Miller v. Laubach

The opinion of the court was delivered, by

Thompson, J.

The portion of the charge to the jury in this case complained of as erroneous, is as nearly in accordance with the doctrine laid down in Kauffman v. Griesmer, 2 Casey 407, and Martin v. Riddle, reported in a note thereto at page 405, as possible or necessary.- The grounds of recovery on tne part of plaintiff, and on which there was a very decided preponderance of testimony, was, that there was wet or marshy ground on the defendant’s land,- occasioned by what Avas called winter springs by some of the witnesses, and which only saturated the earth AAÚthout running off by a defined channel. To remedy this the defendant constructed a drain through the land thus saturated to the plaintiff’s land, and there discharged the Avater Avhich Avas accustomed to remain on his own, until carried off by evaporation. The plaintiff complained and proved that this rendered his land to the extent of from one-fourth to one-lialf acre Avet and Avorthless. It was of such a state of facts that the learned judge said: “'if the jury find from the evidence that the defendant did so collect the Avater from his OAvn land, and turn it in a body upon the lands of the plaintiff, through an artificial channel made by the defendant, and this was to the injury and damage of the plaintiff, he is entitled to recover such damages as you believe from the eAÚdence he has sustained.” This is just.the doctrine of the cases cited, and certainly the law of such a case.

No doubt the OAvner of land through which a stream flows, may increase the volume of Avater by draining into it, without any liability to dam-ages by a lower owner. He must abide the contingency of increase or diminution of the Aoav in the channel of the stream, because the upper owner has the right to all the adAmntages of drainage or irrigation reasonably used as the stream may give him. But that is an entirely different thing from draining the water standing on the lands of one, through artificial channels, on to that of another. That cannot be done Avithout his consent, and this was the substance of the charge below.

There was no error, and the judgment is affirmed.

Agnew, J., was absent at Nisi Prius when this case was argued.