
    JOHNSON et al. v. McMAHON.
    (No. 1049—5250.)
    Commission of Appeals of Texas, Section B.
    April 10, 1929.
    
      Hamilton & McMath, of Matador, for appellants.
    Charles E. Coombes, of Stamford, and W. D. Wilson, of Spur, for appellee.
   SHORT, P. J.

The following statement and questions based thereon from the Court of Civil Appeals for the Seventh District have been filed with the Supreme Court and referred to this section of the Commission for disposition:

‘.‘This appeal is prosecuted from a judgment in the District Court of Dickens County, perpetuating, after a hearing on the merits, a temporary injunction theretofore granted, restraining W. A. Johnson and W. P. T. Smith, the Appellants, from draining a lake located on Johnson’s land into what is known as Haekberry Draw, which crosses the farm on the land of Appellee, Mrs. O. C. McMahon.
“The record shows that W. A. Johnson owns the S. W. ⅛ of Survey No. 297 and a strip of land extending along the west side of Survey No. 284 from its northwest corner to Haekberry Draw. That W. P. T. Smith owns all of the west ½ of Survey No. 284 except the strip thereof owned by Johnson; that the Appellee owns the S. 105 acres of the S. E. ¾. of Survey No. 284 and the N. 60 acres of the N. W. ¾ of Survey No. 259, which two tracts constitute one body of land. Survey No. 259 is immediately south of Survey No. 284, and No. 284 is immediately south of Survey No. 297. That Dry Lake covers approximately 100 acres of land, 120 acres of which is in the N. W. ⅛ of Survey No. 297; that the land is 2.7 feet deep in the center, is a natural basin into which the water falling on eight or ten square miles of territory lying north, northeast and northwest of the lake drains; that water stands in the lake from one-tMrd to one-half of the time and on several occasions it has remained full for many consecutive months; that when the lake overflows from excessive rains, the overflow passes out near the southeast corner and meanders through a natural depression on the east part of the northwest quarter of Survey No. 284 and reaches Haekberry Draw and through it flows onto and over the land of Appellee. I-Iackberry Draw is some eleven ■miles in length,- runs in a southeasterly direction, crosses Survey No. 296, which is immediately west of Survey No. 297, runs over the S. W. ⅛ of Survey No. 284 and enters Appel-lee’s land on the west, spreads out over her farm and finally flows into Dockum Creek. Dockum Creek roughly parallels the course of Haekberry Draw to near the point of their confluence. Haekberry Draw is a drain or depression through which water flows, but is dry except while it is raining and immediately thereafter. Its width across Appellee’s land varies from 100 feet to 60 feet and it is about 2-½ feet deep in the center with a natural slope to either side. It runs down in a few hours after a rain and many of the farmers through whose land it passes cultivate the land in the draw, plow across it and grow farm products therein, as the soil is sub-irrigated and very productive. During excessive rains Dockum Creek occasionally overflows into Hackbex'ry Draw- and said Draw overflows into Dry Lake and on the north and east of said lake there are other natural ponds or basins that overflow into Dry Lake; but, independent of such overflow water, Dry Lake is a natural basin into which the rainfall on some eight or ten square miles of territory, drains. The soil in Dry Lake is sub-irrigated, fertile and would be susceptible of cultivation and very productive, if drained.
“W. A. Johnson was digging, and if he had not been enjoined, would have completed a ditch from the southwest part of Dry Lake on his S. W. ½ of Survey No. 297 to and along his strip of land on the west side of Survey No. 284- to where it would empty into Haekberry Draw. The length of the ditch if completed,' would be 4,434 feet and its average depth 8 or 9< feet with a width of 6 feet at the bottom and 10 feet at the top. The natural drainage for the lake when it overflows is about one-half mile east of the proposed ditch. The proposed ditch would drain the water from Dry Lake and empty it into Haekberry Draw and thence onto some of the cultivated lands of the Appellee. It would materially increase the amount of water, that flows over Appellee’s land under natural conditions, cause water to flow over her land that would not do so without the ditch, would cause the water to flow longer and stand longer on her land than it would without the ditch and increase the acreage overflowed under natural conditions; all of which would result in injury to Appellee’s cultivated lands, wash away the soil, damage her crop and destroy her alfalfa field.
“W. A. Johnson had never sought Appel-lee’s permission to drain the lake into Hack-berry Draw, but he pleaded and testified that he intended to put a flood gate in the ditch for the purpose of holding the water in the lake .until the water from natural rainfall and other sources passed out of Haekberry Draw.
“We attach hereto a map used before this Court in the oral argument by counsel for both Appellants and Appellee.
“Appellants insist that they are not prohibited by articles 7589, 7589a and 7590, R. C. S., from draining Dry Lake by the proposed ditch into Haekberry Draw and are not liable for damages that will be sustained by Appellee on account of the increased flow to •which Appellee’s land will be subjected, so long as Appellants are guilty of no negligence.
“Inasmuch as the decision of the case requires a construction of said articles of the statutes and a determination of the legal liability of- Appellants for the damage that will' be inflicted on Appellee, we deem it advisable to certify to your Honorable Court for decision, the following questions:
“1. Is the Appellant, W. A. Johnson, prohibited by said statutes, or either of them, from draining said lake, by means of the ditch, into Hackberry Draw, which is a natural drain?
“2. Is TV. A. Johnson liable for the damages that will result to Appellee by the increased acreage overflowed by the water drained from the lake by the proposed ditch ?”

