McCausland v. Jarrell
| Decision Date | 18 December 1951 |
| Docket Number | No. 10355,10355 |
| Citation | 68 S.E.2d 729,136 W.Va. 569 |
| Court | West Virginia Supreme Court |
| Parties | McCAUSLAND, v. JARRELL et al. |
Syllabus by the Court.
1. A natural watercourse consists of bed, bank and water, and a stream in which the water usually flows in a certain direction and by a regular channel with banks or sides is a natural watercourse.
2. The owner of land through which a natural watercouse passes has a right of property in such land to have the water of the stream pass to and from his land in its natural flow.
3. The obstruction or the diversion of a natural watercouse which restricts the natural flow of the water of the stream and causes such water to overflow, accumulate and stand upon the land through which such watercourse passes is an infringement of a property right of the landowner and imports damage to such land.
4. Equity has jurisdiction to vindicate the right of a landowner to the natural flow of the water of a natural watercourse to and from his land by restraining the obstruction of the natura flow of the water or its inadequate diversion from its natural course and by requiring the removal of such obstruction or the cause of such diversion.
5. Though the evidence is conflicting, a finding of fact by a trial chancellor, based upon an inapplicable principle of law, is, for that reason, clearly wrong and will be set aside on appeal.
William H. Rardin, Point Pleasant, Jackson, Kelly, Morrison & Moxley, and David D. Johnson, Charleston, for appellant.
A. G. Mathews, Grantsville, Oliver D. Kessel, Ripley, for appellees.
This suit in equity was instituted in the Circuit Court of Mason County, in December, 1949, by the plaintiff, John McCausland, the owner of a large tract of land on the Great Kanawha River in that county, to compel the defendants, Daniel R. Jarrell and Martha E. Jarrell, his wife, the owners of a tract of land adjoining and lying west of the plaintiff's land, to reopen a small stream of water on the land of the plaintiff which continued upon the over the adjoining land of the defendants until the flow of the stream was allegedly obstructed by the acts of the defendants, in the year 1948, in raising the elevation of a farm lane in the path of the stream on the land of the defendants to a height of approximately two or three feet above its former level, and in improperly diverting the water of the stream by the construction of an allegedly inadequate drain on the land of the defendants along the east side of the lane as so elevated and between it and the land of the plaintiff, connecting with the stream on an angle and continuing for a distance of approximately 288 feet, which alleged obstructions, the plaintiff charges, cause the water from the stream to overflow, accumulate, remain upon, and damage the land of the plaintiff, and to obtain a permanent injunction to prevent the defendants from obstructing the flow of the water in the natural course of the stream.
The case was heard by the circuit court upon the bill of complaint and its exhibit, the answer of the defendants, the general replaction of the plaintiff, and the depositions of witnesses taken and filed in behalf of the respective parties. The circuit court by final decree, entered September 5, 1950, denied the plaintiff the relief prayed for in his bill of complaint and dismissed the suit at the cost of the plaintiff. From that decree this Court granted this appeal upon the application of the plaintiff.
The plaintiff is, and has been since 1907, the owner of about 1,255 acres of farm land on the south bank of the Great Kanawha River near Point Pleasant, in Mason County, of which land approximately 500 acres are bottom land between State Route 17 and the river. The defendants are likewise the owners of a farm of 463 1/2 acres composed of two tracts of land, adjoining the farm of the plaintiff on the west, one of which tracts of land they purchased in 1944 from persons named Meadows who had previously owned it for many years. Both farms are traversed by State Route 17, running generally from east to west, and on the adjoining bottom land of the defendants is a farm lane, which extends northeast east from State Route 17 to the river. This lane has existed since about 1902 and its eastern edge runs near the boundary between the two farms. A map from a survey, made in March, 1949, introduced in evidence with the testimony of the surveyor, is here inserted in this opinion.
