{
  "id": 1543608,
  "name": "Jackson v. Keller",
  "name_abbreviation": "Jackson v. Keller",
  "decision_date": "1910-05-16",
  "docket_number": "",
  "first_page": "242",
  "last_page": "245",
  "citations": [
    {
      "type": "official",
      "cite": "95 Ark. 242"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "66 Ark. 275",
      "category": "reporters:state",
      "reporter": "Ark.",
      "opinion_index": 0
    },
    {
      "cite": "93 Ark. 46",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1546888
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/93/0046-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 420,
    "char_count": 8925,
    "ocr_confidence": 0.666,
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    "sha256": "e44c1f060442e0cfa9aa132640254b0aac47fedae24a88d874fef6a17059604f",
    "simhash": "1:68b60b59060143c5",
    "word_count": 1557
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  "last_updated": "2023-07-14T15:58:46.449655+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Jackson v. Keller."
    ],
    "opinions": [
      {
        "text": "Wood, J.\nAppellant is the owner of the north half of the northeast quarter of section 14, township 20 north, range 8 east, in Clay County, Arkansas. Appellee owns the southeast quarter of the northest quarter of the above section adjoining the lands of appellant on the south. Appellant by this action seeks to enjoin appellee from -constructing a dam or levee on the land of appellee which appellant alleges obstructs -the natural flow of water -that passes off of his land on to the land of appellee, thereby causing the water to overflow appellant\u2019s land and to render same unfit for cultivation.\nAppellee, answering the complaint, denied that there was a branch- 'or drain of natural formation on appellant\u2019s land running from north to south on to appellee\u2019s land; alleged that on appellant\u2019s land there were low \u201cswaggy\u201d places and ponds with no definite course; that appellant has -cut a system of -ditches through his land, and on to the land of appellee, in order to drain the low places on th-e land of appellant, thereby delivering upon the land of appellee a large stream of water which would never reach appellee\u2019s land by any natural flow thereof. Appellee denied that he had\u2019 obstructed any natural drain from the lands of appellant; alleged that he had cut a ditch of similar dimensions to that cut by appellant, on his land; fhat appellee cut this ditch on his own land further south of the ditch cut by appellant on appellant\u2019s land; that this ditch was cut on the west side of the land of appellee and running south into a large ditch on the public road; that appellant had dammed this ditch on appellee\u2019s land by driving stakes in same, thereby turning the water of said ditch into the ditch cut on the south side of appellant\u2019s land running east; that, if the ditch cut by appellant on his land was permitted to flow south into the ditch cut by appellee, it would carry off all the water, etc., intended to be carried by it. Appellee alleged that the small embankment made \u2022 \u25a0by him is at a low swaggy place in the northwest corner of his land, and this low place also extends over into appellant\u2019s land; that the making of this embankment was only for the purpose of protecting appellee from the volume of water turned on him by the ditches that appellant, had made on his own land. Appellee prayed that appellant\u2019s complaint be dismissed for want of equity.\nIt will be observed that appellee admits that he erected a \u201csmall embankment\u201d across a \u201clow swaggy place on the northwest corner of his land.\u201d But he also says that the making of this embankment was \u201conly for the purpose of protecting his land from the volume of water turned on it by the'ditches that appellant had constructed on appellant\u2019s land.\u201d\nThe testimony of appellant and a plat which is in the record and made a part of his evidence shows that there was \u201ca flat just north of where the water passed from appellant\u2019s land on to the land of appellee, forming a pond covering about an acre and a half. Appellant testified that there were two otitlets from his land into appellee\u2019s land, which united just after passing into appellee\u2019s land, the eastern outlet being four rods wide and the western outlet being thirteen rods wide with a spot of high ground two rods wide between them; that these drains where they enter the land of appellee had well-defined banks that confined the water within them; that appellee had erected a dam or; leve\u00e9 about two feet high across these two outlets or drains, causing several acres of appellant\u2019s land to overflow. Appellant further testified that he cut a ditch about sixty rods long between his two forties; that this ditch was four feet wide at the top and about two feet deep. It ran due south from its point of beginning on appellant\u2019s land to the dividing line between the land of appellant and appellee, thence east to a point of high land. Appellant testified that the object in 'cutting these ditches, or this ditch, was to prevent the wafer from overflowing into appellee\u2019s land through the eastern outlet, and to bring it to the old ditch that was cut years ago on the west side of the appellee\u2019s land, and that ditch was now nearly filled. In another place in his testimony he says: \u201cThe object in cutting this ditch was to concentrate the water of these ponds to the old ditch west of Keller\u2019s land. About twenty rods of this ditch was cut through land that did not overflow except in very high water. That twenty rods was intended to catch the water before it got into these ponds.