Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The testimony in this action tells about the characteristics of a ditch through which surface waters stray across the lands of the parties situate in the farming country of southern Gloucester County. It may be immediately stated that we do not discover in the record before us any justifiable reason to depart from the basic factual conclusions of the trial judge, who also availed himself of the opportunity personally to inspect the locus in quo.
The transcription of the testimony achieves the dimensions of a sizeable volume and therefore our statement of the significant circumstances and controversial issues here is abbreviated and distinctly general.
The farms of the plaintiffs and defendants are adjacent. The ditch carries the surface drainage waters in a generally west by north direction from the farm of the plaintiffs to that of the defendants and thence flows beyond. The plaintiffs deemed its capacity to be inadequate, and in 1948 they not only deepened it or otherwise enlarged it on their land, but they also entered upon the defendants' land and there also increased its width or depth.
The defendants resolved to resist the consequential augmented flow of the waters upon their property and erected at least two dams on their land, the last of which so effectively arrested the passage of the water that it was thereby, it is said, caused to accumulate to an injurious amount on the land of the plaintiffs.
The plaintiffs instituted the present action to enjoin the maintenance of the dam by the defendants. The defendants attributed the involvement to the alleged wrongful acts of the plaintiffs in enlarging the ditch. Both plaintiffs and defendants also demanded compensatory damages from the other for the alleged resultant injury to the respective lands.
In further explanation of the case, it is expedient to quote certain factual conclusions of the trial judge:
"Considering all the evidence, the possible interest of some of the witnesses, the manner of their testifying and the quality of their testimony, I must reach the conclusion that the plaintiffs have carried the burden of establishing, by a clear preponderance of the proof, that a drainage ditch has existed for more than 40 years, running from the Knisell farm across the Mead farm, through the woodland and onto the Knight premises, and continuing across the woodland road to a small swamp. The hand of some owner beyond the memory of man may have cut part of the channel, with nature providing the rest by way of shallow depressions and gulleys."
Illuminative also is another observation of the talented trial judge:
"Plaintiffs having, as noted, gone onto the Knight property without permission to deepen and widen the ditch, with the resultant cutting of defendants' woodland road and the flooding of their lands, they do not come into a court of equity with clean hands. They are not entitled to the injunction they seek. Defendants, on the other hand, are not obliged to receive upon their premises the swifter and larger flow of water resulting from plaintiffs' improvement of the ditch. There will be an injunction in defendants' favor restraining plaintiffs from draining surface waters, or any other kind of waters, into the ditch in a volume exceeding that which existed before the ditch was deepened and widened in 1948."
Accuracy recommends the quotation of the terms of the final judgment:
"It is on this 21st day of May, 1954, ordered and adjudged that the demands of the plaintiffs for an injunction and the right to enter the property of the defendants for the purpose of repairing and cleaning the ditch as set forth in the complaint and for damages is denied; and that the said plaintiffs, Joseph Wilson Hughes and Mildred Hughes and their agents, ...