Noyes v. Cosselman

• Decision Date: 10 September 1902
• Citation: 29 Wash. 635,70 P. 61
• Parties: NOYES et al. v. COSSELMAN et al.
• Court: Washington Supreme Court

70 P. 61

29 Wash. 635

NOYES et al. v. COSSELMAN et al.

Supreme Court of Washington

September 10, 1902

Appeal from superior court, Spokane county; Geo. W. Belt, Judge.

Suit by M. F. Noyes and others against W. W. Cosselman and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Graves & Graves, for appellants.

Poindexter & Kimball, for respondents.

MOUNT J.

Plaintiffs are the owners of several tracts of land comprising about 450 acres, in Spokane county. These lands are flat and level having formerly been swamps, but in the last 18 years have been drained by means of ditches at large expense to the plaintiffs, so that they are now valuable hay lands producing annually large crops of timothy hay. Lying to the southwest of the lands of plaintiffs is a large marsh, about three miles in length, of varying width, comprising about 375 acres of land. This marsh, commonly called 'Long Lake,' is in a natural depression on defendants' lands, which are contiguous to and adjoin plaintiffs' lands. Water accumulates in this marsh to a depth of from four inches to two feet each year from rains and melted snows, which fall upon an area of several square miles to the north and west. This water has no outlet from the marsh except at extreme wet seasons, when it overflows through a depression in a natural barrier on defendants' land, and runs off into a small pond, also on defendants' lands and thence runs off over the lands and through the ditches made by plaintiffs. At other seasons of the year the waters of this swamp are dissipated by evaporation and percolation until about the month of June, when the lake becomes nearly dry. On the lands of defendants, and between Long Lake and the pond above referred to, is a natural barrier some 4 feet in height and about 200 feet wide. There is a natural depression in this barrier, through which the water runs from Long Lake into the pond when the water is deepest in wet seasons. When plaintiffs began the construction of the ditches which now drain their lands they requested the defendant Cosselman, who owns the greater part of Long Lake, to join them, which he refused to do. The lands of defendants, on which Long Lake is situated, are about six feet higher than the lands of plaintiffs, and the defendants were engaged in digging a ditch and widening the depression in the natural barrier above referred to, so as to drain the water from Long Lake, when this suit was begun to restrain them therefrom. The lower court found upon the trial, we think correctly, that, if the defendants proceed to complete said ditch as they intend and have commenced, then the waters of Long Lake will be drained upon the lands of plaintiffs, and will entirely destroy the crops of timothy now growing thereon, and render said lands, or a great portion thereof, incapable of cultivation until the same shall again be drained, at great labor and expense.

There is but one question to be determined in this case, namely have the defendants the right to improve their property by draining this swamp (Long Lake) from one portion of their land to another, whereby injury will result to the plaintiffs if they do not take steps to protect themselves by diking or ditching against the waters thus turned upon them? The appellants here rely upon the rule announced by this court in Cass v. Dicks, 14 Wash. 75, 44 P. 113, 53 Am. St. Rep. 859, which was a case where lands lying along a river were subject to inundation at times of high water unless protected by means of dikes. The defendants in that case were lower proprietors, and were proceeding to erect a large dike for the purpose of preventing their lands from being flooded during extraordinary freshets. The plaintiffs brought the action to restrain the erection of the dikes upon the ground that the same would prevent seepage, surface water, and overflow from flowing from their premises, as it was accustomed to do, and thus destroy their crops and render their farm valueless. This court, passing upon the question there presented, said: 'The courts of some of the states have adopted the rule of the civil law, by virtue of which a lower estate is held subject to the easement or servitude of receiving the flow of surface water from the upper estate. Under that rule it is clear that the flow of mere surface water from the premises of an upper proprietor to those of a lower may not be obstructed or diverted to the damage of the latter. But the contrary rule of the common law has been adopted in many of the states, and must be followed in this case, because it is neither inconsistent with the constitution and laws of the United States nor of this state, nor incompatible with the institutions and condition of society in this state. Code Proc. § 108. By that law, surface water, caused by the falling of rain or the melting of snow, and that escaping from running streams and rivers, is regarded as an outlaw and a common enemy, against which any one may defend himself, even though by so doing injury may result to others. The rule is based upon the principle that such water is a part of the land upon which it lies, or over which it temporarily flows, and that an owner of lands has a right to the free and unrestrained use of it above, upon, and beneath the surface. 24 Am. & Eng. Enc. Law, pp. 906, 917; Ang. Water Courses (7th Ed.) p. 137, § 1080. If one in the lawful exercise of his right to control, manage, or improve his own land finds it necessary to protect it from surface water flowing from higher land, he may do so, and if damage thereby results to another it is damnum absque injuria.' It was therefore held that the lower proprietor had a right to construct the dike in order to protect his own land. And it is argued in this case that the appellants here have a right to drain the water which accumulates in Long Lake from rains and melting snows through an artificial ditch built for that purpose through a natural barrier upon their own land, and cast the same upon lower lands of their own, from whence it is cast upon respondents' lands, and that the damage thus caused to respondents is damnum absque injuria; that the only remedy of respondents is to dike against the flow of water, and thereby keep it upon the lands of appellants, or to construct ditches to carry off the increased water. If the position of appellants that respondents may dike against the water thus turned upon them is correct, under the rule announced in Cass v. Dicks, supra, still we do not think it necessarily follows that the appellants may by artificial means turn the water from Long Lake upon other parts of their own lands, to the injury of respondents. The rule that an owner of land has no right to rid his land of surface water by collecting it in artificial channels, and discharging it upon the land of an adjoining proprietor, to his injury, is followed alike in the states which have adopted the common law as well as those which have adopted the rule of the civil law. 24...