Bowman v. Bradley , 127 Or. 45 ( 1928 )

The plaintiff C. Bowman brings this suit to determine his right to use a drainage ditch approximately three and one-half feet wide and four feet deep across the lands of the defendant Clyde Bradley. Plaintiff bases his right to use said ditch for the purpose of draining his land upon the following allegation:

"That the said drain ditch was constructed more than ten (10) years prior to November 1, 1925, when the said defendant filled in and destroyed the same as aforesaid, and the said plaintiff, together with his predecessors in title and interest, occupied and used the same as and for a necessary drainage ditch continuously, adversely and uninterruptedly under a claim of right and title therein and thereto, ever since the same was first constructed and until the date of the unlawful filling in and closing up of said ditch, as aforesaid, and said use, by the plaintiff and his predecessors in title and interest, was hostile, continuous and adverse to the said defendant, his said lands, and the predecessors in title and interest of said defendant; and that down to the filing of this complaint; the said plaintiff, together with his said predecessors in title and interest, occupied and used the said drain ditch right of way since on or about the year 1908."

Then follows an allegation to the effect that the route alleged is the most direct, practical and natural route for plaintiff to conduct the drainage water from his premises to Lost River, which river is the natural drainage outlet for the area covered by plaintiff's dwelling-house, barns, outbuildings, barnyards, corrals, milking sheds and adjacent cultivated lands comprising 50 acres more or less, together with the county road.

After further alleging the necessity of said ditch for the drainage of plaintiff's lands and the length of time it had been so used, the complaint alleges that —

"Notwithstanding the fact aforesaid, the said defendant on the 1st day of November, 1925, in a ruthless and highhanded manner, and wholly regardless of plaintiff's right to use and enjoy said drain ditch, by means of plows, scrapers and teams of horses, unlawfully entered into and upon said ditch and the necessary banks adjacent thereto, and plowed up, filled in, covered up, obliterated and destroyed the said ditch throughout its entire length; that ever since the closing up and filling in of said drain ditch, as aforesaid, when irrigation operations are carried on, and in time of rains and freshets, and during the winter time when there is snow and ice, the waters from the plaintiff's premises aforesaid proceeding in a northeasterly direction and following the natural contour of the earth on said premises of plaintiff, heretofore mentioned, dam up and clog up so that the said irrigation waters and snow and ice back upon and over and flood and inundate the plaintiff's said barn, barnyards, corrals, feedyards, milking sheds, and the yards and messuage around and adjacent to the dwelling house and out buildings, together with the said county road adjacent to said premises, thus rendering them wet, miry, boggy and muddy, and decreasing this value and use, and preventing plaintiff from using or enjoying the same; that prior to the said injury of the said lands of the plaintiff, the same were extremely valuable and absolutely necessary for the plaintiff to carry on his farming, dairying, stock-raising and kindred occupations and pursuits.

"That defendant not only filled in said ditch, but he has also caused an embankment to be constructed along the westerly line of the northwest quarter of the southwest quarter of section 27, and along the easterly line of the northeast quarter of the southeast quarter of section 28, township and range aforesaid, to prevent, and which does prevent the said irrigation and drainage waters from draining over said defendant's land as they were naturally wont to do prior to the erection of said levee or embankment, and the said defendant also closed the large concrete pipe leading from plaintiff's premises under and across the county road at the northeast corner of the southeast quarter of the southeast quarter of said section 28, to and upon the premises aforesaid of the said defendant; that the filling up of said drain and the construction of said embankment heretofore has caused the plaintiff great damage, to-wit: the sum of three thousand ($3,000.00) dollars, and it will cause this plaintiff further damage during the time intervening between the filing of this amended complaint and the final trial and determination of this cause."

Then follows a prayer for mandatory injunction and damages.

Defendant answered admitting that he owned the tract traversed by the ditch and further answered as follows:

"As to paragraph 2 of plaintiff's amended complaint, this defendant admits that there is a ditch located, as described in the first part of paragraph 2 of said complaint; that for a long time prior to November, 1923, plaintiff by consent of this defendant, who owned said ditch, used same as a drain ditch; that the waters which flowed through said ditch emptied into a slough or swale and from said slough or swale into Lost River, and that the public county road borders and bounds plaintiff's premises on the northerly and easterly sides thereof. This defendant denies all other allegations contained in said paragraph 2 of said amended complaint.

"As to paragraph 3 of plaintiff's amended complaint this defendant admits that he filled in that portion of said ditch through which the waters flowed before reaching said slough or swale; that the pipe which leads under the road to said ditch extends on to and upon defendant's premises and that this defendant stopped up said pipe on his premises; that a map marked ``exhibit A' is attached to plaintiff's amended complaint; that except as admitted in this answer, defendant denies all other allegations contained in said paragraph 3 of said complaint.

