Lindamood v. Board of Education Etc.

• Decision Date: 28 November 1922
• Parties: E.V.Lindamood v. Board of Education Etc.
• Court: West Virginia Supreme Court

92 W.Va. 387

E. V. Lindamood

v.Board of Education Etc.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 1922.

Decided November 28, 1922.

Waters and Water Courses Declaration That Water is Artificially Collected on Lands of Defendant and Discharged on Lands of Plaintiff to His Damage States Cause of Action.

A declaration which in substance states that defendant has, in improving its lot of land, constructed an embankment thereon by which surface water is collected in a volume into a channel which discharges such surface water over said em- bankment and upon an adjoining lot belonging to and occupied by plaintiff, to his great damage, states a cause of action, and a demurrer thereto is properly overruled.

Case Certified from Circuit Court, Mingo County.

Action by E. V. Lindamood against the Board of Education of "Williamson Independent School District. Demurrer to the declaration was overruled, and the ruling certified to Supreme Court of Appeals for review.

Affirmed.

Joe Hatfield, for plaintiff.

Lively, Judge:

This action is to recover damages from defendant for obstructing the natural flow of surface water on his lot, collecting the same in a ditch or drain made by defendant in grading and banking its lot, and casting the water so collected in said ditch over said embankment upon plaintiff's lot.

Demurrer to the declaration was overruled, and the judge, on his own motion, certified his ruling to this court for review.

The only question presented is whether the declaration states a cause of action.

The pertinent facts stated in the declaration, stripped of useless verbiage, are that plaintiff is the owner of and resides upon the western half of Lot No. 6 in Block 25 in the city of Williamson, Mingo county, and has the right to enjoy said property free from the running of surface water from a certain adjoining lot through a ditch or ravine and over a certain embankment; that on or about the first day of August, 1921, defendant wilfully contriving to debase the value of plaintiff's lot and render it unfit for dwelling purposes, '' wantonly and negligently dug and graded a certain yard or lot on the south side of the high school building in the City of Williamson, Mingo County, W. Va., thereby creating an embankment of earth about five feet (5) high within a few feet of plaintiff's said lot and residence and thereby created a certain ditch, drain and channel whereby the surface water was and is prevented from flowing in its natural course, and caused to flow upon the lot and under the residence and home of this plaintiff, and by reason thereof large quantities of rain water, melted snow and mud running and flowing through said ditch and channel and over said embankment so graded, dug, cut and constructed and made by the said defendant, emptied and discharged themselves over and upon the lot and under and against the residence and fence of this plaintiff," by reason whereof plaintiff has been greatly damaged.

While the declaration is not clearly drawn, and the facts are so inaptly stated as to make it somewhat confusing, we interpret the language thereof to mean that defendant, in grading and improving its lot on...