Ray, 8 Ch. App. 467, and note to this case found in 6 Eng. Rep. 440.

We think that the decree of the circuit court should be affirmed.

McGrath, C. J., and Montgomery, J., concurred. Long and Grant, JJ., did not sit.

NUISANCE-LAWFUL TRADE OR BUSINESS-INJUNCTION. The carrying on of a lawful business will be restrained when the prosecution of such business renders the enjoyment of a neighboring dwelling-house materially uncomfortable on account of smoke, cinders, or offensive odors: Euler v. Sullivan, 75 Md. 616; 32 Am. St. Rep. 420, and note. See Susquehanna Fertilizer Co. v. Malone, 73 Md. 268; 25 Am. St. Rep. 595, and note. But the fact that a single person of most sensitive taste is seriously disturbed by a lawful business, is not enough to call for the interference of the court: Price v. Grantz, 118 Pa. St. 402; 4 Am. St. Rep. 601, and note.

CASES

IN THE

SUPREME COURT

OP

MINNESOTA.

GILFILLAN V. SCHMIDT.

[€4 MINNESOTA, 29.]

WATERS-SURFACE - RIGHT TO DRAIN-LIABILITY FOR OVERFLOW.-An upper proprietor, while he cannot divert surface water on his land from its natural course to the unnecessary injury of his adjoining owner, may aid the natural and only possible system of drainage by deepening the natural outlet for such water, If this is absolutely necessary in the interests of good husbandry and the reasonable improvement of his lands, and does not inflict unnecessary injury upon the lower proprietor and, although the effect of such act is to cause more water to flow upon the land of the latter than otherwise would, he is not entitled to an injunction to restrain the act of the upper proprietor, nor to recover damages for a usual or unusual overflow of his lands caused by ordinary or extraordinary rainfall, unless he can show that the deepening of the natural waterway was the efficient and proximate cause thereof. This is especially true when it appears that the benefit derived from the deepening of such outlet is very great as compared with any injury likely to result therefrom, and there is nothing to indicate that the lower owner cannot readily protect himself against such injury.

Action for an injunction restraining the defendants from maintaining a ditch, and to require them to fill it up. Judgment for the plaintiff, and defendants appealed.

Welch & Hayne, for the appellants.

Gilfillan, Willard & Willard, for the respondent.

31 MITCHELL, J. The findings of the trial court are very long, mainly descriptive of the situation, and largely consisting of statements of what may be called "evidentiary facts." For this reason it is somewhat difficult to state wherein they are, and wherein they are not, sustained by the evidence. An examina

tion of the record, however, shows that there is no real conflict in the evidence. It discloses substantially the following state of facts:

The lands of the two defendants Schmidt constituted a watershed, which naturally drained from the east, north, and west into a large marsh, slough, or pond, indicated on defendants' plat, situated mainly on the lands of the Schmidts, but extending a short distance into the north side of the lands of defendant Clasen. The lands of the defendants in the immediate vicinity of this slough or pond were naturally wet and marshy, by reason of the spongy nature of the soil, their proximity to the pond, and the fact that they were only slightly elevated above the ordinary level of the water in the slough or pond; but they were capable, by drainage, of being rendered dry and valuable grass lands. This slough or pond was not fed by any springs or natural streams, but entirely by surface waters from the adjacent watershed.

In the wet seasons of the year this large marsh or slough filled with surface water from the surrounding watershed, covering from thirty to forty acres, presenting the appearance of a large pond or small lake, from six to eight feet deep in its deepest part, but, in the dry seasons, frequently covering only a few acres, to the depth of from two or three feet in its deepest part down to only a few inches in its shallowest places. The natural outlet for the waters which thus collected in this slough or pond was at its south end, whence, in wet seasons, they flowed in a large stream southerly, through a fairly well-defined course, on substantially the line of the ditch indicated on defendants' plat, into a pond or bog in the north part of plaintiff's land; thence, through a depression or outlet on the west side of this pond or bog, first, westerly, and thence southerly, as indicated on the same plat, into Gleason's lake, which, in turn, flowed into Lake Minnetonka. In brief, the natural drainage of the large marsh or pond on defendants' lands, and of the watershed tributary to it, was substantially as indicated on defendants' map; and throughout its entire course the flow of this water was through a fairly welldefined 32 natural depression in the soil. The slope or fall of the lands was to the south, and about nine feet to the mile.

