Slatten v. Mitchell

• Decision Date: 23 July 1938
• Citation: Slatten v. Mitchell, 124 S.W.2d 310, 22 Tenn.App. 547 (Tenn. App. 1938)
• Parties: SLATTEN et al. v. MITCHELL et ux.
• Court: Tennessee Court of Appeals

124 S.W.2d 310

22 Tenn.App. 547

SLATTEN et al. v. MITCHELL et ux.

Court of Appeals of Tennessee, Middle Section.

July 23, 1938

Certiorari Denied by Supreme Court February 4, 1939.

Appeal from Chancery Court, White County; A. F. Officer, Chancellor.

Suit by W. W. Slatten and another against Joe Mitchell and wife to enjoin the alleged diversion of surface water. Decree for complainants, and defendants appeal.

Reversed and rendered.

S. G Butler, of Sparta, and Lewis S. Pope, of Nashville, for appellants.

Camp & Camp, of Sparta, for appellees.

FAW Presiding Judge.

This cause was heretofore stricken from the docket of this court after hearing oral argument of counsel, for the reason that it did not appear from the transcript filed here that an appeal had been granted by the Chancery Court; but in due season a petition for a rehearing was filed, accompanied by a duly certified supplemental transcript, from which it appears that an appeal had been granted to the defendants below, Joe Mitchell and wife, by the final decree of the Chancery Court and that the failure of the transcript as originally filed here to so show was due to the failure of the Clerk & Master to copy a part of the decree into the transcript.

The petition of appellants is granted, and the cause will now be considered and disposed of on the record, assignments of error and briefs, and the oral argument heretofore heard as aforesaid.

W. W. Slatten and Quill Little brought this suit by original bill in the Chancery Court of White County, on May 11, 1936, against Joe Mitchell and his wife, Carrie Mitchell. All the parties are resident citizens of White County, Tennessee.

Complainants own and occupy, as tenants in common, a tract of land containing approximately 250 acres, situated in the neighborhood in White County known as Hickory Valley, which lands they acquired by purchase on October 14, 1925.

Defendant Joe Mitchell is, and has been since the year of 1908, the owner and occupier of a tract of about 89 acres of land in Hickory Valley, lying immediately north of, and adjoining, a part of complainants' land.

Generally speaking, that part of the land of complainants which lies south of defendant's land is on a lower level than defendant's land. The lands of complainants and those of defendant lie on both the east and west sides of a public road, known as Hickory Valley Road, maintained by White County. It is inferable from the testimony of old men in the record that this road has been established and maintained on its present course for a period of time beyond the memory of the oldest men now living in its vicinity.

Two elevations, known, respectively, as Milk Sick Mountain and Haston's Ridge, lie north, northwest and northeast of Hickory Valley, and the general direction of the natural drainage of surface water through Hickory Valley is southward from the aforementioned elevations toward the lands of the parties to this suit.

Complainants allege in their bill that, for many years there have been a number of large sinks or sink holes on each side of said Hickory Valley Road and on defendant Mitchell's land, and the natural flow of the surface water over defendant's land and the Milk Sick Mountain watershed, has been to said holes--the water falling on the west side of said road going into the holes on that side of the road and the water running in the road and on the east side thereof going into the holes on the east side; that when there is any considerable rainfall an enormous amount of water falls upon this Milk Sick Mountain watershed, a very large portion of which flows over and across a portion of defendant's land and empties as aforesaid into said sinks, which sinks are adequate for taking care of all of said water, and that said sinks are the natural means of disposing of said surface water. It is further alleged in complainants' bill that, on the east side of said Hickory Valley Road and on land belonging to defendants and near the land belonging to complainants, the defendant has erected a large wall or dam from 3 to 4 feet in height, and around 150 feet in length; that said wall is built of chestnut logs, rocks, dirt, etc., of a very permanent nature and so situated as to block the flow of the water which naturally flows down the east side of the road, so as to prevent it from going into said sinks, and thereby causing all of said surface water to flow onto the land belonging to complainants, accumulating in the best bottom lands belonging to complainants, except that there has been left in said dam a small opening or gap about 3 feet wide which would, for a short length of time, carry a small portion of said water into said sinks; that there is a wire fence across said 3 foot gap, which will, within a short time, catch a sufficient amount of trash, rubbish, etc., to entirely block the passage of said water, but, assuming that it does not become blocked or stopped up, it is much too small to accommodate the amount of surface water which has naturally flowed to such sinks during anything like a heavy rain.

