Blunck v. Strachan

53 Colo. 222

• Court: Supreme Court of Colorado
• Decided: April 15, 1912
• Docket: No. 7214
• Status: Published

Opinion

Mr. Justice Hill

delivered the opinion of the court:

This action was brought by the plaintiff in error to restrain the defendant in error from allowing more than a certain amount of seepage waters to flow through a tile drain upon, into and through the plaintiff’s land and to recover certain alleged damages claimed to have been occasioned upon account of the defendant’s acts in this respect. Trial was to the court. The injunctive relief prayed for was denied, and judgment was entered in favor of the defendant dismissing ■ the bill, and for his costs. The plaintiff brings the case here for review upon error.

It appears that the lands of the plaintiff are situate'below a certain portion of the lands of the defendant and others; that there -is a kind of a depression through the plaintiff’s land in which a tile drain had theretofore been constructed, -under some kind of an arrangement whereby the defendant and others had the right to run a certain amount of seepage wátéf into the same through the lands of the plaintiff. The main com tention is whether the evidence sustains the findings' of the court, which held that the only matter to be determined was whether the defendant was running onto the land of tlie plaintiff a greater amount of water than was contemplated 'in the agreement between the parties; concerning this the court :said:

“The testimony as to these matters is. not convincing to my mind as to the cause of the seepage on plaintiff’s land last year. * * * the evidence shows that the defendant put in some additional tile on his land, but as to1 whether or not that was the cause of the seepage appearing- on the plaintiff’s land, I am not convinced. The iofinch tile on the plaintiff’s laand is carrying drainage waters from other adjacent lands, and it may be that the increased water last year came down through their drain tile; and until the plaintiff can show that the defendant is canying a greater amount of water onto his land than was contemplated in their original agreement, I think the defendant should not be enjoined, or the damage through loss on 'the three acres last year assessed against this defendant.”

We have carefully read the entire record and in addition to the court’s statement above quoted we find that there is evidence to show that there were some veiy heavy rains during the period of this seepage which might have increased the amount. Likewise, that there is a reservoir somewhere in the neighborhood which may have had a tendency to have increased the underflow in a portion of this entire neighborhood, neither of which the defendant could be held responsible for. The evidence entirely fails to show the amount of seepage which was turned onto the plaintiff’s land from other adjacent lands not belonging to the defendant, the owners of which had the right to run a certain amount of seepage watérs into the drain file upon the lands of the plaintiff. It also- fails to show the amount coming from the defendant’s drain. The trial court seems to have taken the position that there was not only a conflict of evidence, the preponderance of which was in favor of the defendant, but that there was,' as well, a lack of evidence upon behalf of the plaintiff in error to sustain his contentions. After giving it careful consideration we find nothing which would justify us in saying that he was not correct in both respects.

The judgment is affirmed. Affirmed.

Mr. Justice Musser and Mr. Justice Gabbert concur.