Jones v. Hannovan

• Decision Date: 28 February 1874
• Parties: Z. G. JONES, Defendant in Error, v. BERNARD HANNOVAN, Plaintiff in Error.
• Court: Missouri Supreme Court

55 Mo. 462

Z. G. JONES, Defendant in Error,

v.BERNARD HANNOVAN, Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1874.

Error to Carroll Circuit Court.

Ray & Ray, for Plaintiff in Error.

I. Defendant had the right to drain the surface-water from his own land by ditches and embankments thereon, and if said ditching and embankments were done on his own lands with reasonable care and skill, and plaintiff is incidentally inconvenienced or injured thereby, he is without remedy. The case is one of “““ damnum absque injuria.” (Swett vs. Cutts, Amer. L. Reg. [Jan. 1872], 11, and cases cited; Waffler vs. N. Y. Central R. R., 58 Barb., 413; Goodale vs. Tuttle, 29 N. Y., 459; Curtis vs. Eastern R. R., 14 Allen, 55; Bowlsby vs. Speer, 2 Vroom, 351; Miller vs. Laubach, 47 Penn. St., 154; Buller vs. Peck, 16 Ohio, 334; Wheeler vs. City of Worcester, 10 Allen, 591; Basset vs. Salisbury Manuf. Co., 3 Amer. L. Reg. [N. S.], 223; Chatfield vs. Thilson, 28 Vt., 49.)L. H. Waters, for Defendant in Error.

I. The owner of the higher ground can do nothing to aggravate the servitude of the lower. An action will lie when the natural servitude is made more burdensome. (Martin vs. Jelt, 22 La., 501; Martin vs. Riddle, 26 Penn., 418; Kauffman vs. Guisemer, 26 Penn., 407.)

II. The ditch of defendant altered the natural drainage so as to throw upon plaintiff's land water that he had not received before. (Bentz vs. Armstrong, 8 Watts. & S., 40; Miller vs. Laubach, 47 Penn. St., 154; Bellows vs. Sackett, 15 Barb., 96.)

III. If the ditch in question increased the quantity of water upon plaintiff's land, or, without increasing the quantity, threw it upon his land in a different manner from what the same would naturally have flowed, then the defendant is liable. (Livingston vs. McDonald, 21 Iowa, 160; Butler vs. Peck, 16 Ohio St., 334; Ang. Wat., 108.)

IV. The defendant's liability was fixed by his interference with the natural drainage. (Sedg. Meas. Dam., 157.) No infringement of the rights of another can be justified on the ground that the act is a benefit to the owner. (Tillotson vs. Smith, 32 N. H., 20; Jewett vs. Whitney, 43 Me., 242; Ang. Waterc., § 433.)

V. Even a supposed benefit cannot be forced upon another against his will. (Webb vs. Portland Manuf. Co., 3 Sumn., 202.)

VORIES, Judge, delivered the opinion of the court.

This action was brought to recover from the defendant damages for the unlawful diversion of the water of a water-course from its natural channel, and turning the waters thereof on the plaintiff's lands, by which he claims to have been damaged. The petition charges, that the plaintiff is the owner of a tract of land in Carroll county, Missouri; that the defendant in the year 1867 wrongfully diverted the channel of a certain stream of water running in near proximity to said land, and wrongfully dug ditches and threw up embankments near to and along the side of plaintiff's land, by which said wrongful diversion of the channel of said stream, and digging of said ditches, and throwing up of said embankment, plaintiff's land was overflowed by said water, &c., and by all which he has sustained damages, for which judgment is prayed in the sum of five hundred dollars.

The answer of the defendant simply denies the allegations in the plaintiff's petition. A trial was had before a jury. On the trial the plaintiff introduced evidence, tending to prove that he and the defendant were the owners of adjoining tracts of land; the land owned by the plaintiff being the land described in the petition; that there were two small creeks or streams of water running over or through defendant's land, one of which ran near to or upon the corner of the plaintiff's land and caused a small quantity of the land to be wet and swampy, but that the waters of the other stream, it being the larger of the two, did not in any way affect the plaintiff's land; that in 1867, the time named in the petition, the defendant had dug a ditch on his own land, by which he carried the water of one of these streams to the channel of the other, and, after uniting the waters of the two streams, defendant had carried their combined waters in a ditch to the dividing line between the lands of plaintiff and defendant, where the ditch was turned, making an angle, and then continued south between the lands of plaintiff and defendant, but on the defendant's own land; that in digging the ditch the earth was thrown on the defendant's land, making an embankment on the defendant's side of the ditch; that, when the streams of water in the ditch became swollen, the water at the angle of the ditch was forced over and ran upon plaintiff's land, and it was damaged thereby. A map was given in evidence, showing the situation of the plaintiff's and defendant's lands, and the water streams on the defendant's land, and also the course and situation of the ditch. The defendant introduced evidence tending to prove, that the ditch made by him, while it might force some water on the plaintiff's land at a time of heavy rains, yet it drained water from the land, as much or more than was forced on it by the ditch, and that the land was not made less valuable by the ditch and embankment. The defendant's evidence also tended to prove, that plaintiff had at one time consented, that, if the defendant would extend the ditch a considerable distance further, he would be satisfied, which the evidence tends to prove was done. At the close of the evidence the court gave a great number of instructions for the respective parties, and refused two instructions asked for by the defendant. The defendant objected to the giving of the instructions on the part of the plaintiff, and excepted to the opinion of the court in refusing the two instructions refused on the part of the defendant. It is not requisite that these instructions should all be stated in full, in order to a proper understanding of the case. The jury returned a verdict for the plaintiff for the sum of $74.99.

The defendant filed a motion to set aside the verdict and grant a new trial, which being overruled he excepted, and has brought the case here by writ of error.

The only question raised in this court by the defendant is as to the propriety of the action of the court in the giving and refusing of instructions to the jury. The court instructed the jury on the part of the plaintiff, as follows:

“If the jury believe from the evidence in this case, that the defendant in the fall of 1867 dug or deepened a ditch, whereby the water of one drain or stream was diverted from its usual channel or bed, and caused to flow in a new direction, and that thereby the whole or any part of the water of such drain or stream was made to flow or did flow upon the land of the plaintiff, then the plaintiff is entitled to recover, irrespective of damages done to his land.”

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