It is further alleged in the bill that both of the complainants have talked to the defendant Joe Mitchell with reference to his conduct in constructing said dam and causing said water to flow over and stand on their land, and they have undertaken to reason with him and have asked him not to so erect said dam; that complainants talked to said defendant on Sunday, May 10, 1936, begging him to desist, when he told complainants, in emphatic terms, that he was going to go ahead and build the dam above referred to even higher than it now is, and that, in addition, he was going to erect another such dam on the west side of said road which would change the natural flow of the water on that side of the road, preventing it from flowing into the sinks above described as it naturally does, and stating in the conversation that he expected to "let the water go where it will"; that defendant did say at that time, however, that he expected to leave a small opening in each of said dams, but that he knew that they would not take care of all of the water and that he expected to have some help in taking care of same.

Complainants further allege that said sinks above referred to are the natural disposal plants, so to speak, of said surface water, and that if defendants are permitted to erect the barrier above described and maintain said dam or barrier, that said dams or barriers will work untold and irreparable injury to complainants; that the surface water which would thus be diverted and caused to flow upon complainants' lands would within a short time cause large ponds to develop on said land, there being no means of escape for said water, except that when one bottom would be filled the water would then flow over into another bottom, and on and on, forming another pond as the previous bottom is filled with water, until many acres of complainants' best farming land will be rendered useless; that defendants will, unless restrained by the court's writ of injunction, collect the rain water and surface water at the bottom of their lands so that it will pour in unnatural quantities upon the lands below belonging to complainants, to their great and irreparable injury and damage.

Complainants pray "that an injunction issue to restrain and prohibit the defendants from in any way adding to the dam or structure already erected and to restrain them, or their agents or servants, from erecting any sort of dam or barrier on the west side of the said Hickory Valley Road which would in any way divert the natural flow of the rain and/or surface water as it now flows or would flow in case of rain; and that said dam or obstruction already erected be declared a nuisance and abated by the Sheriff at the defendants' expense"; and complainants pray for general relief.

On May 26, 1936, complainants, by leave of the court, amended their bill "so as to charge and aver that said sinks or sink holes described in the original bill have been present for more than twenty years next prior to the filing of the bill in this cause and have, during all of said time, been the natural disposal plants for the surface water falling upon the watershed described in the bill, and that for more then twenty years next prior to the filing of said bill the natural flow of the surface water on and over said watershed has been into said sinks."

The defendants filed an answer to the complainants' bill, in which they admit the ownership by complainants and defendants, respectively, of the lands so mentioned in the bill; but defendants deny that a large portion of the water that falls on Milk Sick Mountain watershed drains, according to the natural flow of the water, across their land, and they allege, on the other hand, that the water from a large territory, reaching for more than a mile in a northerly direction from their land, has been, from time to time, by other land owners and the road officials, diverted by ditches and otherwise so as to throw all of that large volume of water into the road ditches that run through the lands of defendants, and have diverted a large portion of this water from said road ditches into the fields of defendants lying on each side of said road, and to sink holes on the farm of defendants, until this drainage has become so heavy that said sink holes will not take all this water, which is causing heavy damage to the lands of defendants by other sinks coming in their most valuable bottom land; that this damage is not caused by the natural flow of the water, but by the diversion of the water that has, in years past, gone to other points or has been cared for otherwise.

Defendants admit that there have been a number of sinks on each side of said Hickory...