Howell v. Jackson

• Decision Date: 15 June 1908
• Citation: 111 S.W. 999,86 Ark. 530
• Parties: HOWELL v. JACKSON
• Court: Arkansas Supreme Court

111 S.W. 999

86 Ark. 530

HOWELL v. JACKSON

Supreme Court of Arkansas

June 15, 1908

Appeal from La Fayette Chancery Court; Emon O. Mahoney, Chancellor appeal dismissed.

Appeal dismissed.

D. L King, for appellants.

Warren Hamiter & Smith, for appellees.

On former appeal, the cause was reversed and remanded with directions to dismiss the complaint. Appellants were before the court then. The dismissal carried all parties out of court. The appeal should be dismissed for failure of appellants to obtain and prosecute a cross appeal when the case was before this court on former appeal. 104 S.W. 550.

OPINION

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. Cabiness, as overseer of Road District No. 1, in La Fayette County, Arkansas, in the La Fayette 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 court house in Lewisville, La Fayette County, Arkansas, 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 La Fayette County, Arkansas, owning and residing on lands adjacent to the public road extending north and south through Old or North Lewisville, south of the court house 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 twenty-five 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. C. Cabaniss as road overseer of La Fayette 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 employees, 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 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 so 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 public; that it is entirely on his land and had been opened and closed by him for his own purposes temporarily, and, that finding it necessary to protect his place from damage, he closed it; and that he can not protect his place from great damage in any other way; that he resides on said public road three hundred yards north of plaintiff, S. R. Howell, and that his land abuts said public road."

The closing of the ditch between the Jackson and Butler places and the cutting ditches on either side of the public road extending south from the old court house in Lewisville beyond the places owned by...