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ly clear that this property cannot be re. | values are thus ascertained and apporgarded as real estate for the purposes of tioned, and the distributive share assigned taxation, and that it is not the land and to any one district or municipality, such ‘real property described in these sections proportionate share legally represents the for assessment and taxation; and, as al value of the fractional part of the entire ready stated, it seems perfectly plain from property situated in such district or municthe statute

that this property is ipality for the purposes of municipal taxrequired by law to be assessed and taxed. ation, and that the fundamental law as to

In view of the use made of the uniformity is not violated by such a scheme specific lots upon which the power houses of assessment and distribution of values of are situated, and upon a fair construction the entire property. of the statute, and with a view to carry out It is also contended that the sections of its evident meaning, we hold that such real the statute providing for an assessment of estate, thus devoted to such uses, is not the railway property by the State Board of real property required by § 1039 [Rev. Stat. Equalization is void because of the alleged 1878] to be “entered upon the assessment deprivation of property by taxation without roll in the assessment district where it due process of law, in that no sufficient nolies;' it having acquired a peculiar char- tice is given of the meeting of the State acter in the law by reason of having become Board of Equalization when assessing such a part of the entirety of a property, sub- property. This question has been under ject only to assessment and taxation as an consideration for some time, and is disentirety in the assessment district where posed of in an opinion in the case of Chi. the corporation owning it has its principal cago, B. & Q. R. Co. v. Richardson County office and place of business." We are satis (Neb.) 100 N. W. 050. On the authority fied upon principle and authorities cited of that decision these sections in respect of that the legislature has not exceeded its the objection urged against them, of which powers in providing, as it has done, for the we have just made mention, must be held assessment of the property of a railway valid. The constitutionality of these seccompany as a unit, and the distribution of tions is also upheld in that opinion as to the value thus ascertained over the entire other objections herein discussed. line of the railway assessed, and to the dif The application for a peremptory writ of ferent tax districts and municipalities in mandamus should be denied, which is acto which the roadbed or right of way ex-cordingly done. tends on a mileage basis; that when the

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Alice DAVIS, Piff. in Err., E

RROR to the District Court for Blaine

County to review a judgment in favor of R. D. FRY.

plaintiff in an action brought to recover

damages for the alleged unlawful casting of ......Okla..

surface water upon plaintiff's property.

Affirmed. * When

by drainage collect in a natural basin or depression upon the premises of a dominant Statement by Gillette, J.: tenement, and escape therefrom only by per This action was originally commenced in colation or evaporation, forming thereby a lake or pond, permanent in its character, the after trial and judgment therein, appealed to

the probate court of Blaine county, and, water's so collected and coming to rest lose the character of surface water, and may not by the district court. It appears from the artificial means, other than that incident to pleadings in the case that at the time of the cultivation of the soil, be drained to the commencing the action the plaintiff was the damage of a servient tenement, without lia lessee of the northwest quarter of the northbility in damages for such act.

west quarter of section 17, township 16, (September 2, 1904.)

range 11, Blaine county, Okl. T., and at the

time of the injury complained of had grow*Ileadnote by GILLETTE, J.

ing thereon a crop of corn. The defendant,

Alice Davis, was the owner of the southwest NOTE.--- As to what are surface waters, see also in this series Cairo, v. & c. R. Co. v. Bre quarter of section 8, township 16, range 11, voort, 25 l.. R. A. 327 and note; Fordham v.

upon which there was a depression which at Northern P. R. Co. 66 L. R. A. 536, and Chi various times in the year contained more or v. Ohlo River R. Co. 68 L. R. A. 138.

