Crabtree v. Baker.

clear a prisoner may be legally convicted upon such evidence alone and unsupported; and whether the account of a child requires to be corroborated in any part, or to what extent, is a question exclusively for the jury, to be determined by them on a review of all the circumstances of the case, and especially of the manner in which the evidence of the child has been given." So, in Roscoe Cr. Ev. 113, it is said to have been the agreement of all the English judges, "that a child of any age, if capable of distinguishing between good and evil, might be examined upon oath." And in Whart. Cr. Ev., § 366, it is said: "The testimony of a child between four and five, and that of a child between six and seven, have been received on the trial of an indictment for an attempt to ravish. And we may regard it as settled, that wherever there is intelligence enough to observe and to narrate, there a child, having a due sense of the obligation of an oath, can be admitted to testify." Wade v. State, 50 Ala. 164.

We think this case is brought directly within the influence of Carter's case, 63 Ala. 52; s. c., 35 Am. Rep. 4, and the judgment of the Circuit Court must be affirmed.

This being a capital case, and the day set for the execution of the prisoner having passed, it is ordered by the court that Friday, the 29th day of August next, be set for the execution of the sentence of law; and that on that day the prisoner be hanged by the neck until he is dead. The sheriff of Wilcox county will execute this sentence in the manner prescribed by law.

An upper land-owner may not collect the surface water in channels and drains and turn it in increased volume on the land of a lower owner to his detri ment, and the latter may defend his land against it by dam or embankment.

BIL

ILL to restrain the damming a ditch. The opinion states the case. The injunction was granted below.

Crabtree v. Baker.

L. H. Faith and C. H. Lindsey, for appellant.

Toulmin, Taylor & Prince and H. Pillans, contra.

BRICKELL, C. J. It is well settled by a uniform course of decisions, English and American, that the proprietors of land over or through which "a stream of water usually flows in a definite channel, having a bed, sides or banks, and usually discharging itself into some other stream or body of water," have a clear legal right, not derived from or dependent upon prescription or long continued use, but a right as matter of law and as an incident of the ownership of the land, to the use of the water flowing in the stream, as it is accustomed to flow, without detrimental diminution or alteration. 3 Kent Com. 439; Hendricks v. Johnson, 6 Port. 472; Stein v. Burden, 24 Ala. 130; 50 Am. Dec. 453; Stein v. Ashby, 24 Ala. 521; Burden v. Stein, 27 Ala. 104; 62 Am. Dec. 758; Stein v. Burden, 29 Ala. 127; 65 Am. Dec. 394. The present case, it must be observed, does not draw into consideration the relative rights and duties of such proprietors, and depends upon principles, which though they may bear some similarity, are not in all respects identical with the principles which prevail in reference to water-courses. The water now in question naturally originates from the fall of rain upon the lands of the complainants, spreading itself over the surface, collecting, because of depressions in the lands, into pools, which stand until absorbed or evaporated. The water so far as it flows off naturally, flows upon the lower lands of the defendant. There is much diversity of opinion in judicial decision, and among the text-writers, as to the principles which should govern in reference to such water, termed surface water, in distinction from the water of a stream, and from subterranean or hidden water. The principle this court has adopted, borrowed from the civil law, is that the owner of higher land has a servitude or natural easement upon the lower adjoining land for the discharge of all surface water flowing naturally thereon from the higher land, and the owner of the lower land cannot prevent or obstruct the natural passage of such water to the injury of the higher land. Hughes v. Anderson, 68 Ala. 280; s. c., 44 Am. Rep. 147; Ninninger v. Norwood, 72 Ala. 277; s. c., 47 Am. Rep. 412; following in this respect the cases of Kauffman v. Griesemer, 26 Penn. St. 407, and Martin v. Riddle, 26 Penn. St. 415, which were reaffirmed in Hays v. Hinkleman, 68 VOL. LI-54

Crabtree v. Baker.

