Trice v. Lagrone ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

Alfred Lagrone and another dug .a ditch and erected an embankment on their own land, the effect of which was to so dam up the water of a small stream which flowed through their estate and that of their neighbor, J. M. Trice, as to submerge the lands of the latter. Trice therefore instituted proceedings under Code 1871, § 1935 to have the embankment cut; and the three householders who, under the provisions of the section cited, were summoned for the purpose, adjudged that it should be cut. From this adjudication Lagrone and the other appealed, — first to the Circuit Court and then to this court; but the appeal was dismissed by both courts, upon the ground that the statute contemplated no appeal but made the judgment of the householders final; Lagrone v. Trice, ante, 227. Lagrone now files this bill to enjoin the enforcement of that judgment on the ground that the whole proceeding was a nullity, because such obstructions to watercourses as are here complained of are not within the purview of § 1935. His position is that the statute has reference to obstructions to watercourses created by persons who are erecting mills, gins or other machinery, and who in so doing fail to comply with the requirements of chapter 34 of the Code, of which § 1935 is a part; and that, inasmuch as it is to such obstructions only that the summary provisions of these sections apply, .those who are aggrieved by any other obstructions are left to their common-law and equity remedies. We think that this is the true construction of the statute. All the preceding sections of the statute look to the establishment on watercourses of mills and other machinery, and regulate the manner in which the persons erecting them shall obtain authority to obstruct the flow of water. Sect. 1935 then declares that “ if any person, not being authorized, as herein-before provided [that is, in the manner pointed out by the preceding sections], shall make or erect any embankment, levee, dam, or other obstruction, in or over any watercourse,” parties aggrieved thereby may have the summary remedy given for the removal of such obstructions. It seems difficult to escape the conclusion that the language applies only to those who, intending to erect the obstructions contemplated in the previous sections, have, by reason of omission to observe their requirements, failed to obtain the authority which those sections confer. It is true that in all the other sections no other obstructions than dams or mill-dams are referred to, and that in this section embankments, levees, dams, or other obstructions are embraced; but, while the class of obstructions is broadened, the class of persons erecting them remains the same. The declaration is, that if those erecting the mills, “ not being authorized, as hereinbefore provided, shall make or erect any embankment, levee, dam, or other obstruction,” pei'sons injured shall have the remedy provided by the section. While no other obstructions than dams are spoken of in the sections which treat of obtaining authority to erect them, the prohibition in this section applies to all obstructions, but has reference, nevertheless, to such as are created by the unauthorized erection of mills. While the language used is broad enough to embrace any and all obstructions, without regard to the person by whom or the purposes for which they are created, we do not think that it is intended to apply to levees and ditches on farms or residences. The proceeding authorized by the statute is harsh and summary. From it there is no appeal. By it there is intrusted to three private persons a most unbounded and dangerous power. We are not disposed to extend it to doubtful cases. The remedy of the appellant, if he has been injured by the obstruction complained of, must be sought in the courts of law or equity, and not before the special tribunal created by § 1935.

Decree affirmed.