Baker v. Ellis, 36971

• Decision Date: 24 January 1956
• Docket Number: No. 36971,36971
• Citation: 292 P.2d 1037
• Parties: I. R. BAKER, Plaintiff in Error, v. J. E. ELLIS and Ella Ellis, husband and wife, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 1037

292 P.2d 1037

1956 OK 26

I. R. BAKER, Plaintiff in Error, v.J. E. ELLIS and Ella Ellis, husband and wife, Defendants in Error.

No. 36971.

Supreme Court of Oklahoma.

Jan. 24, 1956.

Syllabus by the Court.

1.As between different riparian owners each one is limited to a reasonable use, with due regard to the rights and necessities of others interested.It is the right of all to have the stream substantially preserved in its natural size, flow and purity, and protected against material diversion.

2.In a case of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it is made to appear such findings and judgment are against the clear weight of the evidence.

Appeal from the District Court of Beckham County; W. P. Keen, Trial Judge.

Action by J. E. Ellis and Ella Ellis, husband and wife, against I. R. Baker seeking an injunction perpetually enjoining and restraining defendant from erecting a dam across 'Fish Creek', a small running stream of water.From judgment granting injunction defendant appeals.Affirmed.

Wise & Ivester, Sayre, for plaintiff in error.

Euen D. Ellis, Erick, for defendants in error.

PER CURIAM.

Plaintiff in error was defendant, and defendants in error plaintiffs in the court below, and hereinafter will be referred to as they there appeared.

This action was brought by plaintiffs against defendant seeking a permanent injunction against the erection of a dam across Fish Creek by defendant on defendant's land.From a judgment granting a permanent injunction, defendant appeals.

The record reveals that Fish Creek is a small stream with well defined banks, a channel, a flow of water, and permanency, which originates from a spring or springs located on land of the defendant.It flows generally in a southeasterly direction from its origin across defendant's land, thence across the land of one Bud Lewis, thence onto the lands of plaintiffs.The defendant, said Bud Lewis, and plaintiffs are each dependent upon the waters therefrom for stock water.No other source of supply is available.The lands it traverses are primarily pasture lands and have always been used for the grazing of livestock.

The record further reveals that the volume of water flowing onto plaintiffs' land was disminished when there was a small dam or obstruction placed across the creek on defendant's land while water was being hauled therefrom for road construction purposes; that although only a small amount of water was being taken therefrom for such purpose, there were days when there was no flow of water upon plaintiffs' land; that the spring or springs which are the fountainhead of said stream keeps it flowing, when unobstructed, but when obstructed, exhausts the water supply on plaintiffs' land.

The record further reveals that the general structure or formation of the earth in this area is known as Blaine Gyp; that it is not a dependable formation on which to impound water, but has the propensity of letting water escape through breaks, caverns, caves or crevices in the earth, and be lost from the surface to underground passages; that a 2.7 acre pond had been constructed on the land of Bud Lewis within 150 yards of this stream; that when it became filled a sink hole developed and all water drained therefrom into the underground structure.

The record further reveals that defendant had contacted the Soil Conservation Service and a dam had, by them, been surveyed and staked out across Fish Creek on defendant's land some 20 feet high and of sufficient bent to impound a reservoir of from 3 to 5 acres.It was to have a storage capacity of 65 acre feet, in average depth of 13 feet, and a trickle spillway placed therein consisting of a 3 inch pipe.

Plaintiffs learning that construction was about to begin secured a temporary injunction prohibiting the construction of said dam, which injunction was thereafter made permanent.

The evidence on behalf of defendant is to the effect that there was sufficient water coming into the creek below the planned dam site to furnish the plaintiffs...