Hargraves v. Wilson

• Decision Date: 02 April 1963
• Docket Number: No. 39705,39705
• Citation: 1963 OK 77,382 P.2d 736
• Parties: Alfred HARGRAVES, Plaintiff in Error, v. John WILSON, May Wilson and LeRoy Speakman, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 736

382 P.2d 736

1963 OK 77

Alfred HARGRAVES, Plaintiff in Error, v. John WILSON, May Wilson and LeRoy Speakman, Defendants in Error.

No. 39705.

Supreme Court of Oklahoma.

April 2, 1963.

Rehearing Denied June 18, 1963.

Syllabus by the Court

1. In an action of equitable cognizance, presumption is in favor of the trial court's finding, and it will not be set aside on appeal unless against the clear weight of the evidence.

2. A prescriptive right to discharge surface waters upon adjoining land may be acquired although there is no waterway upon the servient estate.

3. The continuity necessary to the acquirement of a prescriptive easement to drain surface waters is such continuity as the right claimed permits, and an interruption of use by a dry season does not destroy continuity.

4. Evidence examined and held that the findings of the trial court are not against the clear weight of the evidence.

Appeal from the District Court of Osage County; R. E. Havens, Trial Judge.

Action for an injunction to prevent the drainage of surface water on to plaintiff's land. From judgment based upon finding that defendants were the holders of a prescriptive easement, plaintiff appeals. Affirmed.

Frank T. McCoy, Robert P. Kelly, Lee W. Cook, Pawhuska, for plaintiff in error.

Chas. R. Gray, W. N. Palmer, Pawhuska, J. Paul Johnson, Ponca City, for defendants in error.

JOHNSON, Justice.

The plaintiff in error, Alfred Hargraves, hereinafter referred to as plaintiff, brought suit in the District Court of Osage County, Oklahoma, against the defendants in error, John Wilson, May Wilson, and LeRoy Speakman, hereinafter referred to as defendants, for a permanent injunction to require the filling of a ditch cut by defendants in a natural ridge on their land, which ditch diverted surface waters from the natural drainage causing damage to plaintiff's land.

Shortly after the filing of the case, a temporary injunction was issued by the trial court pending hearing on the merits. Upon trial of the case on the merits, the court made findings of fact and conclusions of law and denied the injunction. After overruling plaintiff's motion for new trial, this appeal was taken.

The propositions urged by plaintiff for reversal are stated as follows:

1. The ditch constructed by the defendant Wilson through the natural ridge did not constitute a 'water course' and Finding of Fact 14 that it did is contrary to the law and contrary to Findings of Fact 6 and 12, and to all the evidence.

2. The defendant Wilson did not acquire prescriptive right to maintain the ditch through the natural ridge on their land.

3. The Court's Finding of Fact No. 13 that the evidence did not definitely show that the water on the plaintiff's land, crops and roadway 'resulted from the cleaning out or deepening of the ditch or depression of the natural ridge, nor that such added appreciably to any water gathered there' is contrary to the weight of the evidence.

In considering these three contentions of the plaintiff, it should be borne in mind that the rule governing findings of fact by the trial court is as was stated in Thomas v. Owens, 206 Okl. 50, 241 P.2d 1114, in the third paragraph of the syllabus, wherein we said:

'In an action of equitable cognizance, presumption is in favor of the trial court's finding, and it will not be set aside on appeal unless against the clear weight of the evidence.'

In the light of this rule, let us examine plaintiff's first complaint relative to the court's findings Nos. 14, 6 and 12. The findings about which the complaint is made are as follows:

'14. That the ditch or depression in the natural ridge on the Wilson lands became a channel or water course more than fifteen years prior to the time that the plaintiff acquired his lands.

'6. That the ditch or depression through the natural ridge would, in time fill up, as the evidence indicated it had in the past, if left to nature and not been cleaned out or deepened in any respect.

'12. That the ditch or depression through the natural ridge has been cleaned out or deepened to some extent by the Wilsons and others for their benefit as far back as 1930, and as recently as 1954.'

The first assertion, supra, involves the sufficiency of the evidence to warrant the finding of a 'water course' and a determination of whether there is an inconsistency between Finding No. 14 and Nos. 6 and 12.

