McCausland v. Jarrell

68 S.E.2d 729, 136 W. Va. 569

• Court: West Virginia Supreme Court
• Decided: December 18, 1951
• Docket: 10355
• Status: Published

Opinions

Haymond, Judge:

This suit in equity was instituted in the Circuit Court of Mason County, in December, 1949, by 'the plaintiff, John McCausland, the owner of a large tract of land on the Great Kanawha River in that county, to compel the defendants, Daniel R. Jarrell and Martha E. Jarrell, his wife, the owners of a tract of land adjoining and lying west of the plaintiff’s land, to reopen a small stream of water on the land of the plaintiff which continued upon and over the adjoining land of the defendants until the flow of the stream was allegedly obstructed by the acts of the defendants, in the year 1948, in raising the elevation of a farm lane in the path of the stream on the land of the defendants to a height of approximately two or three feet above its former level, and in improperly diverting the water of the stream by the construction of an allegedly inadequate drain on the land of the defendants along the east side of the lane as so elevated and between it and the land of the plaintiff, connecting with the stream on an angle and continuing for a distance of approximately 288 feet, which alleged obstructions, the plaintiff charges, cause the water from the stream to overflow, accumulate, remain upon, and damage the land of the plaintiff, and to obtain a permanent injunction to prevent the defendants from obstructing the flow of the water in the natural course of the stream.

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" 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The case was heard by the circuit court upon the bill of complaint and its exhibit, the answer of the defendants, the general replication of the plaintiff, and the depositions of witnesses taken and filed in behalf of the respective parties. The circuit court by final decree, entered September 5, 1950, denied the plaintiff the relief prayed for in his bill of complaint and dismissed the suit at the cost of the plaintiff. From that decree this Court granted this appeal upon the application of the plaintiff.

The plaintiff is, and has been since 1907, the owner of about 1,255 acres of farm land on the south bank of the Great Kanawha River near Point Pleasant, in Mason County, of which land approximately 500 acres are bottom land between State Route 17 and the river. The defendants are likewise the owners of a farm of 463% acres, composed of two tracts of land, adjoining the farm of the plaintiff on the west, one of which tracts of land they purchased in 1944 from persons named Meadows who had previously owned it for many years. Both farms are traversed by State Route 17, running generally from east to west, and on the adjoining bottom land of the defendants is a farm lane, which extends northeast from State Route 17 to the river. This lane has existed since about 1902 and its eastern edge runs near the boundary between the two farms. A map from a survey, made in March, 1949, introduced in evidence with the testimony of the surveyor, is here inserted in this opinion.

From this map it appears that there are two small streams or creeks, flowing in a northeasterly direction, which cross under State Route 17 and run through the land of the plaintiff toward the Great Kanawha River. One of them, crossing State Route 17 at the point designated B on the map, rises on the farm of the defendants, enters the farm of the plaintiff near the point designated C, and unites with the other stream at the point designated D. The other stream, which crosses State Route 17 at the point designated A, originates in part upon the hills of the plaintiff’s farm and in part on the hilly section of the defendants’ farm, unites with the first mentioned stream on the plaintiff’s land at the point designated D, and the single stream formed at that place extends, in a northeasterly direction, a distance of about 400 feet to the point designated E, where it divides into two branches, one of which continues on a curve to and beyond the point designated G, distance about 610 feet from the point designated E, and the other of which runs on an angle in a nearly straight line from the point designated E to the point designated F, which last mentioned point is located near the edge of the farm lane about 500 feet to the west of the point designated E and 288 feet south of the point designated G. The section of the stream from the point designated E to the point designated F, on the plaintiff’s farm, is the stream involved in this suit and the water passing through it prior to the year 1948 flowed into a culvert formerly located in the farm lane and passed under or over the lane to and upon the land of the defendants where part of it accumulated and formed a swamp or a small pond from which, according to the testimony of the plaintiff, a drain extended to another stream known as Five Mile Creek. The dimensions of the two streams which cross State Route 17 at points A and B respectively, as designated on the map, are not clearly established- by the evidence, but it appears that the stream which follows the course from points A to D, where it joins with the stream which follows the course from points C to D, is the larger of the two streams, and that the section of the stream from points E to G is larger than the branch which flows between points E and F. It also appears that the branch of the stream from point E to point F is approximately two or three feet in depth.

