Prairie Farmer, Vol. 56: No. 4, January 26, 1884: A Weekly Journal for the Farm, Orchard and Fireside — John Shaqi
Prairie Farmer, Vol. 56: No. 4, January 26, 1884: A Weekly Journal for the Farm, Orchard and FiresideVarious
Science
Prairie Farmer, Vol. 56: No. 4, January 26, 1884: A Weekly Journal for the Farm, Orchard and Fireside
Various
Agriculture -- United States -- Periodicals; Farm life -- Periodicals; United States -- Rural conditions -- Periodicals
OBJECTIONS ANSWERED.--It is said to be a universal law maxim, "that you
may use your own as you will, but not to the detriment of your
neighbor," and that this principle forbids this kind of drainage. This
maxim may be general, but it is not universal. My neighbor may have
built his house and other domestic arrangements in the lee of a natural
grove of timber on my land. The removal of this grove may be a real
grievance by giving the wind too free a sweep; yet my right to change
this waste into a grain field will not be questioned. My warranty deed
is my right thus to improve my land, though it be "to the detriment of
my neighbor." He should have foreseen the contingency of a removal of
these woods. On like principles a land owner may remove an excess of
water so as to raise corn and not rushes. In the removal of woods my
neighbor may not have an immediate remedy for his ills, but the effect
of my ditches may be turned to good account by continuing them, and thus
improving his land as I have mine. My warranty deed is my right to
cultivate my own land, and this right carries the right to cultivate it
in the best manner. The lower man should have taken judicial notice that
water runs down hill, and that in this progressive age ditches may be
cut and tiles laid.
But it is said that this court decision follows the English Common law;
and now being settled by a decision, it is not open for further
consideration. In this progressive age nothing is settled until it is
settled right. Judge Taney once judicially settled the status of the
African race. The common law was held to forbid the bridging of
navigable streams. Harbors could only be made where the water was salt
and affected by the tides. The Dartmouth college decision was held to so
cover railroad corporations as to shield them from legislative control.
These have all been overturned by the march of events, and this
Appellate court decision is not necessarily immortal. For fifty years
the farmers of Illinois knew no such rule. The public roads have been
improved by side ditches which dropped the water into the first
depression. In 1873 there was placed in the road law a provision that a
land owner may drain on the public road by giving timely notice, and
this stands through all revisions. Blackstone in his commentaries does
not class this kind of drainage as a nuisance or trespass to lower
lands, but he does its opposite, where the lower man neglects to "scour"
a ditch, and thus sets back the water to the harm of the upper man. If
this court rule is common law, as claimed, then it may be further said
that a rule for the dark ages when drainage was exceptional, is not
necessarily the true rule, since drainage has become so large a part of
good agriculture.
Public-domain text, read in full here on John Shaqi.
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