This action was brought by the appellee to recover damages for the inundation of his farm in Desha County. The complaint asserts that the flooding of the land was due to the defendant’s wrongful conduct in preventing the repair of a dam that protected the plaintiff’s farm. The jury awarded damages to the plaintiff in the amount of $550. The basic question in the ease is whether the defendant’s conduct amounted to an actionable wrong.
The plaintiff’s land lies a mile or more below the defendant’s farm on a drainage canal constructed by Cypress Creek Drainage District. At a point between the two farms, where the artificial drain leaves the bed of Cypress Creek, the district long ago constructed a dam across the creek bed in order to divert the water into the canal. In the spring of 1953 some unknown person cut this dam. The cutting of the dam was beneficial to the defendant, as it provided an additional channel for the escape of water that might otherwise have backed onto his property. But the breach in the dam was detrimental to the plaintiff, whose lower land was exposed to the danger of the flood water’s coming through the gap in the dam.
The plaintiff and another landowner, R. B. Stimson, asked the commissioners of the district to repair the dam. The commissioners, feeling, that it was the district’s duty to mend the break, authorized Stimson to employ a contractor to do the work. Stimson arranged for W. A. Spradlin to repair the dam.
Spradlin proceeded toward the dam site with a piece óf heavy equipment that had cost some thirteen thousand dollars. As Spradlin was making a preliminary survey of his task he met the defendant; upon this encounter the plaintiff bases his cause of action. The jury were warranted in believing that the defendant threatened to tie up Spradlin’s expensive equipment in a court proceeding if Spradlin went forward with the project. Spradlin, who considered the job a minor undertaking that he had accepted as an accommodation to the landowners, yielded to the defendant’s threats and abandoned the work. Within a month or so there were heavy rains which flooded the plaintiff’s lands. There is evidence to show that the damage would not have occurred if the dam had been repaired.
The appellant first argues that Spradlin’s attempt to mend the break was illegal and might in fact have been enjoined if suit had been filed. This contention is without merit. The district was undoubtedly authorized by law to repair the damage to its drainage system. The commissioners, instead of attending to the matter themselves, duly empowered Stimson to employ someone to do the work. We perceive nothing in this situation giving rise to any cause of action on the appellant’s part.
It seems plain that the appellant did not have an unqualified privilege either to obtain an injunction or to threaten to do so. “Litigation and the threat of litigation are powerful weapons. . . . The use of these weapons of inducement is ordinarily unprivileged if the actor has no belief in the merit of the litigation or if, though having some belief in its merit, he nevertheless institutes or threatens to institute the litigation in bad faith, intending only to harass the third parties and not to bring his claim to definitive adjudication.” Best., Torts, § 767, Comment b. If the appellant had actually brought the suit, maliciously and without probable cause, he would have exposed himself to liability in damages for malicious prosecution. Harr v. Ward, 73 Ark. 437, 84 S. W. 496; Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017.
In insisting that he was at liberty to threaten to file a lawsuit the appellant cites cases holding that such threats do not constitute duress and should be resisted by a man of ordinary firmness. This argument, however, merely shows that the appellant’s conduct may not have been a tort of which Spradlin could have complained; it does not reach the issue of whether that conduct resulted in an actionable injury to the appellee.
It is our opinion that the court properly submitted the issue to the jury. It cannot be doubted that the ap-pellee could have asserted a cause of action against whoever actually cut the dam. The wrongful act of preventing repair was just as injurious to the appellee as the wrongful act of cutting. On this point we adopt the reasoning followed in Parrish v. Parrish, 21 Ga. App. 275, 94 S. E. 315. There two trees on the defendant’s land had been blown over by high winds and had fallen across a stream, forming a barrier that gradually obstructed the natural flow of the water. The plaintiff, who owned the adjoining land upstream, asked that the trees be removed, but the defendant refused either to remove them or to allow the plaintiff to do so. A heavy rain fell and resulted in the plaintiff’s land being flooded. The court held that a cause of action existed, upon the theory that even though the original obstruction was not chargeable to the defendant his subsequent conduct amounted to a tortious maintenance of the condition.
The appellant pretty well concedes that he could not lawfully have used physical violence to prevent the repair of the dam, but he argues that it was permissible for him to achieve his purpose by the use of words alone. From the plaintiff’s point of view, however, it makes no difference which method was followed to accomplish the intended result. The tort lies in the fact that the defendant’s deliberate intermeddling kept the dam from being mended. 11 One who, without a privilege, to dp so, intentionally prevents a third person from giving to another aid necessary to his bodily security, is liable for bodily harm caused to the other by the absence of the aid which he has prevented the third person from giving.” Best., Torts, § 326. While the quoted statement is limited to torts resulting in bodily harm the same principle is applicable to cases involving damage to property. Best., 1948 Supplement, Torts, § 497.
It is suggested that the elapse of a month between the defendant’s wrongful conduct and the actual injury to the plaintiff should prevent recovery. This suggestion involves questions of proximate cause and of the plaintiff’s duty to take additional measures to protect his land. There was no request below that these matters be submitted to the jury, and we are not willing to say as a matter of law that the short time interval was fatal to the plaintiff’s right of recovery.
On the principal issue in the case it is our conclusion that the plaintiff’s proof presented a question for the jury. With respect to the appellant’s other contentions we find no error in the admission of certain testimony or in the giving of an instruction requested by the plaintiff.
Affirmed.
BobiNsoN, J., dissents.