In July or August, 1948, the defendant, Daniel R. Jar-rell, caused the elevation of the farm lane to be raised, by filling it with dirt, to a height of approximately two or three feet above the former level of the lane in the area near the point F. In the construction of the fill on the lane a culvert which had previously existed at point F for many years, and through which the water flowing from points E to F had passed under the lane, was destroyed or completely closed; and the elevation of the lane to its present level prevents the flow of the water of the stream across the lane and to and upon the land of the defendants. Since the fill was constructed, because of its stoppage of the flow of the water at the point F, the portion of the land of the defendants, where the swamp was formerly located, has become dry land. When the elevation of the lane was raised, the defendant, Daniel R. Jarrell, also caused the construction of a ditch or drain two hundred and eighty eight feet in length, approximately two feet in width, and about eight inches in depth, on the land of the defendants, between the lane and the land of the plaintiff along the side of the lane from the point F to the point G. The plaintiff testified that the size of the ditch or drain is not as large as the section of the stream between points E and F, does not dispose of the normal flow of the water, and causes it to “back up” in the general area at point F. The elevation of the section of the stream between points E and G is 2.37 feet lower at point G than at point E; the elevation of the section of the stream between points E and F is 1.8 feet lower at point F than at point E; and the elevation of the ditch or drain between points F and G is .57 of a foot lower at point G than at point F. The plaintiff contends that the ditch or drain from point F to point G is inadequate to carry the water of the stream which formerly flowed across the lane at point F, from that point to point G, and that as a result of the elevation of the lane and the removal or the closing of the culvert, the water from the stream overflows, accumulates and stands upon his land. On the contrary, the defendants contend that the ditch or-drain between the points F and G is adequate to carry, and does carry, the water from the stream at point F to-the other section of the stream at point G, and furnishes sufficient drainage of the water from the land of the-plaintiff.

The culvert which formerly existed at point F had been located at that place from at least the year 1902 until the level of the lane was raised in 1948. Until about the year 1935 it consisted of a wooden box or square about twelve inches in width, and at that time it was replaced by a corrugated metal pipe which was installed at the direction of a former owner of the land of the defendants.

The plaintiff and several other witnesses in his behalf testified that the branch of the stream which extends from point E to point F has been in continuous existence as long as any of them had known or been acquainted with that section of the land of the plaintiff and the various periods of time that each of them had been familiar with the land and the character of the stream ranged from 13 to 47 years before the elevation of the lane in 1948. All of them also testified to the existence of the culvert at the point F and the previous flow of the stream through it or across the lane to the land of the defendants. The plaintiff and these witnesses further testified that the water from the branch of the stream from point E to point F did not flow from the land of the plaintiff by means of the ditch or drain from point F to point G in the same manner or to the same extent as it flowed from the land of the plaintiff before the elevation of the lane, and that the water from the stream overflowed, accumulated, and stood upon the land of the plaintiff after the lane was raised. The defendant, Daniel R. Jarrell, testified that he was unacquainted with the land of the plaintiff before the defendants purchased their land in 1944 and that at that time there was no stream between points E and F. One witness in behalf of the defendants testified that only about ten or twelve feet of the section of the stream between points E and F existed when he formerly worked on the land of the plaintiff, and that, sometime in 1944, he dug the ditch, to a depth of about two feet, from the point where it then ended to the point F. This witness, however, testified that a culvert existed under the lane at the time and a witness for the plaintiff contradicted his statement concerning the digging of the ditch. Another witness in behalf of the defendants who was well acquainted with the land of the plaintiff also testified that he could not recall any stream running from point E to point F; but this witness likewise testified that there had been a culvert under the lane at point F. Several witnesses, produced in behalf of the defendants, testified that the ditch or drain between points F and G was sufficient to drain the water of the stream between points E and F and that after it was constructed the drainage of the land of the plaintiff was better than it was before it was constructed.

