Mason v. Commrs. Of Fulton County

• Decision Date: 30 March 1909
• Docket Number: 10904
• Citation: 80 Ohio St. 151,88 N.E. 401
• Parties: Mason v. Commissioners Of Fulton County.
• Court: Ohio Supreme Court

88 N.E. 401

80 Ohio St. 151

Mason v. Commissioners Of Fulton County.

No. 10904

Supreme Court of Ohio

March 30, 1909

Landowner draining own land - Not liable in damages - To owner of lower land, when - Nor assessable for improvements on lower land.

A landowner may, in the reasonable use of his land, drain the surface water from it into its natural outlet, a watercourse upon his own land, and thus increase the volume and accelerate the flow of water without incurring liability for damages to owners of lower lands; and his land is not subject to assessment for the cost of a ditch, or an improvement that will not benefit its drainage but is constructed to prevent overflow from the watercourse or to benefit the drainage of servient lands.

The facts are stated in the opinion.

Messrs Newcomer & Gebhard, for plaintiff in error.

The owner of a farm may drain it by ditches which empty into natural watercourses; and he may make whatever drains are necessary for good husbandry, either open or covered, and may discharge the water therefrom into natural channels, though he thereby precipitates the water more rapidly and in greater volume upon the land below. Hughes v. Anderson, 68 Ala. 280 44 Am. 147; Washburn on Easements, 452; Peck v. Harrington, 109 Ill. 611; 50 Am. 627; Waffle v. Railway Co., 58 Barb., 413, 53 N.Y. 11; Brown v. Railway Co., 53 Minn. 259, 55 N.W. 123; Graham v. Keene, 32 N.E. 180; Sheehan v. Flynn, 59 Minn. 436, 61 N.W. 462; Beals v. James, 173 Mass. 591; 54 N.E. 245; Peck v. Goodberlett, 109 N.Y. 180, 16 N.E. 350; Sheldon v. Cole, 2 O. N. P., 307; Kauffman v. Griesemer, 26 Pa. St., 407, 67 Am.Dec. 437; Lambert v. Alcorn, 33 N.E. 53; Bickel v. Martin, 115 Ill.App. 367; Aldritt v. Fleischauer, 103 N.W. 1084; Pinkstaff v. Steffy, 216 Ill. 406, 75 N.E. 163; Manteufel v. Wetzel, 114 N.W. 91; Hull v. Harker, 106 N.W. 629; Martin v. Jett, 12 La. 501, 32 Am.Dec. 120; Meixell v. Morgan, 149 Pa. St., 415, 24 A. 216; Baldwin v. Ohio Township, 78 Pac. Rep., 424, 67 L.R.A. 642; Werner v. Popp, 102 N.W. 366; Leidlein v. Meyer, 95 Mich. 586, 55 N.W. 367; Section 4448, Revised Statutes.

The highland can not be called upon to drain the lowlands, even though the water from the highlands may flow in natural streams and cause the water to overflow the lowlands. Daum v. Cooper, 103 Ill.App. 4; Mizzell v. McGowan, 126 N. Car., 93, 39 S. E. Rep., 729.

This right of the dominant estate to the right of drainage is discussed in the following cases: Blue v. Wentz, 54 Ohio St. 247; Dill v. Oglesbee, 5 O. N. P., 271.

It is a principle well settled that the assessments must be levied according to the benefits. It is so declared by statute and the courts strengthen the statute. Sections 4448 and 4455, Revised Statutes; Butler v. Peck, 16 Ohio St. 335; Buckley v. Commissioners, 1 C. C., 251; Lutman v. Railway Co., 56 Ohio St. 433; People v. Jefferson County, 56 Barb., 136; Moore v. Barry, 30 S. Car., 530, 9 S. E. Rep., 589; Walsh v. Barron, 61 Ohio St. 15; People v. Meyers, 124 Ill. 95, 16 N.E. 89.

The assessments must be for special benefits, not for general benefits which may accrue to each member of the community and cannot exceed the benefits. State, Skinkle, v. Clinton Township, 39 N. J. L., 656; 14 Cyc., 1059, 1061; Peck v. Watros, 30 Ohio St. 590; Moore v. People, 106 Ill. 376; Lee v. Ruggles, 62 Ill. 427; State, Lydecker, v. Englewood, 41 N. J. L., 154; Reclamation District v. West, 129 Cal. 622, 62 Pac. Rep., 272; Winklemann v. Drainage District, 170 Ill. 37, 48 N.E.Rep 715; Briggs v. Drainage District, 140 Ill. 53, 29 N.E. 721; Railway Co. v. Commissioners, 129 Ill. 417, 21 N.E. 925; State, Keen, v. Drainage Co., 45 N. J. L., 91; Tidewater Co. v. Coster, 18 N.J.Eq. 518, 90 Am.Dec. 634; Helm v. Richmond, 72 Ill.App. 516; Cott v. Railway Co., 36 N.Y. 217; Thayer v. Brooks, 17 Ohio 489.

