Baker v. Allen

• Decision Date: 11 March 1899
• Citation: 50 S.W. 511
• Parties: BAKER v. ALLEN.
• Court: Arkansas Supreme Court

50 S.W. 511

BAKER v. ALLEN.

Supreme Court of Arkansas.

March 11, 1899.

Appeal from circuit court, Lawrence county, Eastern district; Richard H. Powell, Judge.

Action by J. F. Allen against R. S. Baker to recover for injuries to his land caused by the obstruction of surface water. Judgment for plaintiff, and defendant appeals. Reversed.

J. F. Allen owned a tract of land in Independence county adjoining a tract owned by R. L. Baker. Baker's tract lay south of Allen's land. Both tracts were nearly level bottom lands, subject at times to overflow from White river. A swale or slight depression extended across a portion of Allen's land and also across Baker's land. There was no creek or stream, but the surface water from a portion of Allen's land, and also from other lands lying above Allen's land, drained off along this swale over Baker's land. To protect his land from this surface water flowing from Allen's and adjacent lands, a previous owner of the Baker tract had constructed a small levee, about eighteen inches high and two or three hundred feet long, across this swale, near the upper portion of the Baker tract, and only a short distance from the south side of the Allen tract. The effect of this levee was, in wet seasons, to hold back the surface water upon a portion of Allen's land, and render it wet and unfit for cultivation. This levee was afterwards cut, and an opening made sufficient to allow the water to pass off from Allen's land. It was in this condition in 1890, when Baker became the owner of the land, and remained cut until 1894. Baker rented his land to one Busby for that year, and in February, 1894, Busby closed up the opening in the levee, and some of the witnesses say that he also made the levee longer and higher. Shortly afterwards, Hart, a tenant of Allen, complained to Baker that the levee had been closed, and asked permission to cut it. Baker told Hart he could do so, but Busby, to whom the land was rented, refused to have the levee cut, and it remained closed during the year 1894. In August of that year, Allen brought this action against Baker, alleging that on the 1st day of February, 1894, he wrongfully and negligently caused to be constructed a levee across the swale or depression running through the land of plaintiff and defendant, and thereby caused the water to back upon and overflow a large quantity of plaintiff's land, to wit, 30 or 40 acres, more or less, causing said land to become wet and unfit for cultivation, to plaintiff's damage in the sum of $1,000, for which he asked judgment. Baker filed an answer denying the material allegations of the complaint. On the trial the circuit judge gave the following instructions to the jury (the first six of which were objected to by defendant. The last two were given at request of defendant): "First. The issue to be settled in this case is, was the obstruction of the embankment or levee complained of any injury to the plaintiff's property for which he had a right to hold the defendant responsible? And, if so, how much has been the damage? Second. To entitle the plaintiff to recover, it must be proved, to the satisfaction of the jury, that the defendant, in building or causing said embankment or levee to be constructed, or some part of the works in connection therewith, so obstructed or impeded some natural flow of water, by erecting an embankment across said stream or natural flow in such manner, as to cause the same to overflow the premises of the plaintiff. Third. If the evidence in the case shows, to the satisfaction of the jury, that there was a natural flow and drainage of water, accumulating by rainfall or otherwise from the surrounding country, by which the water, in its natural flow, was carried off from the lands of the plaintiff across the lands of the defendant, and that, by the erection of the embankment complained of, the flow was prevented, and land of the plaintiff caused to be overflowed, then the defendant would be responsible in damages to plaintiff, to the extent of the injury caused thereby to his property. Fourth. Although the levee or embankment complained of had been built more than three years before the commencement of this action, if, after it was so built or constructed, the same had been cut, so as to avoid any obstruction by said embankment, and afterwards the defendant filled up said cut, or caused the same to be filled, so as to overflow the plaintiff's land, the statute of limitation would begin to run, for the purpose of this suit, only from the time of filling said cut. Fifth. In estimating the damage, the jury can only consider the value of the lands and premises injured at the time the injury complained of was done, and compare it with what the value would have been if the overflow had not been caused, and fix the damages at the difference between the two values. Sixth. The jury is instructed that, if they find from the evidence that complaint was made to the defendant by the plaintiff or his tenant of the damages caused by the levee on his place, it was his duty to have it abated or removed, and, if he failed so to do, he would be as responsible as if he had ordered it originally, for all damages that resulted therefrom after he was so notified. Seventh. The jury are instructed that a landowner has a right to erect a levee or embankment on his lands to improve them for the purposes for which the lands are naturally suited, and prevent surface water, such as rainfalls, melting snows, ice, and such waters, flowing onto his lands; and if you find from the evidence that the defendant's lands are adjacent to plaintiff's lands, and are suited for agricultural purposes, and that the defendant maintained the levee complained of wholly on his own lands, to protect his lands from surface waters, such as rainfalls, melting snows, ice, etc., flowing onto them, to improve them for agricultural purposes, with no malicious design or evil intent to damage the plaintiff, you will be authorized to...