In 1933, and for some time afterward, the section of the land of the plaintiff near the points E and F was a thicket which contained underbrush and small trees, but before the institution of this suit the thicket in that area was removed and that section of the land has been planted with gras's, and is used to some extent by the plaintiff for pasture. Photographs taken at the instance of the plaintiff and introduced in evidence show that the area between points E and F though containing some trees is cleared of underbrush, and that in February, 1949, portions of the land of the plaintiff near the point F and east of the farm lane were covered with standing water. The - bottom lands of the farms of both the plaintiff and the defendants are subject to inundations from flood waters of the Great Kanawha River which ordinarily occur once or twice in each year.

The plaintiff bases this suit, and seeks to obtain the relief for which he prays, on the theory that the section of the stream between the points E and F is a natural watercourse which the defendants have obstructed to the extent of causing the water of the stream to overflow, accumulate, stand upon, and damage his land and that the water which flowed from the stream across the farm lane and upon the land of the defendants before the lane was raised to its present level was not surface water but water from the stream which flowed in its natural course. That issue and the issue whether the plaintiff had also acquired an easement by prescription on the land of the defendants for the flow of the water were presented to but not specifically decided by the circuit court. In denying the plaintiff the relief prayed for in his bill of complaint the judge of the circuit court filed a written opinion, which is made a part of the record, and the opinion contains, among others, these statements:

“I am unable to conclude that the drain or stream from ‘E’ to ‘F’ is a natural water course, although it be conceded that it has been in existence for many years. The whole evidence in the case strongly indicates that this drain originated some years ago but whether it is natural or artificial remains in doubt. There can, however, be no possible doubt that the stream from ‘D’ to ‘G’ is a natural one — all the evidence is clear upon this point.

“It is not necessary to decide whether the drain in question is natural or artificial or whether the plaintiff has acquired a prescriptive right , to flow water upon the defendants’ land. The fact is that point ‘F’ is 1.8 feet lower than point ‘E’, point ‘G’ is .57 feet lower than point ‘F’ and point ‘G’ is also 2.37 feet lower than point ‘E’, so that the flow of surface water would naturally drift toward point ‘G’ from any of the other points shown on the map. Since the defendants have a legal right to deal with the surface water deposited on their land at ‘F’, our only inquiry is as to the manner in which they dispose of it. * * *.

“The burden is upon the plaintiff to show not only that the defendants acted in an unreasonable manner but also he was damaged or likely to suffer damages therefrom. The law confers upon the defendants the right to take care of the water after it reached their land. Digging a drain from ‘F’ to ‘G’ to lead the water into the main stream at ‘G’ accomplished the threefold purpose of, (1) protecting their farm lane, (2) carrying surface water from the plaintiff’s land all along the distance from ‘F’ to ‘G’ and, (3) protecting their land west of the lane from seeping and encroaching waters tending to create a swamp, swale,, or slough in their own fields.

“In such case as this there is an equitable principle to be applied known as the balancing of equities or conveniences, between the parties to the cause. What equity-dictates that the defendants should be ordered to install a culvert under this farm lane at ‘F’, and be compelled to dispose of the water on the west side of the lane instead of the east side as they did? To compel such an installation would either result in the water being discharged upon the defendants’ land to stand in pools or swamps or else in the expenditure of money and labor in constructing drains or ditches to carry the water to Pond Branch on the east side'of the láne. See 14 R. C. L. injunctions, Section 60, page 357 and Chafin v. Gay Coal and Coke Co. 109 W. Va. 453, 156 S. E. 47.

“From all the testimony there is no reason to doubt that the drain constructed by the defendants from F’ to ‘G’, if properly cared for and maintained, is ample to carry the surface water on the east side of the farm lane. It has sufficient fall and if kept open will suffice for every reasonable purpose.”