In the consideration of Proposition No. 1, we are not concerned with the existence of a 'waterway' since it is well-established that an easement to cause surface waters to flow over adjoining land may be acquired by prescription without regard to whether the resulting condition constitutes a waterway or merely spreads over the surface. As was said by the Wisconsin court in the opinion in Charnley v. Shawano Water-Power & River Improvement Co., 109 Wis. 563, 85 N.W. 507, 53 L.R.A. 895:

'* * * That one may obtain a prescription right of flowage under proper conditions cannot be disputed. * * *'

While most of the cases concerning such a situation involve some sort of pipe, drain, ditch or channel in the servient estate, such does not seem to be essential. In the instant case the channel is on the dominant estate, and the water flows over the servient estate through no defined area. We see no reason why a 'water course' or any fixed channel is required. In the case of Edwards v. Atchison, T. & S. F. R. Co. (Cal.), 15 F.2d 37, the railroad had acquired a right of way adjacent to plaintiff's land and constructed a roadbed thereon one or two feet above the plaintiff's land. This roadbed was impervious to water, and a culvert was placed below the roadbed to permit the water to pass through. It was alleged by plaintiff that during the winter of 1913-14 heavy rains occurred whereby large quantities of water accumulated and passed through the ditch to the culvert to plaintiff's land, cutting a channel and damaging plaintiff's land.

The answer pleaded rain greatly in excess of anything theretofore known, and further pleaded that the ditch and culvert had been maintained continuously since 1887. The court held for the defendant, and that case is authority for two propositions: 1. That a right to discharge water upon the land of another may be acquired by prescription; 2. That interruptions by dry season do not destroy the continuity of the adverse holding.

The pertinent paragraphs of the syllabus are as follows:

'Railroad, to prove prescriptive right to discharge surface water through culvert onto land, need not show continuous use; interruption of use by dry season not disproving continuity.

* * *

* * *

'Evidence held to show prescriptive right in railroad to discharge surface waters through culvert onto land.'

As said in 17 A Am.Jur., page 705, Sec. 91:

'* * * It is a well-settled rule that a right of drainage of waters through the lands of another may be acquired by prescription. * * *'

Authorities in support of the above statement are cited from several states.

In connection with the continuity required under adverse possession, it is obvious that the acquirement of an easement to use a passageway or, as in this case, to discharge water does not require a continuous use every hour of the day, but only a use such as is normally exercised. Hence the discharging channel need not be classed as a waterway. In the case of Anneberg v. Kurtz, 197 Ga. 188, 28 S.E.2d 769, 152 A.L.R. 338, a discussion of what constitutes the necessary continuity within the rules of prescription is as follows:

'In Walker v. Steffes, 139 Ga. 520(9), 77 S.E. 580, 581, it is said: 'The rule requiring continuity of possession is one of substance, and not of absolute mathematical continuity, provided there is no break, so as to make a severance of two possessions.'

'In 17 Am.Jur. 972, § 60, it is said: '* * * The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for the statutory period, but simply the exercise of the right more or less frequently according to the nature of the use.' See, also, 2 C.J. 100, § 134, note 7; 2 C.J.S., Adverse Possession, p. 681, § 125 [p. 708, § 146]. In Park v. Powers, 2 Cal.2d 590, 42 P.2d 75(3), it was said: 'Where inclosed land suitable for grazing and pasturage is occupied each year during the entire season therefor, as from May until late October or November, possession is 'continuous' within adverse possession statute.' Adverse possession includes: the use of an irrigation ditch 'during the cropping season,' Hesperial Land & Water Co. v. Rogers, 83 Cal. 10, 23 P. 196(1), 17 Am.St.Rep. 209; 'whenever needed * * * during the irrigation season,' Glantz v. Gabel, 66 Mont. 134, 212 P. 858(3); use of a right of way 'whenever it is needed,' Myers v. Berven, 166 Cal. 484, 137 P. 260(7); use of a fishery 'every year at the proper season,' McLellan v. McFadden, 114 Me. 242, 95 A. 1025(15), 1029; raising a dam 'during the months of April, May, and June in each year, for the purpose of sluicing logs,' Swan v. Munch, 65 Minn. 500, 67 N.W. 1022, 1023, 35 L.R.A. 743, 60 Am.St.Rep. 491. Where a lake covered land of adjoining owner, 'the occasional letting off the water' did not constitute such interruption as would break its continuity, Alcorn v. Sadler, 71 Miss. 634, 14 So. 444, 445, 42 Am.St.Rep. 484; as to use of irrigation ditch 'whenever necessary', it was said, 'what constitutes continuity of use will depend altogether upon the nature and character of the right claimed.' Hays v. De Atley, 65 Mont. 558, 212 P. 296, 298.

'In 9 R.C.L. 774, § 34, it is said: 'The correct rule as to continuity of user, and what shall constitute such continuity, can be stated only with reference to the nature and character of the right claimed. An omission to use when not needed does not disprove a continuity of use, shown by using it when needed, for it is not required that a person shall use the easement every day for the...