Miller v. Hayden, &C.

• Decision Date: 05 February 1891
• Citation: 91 Ky. 215
• Parties: Miller v. Hayden, &c.
• Court: Kentucky Court of Appeals

91 Ky. 215

Miller v. Hayden, &c.

Court of Appeals of Kentucky.

February 5, 1891.

APPEAL FROM DAVEISS CIRCUIT COURT.

G. W. WILLIAMS & SON FOR APPELLANT.

W. T. OWEN ON SAME SIDE.

GEORGE W. JOLLY FOR APPELLEES.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

In the year 1876 the defendants in the court below and appellants in this court were interested in draining what was marshy, wet land, and known as Grassy Flat. The appellee purchased land adjacent to or near this swamp, and there is testimony conducing to show that a remote vendor, while in the possession of the land sold the appellee, united with the other parties in interest for the purpose of digging a ditch that would drain this swamp land. There is an elevation between the swamp and the land of the appellee, and through this elevation the ditch had to be dug so as to cause the drainage. When through the elevation the land of the appellee was several feet lower than the land above, where the swamp was located. The ditch never reached the land owned now by the appellee but then owned by his vendor, but was dug through the elevated ground to such a distance as caused the drainage from the swamp to overflow and seriously injure the land now in the possession of the appellee. The parties interested were endeavoring to cut a ditch in a southerly direction through the ridge to Panther creek, where the water from this swamp could flow into this natural channel without injuring the lands south of the ridge that were lower than the lands above. The ditch was cut through the ridge, and there the work stopped, and, as the proof conduces to show, for the want of means to complete it. The result of the failure to complete the work was the overflow of Mattingly's land (now owned by the appellee), and the destruction of his crop of tobacco and a part of his crop of corn. After this, Mattingly threatening to sue, the work was abandoned; the sides of the ditch caved in, trees and limbs of trees falling into it until, in many places, it was nearly filled up.

In the year 1885 the appellee became the owner of this Mattingly land, or parts of it, and in December, 1887, the appellants began to work on this ditch by cleaning it out and removing the obstructions, so that the water from the swamp might flow through it, and the appellee obtained his injunction, preventing them from cleaning out the ditch, and asked that the appellants, on final hearing, be compelled to replace the dirt and obstructions that had been taken from it.

It is insisted by the appellants that Mattingly, who owned the land of the appellee when the ditch was being dug, consented that it should be done, and that the appellees, when they purchased, knew that the ditch had been dug, and all are, therefore, estopped from interfering with the appellants in their effort to clean it out. It is apparent that the understanding between the parties who owned these lands when the excavation was made was that the ditch should extend to Panther creek, and in this way drain the lands both north and south of the ridge into that creek, and in this mode all the wet lands would be reclaimed. It is of vital importance to these appellants to...