Banks v. Frazier

• Decision Date: 31 October 1901
• Citation: 64 S.W. 983,111 Ky. 909
• Parties: BANKS v. FRAZIER. [1]
• Court: Kentucky Court of Appeals

64 S.W. 983

111 Ky. 909

BANKS v. FRAZIER. ^[1]

Court of Appeals of Kentucky.

October 31, 1901

Appeal from circuit court, Letcher county.

"To be officially reported."

Action by J. H. Banks against J. H. Frazier for an injunction. Judgment for defendant, and plaintiff appeals. Reversed.

D. D Fields & Son, J. P. Lewis, and Ira Fields, for appellant.

PAYNTER C.J.

The appellant, declining to plead further after the court had sustained a demurrer to his petition, prosecuted this appeal from the order dismissing his petition. In considering the question involved we will assume the averments of the petition are true. Cowan creek is a tributary of the North fork of Kentucky river. The appellant owns a tract of land containing 75 acres, which is situated on both sides of Cowan creek. He owns a small gristmill, built in and across the creek. He has erected a dam across it about four feet high. On one side of the creek a precipitous cliff forms one bank of it. On the opposite side the appellant has erected a levee some distance above the mill. The purpose of the dam is to accumulate water to run the mill. There is a very narrow valley at the point where the mill is erected. A little distance from the bank is the dwelling of the appellant together with other necessary buildings. Between the mill and the dwelling there is a spring, which is used for drinking water and other domestic purposes. The land between the bank of the stream and the dwelling is almost as low as the bed of the stream. If the creek should overflow its banks at the point in question, it would do so on the side next to the house, because the cliff on the opposite side would be a barrier to the overflow on that side. Cowan creek is about six miles long. The plaintiff's land is situated about four miles from the head of the stream. The appellee is erecting a large splash dam, about two miles above the plaintiff's property, in Cowan creek, with the view of accumulating a large volume of water. A great many logs of various kinds are being placed above the dam, so that, when the freshets come, the appellee may be able to float them down. The appellee is also proposing to erect another dam of the same kind about a mile above the plaintiff's premises, for the same purpose for which he has erected the other dam. Cowan creek, even in the highest freshets, does not afford sufficient water for floating saw logs. They could only be floated down the stream when an unusual quantity of water is collected by means of a splash dam, and then by the assistance of men going along the banks of the stream, aiding the current to carry them down. It is not a navigable stream. To accumulate water by splash dams, and thus float the logs down the stream, it will force the water over the banks of the stream through plaintiff's land, destroy his bottom land and his spring and imperil his dwelling. It would either wash the mill away or change the channel at that point and leave it on dry land. It would thus result in practically destroying appellant's property, and to such an extent that he could not be compensated in money. He seeks to enjoin the appellee from accumulating the water in a large volume and floating...