Henline v. Stack

Opinion of the Court, the

Hon. George W. Pleasants, Judge.

This was a bill to enjoin the commissioners against filling up an open, ditch in the highway on the section line between sections 1 and 12 in the town of Towando. On final hearing upon the pleadings and proof, it was dismissed, and from" that decree complainant ajtpealed.

Appellant owns the east half of said section 1, on which he has resided ever since 1866. Appellees Carmody and Kin sella, respectively, own hind adjoining the highway on the south—that of the former being the K". W. J and the M. W. \ of the N. E. £ of section 12, and that of the latter the E. of the M. E. of said section. On appellant’s land is a low basin which naturally drained south across the highway upon the land of Kinsella. But since the road was graded and rounded up, more than twenty years before the commencement of this suit, none has flowed across it. In throwing up the earth from the north side, a ditch was left there which has since been made wider and deeper by work in cleaning out and by the flow of water therein. It is now two and a half or three feet in depth and five or six in width at the top, and six or eight from the north line of the highway. When the road was graded up, the old culvert across it by which the water from appellant’s basin passed on to Kinsella’s land was taken out, and from that time it all flowed west in the open ditch to another culvert sixty rods or more west of the one referred to, by which the water, together with water from the west, flowed across the road upon the H. W. ¿ of 27. E. of section 12, now owned by Carmody, but then by Tallcingham, and southeasterly over it to the natural water course or depression on Kinsella’s land.

In 1878 appellant laid a tile drain in the western part of his land from a point almost due north of this west culvert to the ditch at that point, and by agreement with Tallcingham, helped him to pay for a larger drain on his land than he had intended to put in. He also soon afterward tiled from the basin spoken of, in the natural course of drainage, to the ditch at the point where the east culvert had been. This has so increased the water flowing to the west culvert as to overflow at times the tile drain of Talkingham, now Carmody’s. And since that is not the natural course of that water, Carmody notified the commissioners to fill up or clam the open ditch, to protect him from it. Of this they advised appellant, who, according to the testimony of one of them, consented to have it done. Thereupon they filled the ditch just west of the tile month and were putting in a wooden culvert about where the old one was, when appellant took out the dam and brought this suit, enjoining them against any interference with the ditch.

Appellant claims the right to have it kept open for the drainage of his land, on several grounds.

Eirst, by virtue of his title to the north half of the highway. He insists that this is subject only to the easement of the public, and that he may lawfully do with or upon that part of the highway what he will that is not incompatible with the reasonable enjoyment of such easement, and that the maintenance of the ditch is not so incompatible.

Second, by lapse of time, the ditch having been open and carrying the water as now for more than twenty years.

Third, by estoppel. It is said that the commissioners by grading up the road and permitting the flow in the ditch for twenty years, have barred appellant’s right to drain upon Kinsella’s land, and so left him no other mode or means of drainage but the ditch.

In their answer, the commissioners aver that they were not intending merely to fill up the ditch, but also to put a culvert across the road, so that the water from complainant’s tile drain could flow in its natural course, and as it did before the road was graded up. The evidence is that they were putting in the culvert when the injunction writ was served, and it is conceded that by a proper culvert there, the water would flow in its natural course. Kinsella was made a party defendant, but did not answer, for the reason, it may be inferred, that as he testified, he did not object to that arrangement. Hor could he successfully resist its execution—if he were so disposed.

What more could appellant rightfully demand or reasonably want ? Why should he insist on keeping open this wide and deep ditch, becoming deeper and wider, only to give him drainage in an unnatural course, when he could have it in the natural one as fully and completely and at a little cost to him by the means proposed ? In the judgment of the commissioners it had become inconvenient and dangerous in the highway, which would seem to be sufficiently obvious from its location and description alone; and its maintenance was shown to be wrongful and injurious to Carmody. There was no apparent necessity for it or advantage in it. It was therefore clearly their duty, under the-statute which gave them charge of the road and required them to keep it in repair, and to improve it so far as practicable, to fill it up, as the needful and only way to avert the danger and put an end to the wrong and injury.

We think the evidence shows the facts above stated, in which case it is hardly necessary to say that appellant could not have the right here claimed, as owner of the fee in the north half of the highway, by prescription, estoppel or otherwise. The decree was right and will be affirmed.