Though the quoted statements in the opinion of the circuit court concerning the character of the stream between the points E and F and the easement by prescription claimed by the plaintiff upon the land of the defendants indicate that it did not in express terms pass upon these questions, by its action in denying the plaintiff the relief which he seeks, upon the ground that the water which flowed through the culvert and over the lane to and upon the land of the defendants was surface water, a ruling which is entirely inconsistent with the theory of the plaintiff that it was the normal and usual flow of water from a natural watercourse, and in applying the doctrine of the balance of equities or conveniences, that court necessarily and in effect decided that the stream was not a natural watercourse and that the plaintiff had not acquired an easement upon the land of the defendants for the flow of the water from the stream. Whatever may be the effect of the statement of the circuit court that it was •unnecessary to decide those questions, the provision in the final decree that “Upon consideration of all which, the court is of opinion and doth ADJUDGE, ORDER AND DECREE that the plaintiff has not made out and sustained a cause of action against the defendants.” clearly constitutes a decision adverse to the contentions of the plaintiff on both of those questions and enables this Court to review them upon this appeal.

By his assignments of error the plaintiff seeks reversal of the final decree of the circuit court on substantially these grounds: (1) the section of the stream between points E and F is a natural watercourse and the water flowing from it is not surface water; (2) the plaintiff has an easement by prescription upon the land of the defendants for the unobstructed flow of the water of the stream; (3) the obstruction and the diversion of the natural flow of the water of the stream are unlawful and unreasonable; and (4) the plaintiff is entitled to an injunction as prayed for in his bill of complaint.

The evidence clearly shows that the section of the stream between the points E and F had been in continuous existence, in substantially its present condition, for many years and that it was created by nature and not by human work or effort. Though one witness produced by the defendants testified that he dug that portion of the stream extending from a point ten to twelve feet west of the dividing point E to the point F in the year 1944 his testimony is flatly contradicted by the testimony of another witness, and is against the clear weight and preponderance of the evidence on that point. The stream, as it existed in 1948 before the level of the lane was raised, and as it now exists between the points E and F, consists of a well defined bed and bank and normally contains water that usually flows in a known direction and in a regular channel. In Neal v. Ohio River Railroad Company, 47 W. Va. 316, 34 S. E. 914, in defining a natural watercourse and in referring to the liability of a person who obstructs or diverts it, this Court said in point one of the syllabus “A water course consists of bed, bank and wader. Yet the water need not continually flow, as many streams are sometimes dry. There is a difference between a water course and an occasional outburst of water which, at times of freshet, from rain or snow, descends from the hills and inundates the country. To be a water course, it must appear that the water usually flows in a certain direction, and by a regular channel, with banks or sides. For obstructing or diverting a water course, and thereby damaging another, the party is liable.” The definition of a natural watercourse as stated in the Neal case, has been reiterated by this Court in the recent case of Town of Paden City v. Felton, 136 W. Va. 127, 66 S. E. 2d 280. See also 56 Am. Jur., Waters, Sections 6, 7, 8 and 9. The opinion of the circuit court states that there can be no possible doubt “that the stream from ‘D’ to ‘G’ is a natural one”; and no .material fact, established by the evidence, differentiates from that section of the stream the character of its branch, which begins at the dividing point E and, until the lane was raised, extended beyond the point F across the lane and to and upon the adjoining land of the defendants wherje it formed a swamp or pond from which the water continued to flow, according to the testimony of the plaintiff and another witness, into or toward another stream known as Five Mile Creek. A natural watercourse implies a place of discharge and ordinarily empties into a river or another watercourse, but if a stream spreads out on land and there terminates, that fact does not deprive the part of the stream which flows regularly through a channel of its character as a natural watercourse. 56 Am. Jur., Waters, Section 10; Rait v. Furrow, 74 Kan. 101, 85 P. 934, 6 L. R. A. (N.S.) 157, 10 Ann. Cas. 1044; Rigney v. Tacoma Light and Water Company, 9 Wash. 576, 38 P. 147, 26 L. R. A. 425.