less water as the result of drainage of sur

rounding lands, making a lake or pond of “(8) That said ditch was cut by the desome 10 or 15 acres, which was retained fendant for the purpose of draining the wathere by the natural conformation of the ter from said pond. land until absorbed or evaporated; that the “(9) That the defendant, by the cutting defendant caused a ditch to be excavated of of said ditch, turned all the water in said such depth and extent as to drain said de- pond into and through said ditch, over and pression and cause the water accumulating across the highway, and upon the land leased there to immediately flow off through such by plaintiff, and upon which his crop of corn drain, which it did at the time complained was cultivated and growing, caused the same of, and over and onto the premises of plain to be inundated and covered with water to tiff, destroying his crop there growing, and the depth of several inches, and thereby de. for which he asked judgment in damages. stroyed a portion of plaintiff's crop of corn, The case was tried to the court without a to the amount of about fifteen acres. jury, at the conclusion of which trial the de- “(10) That the water remained on said fendant requested special findings of fact by land, and continued to run through said the court, which were accordingly made as ditch from said pond, until stopped by the follows:

order of injunction of this court. “In the District Court of Blaine County, “(11) That said ditch is about fifty rods Oklahoma Territory, November Term, 1902. long, commencing upon defendant's land R. D. Fry, Plaintiff, v. Alice Davis, Defend- from said pond, over and across defendant's ant. Findings of the Court.

line, and across the south line thereof, and “Now on this 4th day of December, 1902, to within forty-eight feet of plaintiff's corn the court, after hearing the evidence, argu- ground. ment of counsel, and being fully advised in “(12) That said ditch was cut through a the premises, and after a personal inspec-hill from two and a half to three feet higher tion of the premises by the judge, as per re than the bottom of said pond. quest of parties, finds the following facts: “(13) That said ditch was not cut over a

“(1) That the plaintiff, R. D. Fry, as the natural outlet from said pond. renter, was in possession of the northwest “(14) That said pond is filled from the quarter of the northwest quarter of section drainage of the surface water from the sur17, township 16, range 11, Blaine county, rounding lands, and the water stands and Oklahoma Territory, and in the lawful and remains until the same evaporates and sinks peaceable possession thereof.

away in the ground. “(2) That in the spring of 1901 plaintiff “(15) That there was no considerable plowed, prepared, and planted said land to bedy of water in said pond when said de

fendant caused the ditch to be dug. “(3) That until and on the 12th day of "(16) That said ditch did not fill with May, 1901, said crop was in a good and pros- water until May 12, 1901, and that the same perous condition.

filled at that time as the result of a heavy "(4) That plaintiff, under his lease, was rain and hail storm. to pay as rent for said land one third of said “(17) There were no ditches or other articrop, and that plaintiff had a two-thirds in- ficial means used to control or collect the terest in said crop.

water that was gathered in the pond thereon “(5) That on the 12th day of May, 1901, by defendant. prior thereto, and ever since, the defendant, “(18) That said pond was not fed or supAlice Davis, was and is the owner of the plied by any spring, streams, swamps, or southwest quarter of section 8, township 16, lakes, but only by rain, hail, and snow fall. range 11, in said county.

ing on the surrounding lands, which was “(6) That in the spring of 1901, and while conducted into the said pond by the natural the defendant was the owner and in posses- surface of the country surrounding it. sion of said southwest quarter of section 8, “(19) The grass growing in said pond is township 16, range 11, the defendant caused what is commonly known as ‘pond grass, of to be dug a ditch from a large pond located no value for pasturage, and the land covered on her land, across and over her said lands, thereby is what is commonly known as and into the public highway between the ‘gumbo' or 'hardpan,' and of no value for land of defendant and the land of plaintiff, cultivation of crops or tillage. upon which plaintiff's crop was growing. “(20) The said ditca was from two and a

(7) That said pond on defendant's land half to three feet wide at the top, and from had and has no natural outlet, and at vari- eighteen inches to two feet at the bottom, ous times of the year is filled with water and was filled with water flowing from said from a large area of surrounding country, pond from the evening of May 12th until leaving a large body of water in said lake, stopped by the order of injunction of this from one to two and a half feet deep, and court. covering about fifteen acres.

"(21) That plaintiff, while said ditch was



being constructed, warnea the defendant of said pond, has sustained damage in the sum the danger of damage to him, and on the of $100. 17th day of May, 1901, secured an order of Conclusion: The court therefore injunction from this court, preventing de- cludes that the issues are with the plaintiff fendant from maintaining said ditch, caus- herein against the defendant herein, Alice ing the saine to be closed.

