Opinion
09-17-1888
DAVISON v. HUTCHINSON.
S. Appelget, for complainant. S. M. Schanck, for defendant.
(Syllabus by the Court.)
Bill for injunction.
S. Appelget, for complainant. S. M. Schanck, for defendant.
BIRD, V. C. The complainant asks for a mandatory injunction commanding the defendant to remove obstructions which he placed at the point where the water coming from the lands of the complainant had its exit through tiling under the ground into an open drain on the lands of the defendant. The complainant says that this is an ancient water-course, in which the water has been accustomed to flow for a long time past. H. denies this, and insists that it is artificial, and not ancient. The parties own adjoining tracts of land. The land of D. is the higher, with a slight descent towards that of H. D.'s land lies to the south and west of H.'s. A small portion of D.'s lands is wet and marshy, in which so much water is constantly springing as to prevent the successful growth of grain or grass, unless the water be carried off by drains. The truth is, the testimony shows that there is no natural water-course to carry off this water, although there is a slight descent from the lands of D. to those of H., yet not enough for this water ever to have created a channel for itself. By percolation a portion of these waters reached the lands of H. Surface waters so collected on the lands of H. as to become very burdensome. To control these, a former owner, many years since, made an open ditch on the south side of the H. tract, and so near to the line of the D. tract that the upper line of the cut was within 23 inches of D.'s line. This ditch was opened to the westward until it reached the lands of D., and thence onto his lands a considerable distance. By whom it was opened onto D.'s lands does not appear; but the evidence satisfies me that it has been so opened a long while, if not as long as the one on H.'s. For all the time since the opening of that ditch a great deal of surface water has been carried by it from the lands of H. onto the lands of D. Near by the place where these waters are so discharged on the lands of D. he has constructed a watering place for his cattle, and has used it for that purpose for several years. More than 30 years ago the then owner of the D. land cut an open drain on his land, so as to drain the portion so wet and marshy, as aforesaid. This drain was about two feet deep, and led into the drain on the land now owned by H. By what authority this drain was opened on the lands now owned by H. does not appear; neither does it appear by what authority the drain on H.'s land was extended onto the lands of D. I think I am doing no violence to the well-established rules of evidence in presuming that both of these ditches were opened on the servient estate with the knowledge and consent of the owner. And I think the presumption is equally strong that all of the waters which were collected in the ditch on the lands of D. were discharged into the ditch on the lands of H., and that thiswas continued for a great many years. Three circumstances support this view very strongly: (1) The fact that the owner of the H. land cut the drain on his land so near to the line of the D. land as to aid somewhat in draining the D. lands, and then continuing his drain onto the D. lands; (2) a great deal of this water so springing on the lands of D. would naturally have found its way, by percolation and otherwise, to the drain on the lands of H., in case no surface drain had been opened for that purpose; and (3) the fact that a surface drain was also opened on the lands of D., leading these waters from this wet ground into the ditch on the lands of H., which no doubt very greatly increased the flow of water from the land of D. onto that of H. Now, when these things are considered, and especially that the former owner of the H. land was permitted to discharge all of the surface water which collected on his land onto the D. land, it is most reasonable to presume that the owner of the D. estate was to have the right to discharge the water arising on this wet place on his land into the drain on the D. land. And, after this lapse of time, it is fair to presume that the place where the drain was so opened on the D. lands was the place where the parties were willing it should be opened.
I can have no doubt but that the owner of the D. land acquired the right to drain this wet parcel of land by means of that drain so cut, or by something equivalent thereto, into the drain on the H. lands. The H. estate ought to bear the burden to that extent. Certainly the owner of the D. estate cannot materially increase the burden. "Privilege claimed in derogation of another's rights is viewed with jealousy by the law, and must be strictly confined within prescribed limits." Taylor v. Hampton, 4 McCord, 96, 17 Amer. Dec. 710. Having found that the right to drain these lands by these artificial means has been acquired in the manner mentioned, it remains to be determined whether D. has, under the rule above stated, kept within the privilege or right so acquired, or whether he has materially increased the burden on the servient estate. The evidence leads me to the conclusion that he has greatly increased the burden by sinking the tile through which he carries the water to so great a depth as he appears to have done. I do not mean to say that D. had not the right to substitute an underground drain for a surface or open one. I have no doubt but he had such right. The fact that the water-way or drain is covered cannot possibly alter the right. What I find is that D. has altered the location of the drain, but that only by sinking the tiles used from two to three feet deeper than the old open drain was, and in that way increased the volume of water. The result of this change in the depth of the drain is to produce from two to four gallons of water per minute at the point of exit in the ditch on the lands of H.; whereas, in fact, before the tiles were so sunken, the drain on H. at that point was often dry. Indeed, as I have above stated, this bill is filed and the injunction asked for on the ground that the flow of the water is constant, so that it comes within the law relating to running streams. But the evidence shows that the water-course in question is only an artificial one. Most clearly, however, such a water-course may become so ancient, or, as in this case, be based on such strong presumptions of an agreement, or such mutual acts of the parties interested, on account of which both are estopped, as to bring it within the operation of the law concerning ancient water-courses. And, as I have found, I think that the water-course first opened on the lands of D. is such a one, and, had the tiles which were laid on the lands of D. been placed no further beneath the surface than the bottom of the old open drain on his lands, such tile would have been there of right; but because the said tiles have been sunken considerably deeper, I think that the complainant has gone beyond his privilege. The old drain was not over three feet in depth, but the man who laid the tiles swore that the trench for them was cut from five to six feet deep. The complainant's counsel claims that this case is like Earl v. Be Hart, 12 N. J. Eq. 280, in which the court of errors held: "Where A. has drained his land by a ditch through the land of B., using it as an adverseright for more than twenty years, he acquires an easement in the land of B. which is entitled to protection." The facts in the two cases are not similar. The waters in the one ease were all surface waters, while in this they are sub-surface. In the one case the right originated in an adverse user; in this, as I have found, in an agreement entered into by the owners of the two estates, which, having been acted on by them, works a mutual estoppel. In both cases the light to the easement is established. In this case the question, in my mind, is not whether there is an easement or not, but whether the complainant has sought to enlarge the right which he possessed or not. I have reserved till now the quotation of what the counsel of the defendant regards as fundamental law, and as in direct conflict with the views above expressed, respecting the right of the complainant to carry this water under as well as on the surface. His insistment is: "Each proprietor may insist that the stream shall flow to his land, in the usual quantity, at its natural place and height, and that it shall flow off his land to his neighbor below its accustomed place, and at its usual level;" referring to Gould, Waters, c. 6, § 204. While this law, which I think no one will question, is not at all in conflict with the rights which I have adjudged to belong to the complainant, it most fully supports the principle which has been my guide in concluding D. cannot increase the volume of water by sinking his drain deeper than it was originally. Nor do I find anything in Shields v. Arndt, 4 N. J. Eq. 245, nor in Holsman v. Boiling Spring Co., 14 N. J. Eq. 342, which militates against either of the points which I have decided. I think the bill should be dismissed, and the injunction heretofore granted be dissolved, with costs.