"As to paragraph 4 of plaintiff's amended complaint, this defendant admits the existence of said ditch for more than ten years prior to November, 1925, and denies all allegations contained therein, except such as are admitted in this answer.

"As to paragraph 5 of plaintiff's amended complaint this defendant admits all the allegations therein contained, except that portion which alleges that the course followed by said ditch was the most direct, practical and natural way for the plaintiff to conduct the drainage waters from his premises, which allegations this defendant denies.

"As to paragraph 6 of plaintiff's amended complaint this defendant admits that plaintiff has, in writing, demanded that this defendant reopen said ditch, but denies all other allegations therein contained.

"As to paragraph 7 of plaintiff's amended complaint this defendant denies all allegations contained in said paragraph 7."

A further answer, which is too voluminous to be quoted in full, may be stated in a condensed form substantially as follows:

First, that defendant in 1905 constructed the ditch in question for the purpose of irrigating his own lands and that it remained solely his property until he filled it up in 1925.

Second, that long before defendant filled in the ditch, and while the same was being used by him, he allowed plaintiff, and his predecessors in interest, the privilege of draining the waters from plaintiff's premises into the ditch; that such use was at the pleasure of defendant and that defendant retained control of the ditch at all times; and that plaintiff, his predecessors in interest, were required to keep said ditch in repair and so use it as to prevent the waters in said ditch from doing injury to defendant's land.

Third, that plaintiff neglected and refused to comply with these conditions and allowed the ditch to wash on both sides thereof to defendant's great damage; that at a point where the ditch reached the slough, a box or trough had been installed so that the waters from the ditch could flow through the box or flume into the waters of the slough, and that plaintiff carelessly and negligently failed to maintain said box and flume, by which negligence the waters from the ditch washed out a portion of defendant's land and a part of defendant's fence to defendant's great damage.

Fourth, that plaintiff was to keep open the outlet from said slough into Lost River so that the water from said ditch would not form a pond or lake, but would continue its course uninterruptedly into Lost River; and that plaintiff neglected and refused to do this whereby it caused the dirt washed from defendant's premises to settle on the mouth of the slough forming a pond or lake thereon to the great damage of defendant to the amount of $2,000 for which defendant prayed judgment.

By a further answer defendant alleged abandonment by plaintiff of the ditch mentioned in the complaint. The new matter in defendant's answer being put at issue by an appropriate reply, the cause was heard before Honorable J.U. CAMPBELL, Circuit Judge, who found for the plaintiff with $1 damages and decreed that defendant restore the ditch to the condition in which it was before he filled it in, and for costs and disbursements, from which decree defendant appeals. MODIFIED. There are a few facts which are not disputed, and which, as a preliminary to the disputed facts, we will mention. First, that the plaintiff bought this land in 1910 and that at that time there was upon the grounds occupied by the ditch in dispute a small ditch, probably a foot in depth, which was used by plaintiff's grantors for the purpose of irrigation and drainage; that plaintiff used that ditch for like purposes until 1912 when a change in the county road rendered it ineffective for drainage purposes without deepening it; and second, that plaintiff to adjust the ditch to the new conditions deepened the ditch to its present dimensions which is about three and one-half feet wide and four feet deep, and continued to use it to a greater or less extent for the purpose of draining his land until the fall of 1925, when defendant filled it in, rendering it entirely useless for the purpose of drainage and, in effect, destroying it.

