{
  "id": 1652819,
  "name": "Stacy v. Walker",
  "name_abbreviation": "Stacy v. Walker",
  "decision_date": "1953-12-21",
  "docket_number": "5-245",
  "first_page": "819",
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      "cite": "222 Ark. 819"
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      "cite": "262 S.W.2d 889"
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    "name": "Arkansas Supreme Court"
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      "cite": "39 Ark. 463",
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      "cite": "207 Ark. 1034",
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      "reporter": "Ark.",
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      "cite": "95 S. W. 2d 1138",
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    {
      "cite": "192 Ark. 1049",
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      "reporter": "Ark.",
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        1414978
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  "last_updated": "2023-07-14T18:48:42.003901+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Stacy v. Walker."
    ],
    "opinions": [
      {
        "text": "Griffin Smith, Chief Justice.\nStacy owns 48 acres south of and adjoining Walker\u2019s 32 acres. An old fence-row delineates the dividing line. Along this fencerow for a distance of 190 feet Stacy constructed an earthen levee varying in height from 18 inches to less than three feet. Eight acres of Walker\u2019s land drains north into an old river run. The remaining 24 incline southeast with the result that Stacy\u2019s farm, prior to erection of the levee, caught discharge waters that eroded productive land.\nWith construction of the levee several acres of Walker \u2019s land were adversely affected. Following heavy rains water accumulated against Stacy\u2019s dam and gradually spread over an area regarded by Walker as his best cotton land. He sued for damages to the 1951 cotton crop amounting to $1,600 and for a mandatory order directing Stacy to breach the levee. From a $50 judgment for nominal damages and a decree for elimination of the levee Stacy has appealed.\nTwo questions are presented: (1) Was the flowage area on Stacy\u2019s land a defined waterway in respect of which Walker had acquired the right of usage? (2) If the water Stacy diverted was the accumulation of periodic rainfall and the flowage was such that the affected proprietor was justified in fending against it, did he unnecessarily injure Walker by construction of the levee? It is urged that an inexpensive ditch would have accomplished the same end. A so-called \u201cbonded drainage ditch\u201d is within close proximity to the affected lands.\nIn his relief prayer Walker asked the court \u201c. . . to declare and establish that the defendant\u2019s land is servient to plaintiff\u2019s land with respect to the right of plaintiff to enjoy the natural and unobstructed drainage of [his] land over and across the land of defendant\u201d.\nWalker was asked whether there was a well defined ditch that the water followed in crossing Stacy\u2019s land. He mentioned a natural outlet that existed prior to the obstruction complained of, explaining that the water from this natural outlet flowed south and a little east across Stacy\u2019s land, then went into the improvement district ditch. Besponding to an inquiry if the flowage followed a natural' channel or ditch upon entering his neighbor\u2019s property Walker replied. \u201cIt has a natural [land] contour to follow, with a small amount of washing out.\u201d And again: \u201cThere was a well defined ditch. It is the natural contour of the land that extends from my field approximately half way to the ditch.\u201d\nOn cross-examination Walker said that there was no \u201cleadway or channel or \u2018planted levee\u2019 \u201d on his property. The water that caused trouble came from rains:\u2014 \u201cThere is no stream coming in on my farm: it was absolutely the water that falls.\u201d There was no creek or depression \u201cwith banks\u201d that carried the water across his own farm \u2014 \u201cNothing but the plowed-up levee between my farm and Mr. Stacy\u2019s. It leads the water all the way across the south side to the natural runway. It is blocked now by the levee.\u201d Nothing that Walker would term a runway is on his farm, and the water \u201chas a more or less natural tendency to run south and east\u201d.