Howell v. Jackson

• Decision Date: 15 June 1908
• Citation: 111 S.W. 999
• Parties: HOWELL et al. v. JACKSON et al.
• Court: Arkansas Supreme Court

111 S.W. 999

HOWELL et al. v. JACKSON et al.

Supreme Court of Arkansas.

June 15, 1908.

Appeal from Lafayette Chancery Court; E. O. Mahoney, Chancellor.

Suit by S. R. Howell and another against G. W. Jackson and others to restrain the stopping of a ditch and the construction of certain other ditches. A temporary restraining order was dissolved on hearing in so far as it related to the closing of the ditch, and was made perpetual as to the opening of the other ditches. Defendants appealed from so much of the decree as affected them, but plaintiffs took no cross-appeal. The Supreme Court reversed so much of the decree as affected defendants, and remanded the cause, with directions to dismiss. Three days before the time allowed for appealing expired, plaintiffs appealed from so much of the decree as dissolved the temporary restraining order as to closing the ditch. Dismissed.

D. L. King, for appellants. Warren, Hamiter & Smith, for appellees.

BATTLE, J.

S. R. Howell and B. A. Moore instituted a suit against G. W. Jackson, J. E. F. Davis, as road commissioner, N. G. Lewis, as road overseer of road district No. 5, and T. V. Cabaniss, as overseer of road district No. 1, in Lafayette county, Ark., in the Lafayette chancery court, to restrain defendants from stopping a certain ditch and constructing a ditch on either side of the public road running south from the old courthouse in Lewisville, Lafayette county, Ark., for the purpose of diverting surface water into Wilson Branch. The complaint is as follows:

"The plaintiffs, Mrs. S. R. Howell and B. A. Moore, complaining of the defendants [naming them], state and allege:

"That she is a resident of Lafayette county, Ark., owning and residing on lands adjacent to the public road extending north and south through Old or North Lewisville, south of the courthouse in said county, and that, in case of heavy rainfall, a large amount of surface water is collected on that portion of said public road requiring one or more ditches for an outlet in order to properly drain the same from the road and keep the same in repair and protect the owners of adjacent lands from injury.

"That for a long period of time, at least 25 years, a ditch and natural drainage has been opened and used connecting with said road at a point in the same, and extending thence through an open street or alley belonging to the public, and lower lands, and thus affording sufficient outlet for said surface water and protection to owners of adjacent lands and especially this plaintiff.

"That, notwithstanding the long use of said ditch and outlet so long enjoyed by the public, the defendants, G. W. Jackson, J. E. F. Davis, as road commissioner, and N. G. Lewis and T. V. Cabaniss, as road overseer of Lafayette county, as plaintiff is informed and charges, contemplate and intend to close up said ditch and drainway which has so long been used as above stated, and also contemplate and intend to cut a ditch on either side of said public road extending south from the southeast corner of the place where the defendant G. W. Jackson lives to a point in front of the lot or parcel of land where Rosana Wilhite now resides, immediately south of the home of Mrs. S. R. Howell, and, unless these defendants are enjoined, restrained, will do so, and which, if permitted, will or would cause said surface water to flow over plaintiff Mrs. S. R. Howell's land, and will result in irreparable injury to her.

"Wherefore plaintiff prays that a temporary restraining order be issued against said defendants enjoining and inhibiting them, their agents, and employés, from obstructing or filling up said ditch or drainway or cutting said ditches on either side of said public road until the further order of this court in this cause, and upon the final hearing of this cause said injunction be made perpetual and all other and proper relief."

A temporary restraining order was granted in accordance with the prayer of the complaint.

Davis, as commissioner, and Cabaniss and Lewis, as road overseers, answered jointly and said:

"That they had no intention of closing the ditches between defendant G. W. Jackson and the Hattie Butler place, which they understand is the private property of said G. W. Jackson, but that, as to the ditches on either side of said road, at the point mentioned in the complaint they had intended to open the ditches; that the ditches are essential to the proper drainage of said road, and that the construction of the ditches will not cause any surface water to flow over and upon plaintiff Mrs. S. R. Howell's land, but will, in fact, protect her land from the flow of surface water; that there is a public road just north of plaintiff S. R. Howell's place, which intersects the road mentioned in the complaint, and that, unless the ditches be constructed, large volumes of water collected from the road described in the complaint would run down the road so intersecting the road mentioned in the complaint, and cause a great inconvenience to the public traveling over said road.

"Defendant G. W. Jackson answered separately, and stated that he had no intention of cutting either of the ditches on either side of the road as alleged in plaintiff's complaint, and that he had never threatened to do so.

"But that, as to the ditch mentioned in said complaint, running between his place and the Hattie Butler place, he stated that it had never been opened or used by the...