Jeffers v. Jeffers

• Decision Date: 29 November 1887
• Citation: 14 N.E. 316,107 N.Y. 650
• Parties: JEFFERS v. JEFFERS.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 650

14 N.E. 316

JEFFERS

v.JEFFERS.¹

Court of Appeals of New York.

November 29, 1887.

Appeal from general term, supreme court, Fifth department.

Sally M. Jeffers and John Jeffers, plaintiffs, brought an action against Robert N. Jeffers, defendant, in the supreme court of Wayne county, to restrain defendant from draining his farm. Judgment for defendant and plaintiffs appealed.

WATERS AND WATER-COURSES-ILLEGAL DRAINAGE-ACTION FOR DAMAGES.

Plaintiff sued defendant to restrain him from digging a ditch and turning upon his farm water which never ran there before, but naturally flowed elsewhere. Held, that where it was conclusively shown that the ditch had only increased the natural flow of water, but had caused no damage, and had added no new drainage area, the bill must be dismissed.

De L. Stow, for appellants.

C. H. Roys, for respondent.

FINCH, J.

The principal force of the appellants' argument is directed to the point that there was no evidence of the existence of a water-course upon the defendant's land, into which his ditches drained, and so the finding of the trial court to that effect was error. The argument would be irresistible if the finding meant, or was intended to mean, that there existed on defendant's land a water-course, as defined in the law. That means a living stream, with defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water. Barkley v. Wilcox, 86 N. Y. 144. There was no proof in the case of the existence of such a stream. Everybody agrees that all the water running over defendant's premises was surface water, and the product of rains or melting snow. But we do not so understandthe findings excepted to. The learned judge describes a channel or water-course formed by a natural depression of the land, but expressly says that it conducted nothing but surface waters. He speaks of it again as a ‘water-way’, and in no respect finds that this channel or depression was a water-course in its legal and technical meaning. The exception, therefore, was not well taken.

But upon the finding, thus understood, the appellants claim that they should have recovered, and that the judgment for the defendant was erroneous. In considering this question, it is needed that we understand the issues presented, and the course of the trial. The plaintiffs' cause of action was distinctly and definitely stated in their complaint. They alleged that a ridge of high ground runs east and west across defendant's farm, and north of the swamp outlet and basin to which the new ditches ran, and such that all surface waters south of the barrier naturally flowed to the south, or remained stagnant and evaporated, and none of them flowed north towards plaintiffs' farm, or could so flow except by the aid of artificial changes in the surface of the ground; that this protecting ridge or plateau was about 20 rods south from plaintiff's line; and that the defendant cut his ditch through this ridge, and thus turned upon them water which never before ran that way. The defendant denied that h...