Township of Blakely v. Devine

• Decision Date: 13 October 1886
• Citation: 36 Minn. 53
• Court: Minnesota Supreme Court
• Parties: TOWNSHIP OF BLAKELY <I>vs.</I> ROBERT DEVINE.

36 Minn. 53

TOWNSHIP OF BLAKELYvs.

ROBERT DEVINE.

Supreme Court of Minnesota.

October 13, 1886.

Appeal by defendant from a judgment of the district court for Scott county, where the issues were tried by Macdonald, J., and a jury, upon whose special findings a judgment was ordered for plaintiff, and the defendant's motion for a new trial was denied.

C. K. Davis and E. Southworth, for appellant.

H. J. Peck, for respondent.

VANDERBURGH, J.

The substance of the complaint in this case is that the defendant, in July, 1884, entered upon the public highway where the same crosses his farm, and then and there dug a ditch along the travelled track, a distance of about 30 rods in length, and at the south end of the ditch built an embankment, whereby the waters that naturally, and have from time beyond memory, passed west of the highway were dammed up and overflowed upon the highway at the north end of the ditch, and thereby threatened seriously to damage such highway. The defendant's answer shows that in the year 1882 the plaintiff concentrated the surface-water in ditches on either side of the highway, which rises over a hill beyond the premises of the defendant, and at the foot of the hill carried the waters to the west side of the road, which runs through his land, and made a ditch along the same about 20 rods, and then turned the ditch from the road west, in and upon the land and crops of the defendant; that the ditches along the highway concentrated and increased the flow of surface-water, and large quantities thereof were in consequence turned upon his land, to his great damage. He also alleges that the plaintiff made another ditch and culvert across the road, so as to cause the waters upon the east side of the road to flow across and upon the defendant's land.

The defendant was overseer of roads in that road-district at the time of the wrongful acts complained of by plaintiff, which he alleges consisted merely in extending the ditch which plaintiff had made on the west side of the highway in a north-westerly direction to the top of what is known as "Finch Hill," over which the road passes, for the purpose of conducting the waters gathered in the ditch across the same, through a culvert into a creek below, — the materials for which culvert the plaintiff refused to furnish, but proceeded to fill up the ditch so made by him as such overseer, and again turned the waters upon defendant's premises; and that thereafter defendant proceeded to remove such obstructions, and built an embankment on his own land to keep the water from overflowing the same.

The object of this action is to restrain the defendant from interfering with the work of the supervisors, and from interfering to prevent the flow of water from the highway upon his premises. Several special findings of fact were made by the jury, upon which the trial court ordered judgment for the plaintiff. The defendant contends that such judgment was not justified by the findings, and that several of the findings were not justified by the evidence.

The material question in the case would seem to be the right of the defendant to protect his land from the overflow of the surface-water collected in the highway chiefly as the result of heavy rains. It is true there is evidence of the existence of a spring flowing in the same general direction, but it is clear that it was so small, and the flow so...