From this map it appears that there are two small streams or creeks, flowing in a northeasterly direction, which cross under State Route 17 and run through the land of the plaintiff toward the Great Kanawha River. One of them, crossing State Route 17 at the point designated B on the map, rises on the farm of the defendants, enters the farm of the plaintiff near the point designated C, and unites with the other stream at the point designated D. The other stream, which crosses State Route 17 at the point designated A, originates in partupon the hills of the plaintiff's farm and in part on the hilly section of the defendants' farm, unites with the first mentioned stream on the plaintiff's land at the point designated D, and the single stream formed at that place extends, in a northeasterly direction, a distance of about 400 feet to the point designated E, where it divides into two branches, one of which continues on a curve to and beyond the point designated G, distance about 610 feet from the point designated E, and the other of which runs on an angle in a nearly straight line from the point designated E to the point designated F, which last mentioned point is located near the edge of the farm lane about 500 feet to the west of the point designated E and 288 feet south of the point designated G. The section of the stream from the point designated E to the point designated F, on the plaintiff's farm, is the stream involved in this suit and the water passing through it prior to the year 1948 flowed into a culvert formerly located in the farm lane and passed under or over the lane to and upon the land of the defendants where part of it accumulated and formed a swamp or a small pond from which, according to the testimony of the plaintiff, a drain extended to another stream known as Five Mile Creek. The dimensions of the two streams which cross State Route 17 at points A and B respectively, as designated onthe map, are not clearly established by the evidence, but it appears that the stream which follows the course from points A to D, where it joints with the stream which follows the course from points C to D, is the larger of the two streams, and that the section of the stream form points E to G is larger than the branch which flows between points E and F. It also appears that the branch of the stream from point E to point F is approximately two or three feet in depth.
In July or August, 1948, the defendant, Daniel R. Jarrell, caused the elevation of the farm lane to be raised, by filling it with dirt, to a height of approximately two or three feet above the former level of the lane in the area near the point F. In the construction of the fill on the lane a culvert which had previously existed at point F for many years, and through which the water flowing from points E to F had passed under the lane, was destroyed or completely closed; and the elevation of the lane to its present level prevents the flow of the water of the stream across the lane and to and upon the land of the defendants. Since the fill was constructed, because of its stoppage of the flow of the water at the point F, the portion of the land of the defendants, where the swamp was formerly located, has become dry land. When the elevation of the lane was raised, the defendant, Daniel R. Jarrell, also caused the construction of a ditch or drain two hundred and eighty eight feet in length, approximately two feet in width, and about eight inches in depth, on the land of the defendants, between the lane and the land of the plaintiff along the side of the lane from the point F to the point G. The plaintiff testified that the size of the ditch or drain is not as large as the section of the stream between points E and F, does not dispose of the normal flow of the water, and causes it to 'back up' in the general area at point F. The elevation of the section of the stream between points E and G is 2.37 feet lower at point G than at point E; the elevation of the section of the stream between points E and F is 1.8 feet lower at point F than at point E; and the elevation of the ditch or drain between points F and G is .57 of a foot lower at point G than at point F. The plaintiff contends that the ditch or drain from point F to point G is inadequate to carry the water of the stream which formerly flowed across the lane at point F, from that point to point G, and that as a result of the elevation of the lane and the removal or the closing of the culvert, the water from the stream overflows, accumulates and stands upon his land. On the contrary, the defendants contend that the ditch or drain between the points F and G is adequate to carry, and does carry, the water from the stream at point F to the other section of the stream at point G, and furnishes sufficient drainage of the water from the land of the plaintiff.
The culvert which formerly existed at point F had been located at that place from at least the year 1902 until the level of the lane was raised in 1948. Until about the year 1935 it consisted of a wooden box or square about twelve inches in width, and at that time it was replaced by a corrugated metal pipe which was installed at the direction of a former owner of the land of the defendants.
The plaintiff and several other witnesses in his behalf testified that the branch of the stream...
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