Davis v. Howell

• Decision Date: 22 July 1907
• Citation: 104 S.W. 550,84 Ark. 29
• Parties: DAVIS v. HOWELL
• Court: Arkansas Supreme Court

104 S.W. 550

84 Ark. 29

DAVIS v. HOWELL

Supreme Court of Arkansas

July 22, 1907

Appeal from Lafayette Chancery Court; Emon O. Mahoney, Chancellor reversed.

Reversed, and cause remanded.

Warren & Hamiter, for appellants.

R. L Montgomery and D. L. King, for appellees.

Land is burdened with its own surface water and water-courses, and the owner can not by artificial means gather the water upon his own property and throw it upon the property of his neighbor. 3 Farnham, Water and Water Rights. 2553; Id. 2619; Id. 2616, 2617; 66 Ark. 271.

OPINION

MCCULLOCH, J.

This is a suit in equity by Mrs. S. R. Howell and B. A. Moore to restrain G. W. Jackson from obstructing a drainway, and also to restrain J. F. Davis, road commissioner of Lafayette County, and N. G. Lewis and T. V. Cabiness, road overseers, from cutting a ditch along the side of a public road in front of property owned by the plaintiffs. The facts are as follows:

The plaintiffs and Jackson severally own land situated in Lafayette County on the west side of the public road running south from the court house in the old town of Lewisville. Jackson's property lies about three hundred yards north of Mrs. Howell's land, and the land of plaintiff Moore lies further south. There is a slight fall from the court house down to a point between Jackson's property and Mrs. Howell's property, and thence a gradual rise on south to a point below Mrs. Howell's property. The surface water has, for the past thirty or forty years, flowed down the road from the court house as far south as Jackson's property, and drains through a natural depression, forming a ditch, along an alley between the Jackson property and a lot known as the "Butler lot." This caused the flooding of Jackson's land, and he has from time to time stopped up the drain way through the alley, so as to prevent the flow of water across his property. This was done with the permission of the county judge.

The plaintiffs in this case sought to enjoin him from maintaining the obstruction, and a temporary restraining order was issued at the commencement of the action, but upon final hearing the chancellor dissolved it. No appeal has been taken from that part of the decree.

The appellants here, who are the road commissioner and the road overseers, attempted to cut a ditch down the east side of the public road from a point opposite Jackson's property, so as to carry off the water diverted by the obstruction maintained by Jackson, and to conduct it to a watercourse known as Wilson's branch. The plaintiffs sought to restrain them from cutting and maintaining this ditch, and the chancellor granted that relief, and the road officials appealed.

Mrs Howell claims that the obstruction maintained by Jackson to the drain-way between his property and the Butler lot, preventing the...