Davis, and that plaintiff is entitled to judg. “(22) That said ditch has not been open ment against the defendant, Alice Davis, for since.

the sum of $100 as damages sustained, and “(23) That the hail and rains of May 17, costs of suit." 1901, and subsequent thereto, fell upon Upon the facts so found the court renplaintiff's corn crop to about the same de- dered judgment in favor of plaintiff in the gree as that which fell upon defendant's sum of $100 for damages sustained, and land, and that said rain and hail was damag costs. Defendant brings the cause to this ing to vegetation, and that at said time court, alleging error of law. plaintiff's corn, being very young, and where not drowned by the water flowing from said Messrs. Payne & Bennett, for plaintiff ditch, soon recovered, and yielded about 26 in error: bushels of corn per acre.

The injury complained of does not consti“(24) That the tract of land upon which tute a legal injury under the law. plaintiff's corn was growing is smooth, Gray v. McWilliams, 98 Cal. 157, 21 L. R. slightly sloping to the east, and not subject A. 593, 35 Am. St. Rep. 163, 32 Pac. 976; to overflow from natural causes, and the Ogburn v. Connor, 46 Cal. 546, 13 Am. Rep. crops thereon had not been damaged in years 213, 22 Pac. 216; McDaniel v. Cummings, previous and subsequent to that of 1901, ex- 83 Cal. 515, 8 L. R. A. 575, 23 Pac. 795; cept, possibly, in a small buffalo wallow Lamb v. Reclamation Dist. No. 108, 73 Cal. thereon.

125, 2 Am. St. Rep. 775, 14 Pac. 625; Peck “(25) That water that collected on plain. v. Goodberlett, 109 N. Y. 180, 16 N. E. 350; tiff's corn had only partially run off and West Cumberland Iron & Steel Co. v. Kensunk down by Sunday, May 19, 1901, and yon, L. R. 6 Ch. Div. 773; Sheehan v. Flynn, after the ditch was dammed on May 17, 1901. 59 Minn. 436, 26 L. R. A. 632, 61 N. W. 462;

“(26) The rains of Sunday evening and Gilfillan v. Schmidt, 64 Minn. 29, 31 L. R. Monday, May 19 and 20, 1901, by reason of A. 547, 58 Am. St. Rep. 515, 66 N. W. 126; the water then standing in plaintiff's corn Burnett v. Great Northern R. Co. 76 Minn. land, again caused plaintiff's corn to be cov- 461, 79 N. W. 523; Jungblum v. Minneapolis, ered and flooded with water.

N. U. & S. W. R. Co. 70 Minn. 153, 72 N. W. "(27) The damage to plaintiff's corn was 971; Connell v. Stark, 108 Wis. 92, 83 N. W. caused by the flow of water from said ditch, 1092; Brown v. Winona & S. W. R. Co. 53 and as a result thereof, and not from any Minn. 259, 39 Am. St. Rep. 603, 55 N. W. other water thereon from other directions, 123; Gannon v. Hargadon, 10 Allen, 109, 87 as a natural result of downfall of rain and Am. Dec. 625; Chadeayne v. Robinson, 55 hail, had not said ditch been constructed. Conn. 350, 3 Am. St. Rep. 55, 11 Atl. 593;

(28) Plaintiff had a two-thirds interest Cairo & V. R. Co. v. Stevens, 73 Ind. 281, 38 in said corn crop, as tenant.

Am. Rep. 139; Morrison v. Buck sport & B. “(29) That the land upon which plain R. Co. 67 Me. 355; Morrissey v. Chicago, B. tiff's crop was growing is now occupied by & Q. R. Co. 38 Neb. 406, 56 N. W. 946, 57 Sisto Seschetti, who now has a crop of wheat N. W. 522; Bowlsby v. Spcer, 31 N. J. L. growing thereon.

