Kay v. Kirk

Alvey, C. J., delivered the opinion of the Court. The bill in this case was filed by the appellee against the appellant to obtain an injunction to restrain the latter from proceeding to cut a ditch through his meadow, to divert a stream of water from its natural and original course, whereby, as it is alleged, the plaintiffs mill-dam and water-power below would be greatly affected and irreparably damaged. ⁴² The plaintiff and defendant are adjoining land-owners on a stream called Stone Run, in Cecil County. The defendant is owner of the upper tract, and the plaintiff of the lower, upon which he has a mill-dam, and a grist and saw-mill in operation. The course of Stone Run is through the lands of both owners, and is, through the meadow-land of the defendant, somewhat winding, with several curvatures before it reaches the mill-dam of the plaintiff.

The course of the stream is through a valley, and it is the receptacle of the drainage of a considerable water-shed, before it reaches the land of the defendant; and in times of heavy floods, which quite frequently occur, caused by rain or melting snow, the stream overflows its banks, and spreads over the meadow-land of the defendant. To prevent this, he proposes, and has commenced, to cut a ditch through his meadow, and thus straighten the course of the stream, but to intersect the original course of the stream, and to cause the water to flow down on its present bed from the point of intersection, — such point being upon the land of the defendant. It is to prevent this, and the diversion of the stream from its natural course as it now exists and runs into the dam of the plaintiff, that the application for an injunction was made by the plaintiff. The plaintiff charges that the defendant is engaged in cutting a wide channel or ditch along the south side of and within a few feet of the plaintiff’s mill-dam, and through one of the banks thereof, and into said dam, for the alleged purpose of preventing the overflow of his meadow.

That the said ditch or channel when completed will be considerably lower than the banks' of the plaintiff’s dam, and will divert from and diminish the flow of the water therein, and in times of heavy rains and freshets, turn such a volume of water into said ditch or channel as will wash out and totally destroy the whole south side of the plaintiff’s mill-dam. That if the de ⁴³ fendant is suffered to make such ditch or channel, and to divert the flow of the stream from its natural course, the plaintiff’s water-power will be totally destroyed, his mill property rendered entirely valueless, and his milling business altogether broken up, and that he will thereby suffer irreparable damage, and that he has no adequate remedy at law. The defendant, by his answer, insists that the making of the ditch is but a reasonable improvement of his property, and that the ditch is located entirely on his own land, and that the water which is taken from the present course of the stream, at the head of the ditch, and carried over the defendant’s land, is all returned undiminished to the present or original bed of the stream before leaving the land of the defendant, and before reaching the mill-dam of the plaintiff He denies that the ditch will affect the mill-dam injuriously, or that it will have any such damaging effect as that charged by the plaintiff. There has been a large mass of testimony taken, and many witnesses have been examined on both sides.

Each party has had made a plat of the premises, and filed it in the case, and much of the testimony, on the part of the defendant, has been directed to the plat made for the plaintiff, to show that it is inaccurate in several particulars, and that the plat made for the defendant is substantially correct. There was also a good deal of examination to show that the breast of the plaintiff’s mill-dam had been raised some time within the last few years; but the testimony failed to establish this fact with any degree of certainty. At most it appears but as matter of conjecture on the .part of some of the witnesses. The main question presented by the testimony is, whether the completion of the ditch or new channel, as proposed by the defendant, and the diversion of the ⁴⁴ water from its natural course, but its return to the original bed before leaving the land of the defendant, will either wash out any portion of the banks of the dam, or wash mud and earth into the dam, and thus fill it up, so as seriously to impair its capacity and usefulness.

And the strong preponderance of the testimony answers this question in the affirmative. It is true, the lines of intersection of the new channel with the original bed of the stream, at the head of the plaintiff’s dam, would not be at right angles; but it would be at such angle, the original bed of the stream being narrow, that the current from the mouth of the ditch, in times of freshets, would be of sufficient velocity and force to tear out the opposite bank of the stream. This is the very decided opinion of many witnesses. If, however, the opposite bank should be strong enough to resist the force of the current from the mouth of the ditch proposed to be made, the testimony shows it to be very probable, that the mud and sediment that would be washed from the ditch, if not at once, at least in a short time, would fill up the dam, — the dam being small in area, and not of any