\u201d Appellant himself also testified: \u201cThe drains, as marked down in several places, have well-defined banks; some places they were not.\u201d But he was satisfied \u201cthat the drains as marked designate the natural flow of the water.\u201d One witness on behalf of appellant testified: \u201cThese drains on the map are just low slashy places, and have no banks. There is part of them in cultivation, and some in thickets. They plow across these drains. Another witness, when asked If \u201cthese drains that are marked in purple on this plat have any well-defined banks,\u201d replied: \u201cWell, no; not any banks; just a natural low place in the land, about two hundred feet wide, and wider in some places than in others.\u201d\nThe circuit judge, in the absence of the chancellor from the county, refused a temporary restraining order to appellant, and the chancellor on the final hearing denied appellant\u2019s prayer for injunction and dismissed his complaint.\nThe decree was not clearly against the preponderance of the evidence. The question was one of fact as to whether appellee by building the levee across the low place on his own land had unnecessarily injured appellant in endeavoring to protect himself. The testimony warranted a finding that this was surface water. The low place on appellee\u2019s land into which the water came from appellant\u2019s land did not have any well-defined channel or banks. Appellee had the right to protect himself from this surface water as best he could without doing \u25a0 unnecessary damage to the upper proprietor. It was the duty of appellee, if he could have done so at reasonable expense, to have controlled the waters that came upon his land, in their natural flow, from appellant\u2019s land, by means of ditches instead of the embankment, if the former could have been made as effectual as the latter. For by the embankment appellee injured the lands of appellant while protecting his own. However, under the evidence in^the record, the court was justified in finding that the embankment resorted to by appellee was the only practical method of protecting his land from the water that came upon it from the appellant\u2019s land. The testimony tends to show that appellant by digging ditches on his own land to control the surface water had thereby thrown same in greater volume on to appellee\u2019s land, and it also tends to prove that appellant had driven stakes in the ditch running south on the western part of appellee\u2019s land,' and that this ditch would not carry off the water in the volume that it came upon appellee\u2019s land after the digging of the ditches by appellant. The chancellor evidently found that appellant was at fault in digging ditches that turned the water on to appellee\u2019s land in greater volume than it would have gone had it been permitted to run in its natural course along and into the swale that existed where the waters passed from appellant\u2019s land on to the land of appellee. Appellant, while protecting himself from the surface water that accumulated on his land, had no right to concentrate and throw it by ditches with greater force and volume than it otherwise would have gone upon appellee\u2019s land, so as to unnecessarily damage him. See St. Louis, I. M. & S. Ry. Co. v. Magness, 93 Ark. 46. Appellee had the right to erect an embankment to protect his land against such increased flow upon it. In the draining of one\u2019s land of surface water it is not permissible to direct the flow of the water upon the adjoining land, or to increase the volume of the flow by the construction of a drain or ditch. Tiedeman on Read Property, \u00a7 615, p. 587. The doctrine of Baker v. Allen, 66 Ark. 275, when applied to the facts of this case, shows that the decree was correct.\nAffirm.",
        "type": "majority",
        "author": "Wood, J."
      }
    ],
    "attorneys": [
      "Appellant, pro se.",
      "Spence & Dudley, for appellee."
    ],
    "corrections": "",
    "head_matter": "Jackson v. Keller.\nOpinion delivered May 16, 1910.\n1. Appeal and error \u2014 chancellor's finding \u2014 conclusiveness.\u2014A chancellor's finding of facts will not be set aside unless it is clearly against the .preponderance of the evidence. (Page 244.)\n2. Waters \u2014 obstructing flow of surface water. \u2014 A lower adjacent proprietor will not be liable to the upper proprietor for obstructing the flow of surface water by a levee where that was the only practical method of protecting his land from surface water thrown against it by a ditch dug by the upper proprietor. (Page 245.)\nAppeal from Clay Chancery Court, Eastern District; Bdward D. Robertson, Chancellor;\naffirmed.\nAppellant, pro se.\nSpence & Dudley, for appellee."
  },
  "file_name": "0242-01",
  "first_page_order": 266,
  "last_page_order": 269
}