Stacy v. Walker, 5-245

• Decision Date: 21 December 1953
• Docket Number: No. 5-245,5-245
• Citation: 222 Ark. 819,262 S.W.2d 889
• Parties: STACY et ux. v. WALKER et al.
• Court: Arkansas Supreme Court

Page 889

262 S.W.2d 889

222 Ark. 819

STACY et ux. v. WALKER et al.

No. 5-245.

Supreme Court of Arkansas.

Dec. 21, 1953.

Rhine & Rhine, Paragould, for appellants.

Bryan J. McCallen, Corning, for appellees.

GRIFFIN SMITH, Chief Justice.

Stacy owns 48 acres south of and adjoining Walker's 32 acres. An old fencerow delineates the dividing line. Along this fencerow for a distance of 190 feet Stacy constructed an earthen levee varying in height from 18 inches to less than three feet. Eight acres of Walker's land drains north into an old river run. The remaining 24 incline southeast with the result that Stacy's farm, prior to erection of the levee, caught discharge waters that eroded productive land.

With construction of the levee several acres of Walker's land were adversely affected. Following heavy rains water accumulated against Stacy's dam and gradually spread over an area regarded by Walker as his best cotton land. He sued for damages to the 1951 cotton crop amounting to $1,600 and for a mandatory order directing Stacy to breach the levee. From a $50 judgment for nominal damages and a decree for elimination of the levee Stacy has appealed.

Two questions are presented: (1) Was the flowage area on Stacy's land a defined waterway in respect of which Walker had acquired the right of usage? (2) If the water Stacy diverted was the accumulation of periodic rainfall and the flowage was such that the affected proprietor was justified in fending against it, did he unnecessarily injury Walker by construction of the levee? It is urged that an inexpensive ditch would have accomplished the same end. A so-called 'bonded drainage ditch' is within close proximity to the affected lands.

In his relief prayer Walker asked the court '* * * to declare and establish that the defendant's land is servient to plaintiff's land with respect to the right of plaintiff to enjoy the natural and unobstructed drainage of [his] land over and across the land of defendant'.

Walker was asked whether there was a well-defined ditch that the water followed in crossing Stacy's land. He mentioned a natural outlet that existed prior to the obstruction complained of, explaining that the water from this natural outlet flowed south and a little east across Stacy's land, then went into the improvement district ditch. Responding to an inquiry if the flowage followed a natural channel or ditch upon entering his neighbor's property Walker replied: 'It has a natural [land] contour to follow, with a small amount of washing out'. And again: 'There was a well defined ditch. It is the natural contour of the land that extends from my field approximately half way to the ditch'.

On cross-examination Walker said that there was no 'leadway or channel or 'planted levee" on his property. The water that caused trouble came from rains: 'There is no stream coming in on my farm: it was absolutely the water that falls'. There was no creek or depression 'with banks' that carried the water across his own farm--'Nothing but the plowed-up levee between my farm and Mr. Stacy's. It leads the water all the way across the south side to the natural runway. It is blocked now by the levee'. Nothing that Walker would term a runway is on his farm, and the water 'has a more or less natural tenancy to run south and east'.

W. M. Brawner, an engineer in the government service, testified from experiences covering twelve years in drainage and flood control activities. With the aid of a surveyor he had made measurements on the Stacy and Walker lands and was familiar with the drainage problem. He observed a 'scour' starting at an...