Ladd v. Redle
| Citation | 12 Wyo. 362,75 P. 691 |
| Parties | LADD v. REDLE ET AL |
| Decision Date | 07 March 1904 |
| Court | United States State Supreme Court of Wyoming |
ERROR to the District Court, Sheridan County, HON. JOSEPH L STOTTS, Judge.
Actions by Virga N. Ladd against William Redle and Rosa Redle. The material facts are stated in the opinion.
Affirmed.
E. E Enterline, for plaintiff in error.
It was the duty of plaintiff to use reasonable care to protect her land from further washing as a result of the acts of defendants, and she might construct embankments for that purpose. It was, therefore, error to exclude the testimony offered to show the necessary cost of such work. (Sweeney v. Ry. Co., 25 Mont. 543.) The findings and judgment should have been in favor of plaintiff. The overwhelming proof sustained the allegation that the main creek separated into two channels. The creek is a water course. (Gould on Waters, 41, 264; 2 Ballard Ann., 721; Angell on Water Courses, 4; Simmons v. Winters, 21 Or. 35; Spangle v. San F., 84 Cal. 12; Pyle v Richards, 17 Neb. 180; Ry. Co. v. Dyche, 31 Kan. 120; Rigney v. Tacoma L. & W. Co., 9 Wash., 576.) The court takes judicial notice that the creek is unnavigable. (Clark v. Cambridge, 45 Neb. 798.) The title of the creek bed of the eastern channel is in the plaintiff. (Griffith v. Holman, 23 Wash. 347; Clark v. Cambridge, supra.) The great preponderance of the evidence shows that the acts of defendants diverted the waters and deflected the current. The defendants are liable for all damages caused thereby to plaintiff's land. (Ry. Co. v. Clark, 51 S. W., 962; Cushing v. Pires, 124 Cal. 663; Barnes v. Marshall, 68 id., 569; Weiss v. Or. I. & S. Co., 13 Or. 496; Pyle v. Richards, 17 Neb. 180; Van Orsdel v. Ry. Co., 56 Ia. 470; Ry. Co. v. Dyche, 31 Kan. 120; O'Connell v. Ry. Co. (Ga.), 13 L. R. A., 394.) The fact that the defendants persisted in their acts after notice not to do so entitled plaintiff to exemplary damages. (Cosgriff v. Miller, 10 Wyo. 190.)
Plaintiff was entitled to the equitable relief prayed for. Except as to the right of diversion for beneficial uses, the plaintiff had the right to insist that the waters of the stream shall flow undisturbed in their natural channels. (Gould on Waters, Secs. 230, 204; Rigney v. Tacoma L. & W. Co., 9 Wash., 576.) There is a right of action, though no actual damage is shown. (Gould on Waters, Secs. 401, 403, 405.) Equity interferes to prevent unlawful diversion. There is no adequate remedy at law, as the injury is irreparable. (Gould on Waters, 508, 510, 512, 513, 519, 520; Dudley v. Hurst, 67 Md. 44; Wilton v. Dickerson, 38 Neb. 767; Kelly v. King, 114 Cal. 378.) Plaintiff was not guilty of laches. .)
E. E. Lonabaugh, for defendant in error.
No damage being proven, and no continuing injury, judgment was properly rendered for defendants. There was no error in excluding the evidence as to cost of embankment to protect plaintiff's land. That was no part of the measure of damages. (Walters v. Chambers (Mich.), 32 N. W., 440.) A riparian owner may build up his land to the thread of the stream, and no one can complain. (Parker v. City, 48 P. 631; Ry. Co. v. Carr, 38 O. St., 448.) Where the evidence is conflicting the appellate court will not interfere. (Kimball v. Payne, 9 Wyo., 441; Jackson v. Mull, 6 id., 55.) The power to issue a mandatory injunction is exercised only with extreme caution, and never where an action for damages furnishes a complete remedy. (High on Inj., Secs. 2, 358.)
