Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-18
COURT DECISIONS.
DIGESTED BY W. b. MARTIN.
EXCLUSIVELY FOR
vERcINlAN-PiLoT.
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
NEAL V. OHIO II, Il. CO.

December 0, 1899.
DEFINITION OF a WATER COURSE
AND OF SURFACE.
A PARTY is LIABLE FOR OBJ
STRUGGLING OR DIVERTING y
WATER COURSE THEREBY DAM
AGING ANOTHER, BUT NOT FOR
OBSTRUCTING OR DIVERrING
SURFACE WATER.
This was an action for damages
caused the PLAINTIFF by the defendant
railroad company, caused by working
a fill across Il natural water course
through which n pond on plaintiffs
land was drained, and causing the
water to be diverted and thrown upon
the land OF the plaintiff. From L judg-
ment for plaintiff the defendant ap-
pealed.
The court says:
But 1 suppose the claim of variance
is based chiefly OF the theory that the
declaration bases recovery on the OBJ
Struction of q water course, which
would be ground of action. whereas
the evidence shows no water course
but only surface water, the obstruction
OF which would not be actionahle.
though doing damage to the plaintiffs.
This concerns the merits OF the case.
The common-law rule as to surface
water, not the civil-law rule, prevails
with us. BY it, a. railroad company is
not liable for obstructing what Is
merely surface water though so doing
Injuries another. Authorities just cited
Many decisions hold otherwise, but
they are In States where the civil
law rule prevails. Therefore we must
see whether the water INSTRUCTED In
this case was only surface water or
n water course. On this land, In
basin or depression, there had been al
ways pond, covering half an acre in
natural state used for watering stock,
fed by water by rain and snow gather
cd over considerable area, conducted
from hills back of il by several r:tvincs.
so to call them. This pond always
hhd water i'll II. It had an outlet to
the Ohio river by means of Il channel
cut ny the water, through which, when
ton full, 1t discharged Itself, 20 or %
feet wide, where it ran under Il trcstlc
or The rnilrond before the fill was made
where the trcStlc had stood. The chan
mel was not deep under the trestle.
having wide space 10 spread out but
thirty yards from the trestle IL narrow
cd. and the ravine or channel was very
deep This stream had been running
under the trestle 10 years, and had al
ways been there. Great quantities of
water came down from the hills
through this pond: sometimes, in heavy
rains. bringing down great stones and
other debris. Before tho ill WAS made
this water freely flowed into the river.
The water in this pond covered. in nat
ural state. n half acre, for the depth Of
three feet; and any rise would go off
by the said outlet TO the river it was
never dry, and. when rains or SHOWS
came, 1T received and discharged much
water. do not regard the four ravincs
or drains going into the pond as water
courses. But how as to the pond and
us outlet? a wafer course consists
OF bed. banks, and water Yet tho
water need not flow continually, and
there are many water courses which
are sometimes dry. There s however.
Il distinction in law between 81 regular
flowing stream, which at certain seu-
sons is dried up. and those occasional
bursts OF water which in time of
freShct. of ice or snow. descend from
the hills and inundatc the country. To
maintain the right TO a water course or
brook. it must appear that the water
usually flows In II certain direction
and by 81 regular channel with banks
and sides. II need not flow continually.
and il may at times be dry, but i'll
must have Il well-deined and substan-
tial existence II seems to me that
this large quantity of water collected
In this pond. and going from it as con-
Stantly as water came in the usual
course of nature, by affixed channel
over fixed bed, is not mere surface
water 1T originated in rains. So do
all streams. But when it reached this
pond it lost the character of surface
water. And it would seem to be a
harsh rule that would allow any one
on the theory OF It's being only surface
water TO dam il up, and overflow ana
destroy his ncighbor. This water does
not answer the definition of surface
water: that is. water of n casual and
cagrant character. which oozc through
the soil. or squander themselves over
the surface following no (leiinate course
Through customarily and naturally
flowing in Il known direction and
course, they have never the less no
bank or channels iii the soil. and in
clude waters diffused over the surface
Of the ground. When surface waters
reach, and become part of. q natural
water course, they lose their character
as surface water. and come under the
rules governing water courses"
Water coming no one knows whence,
flowing no one knows just how, I'M
foreground or on the surface. but not
I'm any channel. either from rain or
springs, In n direction no one can say
SO. conclude this was a water course.
But suppose this was questionable
The company filled the trestle. and put
IN 81 culvert of tile, and thus recognized
and treated it as 4 water course. and
cannot now be heard to say that 1t Is
not water course. and be exempt
from liability for damming water on
Meals land, covering 10 acres, for
weeks or months; making n lake deep
enough for steamboat, and addition
al land: injuring 20 acres of corn and
some oats. The. pond was thus made
IS feet deep. The company cannot be
justified In so doing il in fault.
GILMORE v. BUTTS
Cunrapoa r,n,,rt &c 1--