Town of Jefferson v. Hicks
| Decision Date | 12 May 1909 |
| Citation | 102 P. 79,23 Okla. 684,1909 OK 132 |
| Parties | TOWN OF JEFFERSON et al. v. HICKS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The owner of lands situated upon a water course may construct an embankment thereon to protect his land from the superabundant water in times of flood; but, in doing so, he must so place the embankment that the natural and probable consequences of the embankment in times of ordinary floods will not be to cause the overflow to erode, destroy, or injure the lands of other proprietors upon the water course.
An "ordinary flood" is one which, by the exercise of ordinary care and diligence in investigating the character and habits of the water course, might have been anticipated.
Overflow waters that continue in a general course, although without defined banks, back into the water course from which they started, or into another water course, do not become "surface waters," but remain a part of the water course.
An injunction will lie in equity to restrain the landowners on one side of a stream from maintaining a levee upon the bank thereof whereby the flood waters of the stream are made to overflow unnaturally the land of others on the opposite side of the stream, without regard to the ability of the landowners who constructed the embankment to respond in damages, since a single action at law would not furnish an adequate remedy to the landowners whose lands are subject to recurring injuries from the recurring diversion of the overflow waters caused by the embankment.
An "extraordinary flood" is one of those visitations whose coming is not foreseen by the usual course of nature and whose magnitude and destructiveness could not have been anticipated and prevented by the exercise of ordinary foresight. (Quoting 13 Ency. of Law [2d Ed.] p. 686.
A "water course," in the legal sense of the term does not necessarily consist merely of the stream as it flows within the banks which from the channel in ordinary states of water. When, in times of ordinary high water, the stream extending beyond its banks, is accustomed to flow down over the adjacent lowlands in a broader but still definable stream, it has still the character of a water course, and the law relating to water course is applicable, rather than that relating to mere surface water.
Error from Grant County Court; M. C. Garber, Judge.
Action by W. J. Hicks against the Town of Jefferson and others. Decree for plaintiff, and defendants bring error. Affirmed.
Sam P Ridings, for plaintiffs in error.
F. G. Walling, for defendant in error.
The petition in this case is for an injunction, and was originally brought in the district court of Grant county, by defendant in error, hereafter designated as "plaintiff," against plaintiffs in error, hereafter designated as "defendants." The trial in the court below resulted in a decree in favor of plaintiff, awarding him an injunction. From this decree a proceeding in error was filed in the Supreme Court of the territory, where it was pending upon the admission of the state, and under the provisions of the enabling act the same is before this court for determination.
The trial judge, upon the request of both parties, made findings of fact. All the questions raised by this appeal go to the application of the law made by the court to the facts found. We therefore deem it unnecessary to set out the contents of the pleadings, and shall state, in abbreviated form, the facts as found by the trial court. The defendant town of Jefferson is a municipal corporation, and the other defendants are the officers of said town. Plaintiff is the owner of the northwest quarter of section 24, township 26 north, range 6 west, Indian Meridian, in Grant county, which tract of land adjoins the town site of Jefferson on the west. A stream known as "Pond creek" meanders through the plaintiff's said tract of land and through a portion of the town site of Jefferson. The channel of this stream is near the boundary line between plaintiff's tract of land and the town site, and, in its general course, extends in the same direction. The town of Jefferson and its officers had, at various times prior to the beginning of the action, engaged in the construction and were, at the institution of this action, maintaining a levee or embankment on the east side of said stream, and have, from time to time, increased its height and width. The court found that the result of building and maintaining the embankment had been, and would continue to be, that it cast the superabundant waters of the stream during periods of high water and floods over and upon the premises of plaintiff, resulting in great injury to his lands, crops, and buildings thereon. For a number of years, at frequent intervals, high water and floods have occurred in this stream, and the superabundant water passed out over its eastern bank and over a portion of the town site of Jefferson. Two of such floods occurred within 12 months last prior to the time the last work was done by defendants upon said embankment and within the year last prior to the trial of the case in the trial court. The court finds that these floods could have reasonably been anticipated by the persons constructing the embankment by the use of ordinary diligence in investigating the character of the stream.
It is conceded that Pond creek is a water course. The two principal contentions of defendants are: First, that the embankment has not the effect to check, impede, or change the course of the waters of said stream and throw the same over and upon the premises of plaintiff except in extraordinary floods or high water; second, that whatever damage is done to plaintiff's property results from the superabundance or overflow water from the stream, which is surface water, and that damage done by surface water is damnum absque injuria.
The first of these contentions is one of fact which the trial court has found against defendants, in that he finds that the result of the building of the embankment has been, and will be, to cast the superabundant waters of said stream during periods of high water and floods over and upon the premises of the plaintiff, and that such floods and high water could have been reasonably anticipated by defendants when they constructed the embankment, if they had used ordinary diligence in investigating the character of the stream. This finding is reasonably supported by the evidence.
The distinction between "ordinary floods" and "extraordinary floods" is well defined in 13 Ency. of Law (2d Ed.) p. 686, as follows: The finding of the trial judge as to the character of the floods and high water which had occurred before this action was brought, by which plaintiff's premises had been flooded and injured, brings them directly within the above definition of "ordinary floods." Whether the superabundant water from this water course is surface water or is a portion of the water course is a question upon which the decisions of the courts of the states are in some conflict. In those cases in which the same conclusion has been reached, it has not always resulted from similar reasoning or from the application of the same rules of law. Some courts have held that a proprietor who, by dikes and embankments, changes the course of overflow water and inflicts injury upon his neighbor's land, is liable therefor, and have reached such conclusion by application of the rules of the civil law; while others have reached the same conclusion by the application of the rules of the common law. This court has held, in several cases, that the rights of landowners as to water courses and as to surface water are determined in this jurisdiction by the rules of the common law. C., R.I. & P. Ry. Co. v. Groves, 20 Okl. 101, 93 P. 755; Cole v. M., K. & O. R. Co. (Okl.) 94 P. 540, 15 L. R. A. (N. S.) 268; C., R.I. & P. Ry. Co. v. Johnson (decided at this term of court, but not yet officially reported) 107 P. 662.
At common law there exists no easement or servitude in the premises of the lower landowner in favor of the owner of the higher land as to surface water which falls or accumulates by rain or the melting of snow. The lower landowner may treat such water as a common enemy and drive it back from his premises by erecting embankments and otherwise preventing its flow thereon, and in preventing its flow onto his premises he may cast it back on the premises from whence it came, or upon the premises of others. Such water is subject entirely to his control to the extent that he may receive it or reject it all. C., R.I. & P. Ry. Co. v. Johnson, supra; Walker v. New Mex. S. O. Ry. Co., 165 U.S. 593, 17 S.Ct. 421, 41 L.Ed. 837. But it is well settled that one proprietor cannot for his benefit change or obstruct the ordinary course of water in a water course or stream to the injury of other proprietors. O'Connell v. East Tenn., etc., Ry. Co., 87 Ga. 246, 13 S.E. 489, 13 L. R. A. 394, 27 Am. St. Rep. 246; Gould on Waters, par. 218.
The east bank of Pond creek, which lies next to the town of Jefferson where the dyke or embankment has been constructed and is now being maintained by defendants in its natural state, was approximately from one foot to two feet lower than the west bank, which lies next to the land of plaintiff. As a result of this condition of the banks...
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