Thompson v. Andrews
| Citation | 165 N.W. 9,39 S.D. 477 |
| Decision Date | 22 November 1917 |
| Docket Number | 4112 |
| Parties | AUSTIN THOMPSON et al., Plaintiffs and respondents, v. JOHN ANDREWS, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
JOHN ANDREWS, Defendant and Appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge #4112--Reversed Krause & Krause Attorneys for Appellant. Bates & Bates Attorneys for Respondents. Opinion filed November 22, 1917
WHITING. J.
Plaintiffs sought to enjoin defendant from continuing to maintain a ditch whereby he drained waters from his land, which waters were eventually discharged upon and across the lands of plaintiffs. Findings and judgment were for plaintiffs, and defendant appealed. The general course of the drainage in the watershed involved in this action is to the south. That part of it which has within it the lands of the parties to this action is about 3 miles in length north and south, and contains something over 1,200 acres. The upper mile of such watershed is about a mile across at its widest part, and contains a tract of some 325 acres, the southeastern part of which is appellant's land. Upon appellant's land there is a low flat tract of some 100 acres, on which there accumulates the surface water coming from all of said 325 acres, but no other waters of any kind. The next half mile of such watershed is less than a half mile in width. South of this the watershed gradually widens until, one-half mile farther south, it reaches the land of one respondent. From here it gradually widens and covers a tract somewhat regular in outline and which is a mile in extent north and south and somewhat more than a mile east and west at the widest place. Respondents' lands all lie within this lower tract. As before noted, the upper mile of such watershed contains some 325 acres. The tract between this and respondents' lands, being a tract one mile north and south, contains about 300 acres. The lower tract contains about 650 acres. These lands are all devoted to agriculture. The slope of appellant's 100-acre tract is to the southeast. It is surrounded by a bank. At the lower side of this tract or basin nature left a ditch through the rim of the bank. This ditch was some 2 feet in depth. Even with this ditch unobstructed there would have to be some 2 feet of water over this basin before any water could overflow through such ditch. It appears undisputed that, when appellant's land was first settled upon some time prior to 1880, this basin was perfectly dry and produced fine crops of hay. During the winter of 188o and 1881 there was an unprecedented fall of snow. When this melted in the spring this basin was filled. It gradually dried up, but it was at least two or three years before it again became dry. Appellant then broke up this basin and raised crops thereon. About 1894. appellant laid a tile drain underneath the ditch above mentioned, and at a depth sufficient to entirely drain this basin. In 1909, the title having become clogged, appellant dug an open ditch along the patch of the natural ditch and to a depth sufficient to drain such basin; this ditch did not extend beyond his land, but its lower end opened into a natural swale or depression and the waters from the ditch eventually flowed upon and across respondents' lands. From the lower side of the basin down to where the water first reaches respondents' lands there is a fall of about 25 feet; and between the point where such water enters upon their lands to the point where it leaves same, a distance of some three-fourths of a mile, the fall is 21 feet.
The trial court found that the deepening of the said natural ditch leading from this basin increased the flow of water onto respondents' lands, thus rendering a few acres belonging to each respondent unfit for husbandry. Appellant contends that the damage complained of was not caused by the deepening of such outlet, but was the result of unusual rainfall occurring during the years complained of, and that the same damage would have been suffered even if the said basin had retained the water accumulating therein; he also contends that he had a right, in the nature of an easement, under section 22, c. 134, Laws 19037, as amended by section 11, c. 102, Laws 1909, to drain such basin through such artificial outlet, even though by so doing a greater volume of water was discharged upon the lands of respondents to their damage. Said section 22 reads in part as follows:
The court did find that the water followed "the general course of drainage" the entire distance from appellant's land down to and across respondents' lands. The term "water course" has come to have two distinct meanings; the one when referring to that water course in and to which riparian rights may attach, and the other when referring to that water course through which an upper land-owner may discharge water from his land. Quinn v. Railway Company, 22 LRA (NS) 789. As pertaining to drainage this court in the Quinn case adopted, from Lambert v. Alcorn, 144 Ill. 313, 21 LRA 611, the following description or definition of a water course, to which definition we adhere:
The course which water took from appellant's land down to and over respondents' lands was a "natural water course" under the above decision and as contemplated by the above statute. It is also clear that such "natural water course" was the "general course of natural drainage" for all water flowing from such basin. It follows that, if appellant had the legal right to free his land of the waters accumulating in such basin, his method of doing so was in strict compliance with the said statute. Respondents do not question but that the method used for discharging water from this basin was a proper method to use. Neither do they question but that appellant had a right to free his land from all water that would flow therefrom through the ditch as nature had left it, but they contend that he had no legal right to deepen such ditch and thus allow water to flow out, which water the evidence shows could not otherwise have reached respondents' lands.
The question thus presented—as to what water an upper tenant may discharge into a natural, water course crossing the lands of a lower tenant—is of the first importance in an agricultural state such as ours, and its answer requires a most careful consideration of the nature, source and extent of the right of drainage of which the upper tenant is possessed. That such a right existed prior to the enactment of said section 22, supra, no one would question. That such right was and is of the nature of an easement is the established law of this state. This state had never recognized the so-called "common enemy" rule relating to the drainage of surface waters—a rule that is absolutely without basis in reason, and whose origin is in much doubt, having been wrongfully credited to the English common law. Farnham on Water and Water Rights, 2591. The "common enemy" rule recognizes no natural servitudes, and is therefore one under which the disposition of surface water is not controlled and regulated in conformity with vested rights or easements appurtenant to property, but one the application of which leaves surface waters a mere shuttlecock, to be cast back and forth in accord with the selfish interest of the upper and lower landowners, thus creating in each case a conflict which, as its logical result, resolves itself to the question whether the upper landowner is able to bring into being an irresistible force or the lower landowner can erect an unsurmountable and immovable barrier. The law of this state and of the territory from which this state was created has been at all times based on the rule of the civil law, which is also the rule of the...
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