351, 86 Am. Dec. 216; Benson v. Chicago & “(30) There was evidence of the value of A. R. Co. 78 Mo. 504; Angell, Watercourses, plaintiff's corn crop during the month of $894-135; Taylor v. Fickas, 64 Ind. 173, May, 1901, adduced to show the value at 31 Am. Rep. 114. that time by comparison with the remainder Surface water has been called a common of the crop produced.

enemy, which each owner may get rid of as “(31) This action was originally brought best he may. against Frank Krahn, Will Davis, and Alice O'Brien v. St. Paul, 25 Minn. 335, 33 Am. Davis as defendants. Frank Krahn and Rep. 470; Brown v. Winona & S. W. R. Co. Will Davis were wholly discharged by this 53 Vinn. 259, 39 Am. St. Rep. 603, 55 N. W. court at the April term, 1902.

123; Gannon v. Hargadon, 10 Allen, 106, 87 “ (32) The plaintiff could have replanted Am. Dec. 625; Morrison v. Bucksport & B. his corn after May 25, 1901, but it would not R. Co. 67 Me. 355. have been ordinarily prudent, or with the The owner of land may improve it either expectation of realizing for his efforts. by erection of buildings or other structures

“(33) The court finds that the plaintiff, thereon, so as to cause surface water accuby reason of the construction of said ditch mulating there by rains and snows falling on by defendant and the drainage of water from the surface to stand in unusual quantities


on other adjacent lands, or to pass onto or v. Marthaler, 34 Minn. 487, 57 Am. Rep. 73, over the same in greater quantities or in | 26 N. W.726; Alcorn v. Sadler, 66 Miss. 221, other directions than they were accustomed 5 So. 694; Earl v. De Hart, 12 N. J. Eq. 280, to flow, or may elevate or depress his land, 72 Am. Dec. 395; Jones v. Hannovan, 55 Mo. thus changing the flow of the surface water. 462; Swett v. Cutts, 50 N. H. 439, 9 Am.

Taylor v. Fickas, 64 Ind. 173, 31 Am. Rep. Rep. 276; Gibbs v. Williams, 25 Kan. 214, 114; Weis v. Madison, 75 Ind. 241, 39 Am. 37 Am. Rep. 241; Palmer v. Waddell, 22 Rep. 135; Templeton v. Voshloe, 72 Ind. 134, Kan. 352; Wait, Act. & Def. p. 711; Drew v. 37 Am. Rep. 150; Cairo & V. R. Co. v. Ste-Hicks (Cal.) 35 Pac. 563; Cushing v. Pires, vens, 73 Ind. 278, 38 Am. Rep. 139; Evans- | 124 Cal. 663, 57 Pac, 573; Union P. R. Co. ville v. Decker, 84 Ind. 325, 43 Am. Rep. 86; v. Dyche, 31 Kan. 120, 1 Pac. 243; Cooley, Chambers v. Kyle, 87 Ind. 83; Crawfords- Torts, p. 688; Livingston v. McDonald, 21 ville v. Bond, 96 Ind. 236; Rice v. Evans- Iowa, 160, 89 Am. Dec. 563; Smith v. Chiville, 108 Ind. 7, 58 Am. Rep. 22, 9 N. E. cago, C. & D. R. Co. 38 Iowa, 518; Shotwell 139.

v. Dodge, 8 Wash. 337, 36 Pac. 254; EconoPlaintiff in error had a right to drain her my Light & P. Co. v. Cutting, 49 Ill. App. land as she did, and the defendant in error 422. has received no legal injury.

Morrissey v. Chicago, B. & Q. R. Co. 38 Gillette, J., delivered the opinion of the Neb. 406, 56 N. W. 946, 57 N. W. 522.

court: There was no evidence before the court up- This case comes to this court upon a queson which the court could predicate or assess tion of law applicable to the facts found damages in any sum against the plaintiff in and determined by the court below.