Messrs. Handy & Wolf, for defendants in error.

We recognize the fact that surface water or slough water is a common enemy, which each landowner may reasonably get rid of in the best manner possible; but in relieving himself, he must respect the rights of his neighbor, and cannot be justified by an act having the direct tendency and effect to make that enemy less dangerous to himself and more dangerous to his neighbor. He cannot make his estate more valuable by an act which necessarily renders his neighbor's less valuable.

Very little is gained if the same act which dries up one tract of land renders the adjoining tract twice as difficult to redeem. Livingston v. McDonald, 89 Am.Dec. 563; Angell on Watercourses, Sections 108e, j, k; Wood on Nuisances, 378, 397, 398.

There is one case in Ohio wherein the supreme court has considered the propositions herein. Butler v. Peck, 16 Ohio St. 334.

Owner of dominant tenement has no right by means of ditches to collect in one channel waters which would otherwise remain stagnant or evaporate, or gradually flow off and discharge them in a mass upon his neighbor. Martin v. Jett, 32 Am.Dec. 120; Laney v. Jasper, 39 Ill. 46; Butler v. Peck, 16 Ohio St. 335.

SUMMERS J.

Bean creek, or Tiffin river, rises in Devil's lake, in Michigan, about forty miles north of the boundary line between that state and the state of Ohio. It flows southward across the northwestern part of Fulton county and empties into the Maumee river at Defiance, in Defiance county. It is the drain provided by nature for about five townships of Fulton county, or about ninety square miles of land. On petition praying for locating, establishing and constructing a ditch, drain or watercourse, proceedings were had resulting in the commissioners of Fulton county ordering the construction of improvements known as Bean Creek Improvement and Chesterfield Ditch No. 2, said Chesterfield Ditch No. 2 being described as branch No. 1 of said Bean Creek Improvement. Bean Creek Improvement is about eleven miles in length and Chesterfield Ditch No. 2 is about nine miles in length. The whole improvement cost about $37,000.00, and about fifteen hundred farms were assessed.

In the court of common pleas a suit was brought by plaintiff in error, John R. Mason, in his own behalf and on behalf of about three hundred and twenty others, named, who were assessed for about one-tenth of the cost of the improvement, and each of whom it is averred, stands in the same relation and class with plaintiff in the matters and things complained of, each of whom makes the same complaint and is entitled to, and demands the same relief to which plaintiff is entitled, to enjoin the commissioners from assessing upon them any part of the cost of locating or constructing said improvement. The defendants answered, and upon trial in the court of common pleas that court granted an injunction as to all of said plaintiffs excepting eleven. The case was appealed to the circuit court, and in that court at the close of plaintiff's evidence the case was dismissed.

Bean creek where it enters Fulton county is a living stream about one hundred feet in width, with a normal depth of water of about eighteen inches. Not far south from the state line, the stream spreads out forming a marsh, covering about four thousand acres of land. In 1884 Bean creek was dredged and straightened through the marsh so that much of the land was tillable. Back from the creek and from the marsh are uplands, that are rolling and hilly, and which are drained by natural streams and watercourses that empty into the marsh and into the creek. These uplands are from ten to eighty feet above the level of the creek and the streams have a large fall and are swift flowing, so that they furnish natural and ample outlet for the drainage of the uplands. Some of the farms assessed for this improvement are distant ten or eleven miles from Bean creek, and no improvement of some of the streams or watercourses has been made. This improvement was petitioned for by the owners of land in the marsh or lowlands to further reclaim the marsh lands, or for relief from the overflow from the uplands, and the plaintiffs are owners of the uplands.

The lands of the plaintiffs were assessed upon the theory that all the lands in the water-shed should be assessed for the cost of the improvement of the outlet, irrespective of benefits. The surveyor who made the apportionment testifies, (Record 154). "Q. Did you fail to assess any lands which cast their waters into this creek? A. I think not; if I did, it was a mistake. Q. Is that the natural water-shed of Bean creek? A. Yes, sir. We intend to assess all this land flowing into Bean creek." (Record 162.) "Q. Taking drift wood out of a stream falling one foot to the mile will benefit the land several miles away? A. The water from those lands flowing down there made the necessity for increasing the size of the stream, and they should share the cost of the improvement. Q. Is that the theory upon which the improvement was made? A. It is a general benefit. The theory of the improvement is that the waters of those lands flow down and reach Bean creek ultimately; that is, a part of it."

(Record 196.) The following appears:

"The Court: Now, why not let your record show that you offered more evidence of the same character? If the principle for which you are contending is correct and well founded, good law, you have got evidence enough upon the subject to convince the court that the kind of order you are seeking should be made. The question is, is the principle correct? Have you performed you whole duty in the matter of ditching as soon as you get the water off of your own land onto somebody else's?

"Mr Newcomer: If there is sufficient evidence to show that these people have ditched their water in natural watercourses, we are willing to rest.

"The Court: We think there is sufficient evidence of that,...