It is also manifest, from the evidence, that the flow of the stream is not surface water which is also defined by this Court in point two of the syllabus in the Neal case as. “water of casual, vagrant character, oozing through the soil, or diffusing and squandering over and under the surface, which, though usually and naturally flowing in known direction, has no banks or channel cut in the soil: coming from rain and snow, and occasional outbursts in time of freshet, descending from mountains or hills, and inundating the country; and the moisture of wet, spongy, springy, or boggy land.” See Uhl v. Ohio River Railroad Company, 56 W. Va. 494, 49 S. E. 378, 68 L. R. A. 138, 107 Am. St. Rep. 968, 3 Ann. Cas. 201. The flow of water from the section of the stream between points' E and F, not being surface water, the case of Jordan v. City of Benwood, 42 W. Va. 312, 26 S. E. 266, 36 L. R. A. 519, 57 Am. St. Rep. 859, cited by the defendants, which deals with the right of a land owner to dispose of surface water flowing upon his land, is inapplicable to the case at bar.

The principle is well established by the decisions of this Court that the owner of land through which a natural watercourse passes is entitled to the flow of the water of the stream as it is wont to flow by nature without diminution or alteration, that he may insist that the stream shall flow to his land in the usual quantity in its natural place, and at its natural height, that he is entitled to have it flow from his land to the land of his neighbor below in its accustomed place and at its usual level, and that a person who obstructs or diverts such watercourse, and by so doing damages the land of the person through which such watercourse pásses is liable to the owner of such land. Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535; Atkinson v. Chesapeake and Ohio Railway Company, 74 W. Va. 633, 82 S. E. 502; Pickens v. Coal River Boom and Timber Company, 58 W. Va. 11, 50 S. E. 872, 6 Ann. Cas. 285; Taylor v. Chesapeake and Ohio Railway Compamy, 84 W. Va. 442, 100 S. E. 218, 7 A. L. R. 112; Cline v. Norfolk and Western Railway Company, 69 W. Va. 436, 71 S. E. 705; Neal v. Ohio Railroad Company, 47 W. Va. 316, 34 S. E. 914; Hargreaves v. Kimberly, 26 W. Va. 787. The right of the owner of land through which a natural watercourse passes to have the water of the stream pass his land in its natural flow is a property right and exists as part of the land; and the unreasonable diversion of the water of such stream is an infringement of such' property right’ which imports damage. Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535; Allen v. Stowell, 145 Cal. 666, 79 P. 371, 68 L. R. A. 223. The obstruction or the unreasonable diversion of the water of a stream is also a private nui-sanee. Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535; Humphries v. Black Betsy Consolidated Coal Company, 115 W. Va. 768, 178 S. E. 273; Allen v. Stowell, 145 Cal. 666, 79 P, 371, 68 L. R. A. 223; 20 R. C. L. 401; 56 Am. Jur., Waters, Section 13. In 56 Am. Jur., Waters, Section 13, the text contains these statements: “It is a general principle of the law of waters, subject to certain exceptions and modifications * * * that a riparian proprietor has the right to have the water of the stream flow by or through his premises in its natural mode, course, and volume.”, and that “As against riparian owners below, upper proprietors are entitled to have the water flow from their lands to the same extent, and such lower owners are bound to submit to receive it although it floods their lands.” See 67 C. J., Waters, Section 13b, p. 690.

In Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535, this Court held that the plaintiff, a lower riparian landowner was entitled to an injunction to prevent the defendant, an upper riparian landowner, from diverting from the land of the plaintiff a material part of the water from a small stream which ran through the lands of both owners and which the plaintiff used to operate a grist mill on his land, and in the opinion said:

“Plaintiff, whether he has a mill or not, and regardless of the fact that the mill has been operated on the stream for many years, is entitled as a riparian owner, to have the stream which washes his land flow as it is wont by nature without diminution or alteration. He may insist that the stream shall flow to his land in the usual •quantity, in its natural place and at its natural height, and that it shall flow off the land to his neighbor below in its accustomed place and at its usual level. While he has no property in the water itself, yet his right to the natural flow of the water will be regarded and protected as property. His right to have the water pass his land in its natural current is not an easement or appurtenance; but it is a right annexed to the soil which he owns. The right exists jure naturae as parcel of the land. Gould on Waters (3rd Ed.), sec. 204; Pomeroy on Riparian Rights, secs. 7-9. The flow of the water in its natural way and at its natural height is a part of plaintiff’s landed estate. Interference with the flow is the infringement of a property right of plaintiff for which he may have redress as readily as for violation of his right to any other portion of the soil.

