Porter v. Durham

RodMAN, J.

His Honor, the Judge below, refused to vacate that part of the injunction which prohibited the defendants from continuing their canal so as to turn the water of branch No. 2, (orMorefield branch,) towards the plaintiff’s land. The defendants did not appeal from the judgment in this respect, and we are not called on to examine it.

The principal question presented to us is, as to the right of the defendants to cany the water from branch No. 1 to or near the plaintiff’s land. In considering this we are obliged to form some opinion as to the facts which are disputed between the parties, as it is upon these that their respective rights depend. These conclusions are, however, only provisional, and for the present purpose. It may be that on the final hearing, upon fuller evidence, the facts may appear to be very different from wliat, in our opinion, they now appear to be. We consider it proved with sufficient probability for the present purpose, that the natural flow of the water which finds its way into branch No. 1, is into Walker’s swamp, (or Clayton’s creek.) Several witnesses acquainted with the locality, swear positively to this, and so far as we have seen, no witness swears that it passes over the land between the branch and the plaintiff’s land. This view is supported by the admitted fact, that in order to conduct the water from the branch to the plaintiff’s land, it was found necessary to cut the ditch six feet deep, and to dam up the branch below the point where the ditch departed from it. Taking this to be the fact, it will scarcely be contended that the defendants at common law, and in the absence of any license or grant of the right, have a right to divert a stream of water flowing in a part of its course through their land, from its natural course and outlet, and to conduct it to discharge itself upon the plaintiff’s land, or into his ditches, to his damage. An owner may not use his property absolutely as he pleases. His dominion is limited by the maxim, “sic utere tuo ui alienum non Imdas.” This maxim is so familiar, and the illustrations of it in decided cases are so numerous that any particular reference to them is unnecessary.

Tlie defendants allege that there is an ancient ditch running from branch No. 1, nearly in the direction of the one recently cut by them, and hence claim as we suppose a prescriptive right to their ditch. But when the right to an easement is claimed by lbng enjoyment from which a grant is presumed, the grant presumed is for the precise right which has been .enjoyed, and long enjoyment of one ditch can raise no presumption of a grant of a right -to a ditch differing in any appreciable degree from that enjoyed, in locality or dimensions. It does not appear that the old ditch, remains of which were found on each side of the public road, ever carried down the water from branch No. 1, upon the lands of the plaintiff, or that it has been in a condition to do so within twenty years.

If, as seems to us upon the evidence to be the fact, the natural flow of the water of branch No. 1 is to "Walker’s swamp, the defendants have the right to cleanse it and restore it to that natural condition in which it once discharged, and may still discharge the injurious surplus of water from their lands. If that means of drainage shall from any cause be impossible, or extremely inconvenient, they may obtain a right to drain their lands into the ditches of the plaintiff or through his lands by the means prescribed by our Acts of Assembly.

Such being our opinion on the question as to the defendants’ right to divert the branch, very few observations are necessary upon the right of the defendants over tlie surface water which falls upon their land, and which would naturally flow over tlio surface upon the lower lying lands of the plaintiff. It has been held that an owner of lower land, is obliged to receive upon it the surface water which falls on adjoining higher land, and which naturally flows on the lower land. Of course when the water reaches his laud the lower owner can collect it in a ditch and carry it off to a proper outlet so that it will not damage him. He cannot however raise any dyke or barrier by which it will be intercepted and thrown back on the land of the higher owner. While the higher owner is entitled to this service, he cannot artificially increase the natural quantity of water, or change its natural manner of flow by collecting it in a ditch and discharging it upon the servient land at a different place, or in a different manner from its natural discharge. These elementary principles being founded on reason and equity are common to both the civil and the common law, and are impliedly recognized by our Acts of Assembly respecting draining. They do not present any absolute or inequitable impediment to the drainage of higher lands through lower. If it be necessary (using this word in its legal sense) for the sufficient drainage of the higher lands, to collect the surface water in one or more ditches and carry it off through the lower lands, the higher ,owner may obtain a right to do so, on the just condition that he will not discharge the water on the lower land to its damage leaving the owner to get rid of it as best he may, but will at his own expense, conduct it through, and entirely from, the lower land to a proper outlet.

We have not given any attention to the alleged motives of the defendants. Their motives are immaterial. The question is only as to their rights. The Judge erred in vacating any part of the injunction before a final hearing.

The Judge’s order in vacating part of the injunction is reversed, and the injunction as to the whole of the ditch complained of is continued until the hearing. The plaintiff will recover the costs of this court.

Let this opinion be certified.

Per Curiam. Judgment accordingly.