Blaine v. Brady

Miller, J., delivered the opinion of the Court. 'This appeal is from an order refusing to grant the injunction asked for in the bill filed by the appellant, and dismissing the same with costs. It appears from the bill and accompanying exhibit, that the complainant in May, 1818, purchased a farm in Prince George’s County, containing about one hundred and seven acres, for the sum of $30 per acre, amounting in all to $3215.62. This farm adjoins on one side, an unnavigable stream of water known as the “Southwest Branch of the Patuxent River,” on the opposite side of which is the land of the defendant, which is lower than that of the complainant, so that in times of heavy rains and freshets; when the stream is swollen and overflows its banks, such overflow found its natural outlet over the defendant’s land, and little or none of it came upon the land of the complainant owing to its higher location. The bill charges that this state of things has continued from time immemorial, and the complaint is that the defendant has recently erected an embankment on his own lands'adjacent to the stream for the purpose of preventing this overflow of water thereon, whereby in times of heavy rains and freshets the overflow of water instead of passing over his lands, as it had been accustomed so to pass, has been thrown upon the complainant’s land, thereby causing “a considerable portion” of the same to be submerged and. drowned and the crops growing thereon to be entirely destroyed.

It then charges that so long as this embankment shallbe continued the portion of complainant’s land so submerged will be rendered valueless, as it will be impossible to cultivate the same, and thus ah irreparable injury to his land is caused and will be continued un-' ³⁷⁵ less this embankment shall be removed, by the aid of a Court of equity; that he has been credibly informed and believes and therefore charges that the defendant is engaged in preparing timber and other material for the purpose of erecting upon his said land other works and obstructions for the more full and effectual prevention of said overflow over his land, and of further and more fully, effectually and permanently causing the same to flow over and upon the land of the complainant; that by the natural conformation of complainant’s land the water when thus thrown upon it has and can have no outlet therefrom but remains thereon to the permanent injury thereof, and to the ultimate and entire ruin and destruction thereof for the purpose for which it has always been used and enjoyed, to wit: for purposes of cultivation and for any other practicable or useful purpose. The bill also charges that the •complainant has instituted an action at law against the defendant to recover damages for the injury thus occasioned to his land and crops, but he avers that such action and others which he may hereafter institute for the continued injury will afford him no adequate relief, and he will be subjected to a multiplicity of suits, to irreparable loss and injury, and to great delay, vexation, cost, and expense caused by tedious and protracted litigation, unless protected by a Court of equity from such acts of the defendant already committed and those which he is about to> ■commit. The bill then prays for an injunction restraining the defendant from maintaining the embankment already erected, and requiring him to remove the same, and also preventing him from erecting any others which will produce the same effect. The case thus presented is not one in which a stream in its ordinary stage of water has been diverted from its natural course by an obstruction placed in its channel and between its banks, but one where a stream which flows ³⁷⁶ between the lands of two proprietors and ordinarily keeps within its banks and does no harm to either, but which in times of heavy freshets overflows its banks, and such overflow naturally spreads over the land of one of them, and where the proprietor of the land thus