We think both questions propounded, should be answered in the negative. The map attached to the certificate shows Dock-um creek and Hackberry draw to be well-defined water courses running parallel with each other, in a general way, having their origin at the foot of the plains and forming a junction to the south of tjie lands mentioned in the certificate. Dry Lake, so-called, is in .the watershed of and to the east of Hackberry draw. Dockum creek lies west of Hackberry draw. The depression in the lands of the appellant Johnson, designated as Dry Lake, covers from 120 to 150 acres of his quarter section, the deepest part of which depression is 2 feet and 7 inches. The surface and flood water flowing across this land would naturally empty into the water course, designated upon the map as Hackberry draw, shown to be a well-defined channel having its origin at the foot of the plains and running to its junction with Dockum creek for a distance of about 11 miles. It is shown that Dockum creek contains a stream of flowing water the year around, but that Hackberry draw only has water in it when a sufficient amount of rainfall has occurred to concentrate from its watershed, an amount of water sufficient to create a flow. In times of flood the natural banks of Hackberry draw- overflow occasionally, but unless the flood waters are unusually large its natural banks are sufficient to confine the waters between them. “The owner of land has the right to collect the surface water and the natural drainage of his land into ditches, drains, or artificial streams and discharge it into a natural water course on his own land, which is a natural outlet of the water so collected, and is not liable to lower proprietors, although by this arrangement the flow of the water is increased, provided the discharge'is not beyond the natural capacity of the water course, and the same rule is applied in some cases where the conduit thus made is not a water course in the sense of a running stream, but is a ravine or gully or natural depression in the soil, having a fixed and determinate course which forms a natural and usual channel for the escape of surface water.” 40 Oye. 648-9.

In the case of Dallas Land & Loan Co. v. Garrett (Tex. Civ. App.) 276 S. W. 471, the court says:

