Johnson v. Metropolitan Life Ins. Co.
| Decision Date | 06 May 1946 |
| Docket Number | 8776. |
| Citation | 22 N.W.2d 737,71 S.D. 155 |
| Parties | JOHNSON v. METROPOLITAN LIFE INS. CO. |
| Court | South Dakota Supreme Court |
Bailey, Voorhees, Woods & Fuller, of Sioux Falls, for appellant.
Robert D. Jones, of Milbank, for respondent.
The plaintiff, respondent herein, sought to enjoin defendant appellant herein, from continuing to maintain a drain whereby it drained water from its land, which water was eventually discharged upon and across the land of the plaintiff. Findings and judgment were for the plaintiff and the defendant appealed.
It appears from the undisputed evidence that the plaintiff is the owner of the west half of the southwest quarter and the southwest quarter of the northwest quarter of Section 15, Township 118 of Range 49, situated in Grant County, South Dakota, and defendant is the owner of the northeast quarter, Section 21 same township and range; that plaintiff has owned his land since February, 1942, and defendant has owned its land for some years. The natural drainage is northeasterly, that is from the defendant's land to the plaintiff's land. On the defendant's land are two sloughs or depressions and the land is well filled with water or dry, depending upon the season and the time of the year. About 1916 the owner of the upperland constructed a tile drain from the upper slough which contained approximately three acres, to the lower slough, containing approximately nine acres, thence through an elevation or barrier at the lower point of the nine-acre slough, thence across other land (not belonging to the parties herein), to the highway between the land belonging to the parties so that the water flowing through the tile drain discharged on the land belonging to the plaintiff. The water so discharged followed a natural depression or watercourse. The testimony of the plaintiff is clear that there was a natural run through his land. In case of an overflow of the lower slough the overflow water would naturally flow down this same depression or watercourse. The learned trial judge found that said sloughs or basin did not have any outlets and that there is no way for the surface water which accumulates in said sloughs can be carried away in a natural course of drainage through a natural watercourse. If such a finding is in conflict with the statement that in case of an overflow of the lower slough the overflow would naturally flow down the same depression or watercourse as indicated in the finding, then such finding does not follow the evidence as the statement that in case of such an overflow the water would flow down such watercourse is undisputed. The witness Hyde so testified as the surveyor and a witness for the plaintiff.
There are three points argued: 1. The defendant has the right to drain its slough under the law of Thompson v. Andrews, 39 S.D. 477, 165 N.W. 9, and under SDC 61.1031. 2. That an easement has been acquired by prescription, the tile having been installed since 1916. 3. That the cause of action was barred by the statute of limitations. If the first proposition is answered in the affirmative such answer is decisive of the case in issue.
SDC 61.1031 reads as follows:
In Thompson v. Andrews, supra, this court used the following language [39 S.D. 477, 165 N.W. 14]: 'We hold the rule to be that the owner of dominant agricultural lands, situate and lying in the upper portion of a natural drainage water course or water basin has, in the course of and for the purposes of better husbandry, a legal easement right, by means of artificial drains or ditches constructed wholly upon his own land, to accelerate and hasten the flow of waters that are surface waters under the rule herein laid down, and to cast the same into and upon a servient estate lying lower down in the same natural drainage water course, at that point where nature, by means of ravines or depressions, has indicated that such surface waters should find a natural outlet; provided, however, that such surface waters should not be collected or permitted to collect, and then be cast upon the servient estate in unusual or unnatural quantities; and, provided, also, that the surface waters of one natural watershed or basin may not, by means of the cutting or removal of natural barriers, be cast into or upon lower lands lying in another and different natural drainage course or basin.'
In disposing of this case several things must be kept in mind. Surface waters in the main only become bothersome to the dominant tenement if they accumulate on the land. In general they will only accumulate if there is a depression on the land and if such depression ordinarily has no barrier at the lower end there would be no depression and no accumulation. It follows, therefore, that if there can be any right of drainage from the dominant estate to the servient estate there must be a cutting or ditching of the barrier. To deny this right is to deny the right to care for surface waters and the right of drainage and it seems as though it would give to the servient estate the absolute right to compel the dominant estate to preserve every depression or pond or slough as nature made it as a protection to the servient estate which would be a nullification of the ordinary right of drainage and the statute. This cannot be the rule.
It might be well to analyze the language of SDC 61.1031, which, in part, is as follows: 'Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, discharging the same into any natural watercourse or into any natural depression whereby the water will be carried into some natural watercourse * * *.'
It would seem as though the defendant came clearly within the right herein given. It would seem as though the only limitation would be that he could not drain his pond and create another pond on the lower owner because then he would not be draining it into 'any natural watercourse or into any natural depression whereby the water will be carried...
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