Adam v. Moll

Opinion by

Orlady, J.,

The plaintiff and defendant are owners of adjoining properties which are separated by a public road, and so related by the natural conformation of the ground that the water rising and accumulating on the land of the defendant naturally flows across the public road onto the land owned by the plaintiff. This action was brought to recover damages alleged to be sustained by the plaintiff for the wrongful diversion of the water, which wholly deprived her of its use for necessary domestic and irrigating purposes. The original statement was amended by leave of court under objection which alleged that a new cause of action was thus introduced. An examination of the two statements satisfies us that there was no error in permitting the amendment, as the foundation of the action is the same in each ; the water affected is the same; the description of the watercourse the same; the means employed to effect the diversion are set out with more particularity in the first than in the second; the fact of obstructing and diverting is unchanged; the use of the supply of water the same; and the alleged injury the same. The first assignment of error is not sustained.

The point submitted by the plaintiff embraced the material facts urged by the plaintiff, “ If the jury find from the evidence that the stream of water in contention in this suit, flowed over the lands of the defendant in a defined ditch or channel along the ledge of the hill in the defendant’s meadow onto the public highway and thence across the public highway and onto the plaintiff’s land for a period of twenty-one years and upwards prior to March, 1891, then the plaintiff’s right to have the water discharged at this point became absolute ” and warranted affirmance by the court. The disputed question of fact was limited to one item, — was the défendant responsible for the diversion of the water? The jury was told “The testimony upon tha-t point is somewhat contradictory, it is for the jury to reconcile all tbe facts, it is for tbe court to sáy wbat tbe law is, not to pass upon the facts. You will look at every bit of evidence in the case and reconcile it if you can. If you cannot reconcile it, then you must make up your minds which is to be believed and act accordingly. Now, what is the alleged diversion ? The alleged diversion is that a ditch was dug connecting the stream in such a manner as to change its course and take it down to a certain stone culvert through which it was discharged onto the land of the plaintiff. Who created that diversion if such was created ? If the jury find from the evidence that the act of the son was ratified, approved and assented to by her then she would be responsible; otherwise not.”

The facts were left entirely to the jury and the citation from the testimony of the defendant’s witnesses was fairly made by the court. We fail to find anything in this record sufficient to warrant a reversal. The assignments of error are overruled and the judgment is affirmed.