“Defendants, by their act in taking the water, are clearly infringing the right of plaintiff as a riparian owner. They are disturbing the natural flow of the stream to which he is entitled, by reducing the quantity of water that would naturally flow therein. Their act is an unlawful one. It does not matter whether plaintiff is actually damaged. Nor does it matter that plaintiff does not need the water for use. Their act interferes with plaintiff’s right — the full enjoyment of his property without molestation. And, using the language of a Pennsylvania case, relating to such a right, ‘the wrong must cease, no matter how trifling it may seem. The right of the plaintiff is absolute to be restored to the full enjoyment of his own property, and is not dependent in any manner upon its value either to himself or to his adversary.’ Wheatley v. Chrisman, 24 Pa. 298. One may not disturb another’s field simply because no actual damage is done thereby; the owner of the field is entitled to hold it free from disturbance by another regardless of the amount of damage. The same principle applies to a riparian owner’s right to have the undisturbed flow of the stream.”

Though a landowner has a right to divert or change the course of a stream flowing through his land, in so doing, he must use due care to provide the stream with a new channel of sufficient capacity to carry off not only the ordinary flow of water, but also such high waters as may reasonably be anticipated from heavy and protracted rains which the former channel was capable of carrying away without damage to neighboring property, provided, of course, that such waters do not amount to an unprecedented flood; and some courts hold that, in instances of heavy rainfall, not amounting to an unprecedented flood, the duty to provide a channel of sufficient capacity is absolute. 56 Am. Jur., Waters, Section 14; Garrett v. Beers, 97 Kan. 255, 155 P. 2, L. R. A. 1916F, 1289; Eikland V. Casey (C.C.A. 9th) 266 F. 821, 12 A. L. R. 179, writ of certiorari denied in 254 U. S. 652, 41 S. Ct. 149, 65 L. ed. 458. See Hargreaves v. Kimberly, 26 W. Va. 787. The rule adhered to by the English courts and by the courts in many of the states in this country is that a person who diverts or obstructs the natural course of a stream must provide not only for the normal rainfall but for such floods or freshets as may occasionally occur, whether they are called ordinary or extraordinary, though not for unprecedented floods of which the usual course of nature affords no premonition. See note Ann. Cas. 1918A, page 1118. In the English case of Corporation of Greenock v. Caledonian Railway Company, (1917) A. C. 556, Ann. Cas. 1918A, 1103, decided by the House of Lords on July 23, 1917, the court held that a municipality diverting and obstructing the course of a stream by which it is rendered incapable of carrying away an extraordinary rainfall is liable when a flood results from such rainfall and damages adjacent property, and in an opinion by Finley, Lord Chancellor, this statement appears: “It is the duty of anyone who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable.” In Soules v. Northern Pacific Railway Company, 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, the evidence showed that the ditch in question was a natural drain way and served to drain a larger natural drainage basin of about 160 acres. For a long time prior to the flood in controversy the ditch had a well defined channel and grass on the bottom of the channel had been worn away to a width of three or four feet by running water. The evidence did not show that water ran in the ditch continuously or even usually, but did show that it ran in the ditch whenever there were heavy rains and when snow melted in the spring. The Supreme Court of North Dakota held that though the defendant railway company had the right to build an embankment across the ditch it owed the duty to the landowners in the drainage area to do so in such manner that the water which could reasonably be anticipated to flow in and be drained by the ditch could be as well accommodated as it was before the construction of the embankment.

