Alcorn v. Sadler

• Decision Date: 25 February 1889
• Court: Mississippi Supreme Court
• Parties: J. L. ALCORN v. W. R. SADLER

5 So. 694

66 Miss. 221

J. L. ALCORN v. W. R. SADLER

Supreme Court of Mississippi

February 25, 1889

FROM the chancery court of Coahoma county, HON. W. R. TRIGG Chancellor.

This was a bill filed by appellant, Alcorn, to enjoin the appellee, Sadler, from digging a large ditch to drain a lake or body of water situated partly on his land but mainly on the land of Alcorn. The material facts deemed necessary to be stated, in so far as they are admitted, or are established by the evidence, are these: Alcorn and Sadler are adjacent owners of large bodies of valuable land situated in Coahoma county, devoted principally to agriculture. Alcorn purchased his land about twenty-five years before the commencement of this suit, Sadler at that time being the owner of his tract. Near the centre of Alcorn's land is a natural depression which forms the bed of a shallow lake, or, it may be termed a cypress brake, which is in the shape of a horse shoe, about three miles long, and, on an average, about four hundred yards wide, covering an area of about five hundred and twenty acres, about four hundred and ninety acres being on Alcorn's land, and the remainder, near the northern end being on the land of Sadler. About the centre of this brake (on Alcorn's land) is a body of water, covering several acres, which at lowest water is from five to eight feet deep and is devoid of timber, the body of the brake being thickly studded with cypress trees and generally covered with very shallow water. The only outlet from this brake is near the southern end, on Alcorn's land, through a small but well defined bayou, called Sheps bayou, which runs a long distance through Alcorn's land and empties into another bayou. This body of water is an accumulation of surface water which comes down from the adjacent lands, including the land of Sadler. It has never been dry, and Alcorn claims that it is a natural and well defined lake, while Sadler claims that it is only a marshy place, covered in rainy weather with surface water, most of which comes from his land. This body of water is delineated as a lake on a map of Coahoma county, made in 1872, that was introduced in evidence, but is marked "cypress," and is not expressly designated as a lake. On Hardie's official map of Mississippi, antedating the former, it also appears to be represented as a lake. Appellant, Alcorn, resided on his land and used the water in this lake or body of water, and that passing through Sheps bayou, when running, for his stock and other purposes. About 1867 or 1868 he conceived the idea of utilizing the numberless valuable cypress trees that filled the brake, and, as the water, outside of the deeper basin, was too shallow to float logs, he built a dam across Sheps bayou, near its mouth, the effect of which was to increase the depth of the water in the brake. It also increased the submerged areas, banking the water further up on the surrounding land, including that of Sadler. Appellant then erected and equipped, at considerable expense, a large milling establishment, and immediately began felling the cypress trees and floating them down to his mill to be converted into lumber, shingles, etc. Each year he confined the waters by means of his dam for a sufficient time and to a sufficient depth to enable him to float the requisite amount of timber to his mills for consumption, and then, by means of flood-gates, he would release the surplus waters through Sheps bayou. The mill was burned in 1872 or 1873, but it was immediately rebuilt and equipped without causing any material interruption of this use of the water. In this way appellant continued to back the water up on Sadler's land each year from the time the dam was built, about the year 1867 or 1868. There is a conflict in the evidence as to the time it was completed, appellant claiming that it had been built more than twenty years before this suit was commenced, and appellee denying this.

In April, 1888, Sadler began digging a large ditch across and through his own land, for the purpose of draining all the water off the fraction owned by him, both the water that would stand there naturally, if any, and that which is caused by appellant's dam when closed.

