809. ALDRITT v. FLEISCHAUER SUPREME COURT OF NEBRASKA. 1905 74 Nebr. 66, 103 N. W. 1084 APPEAL from the District Court for Fillmore county: LESLIE G. HURD, Judge. Affirmed. The plaintiff brought this action to enjoin the defendant from discharging surface waters which accumulated in a pond upon the defendant's land through a ditch onto and over the lands of the plaintiff. The defendant is the owner of the west half of the northwest quarter of a certain section of land in Fillmore county, and the plaintiff owns 160 acres south of it. Upon a portion of the defendant's land there is a depression which extends to the eastward over the land of an adjoining proprietor, named Howarth. The larger portion of this depression or basin is upon the land of Howarth, and in times of wet weather or of melting snows the basin is filled with water, which covers 35 or 40 acres to a depth of three feet or more at the deepest point, about 10 or 15 acres being on defendant's land. In dry seasons the basin is dry. There is no natural outlet, and the only way of escape for the water is by evaporation or percolation. On the land of the defendant a small natural waterway or channel takes its rise, extending in a southerly direction to the land of the plaintiff, and finding its outlet into a larger depression or waterway extending in a southeasterly direction over the plaintiff's land, and finally draining into a natural watercourse, called Turkey creek, some miles distant. This depression upon the plaintiff's land has been in cultivation for over twenty years. defendant dug a ditch entirely upon his own land through a slight rim or rise of land between the pond and the natural waterway or "draw," as locally styled, which leads to the plaintiff's land, thereby draining the water from the pond into the natural waterway upon his own land, and thus into and across that portion of the plaintiff's cultivated land which occupies the waterway or depression before mentioned. The J. D. Pope, for appellant. C. H. Sloan and F. W. Sloan, contra. LETTON, C., [after stating the facts as above:] The facts with reference to the character of the basin or pond upon the defendant's land and the manner of discharge upon the land of the plaintiff are very similar to those in the case of Todd v. York County, 72 Neb. 207, 66 L. R. A. 561. The only apparent distinction between the two cases as to the facts is that in the Todd case the ditch followed the direction of the natural drainage, and that, if the pond or basin had been filled up, the water of the same would have followed the same course as it was made to follow by the digging of the ditch, while in the instant case the evidence fails to show with any certainty where the water would flow in such case, though the greater weight of the evidence tends to show that the lowest point on the rim was on the south side of the pond, on Howarth's land, and beyond plaintiff's east line, so that the water in such case would not reach plaintiff's land. Under the rule in the Todd case, which seems to be the rule of both the civil and the common law (3 Farnham, Waters, secs. 889a-889c; also note by H. P. Farnham to Todd v. York County, 66 L. R. A. 561), an owner of land has the right to drain ponds or basins thereon of a temporary character by discharging the waters thereof by means of artificial channels into a natural surface water drain on his own property, and through such drain over the land of another proprietor, even though the flow in such natural drain is thereby increased over the lower estate, provided he acts in a reasonable and careful manner and without negligence; but he cannot divert the flow of the water in a different direction from the natural course of drainage. An interesting discussion as to the law in such case is to be found in the sections of Farnham on Waters above cited. The instant case presents the question whether the owner of lands, upon which a large quantity of surface water often stands in a pond or basin, may by artificial means cut through the natural barrier which prevents it from reaching the lands of an adjoining proprietor, and drain it into a natural waterway on his own land, and thereby cast a new burden upon the adjoining estate, which the water previously could not reach. It is argued for the plaintiff that this case is identical with the facts in the case of Davis v. Londgreen, 8 Neb. 43, and that' the rule laid down in that case applies that the owner of a natural pond or reservoir, wherein the surface water from the surrounding land accumulates, and from which it has no means of escape except by evaporation or percolation, cannot lawfully, by means of a ditch, discharge such water upon the land of his neighbor to his injury. In that case, however, so far as appears from the report, the defendant discharged the waters of a pond by means of a ditch, not, as in this case, into a natural drainage way upon his own land, thence flowing into a larger channel of like nature on the land of the plaintiff, but directly into and over the land of Davis, so that it spread over several acres of the cultivated land and rendered it unfit for use, and so that it commenced to cut a watercourse across the same. There is a clear and marked distinction between the facts in this case and in that, and a general principle which may apply to that case cannot control this. On the other hand, the defendant contends that the rule in the Todd case and in the case of Rath v. Zembleman, 49 Neb. 351, applies. In the State of Nebraska, whose surface consists of more or less rolling plains, the action of the elements has caused by erosion a system of natural drainage channels, locally termed "draws" or "ravines," usually beginning with a slight depression in the surface, and gradually deepening as they reach well-defined streams and watercourses, which are, as compared with those of more humid States, comparatively few in number. These "draws" form natural drainage channels for sur face water, and are largely instrumental in promoting the interests of agriculture and the healthfulness and salubrity of the climate, by furnishing an unsurpassed natural drainage system, and thus quickly removing from the soil any excess of moisture therein caused by excessive rains or melting snows. These channels are usually dry, but are often deep enough with running water after storms to swim a horse. They afford almost the only means of surface drainage available to the husbandman, and his right to the use of the same, reasonably exercised, should not lightly be impaired. We have repeatedly said. that the rule of this State with reference to surface waters is the rule of the common law, and that an owner may defend his premises against it by dike or embankment, and if damages result to adjoining proprietors by reason of such defence, he is not liable therefor. But this rule is a general one, and subject to another common-law rule, that . . . surface water having an