Alsager v. Peterson

1. Water and Water Courses — Injunction Against Drainage — Conditions at Time of Trial — Evidence. In a suit to enjoin maintenance of a ditch conducting water into a slough partly on plaintiff’s land, evidence of conditions in ditch an.d slough existing at time of trial was admissible. 2. Injunction — Evidence of Conditions at Time of Trial. In exercise of discretion in granting injunctional relief, the court’s duty is to adjudge upon conditions existing at time of trial, as well ás at time suit was brought. 3. Same — Conditions, Change of, Between Time of Suit and Time of Trial — Final Relief. In an injunction suit, conditions existing at time of trial, concerning further damage to plaintiff from continuance of present conditions, control in 'determining the right to final relief, although those existing at commencement of suit might have warranted a temporary injunction and judgment for costs in favor of plaintiff. 4. Same — Present and Future Conditions — Grounds of Relief. Relief, in an injunction suit, is dependent upon present and future conditions, rather than solely upon those existing when suit was brought.

■ Appeal from Circuit Court, Day County. Plon. Frank Mc-Nulty, Judge. Action by Peter J. Alsager against John P. Peterson, to enjoin continuance of a wafer ditch affecting plaintiff’s land! From a judgment for defendant and an order denying a new trial, plaintiff appeals. As we view this evidence, taking it as a whole, the preponderance thereof shows that water was actually conveyed through the ditch, discharged from the end thereof, flowed on down the slope and was thence deposited on the lands of appellant. That the water thus thrown upon his lands was water which would not have gone there had it not been for the act of respondent in digging and maintaining said ditch. That said water was thrown on appellant’s land in such quantities as to cause substantial damage. That the slough actually went up during the time of the discharge of the water thereon. (See record pages 8 to‘ 13 inclusive.) This evidence, we believe, is undisputed. Hence we say that a substantial and actual damage occurred because of the act of the respondent. The evidence further established the fact that .these sloughs were but shallow basins or depressions, which at times of high water would hold water and at other times become dry. That a land owner has no right to gather the surface waters on his land and by means of ditches cause them to= flow upon the land where they would not otherwise go, see: Brandenberg v. Zeigler, 55 R. R. A. 414; Hoganon v. St. Paul M. & M. Ry. Co., (Minn.) 17 N. W. 74; Gregory v. Bush, (Mich.) 31. N. W. 90; Notes in 30 Am. & Eng. Enc. at page 337. The evidence shows that the ditch is so constructed as to carry water from sag holes or depressions on respondents land and deposit it upon appellant’s land; that this occurs at times of 'high water, just when appellant’s land-is amply watered without being burdened by the waters from the land of respondent. This being the case, so long as that ditch is maintained by respondent, appellant’s land will-he subjected to overflows by the waters coming therefrom. No damages recovered for injury done thereby in the past can compensate for the injury which .will be done by waters which will likewise flow through said ditch in the future. If respondent be not restrained from maintaining this ditch, damage will result every time, that because of falling rains and melting snows the sagholes or sloughs on his land become so filled as to overflow through -this ditch. Under the evidence in this case there i’s not a mere fear of apprehension that injury will be done if no injunction is granted 'but there is a reasonable probability, if not a certainty, that damage will result from defendant’s act-s in the future as in the past and that the danger is a continuing one. The defendant -has actually constructed the drainage ditch in such a manner as will cause it to convey the waters to and upon the lands of plaintiff and the fact that he may deny his intention to permit the water to flow upon plaintiff’s land in the future is not a sufficient ground for denying the injunction. 22 Cyc. 758. • Where a structure has been put up and is being wrongfully maintained its maintenance may ' be prevented by injunction. Holmes v. 'Calhoun County et al, -la., 66 N. W. 145;- Troe v. Ear-son et al, la., 51 N. W. 179. The exhaustive researches of appellant’s counsel do not seem to have discovered the case of Boll v. O’stroot, 127 N. W. 577. The main facts in that case were curiously like the facts in this case. But there it was conceded that the water drained by defendant, Ostroot, from his own slough, onto his own land, would and did flow down the slope into the pond or lake owned by Boll. Therein this case differs in a vital point. Here we deny that any water escaping from the ditch on defendant’s land, ever did or would flow onto Alsager’s land, and the trial court found as a fact that it did not so flow. It was further conceded in that case, that it was the intent of defendant, Ostroot, to cause the water to so flow on he plaintiff’s land and that he did so under a claim of right. In this case the evidence show's that no such intent or claim ever existed. It further appears in that case that at the time of hearing the action for an injunction the water was draining off the defendant’s land over on to the plaintiff’s. In this case at the time of hearing there was no water anywhere on the premises of defendant, and therefore no need for. the issuance of an injunction. An injunction is a preventive remedy. Its province is not to afford a remedy for what is past, but to prevent future mischief. It is not used for the purpose of punishment or to compel persons to do right, but merely to prevent them from doing wrong. It is a general rule therefore, that rights already lost and wrongs already perpetrated cannot be corrected by injunction, and that the party aggrieved must look to some other remedy or redress. (16 Am. & Eng. End Eaw 362.) It is true that as a general rule the right of the parties to a suit are determined in accordance with the conditions existing at the commencement of the action, yet it is manifest' that this rule cannot be applied to every case. When the act sought to be enjoined becomes impossible of performance the court will not do a vain thing” by adjudging its non-performance. I11 the c-ase of Boll v. Ostroot, this court said that its jurisdiction to issue an injunction was founded on the fact that “the act complained of was necessarily to be a continuing act and trespass on tíre rights of plaintiff.” In this case the element on which the court founded its jurisdiction in the Ostroot case is wanting. It is impossible that there should be a continuance of the act complained of. There was no claim made on the trial that there would be or might be a recurrence of the condition existing when the case was commenced. If plaintiff had desired to show that the slough on defendant’s land, then dry, would again become filled with water, so as to again drain through the ditch, it was his right to so establish that fact as a probability. He did not seek to do so and this court, in the present condition of the record, can not consider such a contingency. It appears from this record that the act sought to be enjoined was at the- time of the trial impossible of performance, and would continue to be so. Plaintiff has not, in his brief, claimed that such act was possible at the time of the trial nor is there anything in- -the record to show that it would ever again be possible to flow water through the ditch. But he claims that at the time of the commencement of this action the sloughs were full of water running, and that these conditions should be taken as a basis of the court’s action. The weakness of thi's position is apparent when we consider that the very foundation of the jurisdiction of the -court is the continuing nature of the act sought to be enjoined. Bo-11 v. Ostroot, supra. In this case, the trespass, if any, was a past and completed act. It was not existing or continuing, nor could it be. Hence the court properly received evidence to show the non-existenc-e, both present and future, of conditions making the act possible.