“Property consists, not only in ownership and possession, but in the unchallengable right of its use, enjoyment, and disposition. If, therefore, anything destroys or seriously interferes with the free exercise of this right, to that extent the property itself is destroyed. If the right of the owner to use his property is denied or seriously interfered with, it is necessarily rendered profitless. It follows that any order issued by a court forbidding the owner of property to do with it as he chooses, so long as he does not choose to create a nuisance, destroys the chief element of value in property. [Citing Spann v. City of Dallas, 111 Tex. 350, 235 S. W. 513, 19 A. L. R. 1387, by our Supreme Court.] These self-evident propositions should admonish a court of equity that before such radical procedure is entered upon, the facts upon which the court is called to net should be of no doubtful or uncertain nature, and should not be based on imagination, conjecture, or guesses” — citing Lancaster v. Harwood (Tex. Civ. App.) 245 S W. 755.
“The extraordinary writ of injunction is not available to protect one from threatened injury which is purely conjectural.” Browning v. Hinerman et al. (Tex. Civ. App.) 224 S. W. 236.
“But, in any event, when the injunction will cause great injury to the defendant, and will confer no benefit or very little benefit, in comparison, upon the' complainant, it is within the discretion of the court to refuse the application. Likewise, where the complainant can', at comparatively slight cost, protect himself, he is not entitled to equitable relief. In all cases the court takes into consideration the relative inconvenience to be caused to the parties, and will refuse an injunction if it appears inequitable to issue it” — citing 22 Cyc. 782. Simon v. Nance (Tex Civ. App.) 142 S. W. 661; 22 Cyc. 782, 783.

Article 7590 provides that no person shall take water from any “natural stream, water course, or watershed in this state into any other watershed,” without a permit from the board of water engineers to divert such water. Article 7591 merely prescribes a penalty for violating article 7590. Before the provisions of article 7590 could be violated the facts must show that the waters from the natural stream, or water course or a watershed, have been diverted into another watershed. We do not understand the certificate to state the existence of any such facts. The contrary rather appears that the proposed ditch would not take water out of any natural stream, or water course, nor divert water from one watershed into another. Rather, it appears that the appellant Johnson was proposing to assist the natural flow of surface waters into Hackberry draw by constructing the ditch mentioned in the certificate. Should this purpose be accomplished Hack-berry draw would receive waters from its own watershed. In other words, the depression designated as Dry Lake is a part of the watershed of Hackberry draw. The natural flow of the water, which would be conducted into Hackberry draw by means of the construction of the proposed ditch, is across the watershed of Hackberry draw into this waterway. There could be no diversion of these surface waters by means of the construction of the proposed ditch. The ditch proposed to be constructed is to- prevent the cessation of Hie natural flow of surface water north of the land owned by the appellant Johnson, known as Dry Lake, across his land and into the natural drainage channel for the watershed of Hackberry draw. Article 75§9a provides that it shall be unlawful to divert the natural flow- of surface water, or to impound such surface water, so as to damage the property of another by the overflow o*f the diverted or impounded waters. The construction of the proposed ditch by the appellant Johnson could not have the effect to divert the natural flow of surface water, nor to impound such surface water, so as to damage the property of another by the overflow of the diverted or impounded waters. The territory designated as Dry Lake is in no sense a waterway, having its own independent watershed, from whence it receives its supply of water. It is like any other1 slight depression in the surface, of the earth wherein water seeking, its level finds its way temporarily. The owner of such depression has a right to dispose of it by furnishing a conduit into its natural drainage channel. As said in Jefferson County Drainage District v. McPaddin (Tex. Civ. App.) 291 S. W. 327, wherein some of the authorities on the subject are cited: “We think that by the great weight of authority the rule is well settled that surface water may be collected by drains and ditches, so long as it is not diverted from its natural flow, and carried into channels and streams made by nature for its passage, even though itsi accumulation and flow may be thereby hastened and the lands of lower landowners along the stream into which the water is discharged subjected to increased overflow, without giving a cause of action to nearby or adjoining landowners. In such cases the injury is damnum absque injuria.” The judgment of the Court of Civil Appeals in the case was affirmed, by the Supreme Court, though not on this point. 4 S.W.(2d) 33.

In Todd v. York County, the Supreme Court of Nebraska says: “An owner has the undoubted right to protect his land from mere surface water and, in the interest of good husbandry, to drain lagoons or basins thereon of a temporary character, by discharging such surface waters by means of artificial channels into a natural surface water drain and through such drain or channel, on and over 'the land of another, provided such person acts in a reasonable and careful manner and without negligence, and the injury, if any, resulting therefrom to such lower proprietor by reason of the increased flow-age in the natural surface water drain will be accounted damnum absque injuria.” 72 Neb. 207, 100 N. W. 299, 66 L. R. A. 561.

