Venner v. Olson ( 1918 )

GATES, J.

Action to enjoin the maintenance -of a tile drain "and for damages resulting ¡therefrom-. Plaintiff owns 320 -acres of 'land -in section 23 — 105—53. -Defendants own fractional east hal-f of section 14 -on which, -an-dl on west half of fractional section 13, is !a meandered lake -called Wooley Rake. The trial court found:

“That there is -a natural Ibarri-er Or -ridge on -the south of said Wooley Rake, so that, iso far -as the record disdiqs-es, no w-ater has overflowed from said lake at any time.”

The evidence tended to Show without -dispute -that the bottom -of the -1-ak-e was comparatively level; -that the bank ion the s-outh and west was from 8.4 feet to 19 feet Or mlo-re above the lake bed1; that at the -northeast side ifh-e bank was broken ,by a •valley entering from "the north-; -and that the -lake w-as a drainage basin for about two 'sections of land. The attaaclied map discloses the situation, (p. 587).

In the year 1912 -defendants, acting iin accordance 'with -their idea of the effect of section 11, c. 102, Laws 1909, constructed -a tile -drain wholly icin their own 1-and through W-o-oley Rak-e -and also approximately -along the line A B. The engineer testified:

“The il-ervel at th-e -lowest -point in the outlet where the tile closes shown as th-e .point marked 'A,’ there was no indication of ¡any -depression -or -w-ell-defin-ed bank or channel of th-e water course across this level-, .it was high, dry, smooth upland,” -and that the point “B” was approximately eight feet below -the level -of the lake bed.

The shaded portions south of the section- line -between- sections 14 and 23, aggregating according to the testimony -of the engineer ■33.1 acres, are -claimed by plaintiff tq be damaged by -th-e construction! Of -the tile -drain a-nd to be unfit for -cultivation. The trial -court found thiat the wet condition of iplaintiff’is 1-and1 w-as- due largely to other caus-eS than the -tile -drain, contrary -we think to th-e- -clear preponderance -of the evidence, and concluded- thait -defendants- were -entitled to maintain the tile -drain, and that plaintiff was- not entitled ta the injunction! prayed- for nor to -damages. From- -the judgment and Order -denying a new trial-, plaintiff -appeals.

'It is evlld'emt that the 1-eiarneid trial -court has misconceived the purport of tine opinion- of -this court in Thompson v. Andrews, 39 S. D. 477, 165 N. W. 9. In the concluding paragraph of that opinion we said:

"Provided, also, that the surface waters of one natural watershed or basin may not, by means of cutting or removal of natural barriers, be cast into or upon"

Tíie decision 'in that case in' no manner overruled the decisions in Anderson v. Drake, 24 S. D. 216, 123 N. W. 673, 27 L. R. A. (N. S.) 250, and Boll vs. Ostroot, 25 S. D. 513, 127 N. Y. 577. We said that, in effect, in Mishler v. Peterson, 40 S. D. supply page No. page No. 166 N. W. 640. The trial court found that water never flowed out from this lake, and the evidence showed without dispute that the lake was a distinct natural basin for the 'drainage of some two' sections of land. Hence the decisions in Anderson v. Drake and Boll v. Ostroot, supra, apply, and the' case of Thompson v. Andrews, does not ‘apply. The only method open to defendants to cause the1 lake to be drained was by proceeding under the drainage law.

The judgment add order appealed from are reversed, 'and the trl'ail court is directed to enter judgment enjoining the maintenance of Itihe tile drain; and upon, the evidence heretofore received', or upon new evidence as it may he advised, to determine the amount of damages that plaintiff is entitled to recover.