Levy v. Nash

• Decision Date: 29 June 1908
• Parties: LEVY v. NASH
• Court: Arkansas Supreme Court

112 S.W. 173

87 Ark. 41

LEVY v. NASH

Supreme Court of Arkansas

June 29, 1908

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor reversed.

Decree reversed and cause remanded.

John H Cherry, for appellant.

The common law rule is that "surface water is a common enemy, which any land owner may get rid of as best he can." Gould on Waters, § 265; 13 Gray, 601; 10 Allen, 106; 100 Mass. 182; 44 Neb. 526; 48 Neb. 87. Mere surface water, which is supplied by rains or melting snow flowing in a hollow or ravine on the land, is not a watercourse. 52 Wis. 526; 61 Id. 642; 9 Cush. 171; 30 Conn. 180; 22 Kan. 352; 53 Me. 200. The rule which would be applied to surface water in agricultural districts must be somewhat modified when applied to city lots. 65 N.Y. 346. There must be a distinct channel with well-defined banks cut through the turf, or something which will present at a glance the evidence of the action of running water, to constitute a stream or watercourse. 25 Kans. 214; 142 Mass. 110.

Marshall & Coffman, for appellee.

To be a watercourse, it is not necessary that the flow be strong enough to cut through the sod, it being enough that there is a natural depression forming a channel for the stream. It is not necessary that there should be a running stream with well-defined banks. 39 Ark. 463; 66 Id. 271; 82 Id. 447. Appellant did not "so use his own as not to injure another." 21 L.R.A. 593; 26 Id 653; 15 Id. 630; 53 N.E. 325. It is not necessary that appellee resort to the principles of prescription or license to insure himself against the closing of the artificial drain below him. 47 Ark. 66; 78 Me. 300; 58 N.H. 354; 8 L.R A. 277.

OPINION

BATTLE, J.

This suit was brought in the Pulaski Chancery Court by Walter Nash against M. Levy. He alleged in his complaint as follows: "That he is the owner of lot 6 in block 18 in Pope's Addition to Little Rock, Arkansas, which is on the southwest corner of Fourth and Sherman streets; that he has built a house thereon fronting on Sherman Street, and one on the alley, fronting Fourth Street; that about one year ago Fourth Street was graded between Sherman and Commerce streets; and at the end of said alley a large tile drain was placed under and across said Fourth Street to carry off the water, said work of tiling and grading being done under the authority and direction of the city of Little Rock; that running down said alley, and for quite a distance from the south, is a natural drain or watercourse or swale, which carries off large quantities of water, being the outlet for the water falling on several acres of ground; and that prior to the grading of said Fourth Street said drain ran across the same in a northeasterly direction, where the drain pipe is now situated.

"That defendant owns the property on the northwest corner of said Fourth and Sherman streets, lying on the opposite side of Fourth Street from plaintiff's property; and there is and has been for a long time a covered culvert running northeastwardly and under defendant's said property, and the sidewalk adjoining, which for a long time carried off the water of said drain, whence it was carried across the adjoining property, and so on until it reached the town branch.

"That for about two months after the grading and tiling of Fourth Street as aforesaid the water was carried off by said tiling and culvert when defendant closed the end of said culvert at the curb line where it joined the said tiling by placing plank across the same, thereby completely obstructing the flow of the water of said drain. That with heavy rains large quantities of water accumulate at and about the end of said alley on the south side of Fourth Street, submerging his sidewalk and back yard and retaining wall and frequently standing for several days before it evaporates or soaks up in the soil, creating a nuisance and obstructing the travel on said sidewalk on that side, and often rising high enough to run across Fourth Street and the north sidewalk thereof, thereby injuring and obstructing the same.

"That defendant refuses and fails to open said culvert, though often requested to do so. Wherefore plaintiff prays for a mandatory injunction requiring defendant to remove said obstruction and open said drain for the free access and flow of the water through the same, and that he be permanently enjoined from again closing up or obstructing or in any way interfering with said drain or the water through the same, and for costs and all proper and general relief."

The defendant answered and among other things said:

"4. Defendant denies that there is any stream or channel or watercourse running across said block 18, or across the block on which defendant resides; but says that the only water flowing northwardly across or from said block 18 is surface water from rain fall or melting snows, and there is a slight depression through or near the center of said block 18 through and over which the greater portion of said surface water falling on said block 18 passes northwardly toward the town branch; that it flows through no channel, but spreads over the lower land in a northerly direction until...