It is contended by the plaintiff in error Burnett v. Great Northern R. Co. 76 Minn. that the injury complained of does not con461, 79 N. W. 524;Byrne v. Minneapolis & St. stitute a legal injury under the law. The L. R. Co. 38 Minn. 212, 8 Am. St. Rep. 668, statutes of this territory contain no provi36 N. W. 339; Ward v. Chicago, M. & St. P. sion which assists in the analysis of the propR. Co. 61 winn. 449, 63 N. W. 1104; Chicago, osition here submitted. Wilson's Rev. & B. & Q. R. Co. v. Emmert, 53 Neb. 237, 68 Anno. Stat. 1903, $$ 4052-4062, defining Am. St. Rep. 602, 73 N. W. 542; Drake v. easements and servitudes, their creation and Chicago, R. I. & P. R. Co. 63 Iowa, 302, 50 abolishment, contain no provisions which Am. Rep. 746, 19 N. W. 219; Lommeland v. throw any light upon the subject here under St. Paul, M. & 11. R. Co. 35 Minn. 412. 29 N. investigation. The whole subject-matter is W. 119; Gulf, C. & S. F. R. Co. v. Hedrick therefore left to be determined by the rules (Tex.) 7 S. W. 353; Gulf, C. & S. F. R. Co. of the common law. v. Pool, 70 Tex. 713, 8 S. W. 535; Sabine & While the defendant in error is shown to E. T. R. Co. v. Smith, 73 Tex. 1, 11 S. W. have no estate in the land upon which his 123; International & G. N. R. Co. v. Pape, 73 crop was growing, other than that of a lesTex. 501, 11 S. W. 526; Green v. Taylor, B. see, he, nevertheless, to the extent of his & H. R. Co. 79 Tex. 604, 15 S. W. 685. lease, had the right to the use and occupa

Messrs. Hotchkiss & Emery, for defend-tion thereof, with no greater servitude from ant in error:

the dominant or upper landowner than the Plaintiff in error cannot lawfully dig a owner of the fee would be compelled to recditch and run the water from a natural res- ognize; and we think it will be conceded ervoir onto the lands of the defendant in er- that, if the lessee should suffer damage by ror to his injury.

the act of the lessor in granting to the domiDavis v. Londgreen, 8 Neb, 43; Butler v. nant tenement a right of servitude with refPeck, 16 Ohio St. 334, 88 Am. Dec. 452; Ver- erence to surface water which did not exist num v. Wheeler, 35 Hun, 53; 24 Am. & Eng. at the time of the creation of the lease, the Enc. Law, p. 904; Anderson v. Henderson, lessor would be liable to the lessee for the 124 Ill. 164, 16 N. E. 232; Pettigrew v. damages sustained by reason of the creation Evansville, 25 Wis. 223, 3 Am. Rep. 50; of such servitude; and we think, therefore, Ludeling v. Stubbs, 34 La. Ann. 935; Bel- that he may have such right of action, lows v. Sackett, 15 Barb. 96; Schaefer v. against one who creates such servitude Marthaler, 34 Minn. 487, 57 Am. Rep. 73, 26 wrongfully, for any damages he has sustained N. W. 726.

in the enjoyment of his leasehold estate. When surface waters reach and become a Counsel for both plaintiff and defendant in part of a permanent body of water contained error have been commendably diligent in in a natural basin forming a lake or pond, briefing the authorities governing injuries by but having no outlet, they lose their charac flowing water. Many cases have been cited, ter as surface waters and are governed by however, which have little, if any, applicathe same rules as are watercourses.

tion to the issues framed in this case. The 24 Am. & Eng. Enc. Law, p. 904; Schaefer plaintiff in error is the owner of the dominant tenement, upon which is a natural de- The court in that case distinguish such pression which receives and holds during a conditions from inundations by rainfall, rainy season surface water which collects which in Ogburn v. Connor, 46 Cal. 346, 13 there from the natural drainage of quite a Am. Rep. 213, was defined as follows: large scope of adjacent territory, and from “When two parcels of land belonging to difwhich there is no natural outlet, and beyond ferent owners are adjacent to each other, which there is no ravine or surface indica- and one is lower than the other, and the surtion of a natural water course, when such de- face water from the higher tract has been pression is full to overflowing. The depression accustomed by natural how to pass off over contains 15 to 20 acres of ground flooded in the lower tract, the owner of the lower tract times of heavy rainfall. The plaintiff in er- cannot obstruct this flow. The owner of the ror caused a ditch to be dug so as to drain upper tract has an easement to have the wathis depression and discharge the water ter flow over the land below, and the land therefrom over and onto defendant's crop on below is charged with a corresponding servthe adjoining premises, destroying the same. itude.” And this, the court says, is intendThe right of such drainage by the plaintiff ed as a statement of the common-law rule, in error is the point in issue.