These facts are not seriously disputed. We are satisfied from the evidence that plaintiff has no other way of draining his land, except by incurring an enormous expense, and that the natural and most practicable way to conduct his drainage is through the ditch in question. If the facts testified to by plaintiff are correct, his use of the ditch from the beginning was a trespass, and he could have been ousted at any time within the period of ten years from his first use thereof. If, on the other hand, the use of the ditch was permissive, the use to continue so long as plaintiff complied with certain conditions prescribed by defendant, his right to use would terminate whenever he neglected or refused to comply with such conditions. Taking the testimony as a whole, we are inclined to the opinion that the use was not permissive but adverse. The plaintiff testified, in substance, that he neither asked nor received permission for the use of the ditch, but finding a small ditch on the premises when he went there he assumed possession of it for the purposes for which he needed it; that in 1912, when changed conditions made it necessary to deepen the ditch, he did so at considerable expense without consulting defendant in regard to it, and to an extent that amounted to almost the construction of a new ditch; that from year to year he kept it clean and open at his own expense and used it as occasion required for the drainage of his premises until 1925 when the defendant closed it up. His every act was such as indicated an assertion on his part of a right to use it for his own purpose to the same extent that he would or might have done if it had been on his own land. Every time he deepened the ditch, every time he cleaned it out and every time he turned his drainage through it, he was in effect asserting his right to use it just as effectually as if he had proclaimed it from his housetop. The claim of defendant, that the use was permissive upon the condition that he should do certain acts with respect to it, is not sustained by the preponderance of the testimony, — in fact, by no testimony except his own. We have on the one side the actual and undisputed fact that for thirteen or fourteen years the plaintiff did all the work, and it was not inconsiderable, in constructing, cleaning and maintaining the ditch, and using it seasonably for the purpose of draining his property the same as the average owner does with his own property. His testimony and that of his son is to the same effect. In fact, all the witnesses agree upon this except the defendant, who says that for two years the plaintiff did not use the ditch. Another witness testified that there was very little water coming down in 1924 and 1925 during the irrigating season, but the evidence satisfies us that there was a quantity of water sent down by plaintiff during the irrigating season, and that later from some cause, probably from fall weather conditions and pretty generally, a considerable quantity of water came down through the borrow-pit along the county road which, unless drained by the ditch in question would cause, and did cause, injury to plaintiff's premises. It seems hardly reasonable, even from the standpoint of defendant's testimony, that he would put up with the use of the ditch by plaintiff for a period of twelve years when, as he claims, plaintiff's negligent use of the ditch was washing away his soil and shoaling his slough, and suddenly conclude to fill it up when there was little or no water to do damage. If plaintiff was entitled to use the ditch for drainage purposes at all, he was entitled to use it not only as a means to protect his lands from drainage originating on his own land, but also from the consequences of water which came down from above; and the fact that, after a prescriptive right had attached, the water, either from a scarcity of water or seasonal drought, did not come down in such quantities as to render the use of the ditch to its usual capacity necessary, would not be construed as an abandonment, unless the lack of use was continued for a period of ten years, or at least long enough to indicate an intention on the part of the owner of the dominant premises to discontinue its use permanently: Carlisle v. Cooper, 4 C.E. Green (19 N.J. Eq.), 256; Williams v. Nelson, 23 Pick. (Mass.) 141 (34 Am. Dec. 45); White v. Crawford, 10 Mass. 191; Corning v.Gould, 16 Wend. (N.Y.) 531; Cuthbert v. Lawton, 3 McCord (S.C.), 194.

It is further contended by appellant that, by reason of the fact that other persons also used the ditch to some extent, plaintiff's possession was not of such an exclusive character as to ripen into an easement, arguing that the possession and use must be exclusive, and the fact that other neighbors and the defendant himself drained into it, so far destroyed the exclusive character that plaintiff's use cannot be such as became a matter of right. The weight of authority is to the contrary. It should be borne in mind that plaintiff is not claiming title in fee to the ditch, its bed or banks, or to the ground over which it is constructed. His claim is for a right to flow water through it. A right of way, so to speak, by which he may convey the surplus water on his farm to Lost River. In principle, this differs from no other easement across the land of another.

A may have a right of way across the land of B in order to reach his own land, and C may also use the same route to get to his particular tract, while B as the general owner of the lands may also use it and neither of them be incompatible with the rights of the other, and each may prescribe separately for his own right if they do not conflict: Silva v. Hawn, 10 Cal. App. 544 (102 P. 952); Schmidt v. Brown, 226 Ill. 590 (80 N.E. 1071, 117 Am. St. Rep. 261, 11 L.R.A. (N.S.) 457). Other cases are cited by counsel but these suffice. The principle is well established.

So far we hold that the findings and decree of the Circuit Court are correct and affirm it, but there are some other matters to which we will advert. We hold that plaintiff has a right to use the ditch for the purpose of drainage, but the maxim that one should so exercise his own right as not to do unnecessary damage to another should be applied to the exercise of this right. In the inception of his right, plaintiff set an example of the manner in which it should be decently exercised by building a flume and a drop-box at the end where it reaches the slough. If this had been maintained, there would have been little for defendant to have complained about, but it was more or less neglected. If the use of the ditch is of any value to plaintiff it should be worth taking care of properly. Plaintiff, in his complaint, claims the right to use a ditch three and one-half feet wide and four feet deep, and this we give him, but, in so doing, we require him to confine himself to the terms of his prescription. It is only fair that hereafter he shall so use it as not to materially enlarge its width by unnecessary caving in of the sides, which, in our opinion, can be easily prevented, and in common justice he should be required to replace the ineffective flume and drop-box with a good substantial one sufficient to carry off the water and not a mere contraption liable to be washed out by a rise in the water.

The decree will be modified so that defendant will be compelled to reopen the ditch to the extent that it existed before he filled it up and within sixty days thereafter the plaintiff will be required to put in a flume and box of the character above indicated and from time to time contribute the labor and expense necessary to prevent any shoaling of the mouth of the slough which may be hereafter occasioned by debris from the ditch in question.

We believe that the arm of equity is long enough to compel a compliance by both parties with these conditions and to render such relief efficacious. Either party may apply to the Circuit Court at the foot of this decree for further equitable aid in the premises.

As to the reopening of the ditch and damages, the decree is affirmed as above mentioned. Neither party will recover costs in this court. AFFIRMED.

RAND, C.J., and ROSSMAN and COSHOW, JJ., concur.