As already stated, at certain seasons of the year the flow of water was quite large, while at others it would diminish, and, finally, in the dry portions of the year, entirely cease; leaving, however, a considerable quantity of water in the big marsh or pond on defendants' land, the effect of which was to leave the

lands adjacent to this pond either covered or saturated with water so late in the season as to render them practically valueless. The lowest point on the east or southeasterly side of the pond or bog on plaintiff's land was some three feet higher than the outlet on the west side, already described. Hence the water in this pond or bog would have to rise about three feet above the level of this outlet on the west before any of it would overflow to the east or southeast. Such was the condition of things before the defendants committed any of the acts complained of.

About fifteen or sixteen years ago, the defendants, or their grantors, for the purpose of draining their lands, dug a ditch from the south end of the big marsh or pond down to about the third or lowest stone culvert marked on defendants' map. This ditch commenced at the natural outlet of the marsh, and substantially followed the natural waterway. Practically, what defendants did consisted of deepening the outlet and waterway about two feet. While this ditch has been repaired and cleaned. out at different times, it still remains of substantially the same depth as when first dug. Subsequently, and for the same general purpose, the defendants extended this ditch through Clasen's land, down to the bog or pond in the north side of plaintiff's land, also following substantially the line of the natural waterway. This part of the natural waterway seems to have been more clearly defined than the part up next to the big marsh or pond, and what defendants did on it consisted mainly in straightening it, and removing local obstructions, but not greatly deepening it. The defendants Schmidt have also extended the ditch up through the big marsh or pond, and likewise dug some short lateral ditches, as indicated on their plat, to aid the natural drainage of their lands into this large or central pond or marsh; but these acts are not important in the determination of this case. Of course, the effect of deepening the outlet and natural waterway south of the big 33 marsh or pond is to cause more of the water to flow out, and to leave less of it to stand in the marsh, thereby so far relieving defendants' lands of the burden of these waters as to render much of them valuable meadow lands, which would otherwise be valueless. There is no evidence that defendants have done anything more than is necessary in the interests of good husbandry, or than they might lawfully do in the reasonable use of their own lands, provided they are not thereby casting a burden on plaintiff's lands which they have no right to do.

In July, 1892, there was an unusually heavy rainfall, from the effects of which the big marsh or pond on defendants' land rap

idly filled with water, which flowed in great volumes through the ditch cut by defendants, into the slough or bog on the north of plaintiff's lands, and filled it up to so high a level that large quantities of water flowed out southeasterly, as indicated on plaintiff's map, and spread over his meadows, and either found its outlet into Parker's lake, or else remained on the meadows until absorbed or evaporated, thereby causing serious damage to plaintiff's crop of hay. To secure protection against a recurrence of this injury, plaintiff brought this action for a preventive injunction, forbidding the defendants from maintaining the ditch across their lands.

There is no evidence and no claim that the digging of the ditch -that is, the deepening of the outlet and waterway of the big marsh or pond on defendants' land-imposes any additional burden upon, or does any injury to, plaintiff's land, unless it be by causing the water to overflow to the southeast, over his meadows. Neither is there any evidence that it ever did thus overflow either before or since the ditch was dug, except on this occasion, in July, 1892, after this unusually heavy rain. So far as appears, on all other occasions the water did not flow down any faster or in any greater volume than could find its outlet through its natural course into Gleason's lake. The court finds that origi-nally the natural flow of the water from the slough or bog on the north side of plaintiff's lands was southeasterly, down into Parker's lake. In view of the topography of the country, this was probably so; but this is wholly immaterial in view of the fact, also found by the court, and supported by the evidence, that this had ceased long before the settlement of any of the lands in the vicinity, since which time the natural flow has been 34 to the west, as already stated. There was no evidence as to whether it was practicable for plaintiff to adopt means to guard against the danger of this overflow eastward upon his meadows, or, if so, at what expense. The situation, however, would seem to indicate that a feasible preventive would be to either widen and deepen the outlet to the westward, or raise the easterly bank of the bog or pond.

The trial court granted a mandatory injunction requiring the defendants to fill up the ditch to the depth of two feet, from the south end of the big marsh or pond down to the third or lowest culvert, and thus restore the condition of things as it existed before any artificial excavations were made.

It will be seen from the foregoing statement of facts that the defendants have not diverted any of these waters from their natu