The question in the case from which the last citation is taken is exactly the same question that is involved in this case. In that case it is further said: “The draw or ravine ⅜ ⅜ * in the technical sense * * * is not a water course. * * * It is, however, unmistakably a natural waterway or channel in which surface water * ⅜ flows to its mouth, and affords an outlet for all the water * ⅝ * draining ⅜ * * from the surrounding country into Beaver Creek, a natural water course” — just as Hackberry draw is a natural waterway or channel in which surface water flows to its mouth and is an outlet for all the water-drained from the surrounding country into Dockum creek, a natural water course. The court says in the same case further:

“The territory immediately surrounding the basin except as modified by the basin itself drains into the draw passing over plaintiff’s land. The draw is the natural outlet for the surface water falling in that territory and is the natural outlet for the basin and the land drained into it if it is to have any outlet at all. Treating the basin and the land drained into it as an independent watershed, then counsel’s position is right; but viewing the land, as we think should be done, as having a natural drainage into some permanent lake or other similar body of water, or into a regular water course by means of surface water channels, the territory in question properly and naturally drains into the draw spoken of thence into Beaver Creek, a natural water course.”

The facts in the case of Aldritt v. Pleischauer, 74 Neb. 66, 103 N. W. 1084, 70 L. R. A. 301, decided by the Supreme Court of Nebraska, are somewhat similar to the facts in this case. In that case the owner was permitted to drain a pond having no natural outlet over its brink and into a very shallow depression, through the field of the plaintiff! who sought an injunction, who had been cultivating the land for several years, crossing this depression with this cultivation, just as the defendant in error in this case is shown to have been doing, actually cultivating the bed of the depression. Courts will take judicial knowledge of the. general character of the country in passing upon questions of this kind, and the Supreme Court of Nebraska, in which state much of the territory is similar to that shown by the facts of this certificate,' where much of the land is rolling plains country with occasional basins and ponds and where much of the drainage was ,by small draws that the owners of land, through which such draws ran, are charged, with knowledge of their drainage value and of rights of owners to drain such ponds and basins through such drains, where it is said: “They [meaning the drains,] afford almost the only means of surface drainage available to the husbandman, and his right to the use of the same, reasonably exercised, should not lightly be impaired.”

The case of Ainsworth v. Texas & N. O. Ry. Co. (Tex. Civ. App.) 288 S. W. 481, declares, in effect, that the draining of water which is accumulated on land in the general direction which the water would naturally flow is not a diversion of the natural flow of surface waters. Where water so accumulated on land without the aid of the owner this is not an impounding of water by him. The common-law rule, therefore, wo think, has not been changed-by any of these statutes, in so' far as it applies to the right of a landpwner to drain his land into natural drainways where the tendency of such water is naturally to drain' towards such drainways, provided, of course, he does this in a reasonable way and uses land in constructing said drain which belongs to him or which he has the right to use for that purpose. This common-law rule and the right of the landowner to be protected thereby is announced by our Supreme Court in Barnett v. Matagorda Sice Irrigation Co., 98 Tex. 355, 83 S. W. 801, 107 Am. St. Rep. 636, and also by the Court of Civil Appeals in Old River Co. v. Barber, 210 S. W. 763 (writ of error refused). It is scarcely conceivable, under the facts stated in the certificate, and shown by the map attached, that the laws of this state could be construed in such a way as to prohibit the appellant Johnson from constructing a conduit such as he. proposes to construct for surface waters flowing across his land into their natural drainage channel for the purpose of relieving his land, valuable for tillage purposes, of water, which otherwise would gather thereon temporarily, until it disappears by evaporation or percolation, and thereby render useless and valueless a large quantity of his acreage, which otherwise would be used for the benefit of the state and its citizens, and especially of the owner. It is our opinion the Legislature did not intend to restrict the right of owners of land under the conditions outlined in the certificate to protect it from drainage damage in the way the plaintiff proposes, which he has under the rule of the common law relating to this subject.

We therefore recommend that both questions be answered in the negative.

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.  