Boynton v. Longley

• Decision Date: 27 March 1885
• Citation: 6 P. 437,19 Nev. 69
• Parties: BOYNTON v. LONGLEY.
• Court: Nevada Supreme Court

6 P. 437

19 Nev. 69

BOYNTON v. LONGLEY.

Supreme Court of Nevada

March 27, 1885

Appeal from a judgment of the Seventh judicial district court Washoe county, entered in favor of the plaintiff.

Clarke & King, for appellant.

R. H Lindsay, for respondent.

HAWLEY J.

This case presents an interesting question which has never been decided in this state. Appellant is the owner of certain lands which require irrigation, and the water used for this purpose flows, by the laws of gravitation, onto the adjacent and lower lands owned and cultivated by respondent. This action was instituted by respondent to recover the damages to his land and crops alleged to have been caused by the waste water flowing from appellant's land, and for an injunction. The facts as found by this court, at the request of plaintiff, are as follows:

"That plaintiff has been in the possession of and has cultivated all of the lands described in the complaint, except the S.W. quarter of section 20, township 19 N., R. 20 E., since A. D. 1862, and entered into possession of and cultivated said last-mentioned lands since 1875; that defendant entered into possession and commenced the cultivation of his said lands in part in 1869, and part in 1870; that at the time of the entry into possession and commencing to cultivate his said land, there was only about 120 acres thereof which was cleared off and ready for irrigation leaving some one hundred and seventy acres of waste and unbroken land which had never been irrigated; that at the time this action was brought, defendant cultivated and irrigated, of said lands mentioned, 291 acres; that defendant and his predecessors in interest procured at all times the water necessary for irrigation of said lands through an artificial water-ditch *** which conducted the waters of the Truckee river a long distance to said land, as well as waste or surplus waters from the lands of other farmers; that prior to 1878 defendant had only the right to use 150 inches of water from said ditch; that in 1870 he cleaned and enlarged said ditch, and in 1878 said ditch was enlarged to its present capacity by other parties, for the express purpose of protecting the lands of plaintiff from the waste and surplus waters of other farmers; that plaintiff cultivates several hundred acres of land by means of irrigation, and that his said lands are only valuable with the proper use of water; that portions of his said lands are very flat, and the waters discharged thereon from defendant's lands cannot run off, but if so discharged will remain standing thereon until drank up by the soil or evaporated; that in August, A. D. 1882, the surplus or waste water of the waters upon defendant's lands were discharged upon plaintiff's lands, and flooded and covered about forty acres thereof, and remained standing thereon to the depth of 3 or 4 inches for 10 or 12 days; that plaintiff's system of drainage, and his ditches therefor, are sufficient for his own and ordinary necessities, but are insufficient to collect and control the waters from defendant's lands."

In a dry and arid climate, where irrigation is necessary in order to cultivate the soil, the question as to the rights of the proprietors of upper and lower lands in regard to the waste water has seldom arisen, because, as a general rule, the lower land-owner is willing to receive, dispose of, and profit by the use of all water flowing from the upper lands of another in irrigating his own land. It is seldom that any land-owner in this state has occasion to complain of too much water. The cry is, usually, not for less but for more. As to the flow of water caused by the fall of rain, the melting of snow, or natural drainage of the ground, the prevailing doctrine is that when two tracts of land are adjacent and one is lower than the other, the owner of the upper tract has an easement in the lower land to the extent of the water naturally flowing from the upper land to and upon the lower tract, and that any damage that may be occasioned to the lower land thereby is damnum absque injuria. Water seeks its level and naturally flows from a higher to a lower plane; hence the lower surface, or inferior heritage, is doomed by nature to bear a servitude to the higher surface, or superior heritage, in this: that it must receive the water that naturally falls on and flows from the latter. The proprietors of the lower land cannot complain of this, for aqua currit et debet currere ut currere solebat. But this rule-this expression of the law-only applies to waters which flow naturally from springs, from storms of rain or snow, or the natural moisture of the land. Wherever courts have had occasion to discuss this question they have generally declared that the servitude of the lower land cannot be augmented or made more burdensome by the acts or industry of man. See authorities cited in the briefs of counsel.

Washburne, referring to the respective rights of adjacent land-owners, in respect to waters which fall in rain, or are in any way found upon the surface, but not embraced under the head of streams or water-courses, nor constituting permanent bodies of water, like ponds, lakes, and the like, before reviewing the authorities upon this subject, says:

"It may be stated as a general principle that by the civil law, where the situation of two adjoining fields is such that the water falling or collected by melting snows and the like upon one, naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land, if desired by the owner of the upper field. But the latter cannot, by artificial trenches or otherwise, cause the natural mode of its being discharged to be changed to the injury of the lower field, as by conducting it by new channels in unusual quantities onto particular parts of the lower field." Washb. Easem. 450.

In Livingston v. McDonald, 21 Iowa 160, the court declared, after reviewing...