The plaintiff in the court below, plaintiff in error here, brought suit against the defendants for damages and also, in a separate action upon the same facts, sought an injunction against the defendants to restrain them from certain acts by which it is alleged the current of Big Goose Creek, a stream flowing through the town of Sheridan, is deflected from its natural course and thrown against plaintiff's lots, thereby causing such current to continuously encroach upon and cut away plaintiff's ground. The District Court consolidated the two actions and upon the trial gave judgment in favor of the defendants. The plaintiff in error urges two reasons why the judgment should be reversed, viz: that upon the evidence the judgment should have been for the plaintiff and that the court erred in excluding evidence that an expenditure of five hundred dollars would be required to protect the lots of plaintiff from the encroachment of the stream.
It appears from the evidence that on June 6th, 1899, the plaintiff became the owner of certain ground adjoining the lots of defendants on the east, the south line of the property of both parties being the same and fronting upon Burkett street. The stream known as Big Goose Creek enters the properties from the south and it would seem, though this is not very clear from the evidence, that the main branch is entirely upon plaintiff's ground. In times of high water, at a point some five hundred feet south of the two properties, a portion of the water of the stream overflows into another channel to the west. This channel passes over defendants' lots near their east line. Ordinarily there is little, if any, water in this west channel, but in June and July, when the water is high from the melting snows in the mountains, about a fourth to a third of the water of the creek flows into it and at times overflows a portion of defendants' ground. In June, 1899, defendants filled in the low parts of their lots and cut off, or graded down, the southeast corner, so that the water flowing through the west branch would flow into the main stream at, or near, the corner of their lots. They also erected a wall or dike on their own ground some five feet from their southeast corner to divert the water into the main channel and further protect their lots from overflow. The plaintiff claims that the effect of turning the water of the west branch into the stream at this point is to deflect the current toward the east and push it over against the east bank on her ground, washing away the soil and causing the bank to fall in.
It is a well settled proposition of law that one may do as he will upon his own ground, provided it is not to the injury of others. And there can be no question that a proprietor may fill in and raise the level of his ground or erect embankments or dikes upon it to protect his premises from overflow, but he has no right to cast the water upon the ground of another to his injury. And if he does so, he is liable in damages. (28 Ency. L., 957; Pixley v. Clark, 35 N.Y. 520 (91 Am. Dec., 72); Radcliff v. Mayor, 4 N.Y. 195 (53 Am. Dec., 357); Hay v. Cohoes Co., 2 N.Y. 159 (51 Am. Dec., 279). Under the evidence, we think there can be no question that in ordinary high water, occurring annually at the time of the melting of the snows in the mountains, the west branch was the natural course of a portion of the water of the creek. And, while the evidence tends to show that, independently of any act of the defendants, the passage of vehicles along the street had partially cut away a sandbar and thus opened a passage for a portion of the water of the west branch into the east branch, or main stream, yet there is no question that the acts of the defendants also diverted a portion of the water into the main stream and on to the ground of the plaintiff.
The only question before this court in the first action, therefore, is whether the refusal of the District Court to give judgment in favor of the plaintiff for damages was reversible error in view of all the evidence. We think it was not reversible error.
The plaintiff acquired the property on June 6th, 1899, by conveyance from her mother, Mrs. Held, who had been the owner and in possession for several years before. The acts of defendants, of which complaint is made, occurred in the same month. That the banks washed away and that plaintiff's property was damaged, there can be no doubt but the evidence that it was due in any measure to the flowing in of the water of the west branch, or any act of defendants, is very slight, indeed; and we think there is a great preponderance of the evidence that it was not. Mrs. Held thinks that the current prior to June, 1899, was near the center of the bed of the creek and that the acts of defendants caused it to be deflected against the east bank. But the evidence shows that at this point there is a bend in the creek, that the property of plaintiff is on the outside of the curve and the current flowing in a northeasterly direction, its tendency is toward the point...
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