\nW. M. Brawner, an engineer in the government service, testified from experiences covering twelve years in drainage and flood control activities. With the aid of a surveyor he had made measurements on the Stacy and Walker lands and was familiar with the drainage problem. He observed a \u201cscour\u201d starting at an indicated point in the fencerow. Water would flow eastward from Walker\u2019s land. The scour indicated on Stacy\u2019s property was caused by this flowage. It started from a low point in the fencerow and had the effect of localizing surface water, thus causing greater erosion than would have been the case if the water had spread over a larger area. Brawner examined Walker\u2019s land north of the Stacy levee as far as the old river run.\nIt was Brawner\u2019s opinion that a small drainage ditch \u2014costing not in excess of $80 \u2014 could be run from the southeast corner of Walker\u2019s land north \u201cto this old slough \u2019 \u2019. Such an undertaking, he thought, would afford complete relief from the difficulties complained of. But the witness did not believe that the amount of water impounded by the levee was sufficient to justify the expenditure. The question was asked regarding probable effect of removing the levee and Brawner replied: \u201cWe do know that [the land] will erode, because it already has, and it will continue to do so. [The result] would be equally detrimental to Walker and Stacy because scour would continue in a direction from which the water comes, and naturally Stacy\u2019s land will [deteriorate]. The more Stacy\u2019s land scours the more Walker\u2019s property will scour \u2019 \u2019.\nIt was also Brawner\u2019s opinion that Stacy had no drainage problem \u201cexcept that of protecting his property against surface water\u201d.\nWe think the record clearly shows that rain falling on Walker\u2019s land did not spread with uniformity, but followed slight surface depressions until it finally accumulated at points along the levee site to empty onto Stacy\u2019s property following a contour that in no sense could be regarded as a natural flowage way. This resulted in the \u201cscouring\u201d process spoken of by Brawner. It also created a bog with no outlet. Since it is conceded that there was no constant stream or natural watercourse other than these slight depressions, it follows that Stacy had a right to defend himself.\nUnder the rule announced in Leader v. Mathews, 192 Ark. 1049, 95 S. W. 2d 1138, water flowing into low places does not necessarily constitute a natural course, and where overflow occurs \u201c. . . a landowner is justified in defending against such flood waters and can do so without incurring liability, unless he unnecessarily injures or damages another.\u201d See Brasko v. Prislovsky, 207 Ark. 1034, 183 S. W. 2d 925. Judge Eakin\u2019s opinion in Little Rock & Ft. Smith Ry. Co. v. Chapman, 39 Ark. 463, 43 Am. Rep. 280, was cited because of the comprehensive statement regarding one\u2019s right to protect Ms property where that result can be achieved without disproportionate prejudice to another. In Dent v. Alexander, 218 Ark. 277, 235 S. W. 2d 953, we quoted with approval from Bohn v. Salt Lake City, 79 Utah 121, 8 Pac. 2d 591, 81 A. L. R. 215, to the effect that a landowner is under no duty to receive upon his land surface water from the adjacent property. On the contrary, in the use or improvement of his land, he may repel such water at his boundary. This statement is, of course, subject to the modification that unnecessary harm must not be inflicted.\nIn the case at bar Stacy testified that construction of the levee \u2014 built with his own equipment and labor \u2014 cost about eight dollars. The estimate made by Brawner that for $80 Walker could drain his own land without injury to Stacy was predicated upon the employment of outside labor.\nWe think the evidence preponderates in Stacy\u2019s favor respecting each essential issue, hence the decree must be reversed with directions to dismiss the complaint.",
        "type": "majority",
        "author": "Griffin Smith, Chief Justice."
      }
    ],
    "attorneys": [
      "Rhine S Rhine, for appellant.",
      "Bryan J. McCalien, for appellee."
    ],
    "corrections": "",
    "head_matter": "Stacy v. Walker.\n5-245\n262 S. W. 2d 889\nOpinion delivered December 21, 1953.\nRhine S Rhine, for appellant.\nBryan J. McCalien, for appellee."
  },
  "file_name": "0819-01",
  "first_page_order": 843,
  "last_page_order": 847
}