Cubit v. O'Dett
| Decision Date | 03 October 1883 |
| Citation | 16 N.W. 679,51 Mich. 347 |
| Parties | CUBIT v. O'DETT and others. |
| Court | Michigan Supreme Court |
Highway officers have no more right than private persons to cut drains which will flood the lands of private owners.
The discretion of the overseer of highways, in deciding how and where he will distribute highway labor, is limited by the rights of individuals, and he and his assistants are jointly liable for the invasion of those rights.
Trespasses are not excused by good faith, though they may be aggravated by bad faith.
In an action against a highway officer for injury caused by a ditch which he has dug, defendant cannot complain of an instruction that he would not be liable unless the ditch brought upon the plaintiff's land the drainage of a greater area than was drained upon it before.
Error to St. Clair.
Chadwick & Cline, for plaintiff.
Avery Brothers, for defendants and appellants.
The complaint in this case is that defendants have flooded the plaintiff's land by means of a ditch which they cut along the highway, and which had the effect, while draining their own land lying to the west of him, to cast upon his land a large amount of water which otherwise would not have flowed in that direction. There are two counts in the declaration the second only of which requires particular mention. The allegation of damage in that count is that by the flooding of the land, and the deposit of sand and other substances thereon, it has been rendered unfit for cultivation and worthless. In defense it was claimed that what was done in cutting the ditch was rightful, because done under the direction of the overseer of the highways; and it was at the same time denied that the ditch carried upon the plaintiff's land any water, except such as would naturally have flowed there.
The plaintiff's evidence tended to show that the water did not naturally flow along the route of the ditch from the land of defendants to his own, and that the drain commissioner for that reason had refused to lay out a ditch there when applied to for that purpose. It also tended to show that the permanent injury to the land, if the flow was to continue was very considerable. The evidence to this effect was objected to by the defendants, upon the ground that the flooding, if a wrong at all, was a continuous wrong from day to day, and might be the subject of repeated actions to which the recovery in this suit would be no bar. Also that the plaintiff has no right to assume that a wrongful flooding will be persisted in, and be permanent.
It probably ought to be presumed that any action found to be an invasion of another's right will be discontinued. Bare v. Hoffman, 79 Pa.St. 71. But there was evidence in this case that permanent injury had been done which the mere discontinuance of the flooding would not relieve. Moreover, although this was a case of continuous injury from day to day, the injury was not attributed to successive wrongful acts of defendants; they had set the waters in motion by digging the ditch, and then though they abstained from doing anything further, the injury would go on. To assume, therefore, that defendants will not further injure the plaintiff, is to assume that they will proceed to take some positive action to stop the continuous injury. This might be done, perhaps, by a new ditch, which should carry the water away from the plaintiff's land after it had been deposited there; or it might be done by obstructing the existing ditch. A new ditch could not be cut as a mere act of volition on the part of the defendants, for it would need to be cut on the plaintiff's land, where they have no right to go except with his consent, and we cannot assume that consent would be given. The existing ditch might be obstructed without going upon the plaintiff's land for the purpose; but as it is not upon the land of the defendants, and they are doing nothing, so far as we know, to keep it open, there may be question whether they are liable from day to day, as a man may be who maintains a nuisance on his own premises. But there is nothing in this case requiring of us an opinion on that question.
The defendants contended that the plaintiff might relieve himself of the continuing nuisance by a small expenditure of money in cutting a new ditch to drain off his land; and that under these circumstances he was entitled to recover nothing for injury caused by the continuous flooding beyond what the cost of such a remedy would be. This contention appealed to the principle that every man is bound to make the injury he suffers at the hand of another as light as possible, instead of aggravating it, or possibly allowing it to increase. Loker v. Damon, 17 Pick. 284; Indianapolis & C.R. Co. v. Birney, 71 Ill. 391; Seeley v. Alden, 61 Pa.St. 301; McCredie v. Buxton, 31 Mich. 383; Railroad Co. v. Mihlman, 17 Kan. 224. There was some evidence in the case to found this contention upon, and the judge charged the jury that in estimating the damages they should take into account whether the injurious effects of the ditch might not be overcome by the construction of others, and whether such other ditches could be constructed by the plaintiff without injury...
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