Warmack v. Brownlee

Blandford, Justice.

This was a bill filed by the plaintiff against the defendant for the purpose of enjoining the defendant from ditching some forty or fifty acres of land, which land belonged to the defendant. The ground stated in the bill is, that the plaintiff had purchased from a former proprietor (under whom the defendant claimed) the right to dig a certain mill-race to a certain spring; and he alleged that the swamp which the defendant was attempting to drain was above the spring, and the ditching of it was a diversion of the water from the spring which fed his mill-race. Affidavits were read to the court below in behalf of the plaintiff, which tended to show that the water ran through this swamp. Other affidavits, read by the defendant, tended to show that there was no stream flowing through this swamp. The court refused to grant the injunction, and the plaintiff says this was error.

We cannot say, from looking at the evidence in the record, that the chancellor abused his discretion. If there was no water flowing through the swamp that fed the plaintiff’s mill-race, we are of the opinion that the defendant had a right to ditch and drain the swamp so that he might utilize it for his own purposes; though if there was water flowing through the swamp that fed’ the plaintiff’s mill-race, and the ditching would divert this water from the race, an injunction would have been proper. Looking at the whole case as it appears from the record, we cannot say there was error in refusing to grant the injunction. Judgment affirmed.