
    Sally M. Jeffers, App’lt, v. Robert N. Jeffers, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1887.)
    
    Drainage—Water and water courses—Action for damages for ILLEGAL DRAINAGE.
    In an action by plaintiff to restrain defendant from digging a ditch and turning upon his land water which never was there before, but naturally flowed elsewhere. Held, that where the. proof showed that the ditch had only increased the natural flow of water and had added no new drainage area, nor had caused any damage, the bill must be dismissed.
    
      Del. Stow, for app’lt; C. H. Roys, for resp’t.
    
      
       Affirming 37 Hun, 638, mem.
      
    
   Finch, J.

The principal force of the appellant’s argument is directed to the point that there was no evidence of the existence of a water course upon the defendant’s land, into which his ditches drained, and so the finding of the trial court to that effect was error. The argument would be irresistible if the finding meant or was intended to mean that there existed on defendant’s land a water course as defined m the law. That means a living stream, with defined banks and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water. Barkley v. Wilcox, 86 N. Y., 144.

There was no proof in the case of the existence of such a stream. Everybody agrees that all the water running over defendant’s premises was surface water and the product of rains or melting snow. But we do not so understand the findings excepted to. The learned judge describes the channel or water course formed by a natural depression of the land, but expressly says that it conducted nothing but surface waters. He speaks of it again as a “water way,” and in no respect finds that this channel or depression was a water course in its legal and technical meaning. The exception, therefore, was not well taken.

But upon the finding thus understood the appellants claim that they should have recovered, and that the judgment for the defendant was erroneous. In considering this question it is needed that we understand the issues presented and the course of the trial. The plaintiffs’ cause of action was distinctly and definitely stated m their complaint. They alleged that a ridge of high ground runs west across defendant’s farm and north of the swamp outlet and basin to which the new ditches ran, and such that all surface waters south of the barrier naturally flow to the south or remain stagnant and evaporated, and none of them flowed north toward plaintiff’s farm, or could so flow, except by the aid of artificial changes in the surface of the ground; that this protecting ridge or plateau was about twenty rods south from plaintiff’s line; and that the defendant cut his ditch through this ridge, and thus turned upon them water which never before ran that way.

The defendant denied that he has cut through any such ridge or brought down upon his neighbors a new and unaccustomed drainage, and the issue thus framed was the issue tried and to which the findings were directed. The plaintiffs made no claim in their pleading that the defendant’s ditch increased the natural and usual flow over their land and so they were injured, but claimed damages for a diversion of waters upon them which naturally ran elsewhere. They obtained a temporary injunction. The affidavit filed for that purpose states the case exactly as does the complaint, and seeks to shut off a foreign and artificial drainage. A perusal of the plaintiffs’ proofs shows that they were confined to the issues pleaded. That evidence established that the surface water upon some part of defendant’s land had always drained to the north, crossing the highway in a sluice which had long been maintained, thence following a ditch across plaintiff’s land and that of their neighbors, until it reached the Sodus ditch, described as the drainage channel for the waters in that region. There was no direct or specific proof that the defendant’s ditch increased the normal flow of surface water over the plaintiff’s land or that the faint trace of damage to their wheat was due to such increase, or had not equally occurred in former years. The plaintiff’s proposed findings follow the line of the issues and ask the court to determine that but for the cutting through the ridge or plateau none of the swamp or basin waters would have found their way to plaintiffs’ lands; that the defendant diverted them into plaintiffs’ _ ditch and these waters occasioned the injury. The trial judge decided these issues in favor of defendant and with abundant evidence to sustain his conclusion. He found that the surface waters complained of had long flowed to the north following a natural depression of the ground and more or less found their way through the highway sluice into plaintiff’s ditch; that some water from defendant’s land had always flowed that way; and refused to find that any ridge had been cut through, or any new drainage area had been added to the natural flow. The court did find that defendant’s drain had increased the not • ural flow, but described it as a slight increase and found that it had done the plaintiffs no substantial or material damage. These findings are conclusive. There was no cause of action alleged for an increase of the natural flow and if it existed the sufficient answer is that it did no damage. There may be still another answer founded on the circumstances of the case, but it is unnecessary to go further.

We find no error in the judgment and it should be affirmed, with costs.

All concur, except Rapallo, J., absent.  