cappis v. Wiedemann, 86 Minn. 156, 90 N. W. 368; Parker v. Pine Tree Lumber Co., 89 Minn. 500, 95 N. W. 323; Conan v. City of Ely, 91 Minn. 127, 97 N. W. 737.

On the motion for a new trial the defendant assigned as error that “said decision is not justified by the evidence and is contrary to law.” It has been held in numerous cases that this is insufficient to call "in question any of the findings of fact. Butler-Ryan Co. v. Silvey, 70 Minn. 507, 73 N. W. 406, 510; Mahler v. Merchants Nat. Bank, 65 Minn. 37, 67 N. W. 655; Dallemand v. Swenson, 54 Minn. 32, 55 N. W. 815; Moody v. Tschabold, 52 Minn. 51, 53 N. W. 1023; In re Granstrand, 49 Minn. 438, 52 N. W. 41; Smith v. Kipp, 49 Minn. 119, 51 N. W. 656; Union Cash Register Co. v. John, 49 Minn. 481, 52 N. W. 48. The assignments thus excluded from consideration are the only ones which assume to question the correctness of the findings of fact. As said in Smith v. Kipp, 49 Minn. 119, 51 N. W. 656: “It is not our province to determine in the first instance, and from the evidence presented in another court, the facts of a case. We must take the facts of the case to be as they have been established by the findings of the trial court, except that upon a proper assignment of error we may review the same and determine whether they are justified by the evidence.”

2. The .remaining assignments relate to the amount of damages and question the correctness of the conclusions of law. The evidence amply sustains the finding that the plaintiff was damaged to the extent found by the court. The defendant. contends that the water in the meadow upon his land was surface water, and that he therefore “had the right to divert it, or do with it as he pleased on his own land, as long as he did not unreasonably injure adjoining land owners.” This may be accepted as a correct statement of the rule of law. But it is clear that in disposing of the water he did unreasonably and unnecessarily injure the property of his neighbor. The law relating to the disposition of surface water is now well settled in this state. The common-law rule is accepted with one material modification.

In Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462, 26 L. R. A. 632, after reviewing the earlier decisions and criticising some of them, it was held that the old common-law rule that surface water is a common enemy, which each owner may get rid of as best he can, is in force in this state, modified by the rule that the owner of land must so use his own as not to unnecessarily and unreasonably injure his neighbor. See Werner v. Popp, 94 Minn. 118, 102 N. W. 366. It appears that in thé Sheehan case the method adopted for the drainage of the defendant’s land wás the only one by which he could reasonably drain the depression in which the surface water had accumulated and that the ravine into- which the water was turned was the only natural drain reasonably accessible. In a concurring opinion, Justice Mitchell said that: “There would have been no doubt under the authorities of the right of defendant to aid and facilitate this natural system of drainage by deepening the outlet so as to carry off all the surface water, although the effect would be to cast upon the plaintiff’s land water which otherwise would not have gone there. But I can see no difference in principle between that case and this, so long as the defendant did not divert the water from some natural outlet, and has adopted the most reasonable and only feasible method of draining his land.”

The defendant in this case did exactly what the court in the Sheehan case said he must not do. He not only did not adopt the most feasible method of draining his land, but he diverted the water from the natural drainage outlet. The water collected in the marsh north of the divide. In the natural course it then found its way northwardly into the creek, and thence into the Minnesota river. If the irregularities in the height of the land along this course prevented all of the water from escaping, it would have been a very simple matter for the defendant to improve -the channel by removing the obstruction. But it appears that, instead of doing this, he obstructed the natural channel by constructing a road across the marsh, thus effectually preventing the water in the southern part of the marsh from flowing northward into the creek. In order to get rid of this accumulation of water he dug the ditch across the high strip of ground and turned the water southwardly into the head of the ravine and over the plaintiff’s land. He thus diverted the water from the natural outlet and unnecessarily cast it upon the land of the plaintiff, to her harm. There was no necessity for adopting this course. By aiding the flow of the water along its natural course to the northward, he could have drained the marsh without material injury to his own property. The course he adopted was unnecessary for the enjoyment of his own property, and unnecessarily and unreasonably inflicted injury upon the plaintiff. The fact that a few feet of the defendant’s land lay south of the divide and naturally drained southwardly into the ravine is of no consequence. No damage resulted from the natural flow in that direction.

The conclusions of the trial court were therefore correct, and the order appealed from is affirmed.