A man may build a dam across a stream on his own land, provided that he does not appreciably diminish the amount of water which should naturally flow on to the land of his neighbor below, or materially effect the continuity of the flow.
Appellant neighbors sought review of the decision from a trial court, which granted judgment in favor of appellee landowners and buyer in their action for an injunction to compel the neighbors to repair a breach in, and remove, certain portions of a levee. The neighbors built the levee to surround their property in order to keep out water that accumulated on the surface of their farms. The owners alleged that the levee backed water up onto the owner's land. The trial court granted judgment in favor of the owners and buyer, and the neighbors challenged the decision. On appeal, the court affirmed and held that the buyer was a proper party because he had a contract for the purchase of a portion of the owner's land and had paid money for an option that ran through the end of the litigation. The evidence showed that neither the owners nor their predecessors materially diverted the natural flow of the surface water but that the neighbors' levee did, which backed up the water onto the owners' land. Under the civil law rule the neighbors' action constituted an actionable nuisance.
Does the trial court err in finding for the landowner and buyer?
The court found that the ditch and levee did run across the natural flow of water when the north fork of the river was at flood stage, and as a natural consequence, the levee would hinder the natural flow of the water and thereby cause the flood water to back up and stand on the real estate of the owenr for longer periods of time than would occur if allowed to flow naturally and unretarded. A landowner, whether in country or city, has an easement for drainage of surface water in its natural flow over the lower land of a neighboring owner; and if the latter places an obstruction of any character upon his land that arrests this drainage and thereby causes injury to the former, an action lies for damages. Any substantial or essential interference with the flow, if wrongful, whether attended with actual damage or not, is an actionable nuisance. A lower riparian proprietor has no right to maintain a dam which will back water upon the upper riparian proprietor land in time of freshets or prevent its flowing therefrom to his injuries though at ordinary stages of water such dam will not occasion any injury.