As already pointed out, the evidence is conflicting as to the capacity of the ditch or drain between the points F and G to accommodate or drain- the water which flowed through the section of the stream between the points E and F and across the lane to the same extent as it was carried before the lane was raised and the ditch or drain from point F to point G was constructed. The plaintiff and a number of the witnesses produced in his behalf testified that the ditch or drain was not adequate for that purpose, and the defendant, Daniel R. Jarrell, and several witnesses produced in behalf of the defendants testified that it was. Notwithstanding the conflict in the testimony of these witnesses on that important point, however, photographs introduced in evidence by the plaintiff taken during the wet or rainy season of the year, in February, 1949, indicate clearly the presence of quantities of standing water in the area near the point F on the land of the plaintiff which were not drained or carried by the ditch or drain between the points F and G, and establish beyond question that the ditch or drain between the points F and G was not adequate for that purpose. The clear preponderance of the evidence, including the photographs and the testimony of the plaintiff and a number of witnesses produced in his behalf who testified that water did not accumulate or stand where it now accumulates and stands on the land of the plaintiff, as shown by the photographs, before the lane was raised to its present elevation and the ditch or drain between the points F and G was constructed, shows that the ditch or drain is inadequate to carry the water which formerly flowed through the section of the stream between the points E and F and across the lane to and upon the land of the defendants. The circuit court made no express finding on this point, but did find that the ditch or drain from the points F to G, if properly-cared for and maintained, is ample to carry the surface water on the east side of the farm lane. As this finding dealt with surface water and not with the flow of the water from the stream, as it was wont to flow before the elevation of the lane and the construction of the ditch or drain, it was based upon a principle of law which does not apply to or control the facts as disclosed by the evidence in this case. For that reason it should be set aside by this Court.

A verdict or a decision which, under the evidence, is contrary to the law governing the case must be set aside. 66 C. J. S., New Trial, paragraph 68. See Jenkins v. Charleston General Hospital and Training School, 90 W. Va. 230, 110 S. E. 560, 22 A. L. R. 323. Though the rule is well established in this jurisdiction that the findings of the trial chancellor based on conflicting evidence will not be disturbed on appeal unless such findings are clearly wrong or against the preponderance of the evidence, Holt Motors v. Casto, 136 W. Va. 284, 67 S. E. 2d 432; Adams v. Ferrell, 135 W. Va. 463, 63 S. E. 2d 840; Bennett v. Neff, 130 W. Va. 121, 42 S. E. 2d 793; Sutton v. Sutton, 128 W. Va. 290, 36 S. E. 2d 608; Taylor v. Taylor, 128 W. Va. 198, 36 S. E. 2d 601; Hardin v. Collins, 125 W. Va. 81, 23 S. E. 2d 916; Shipper v. Downey, 119 W. Va. 591, 197 S. E. 355; Spradling v. Spradling, 118 W. Va. 308, 190 S. E. 537; Tynes v. Shore, 117 W. Va. 355, 185 S. E. 845; Kincaid v. Evans, 106 W. Va. 605, 146 S. E. 620; Ramsey v. England, 85 W. Va. 101, 101 S. E. 73; Bailey v. Calfee, 49 W. Va. 630, 39 S. E. 642; an equally well established rule in this jurisdiction is that a decree based on conflicting evidence will be reversed when it appears that it is contrary to the preponderance of the evidence, or is clearly wrong. Adams v. Ferrell, 135 W. Va. 463, 63 S. E. 2d 840; Buskirk v. Bankers Finance Corporation, 121 W. Va. 361, 3 S. E. 2d 450; Jones v. Hoard, 108 W. Va. 308, 151 S. E. 183; Meyers v. Washington Heights Land Company, 107 W. Va. 632, 149 S. E. 819; Blue v. Hazel-Atlas Glass Company, 106 W. Va. 642, 147 S. E. 22; Hendrick v. Jenkins, 104 W. Va. 486, 140 S. E. 483; Wallace v. Douglas, 58 W. Va. 102, 51 S. E. 869; Pearson v. West Virginia Lime and Cement Company, 56 W. Va. 650, 49 S. E. 418.