Penn. St. 324. The weight of authority perhaps is in accordance with this doctrine, with an exception as to the city or village lots and their improvement for building. But the servitude or easement extends only to surface water arising from natural causes, as by the falling of rains and melting of snow; and it does not authorize the proprietor of the higher land, by the collection of water into drains or artificial channels, to precipitate it in increased quantity and volume upon, and to the detriment of the lower land. Hughes v. Anderson, supra; Kauffman v. Griesemer, supra; Butler v. Peck, 16 Ohio St. 334; Livingston v. McDonald, 21 Iowa, 160; Adams v. Walker, 34 Conn. 466; Hicks v. Silliman, 93 Ill. 255; Miller v. Laubach, 47 Penn. St. 154. In the case last cited, the court said: "No doubt the owner of land through which a stream flows may increase the volume of water by draining into it, without any liability to damages by a lower owner. He must abide the contingency of increase or diminution of the flow into the channel of the stream, because the upper owner has the right to all the advantages of drainage or irrigation reasonably used as the stream may give him. But that is an entirely different thing from draining the water standing on the lands of one, through artificial channels, on to that of another. That cannot be done without his consent." In Butler v. Peck, supra, in considering the right of the owner of the higher land by the construction of artificial drains to throw surface water or the water originating upon his land upon the lower lands of an adjacent proprietor, the court said: "We are clear that no such right exists. It would sanction the creation, by artificial means, of a servitude which nature has denied. The natural easement arises out of the relative altitudes of adjacent surfaces as nature made them, and these altitudes may not be artificially changed to the damage of an adjacent proprietor." The burden resting upon the lower land is to receive from the higher land the water which flows therefrom naturally without the art of man; the water which comes to it because of its natural depression. There is no right in the owner of the higher land, by artificial construction designed for its improvement, relieving it from its natural disadvantages to increase the burdens of the lower estate. Hurdman v. E. Railway Co., 3 C. P. Div. 168; 30 Eng. Rep. 81; Gould Wats., § 267; Ang. Water-courses, § 108; Cooley Torts, 579–80. And if he collects surface water into an artificial channel, casting it in a body upon the lower land, it is an actionable tort, and may be an injury

N.

Crabtree v. Baker.

a court of equity would prevent by injunction. Hughes v. Anderson, supra; Ninninger v. Norwood, supra.

The facts of this case as shown by the bill and answer and the affidavits which were submitted upon a motion for a dissolution of the injunction are that four or five years ago the complainants became the owners of two several and adjoining parcels of land, lying some four or five feet higher than the land the defendant has since acquired. These lands are all agricultural and are used for the purposes of agriculture. The lands of the complainants naturally in time of heavy rains were subject to be overflowed by falling water, which would collect in the depressions thereon, forming standing ponds until it was absorbed or evaporated, rendering parts thereof unfit for cultivation. The complainants have constructed ditches for their drainage which lead into a larger ditch running upon the lands of the defendant and there terminating, by which all the water falling upon the lands of the complainants and which had been accustomed to form into ponds is cast upon the lands of the defendant, spreads upon the surface thereof and inflicts upon him an injury of the same kind and probably as great in degree as that from which the complainants relieved their land. For the prevention of the injury the defendant has constructed at or about the point the ditch enters his lands, an embankment or dam by which the water is thrown back and it flows again on the lands of the complainants; and it is the continuance of this dam against which the injunction is directed. Whether there is actual damage to the lands of the defendant, and if there be its extent is a matter about which the witnesses differ in opinion. The fact however is not controverted, and it is apparent from the depth, breadth and length of the ditch, from the conformation of the land through which it runs, and from the fact so prominently pressed in the bill that it has effectually drained the lands of the complainants, that thereby the water is collected and discharged in undue and unnatural quantities upon the lands of the defendant; and when it is not made to appear that the drainage of the lower land is sufficient to carry it off, there would seem to be little difficulty in reaching the conclusion that actual permanent injury results. But there is in any event estimable injury, and proof of actual damage is not necessary. There is an open invasion of the rights of the defendant, and if suffered to continue without a resort to legal remedies, for the period prescribed by the statute of limitations for the recovery of lands would become

Crabtree v. Baker.

evidence of an adverse right. Where the act done is of that character that its repetition or continuance ripens into evidence of a right to do it the act is actionable in itself if wrongful, and the law gives nominal damages, though no actual damage has resulted. Stein v. Burden, 24 Ala. 130; 50 Am. Dec. 453; Polly v. McCall, 37 Ala. 20; Wood Nuis., § 102.

It will not be denied that the defendant had the right to protect himself against this invasion of his lands that he could lawfully place obstructions in the ditch which avert the injury, if thereby he did not inflict injury upon innocent strangers. Martin v. Riddle, 26 Penn. St. 415. The general rule is that where a party can maintain an action for a nuisance he may enter and abate it. Wood Nuis., § 844.

If it be apparent that the dam or embankment has increased the quantity of water which may flow or stand upon the roads or lanes referred to in the original bill, and that it is of peculiar injury to the complainants, they are not now in a condition to complain of it. They are the original wrong-doers, and the injury is one of the results of their wrongful act in flooding the lands of the defendant.

A party in contempt for a real substantial, not a mere technical disobedience of an injunction, a disobedience for which the chancellor would impose punishment, will not be heard on a motion for its dissolution until the contempt is purged. But where the nature and extent of the punishment to be imposed for the contempt depend on the determination of the question whether the injunction shall be continued or dissolved, and involves essentially the inquiry whether it was not in the first instance improvidently granted upon the ex parte showing of the complainant, the motion for a dissolution may be entertained. High. Inj. 875; Endicott v. Mathis, 1 Stockt. 110. The violation of the injunction in the present case was not deemed by the chancellor deserving of punishment, and not being punishable, the motion for dissolution was properly entertained.

The result is the decree of the chancellor must be reversed, a decree here rendered dissolving the injunction and the cause will be remanded.

Reversed and remanded.