but it is probably a better statement of the The cases are numerous which hold that civil law. the dominant or upper owner of land has a Neither the cases of Ogburn v. Connor, 46 natural easement or servitude upon the low- Cal. 346, 13 Am. Rep. 213, nor McDaniel v. er or servient one, to discharge all waters Cummings, 83 Cal. 515, 8 L. R. A. 575, 23 flowing or accumulating on his land, which Pac. 795, relied upon by the plaintiff in eris higher, upon or over the land of the servi. ror, are authorities in point in this case. In ent owner as in a state of nature, and such Ogburn v. Connor the language of the court, natural flow or passage water cannot be in- in stating the rule, bases it upon surface terrupted or prevented by the servient own. water from the higher tract, which has been er to the detriment or injury of the domi- accustomed by a natural flow to pass off nant owner. In each case, however, where over the lower tract. The words "natural such proposition is laid down, the case it flow,” here used, clearly distinguish that self presents peculiar features easily distin- case from the one under consideration. And guished from this case. We will notice some the facts in McDaniel v. Cummings are of them.

clearly distinguishable from the case under The case of McDaniel v. Cummings, 83 consideration, because in this we have only Cal. 515, 8 L. R. A. 575, 23 Pac. 795, was an to consider surface water descending from action concerning land in the Sacramento the clouds. These questions were again River Valley. The land next to the river is brought before the supreme court of Califorhighest, and when, in a rainy season, that nia in Gray v. McWilliams, 98 Cal. 157, 21 river overflows, the valley beyond is inundat- L. R. A. 593, 35 Am. St. Rep. 163, 32 Pac. ed, to prevent which a landowner proceeded 976, in which the rule in each of the cases to erect an embankment to prevent such of Ogburn v. Connor and McDaniel v. Cumoverflow, which caused such overflow water mings is by that court reaflirmed. In the to set back upon the plaintiff's lands, causing opinion of the court, however, speaking by it to cover a larger area thereof for a longer Searls, J., they say:

“In the case of surperiod than it otherwise would. The court, face waters having no defined channel of esin determining that case, held that the land- cape, and the owner of the land upon which owner had a right to protect himself against they are found being impotent to rid himself water overflowing from the river, following of their presence, the law wisely provides the English case of King v. Sewer Comrs. 8 that the laws of nature shall be left untramBarn. & C. 355, with respect to waters of meled in their disposition.” The last statethe sea, viz., that they are a "common en- ment of the California court brings us very emy” against which every man has a right close to the case under consideration, for to defend himself, regardless of the fact here we have a case in which the accumulatthat the barriers he erects may cause the ing surface water has no defined channel of flood to rise higher or flow with greater force escape, and, if one is made, it must be in upon his neighbor. The court, in the course addition to what nature has provided. of its opinion, says: “If the owner of the Counsel for plaintiff in error has called land next to the river will not, either by him this court's special attention to the case of self or in combination with those behind Sheehan v. Flynn, 59 Minn. 436, 26 L. R. A. him, erect a levee on the bank, he ought not | 632, 61 N. W. 462, as being a case closely in to be allowed to prevent them from protect- point, and say that the court held in that ing themselves merely because by so doing case that the drainage of surface water to they prevent his higher land from being and upon the premises of another does not drained of the flood waters as rapidly as it constitute a tort or an actionable wrong. otherwise would be."

We are unable to get such meaning from the

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