accustomed flow in a drainage channel or waterway having well-defined banks may not be stopped by the erection of an embankment across the channel, so as to divert the waters to the injury of adjoining proprietors; a modification of the broad rule laid down in the earlier cases in this State has thus been adopted by this Court. Town v. Missouri P. R. Co., 50 Neb. 768; Chicago, R. I. & P. R. Co. v. Shaw, 63 Neb. 380; Missouri P. R. Co. v. Hemongway, 63 Neb. 610. These cases recognize the existence of the natural drainage channels which are common to the topography of this State, and apply the rule that the natural flow of surface water in the same cannot be interrupted by embankments in such manner as to divert the waters upon the lands of adjoining proprietors to their injury. . . . If these channels cannot be legally obstructed, their use as waterways is recognized, and a reasonable use of their facilities is not wrongful. The Supreme Court of Minnesota in Sheehan v. Flynn, 59 Minn. 436, 26 L. R. A. 632, had before it a case in which the facts were almost identical with those in this case. . . . The statement in the Sheehan case, as in Todd v. York County, supra, that the "common enemy" doctrine applies, except as modified by the rule above stated, is criticised by Mr. Farnham in the notes to those cases in the Lawyers Reports Annotated, and also in his recent work upon Water and Water Rights, vol. 3, p. 2, 598, in which valuable work there is a historical examination and résumé of the English and American cases. However, it is not of so much importance to litigants to label a doctrine properly, as to apply its provisions, and whether we say that the rule in the Todd case and in the Sheehan case is a modification of the commonlaw rule, or that it is an adoption of the civil-law rule, is immaterial, so long as the Court protects the legal rights of individuals. We think therefore, if Aldritt cultivated the natural waterway upon his land, he did it knowing the contingencies incident to its use in this manner. The natural drainage channel existing upon Fleischauer's own land. and running thence through Aldritt's land, was apparently the only outlet reasonably accessible to Fleischauer for the drainage of the surface water. . . . He was justified in using the same in a reasonable manner, even though it resulted in injury to his neighbor Aldritt. . . . We recommend that the judgment of the District Court be affirmed. AMES and OLDHAM, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the District Court is affirmed.1 SUB-TOPIC B. DAMAGE TO AFFLUENT ELEMENTS 810. MEEKER v. EAST ORANGE COURT OF ERRORS AND APPEALS OF NEW JERSEY. 1909 ERROR to the Circuit Court of Allen County. Mrs. Hoover brought suit in the Court of Common Pleas to recover from Straight damages which, she alleged, were sustained by her in consequence of his polluting a stream of water which naturally flowed from his premises upon hers, the pollution resulting from Straight's operation of his lands for underlying petroleum, in which operation petroleum was separated from salt water with which it is commingled, and the salt water discharged into the stream, rendering its water unfit for her live stock and causing it to overflow and injure the grass of her pasture land through which the stream flows. Straight answered, setting up three defenses. On the first and second defenses the cause was tried to a jury, which found for the plaintiff in the sum of $102.25, for which judg 1 [ESSAYS: J. L. Lockett, "Right of Landowners to Deflect upon Lands of Others Waters Overflowing from Water-courses." (A. L. Rev., 37, 713.) John R. Rood, "Surface Water in Cities." NOTES: (M. L. R., VI, 448.) (C. L. R., VIII, 415.) "Subjacent support: subsidence of soil." "Discharge of surface-water by artificial channels." (H. L. R., XI, 130; XIV, 390; XV, 751.) ment was rendered in her favor. Upon those defenses no question now arises. The question here presented arises upon a third defense, to which the Court of Common Pleas sustained a general demurrer. In that defense Straight alleged that he cast no water or other substance upon the plaintiff's lands except by the stream which naturally flowed from his lands to hers, that he was engaged in operating his lands carefully and in the only known mode for operating lands for underlying petroleum, and that the resulting discharge of the salt water raised from his wells into the stream, which was the natural drainage of the basin, was inevitable. The demurrer to this defense having been sustained in the Court of Common Pleas, judgment in favor of the plaintiff was entered, and that was affirmed by the Circuit Court. Messrs. Richie & Leland and Mr. John W. Roby, for plaintiff in error. The cases relating to the pollution of streams by factories, or in the course of any artificial use of the soil, do not apply to such facts as are here involved. The factory can be located elsewhere than at the point where the damages accrue. The oil, on the other hand, has been put in place by nature, and its production is but a natural use of the property where found. If the right of operating for it be denied, then the owner is deprived of one of the natural uses of his property and mankind is deprived of the use of one of earth's great natural resources. It cannot be said that the rule that one must use his own so as not to injure his neighbor applies. Iron & Steel Co. v. Kenyon, L. R. 11 Ch. Div. 783. . . . In Pennsylvania and Indiana this question has been fully discussed and settled to the effect that, where others are injured by a natural use of property, it is but damnum absque injuria. . . . Messrs. Ridenour & Halfhill, for defendant in error. . . . We do not contend that the drilling of oil wells is an unusual use of the lands as compared with those engaged in the same forms of business in certain localities, but is an exceptional use rather than a common and ordinary use. It is not incidental to the use of the soil itself, and yet, indeed, it is destructive of what is the most common use of the soil, viz., for agricultural purposes. The doctrine on which the cases in Pennsylvania and Indiana have been decided, viz., that it is the development of the natural resources of the country, does not apply in Ohio. . . . SHAUCK, J. Counsel for defendant in error cite as complete authority for the judgment under review The C. & H. C. & I. Co. v. Tucker, 48 Ohio St. 41, and it is said that the case was so regarded in the Courts below. In that case it was held that where, in the operation of a coal mine, coal slack, dirt, and refuse are washed down upon the lands of a lower proprietor to his injury, an action lies to recover damages therefor, the deposits having been made intentionally upon the defendant's premises, though made in the conduct of the business in accordance with the general practice in the operation of similar coal mines in the surrounding district. That case may not be full au |