Mishler v. Peterson

166 N.W. 640, 40 S.D. 183, 1918 S.D. LEXIS 45

• Court: South Dakota Supreme Court
• Decided: March 8, 1918
• Docket: File No. 4256
• Status: Published

Opinion

McCOY, J.

Action to restrain defendant from constructing certain tile (ditches. Findings and judgment were in favor of plaintiff, and defendant appeals.

From ibhie stipulated fac’bs agreed to) by the parties it in substance -appeal's -that plaintiff is tine owner of 'the- southeast quarter of section 3., and def-endiant i-s the owner of the souitih-west quarter of section 2. On -the slouth-west quarter of section 2, owned by defendant, are ftanr small natural surface water basins' 'or ponds altogether oarteiniiog about io acres. In wet seasons surface waters collect in these ponds- to a -depth -of about three feet. All these ponds- are on -cultivated lands'. On the lands where t-h-ese ponds' are situated- there i-s a natural -downward slope to the north-ward, so that when these p'onids overflow th'eir rims the waters therefrom naitura-ly flow to the n'orith-ward -and1 into a natural -swale -cr -depression farther nloirth on defendant's land. There aire- no natural depressions in the- rimis1 -o-f these piond's o-r on the -siurf-ace of the land connecting them with' a -dleeper natural depressiiicn -f-airther noirthwiard-. Acr-osis the north end of defendant’® land, t-he southwest quarter of section 2, is a natural s-wale or -dcpiressi-on which" slopes downward 'to the westward -and across the laud- of plaintiff c-omne-cting with a large slough of about 8o acres, a part of which slough is on th/e west edge of the s'ai-d1 land owned by plaintiff. This natural depression as it crosses plaintiff’® land is ab-o-dt 4 rod-s wide (-tire width of -a highway) with well-defined banks several feet high on either side, but which banks are not so -abrupt a!si to prevent cultivation' over and ’ across said depression. The large slough, initio which t-hi-s natural' -depression empties, has no natural -surface outlet, so that in wet seasons the same contain'si water a greater part of the 3'bar. In dry sielasons the large slough is cultivated tlo crops. In 1910, and long ¡prior to the beginning -of thi-s action, -a tile drainage -ditch was constructed- by the County ota t-he as'sies-smenf -plata Connecting salid -large s-lough with .a natural waterway about a mile farther westward. Defendant is nOw contemplating and attempting to construct a tile dli-tcihi from the salid! four surface wlater basins- or ponds- on- 'his land initio- the natural d'enresslon oir swale farther north, but all o-ru -hi® -own. l-and.

[1, 2] As will be observed from- this- statement of f-act, the ponds -on- defendant's lands- -a-re in t-he same watershed or natural drainage bas-iu as- 4© the natural swale or depression ‘acrcls-s plaintiffs laud anldl said slough. T'hli-s swale -or dlepresBston crossing defendant’s l-and is a natural water course, as much so as if it emptied directly into the ocean-, Dake Michigan, or s-ome other smaller natural body of waiter. Nature intended that depression as the outlet for tlhe surface waiters, that should gather in that part elf said watershed! to. thie east of plaintiff into' said) slough. A llandbwner cannot lawfuly divert water from one natural watershed into another by cutting ‘through a natural ridge oir other natural barrier separating two distinct watersheds-, and thereby cause water to flow in a direction or upon or over lands upon which it wiould nloft otherwise have gone, as was the ca.sie in Boll v. Ostroot, 25 S. D. 513, 127 N. W. 577. A landowner, in the exercisie of good) 'huisb'andlry, 'by means of proper open or tile drainage ditches entirely upon ihiis own land, may accelerate the flow of surface- waters in their natural course, or watershed, without being li.afolle- for dlamagesi, oir subject tb thie restraining orders of the courts, where such waters are riot gathered in unusual or unnatural quantities and -cast up'ou the iiandis of another; in such -case thie lower oir -servient estate is burdened' with the e-asement o-f -caring for all -surface waters coming from the upper or dominant -estate. Thompson v. Andrews, 165 N. W. 9. The decision in that oaisie is applicable and controlling' ini the ca-se at bar. A portion o-f plaintiff’s land was ateo burdened by nature with, a large slough into which ithe natural water -course- in question üu thi-s da'sie emptied. So far a's- the legal rights of the parties are oonlaeTUeld', thie tiling from tine large slough westward-is not material to the issues presented.

The judgment and oridler aipipe'al-ed from are reversed, with diirectibrisi to- enlt'elr judgment dismissing plaintiff’s cause o'f action upon thie merits.