On April 17, 1888, appellant, Alcorn, filed the bill in this case to enjoin the cutting of the ditch. In his original and amended bills he alleges the foregoing facts as to the location of the alleged lake, his erection of the dam, and his use of the water for more than twenty years. In addition to this, he alleges that, owing to the conformation of the surrounding lands, his large and valuable plantations arc naturally protected from overflows of the Mississippi river, and that the proposed ditch or canal leading into a deep bayou would soon wash out and become an immense crevasse, and that the defendant would in this way not only destroy the lake and his natural water-course through Sheps bayou, but in case of overflow would let in on complainant's lands the flood waters of the Mississippi river, to his very great damage. It was further alleged that the proposed ditch would not only let off the water that was backed up on defendant's land by the dam, but would destroy the lake or body of water entirely, and thus render valueless the extensive milling establishment of complainant, besides depriving him of the use of the water for other purposes. Complainant also asserted that he had acquired an easement by an uninterrupted use of more than twenty years in backing the water up on defendant's land; and further, that defendant, after the long lapse of time, knowing of the erection of the mills and other improvements and the use of the water by complainant, was estopped to question his right so to use it.

The answer of the defendant, filed May 14, 1888, denies many of the material allegations of the bill; denies the existence of the alleged lake, and avers that naturally it was only an accumulation of surface water that gathered there in the rainy season; explicitly denies that any such natural lake extends to the land of defendant, and says that but for the wrongful act of the complainant in erecting the dam across the natural outlet, defendant's land would be free from water the greater portion of the year; denies that the cutting of the ditch would interfere with the water as it would exist but for the dam, and avers that even with the dam the whole of defendant's land is often entirely free from water; denies that the dam had been built more than twenty years, and asserts that defendant never had any knowledge that complainant claimed any easement or right to back the water up on his (defendant's) land; avers that he did not know until 1871 that any part of his land was being flooded, and that he then informed complainant that he intended to drain his land for pasturage, and that Alcorn did not object and did not claim any easement. The answer also denies that Coahoma county is subject to overflow by the Mississippi river, and says that it is protected by levees; denies that complainant's land is protected by a natural ridge or elevation, and denies that the opening of the ditch would cause a crevasse, or that any of the complainant's rights would be affected thereby.

On filing his answer, the defendant made a motion to dissolve the injunction on bill, answer and affidavits, and the affidavits of a number of witnesses were read on behalf of each party on the hearing of the motion. The motion was sustained and the injunction was dissolved in advance of a hearing, and before the expiration of the time allowed for taking testimony. From the decree dissolving the injunction, the complainant appeals.

The testimony was conflicting as to many of the controverted questions above stated. As this court only passes upon one question of fact, and that only to the extent of declaring that the evidence tends to establish the proposition stated in the opinion, without adjudicating anything, except that the injunction should have been retained until further investigation, it is not deemed necessary to set out the evidence, or to make any further statement of the facts.

Reversed and remanded.

Cutrer & Cutrer, for appellant.

1. The water on appellant's land has formed a well marked basin, and has become permanently settled. The bed of the lake has always been covered with water, as far as the memory of the oldest witnesses extends. There is a vast difference between the right the owner has to direct the flow of mere surface water squandering over the face of the earth, and in water after it has lost its casual character and assumed definite, regular and permanent form. The water rights of appellant in this case are not based upon the recent creations of new-born rivulets, "a mere child of the passing storm and destined to vanish in the night." They are of definite form and stable character. Such a body of water is recognized by the law and protected by it. Goddard on Easements, pages 70, 240, 241; Gould on Waters, §§ 79, 83; Mohr v. Gault, 10 Wis. 513; Bucklen v. Truell, 54 N.H. 122; Schaefer v. Marthaler, 34 Minn. 487. In the line of these authorities is Boyd v. Conklin, 54 Mich. 590.

2. Sheps bayou, the natural outlet of this body of water, is a stream or water-course, which cannot be interrupted or diverted. Earle v. DeHart, 12 N.J.Eq. 280; Wasburn on Easements, pages 308-314; Gould on Waters, § 41; Ferris v. Wellbourn, 64 Miss. 29; Angell on Water-Courses, § 108; Goddard on Easements, p. 241.

If the natural outlet be obstructed, the right of appellee, if he has any still remaining, must be directed, if at all, to the removal of the obstruction. Mohr v. Gault, 10 Wis. 513; Bennett v. Murtough, 20 Minn. 151; Railway Co. v. Dyche, 31 Kans. 120.

3. The appellee, in the motion to dissolve, bears the...