McCallister v. Bridges
| Decision Date | 23 March 1897 |
| Parties | McCALLISTER v. BRIDGES et al. |
| Court | Kentucky Court of Appeals |
Appeal from circuit court, Daviess county.
"Not to be officially reported."
Suit by W. M. McCallister against Martin Bridges and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.
Sweeney Ellis & Sweeney, for appellant.
Hill & Hill, for appellees.
The appellant occupied and controlled a tract of land in Daviess county, in what is called "Grassy Flat,"-all flat land, subject to overflow, and marshy in its character. The appellee owned lands north of Grassy Flat, the two tracts of land being separated by a ridge about five or six feet high, running east and west, to Panther creek. In 1876, appellant McCallister, and other parties who owned lands in Grassy Flat, which were submerged by water, proposed to the landholders on the north side of the ridge that they would construct and build a ditch that would drain water from both tracts of land into Wolf's branch of Panther creek provided the landholders on the south side of the ridge would give the right of way and consent that the ditch should be cut through their lands and the aforesaid ridge, which effectually prevented any flow of water from Grassy Flat to the lower lands below the ridge. This proposition was agreed to by the landholders on the north, upon the condition that the ditch should be cut entirely through their land to Wolf creek, which was a natural drain. Pursuant to the agreement, appellant and his associates began said ditch, cut through the ridge and a part of the way beyond, through the high land, until the ditch afforded an effectual drain for Grassy Flat and all the lands south of the ridge. Work upon the ditch was then abandoned, probably partly for lack of funds and partly because the advantage which was expected to accrue to the lands on the upper side of the ridge had been accomplished. The lands below were at first seriously injured by the flow of water through the ditch from the lands on the south. In process of time, this ditch was partially filled up by deposit of dirt and other impediments, so as to very materially interfere with the drainage of water through the ridge, and the parties on the south ceased to be seriously inconvenienced by such overflow. In 1885, one Mattingly, who owned lands on the south, sold out his farm to Hayden, who took possession of same. In 1887, the appellant, McCallister, and other parties owning land south of the ridge and in the Grassy Flat territory, had begun to suffer from an accumulation of water on their land by reason of the filling of the ditch and the inability of the water to escape, in the same way that they had suffered before the ditch was originally cut; and they employed a firm known as Miller & Co. to clean out the ditch, so that the water might flow through from their lands to those of the owners on the lower side. Thereupon Hayden, who owned lands seriously affected by such opening, instituted his suit against Miller & Co., the contractors who were doing the work, and sought and obtained an injunction preventing them from cleaning the ditch or in any way deepening or opening same, and an order requiring it to be filled up, so that no water could flow through the ditch to the lands below. This order of court was complied with, and the ditch was filled up, so that no water could pass through the opening. About this time, Hayden sold out to Bridges, the appellee in this suit, and they were made parties to the record in the court below. Miller & Co. appealed from the judgment entered by the chancellor, but executed no supersedeas bond. The case was decided in this court at the January term, 1891 (15...
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