The circuit court erred, by applying the doctrine of the balance of equities or conveniences to the facts of this case, as disclosed by the record, in denying the in-junctive relief prayed for by the plaintiff. Though in the exercise of the discretion vested in a court of equity to grant or refuse an injunction in any given case the court may consider and weigh the relative convenience or inconvenience and the comparative injuries to the parties which would result from the granting or the refusal of the injunction sought, that principle is subject to recognized limitations. On that point the text in 28’ Am. Jur., Injunctions, Section 55, contains these statements: “It has been said that the argument based on the balance, of injury to the defendant avails only in a limited class of cases, and that where comparative injury or inconvenience has resulted in the refusal of injunctive relief, it has been where the complainant’s injuries were trivial or uncertain or remediable at law. Certainly, the doctrine does not mean that substantial, certain, and irreparable damages to the complaining party, which might be prevented by injunction, are to be left without remedy because of the fact that greater damages would result to the defendant, a wrongdoer, by issuing the injunction. Where the wrong complained of is wilful, wanton, or unprovoked, the injunction should be granted although the loss to the defendant will be greater than the injury to his adversary from its refusal, for no balancing of the inconveniences of private parties will be indulged when the act complained of is tortious in itself as well as in its incidents, and the preservation of a clear right is involved. In such cases, the wrongdoer is not entitled to the benefit of any consideration in a court of equity, nor can it be said that injury would result from the injunction, for no man can complain that he is injured by being prevented from doing, to the hurt of another, that which he has no right to do.” See 43 G. J. S., Injunctions, Paragraph 30, a. The obstruction and the improper diversion of the natural flow of the water of the stream on the land of the plaintiff, caused by the acts of the defendants, constituted an infringement of a property right of the plaintiff and, in determining whether injunctive relief against such infringement should be granted, a court of equity should not resort to or apply the doctrine of the balance of equities or conveniences between the parties involved.

It may be urged, as is indicated in the opinion of the circuit court, that to require the defendants to reopen the stream and reinstate the conditions which existed before the lane was raised and the ditch or drain between the points F and G was constructed would result in hardship or unusual expense to the defendants. The complete answer to any such contention, however, is found in the decision of the Supreme Court of California, in Allen v. Stowell, 145 Cal. 666, 79 P. 371, 68 L. R. A. 223, in which a mandatory injunction requiring the reinstatement of formerly existing conditions by the removal of dams which caused the water of a stream to be diverted to the land of the plaintiff was granted. In the opinion in that case the court said: “The principles upon which mandatory and prohibitory injunctions are granted do not materially differ. The courts are perhaps more reluctant to interpose the mandatory writ, but in a proper case it is never denied. It was said in Johnson v. Superior Court, 65 Cal. 567: ‘The jurisdiction of the court to grant a preliminary injunction restraining the defendant from interfering with the flow of water pending the litigation, cannot be doubted, and we cannot see that its jurisdiction is exceeded when it requires the removal of the means by which the diversion is made. The ultimate aim of the injunction is the undisturbed flow of the water. The objections to the removal of the means by which the diversion is made are no more cogent than the objections to preventing the diversion of the water itself.’ ” See Sweetman v. Owens, 147 Ga. 436, 94 S. E. 542; 56 Am. Jur., Waters, Section 37; 67 C. J., Waters, Section 211 (a), p. 818. A mandatory injunction will be granted when the right of the applicant is clear and the necessity for such injunction is urgent. Kennedy v. Klammer, 104 W. Va. 198, 139 S. E. 713; Lamp v. Locke, 89 W. Va. 138, 108 S.E. 889. When a private way is obstructed or closed, a mandatory injunction will lie to clear and open such way for the use of the owner. Hershman v. Stafford, 58 W. Va. 459, 52 S. E. 533; Boyd v. Woolwine, 40 W. Va. 282, 21 S.E. 1020.

In view of the conclusion reached as to the character of the stream between the points E and F and beyond, as it existed prior to the elevation of the lane and the construction of the ditch or drain between the points F and G, and the insufficiency of that ditch or drain to accommodate and carry away the flow of the water from the stream to the same extent as before the stream was obstructed and its water diverted, it is unnecessary to consider or decide the question whether the plaintiff has an easement by prescription upon the. land of the defendants for the flow of the water of the stream.

As the plaintiff is entitled to a decree enjoining the defendants from obstructing the flow of the water of the stream and requiring them to reopen the stream by installing a culvert in and under the farm lane near the point F of sufficient capacity to dispose of the flow of the stream in its natural course, the decree of the circuit court, which denies the plaintiff this relief, is reversed and set aside, and a decree awarding costs and granting the plaintiff such relief will be entered by this Court.

Reversed and entered.