Page images
PDF
EPUB

§ 208. Every riparian proprietor may make a reasonable use of the stream passing by his land for purposes which are not domestic.1 With respect to diminution in quantity, or the retardation or acceleration of the current, or any extraordinary use of the water, it is a question of fact for the jury in each case whether the user is reasonable, according to the width and depth of the river, the fall, the volume of water and the state of improvement in manufactures and the useful arts.2 This question cannot be determined by the requirements of the defendant's business, or the use which was previously made of the stream in the case of a purchase of a mill privilege from the owner of a lower privilege; but is to be decided by considering merely whether his use of the stream is reasonable and appropriate to the size of the stream and the quantity of water usually flowing therein.5 The mere fact that a portion of the water is lost does not give a cause of action; for some of the water is inevitably absorbed, wasted, or evaporated whenever it is spread in a mill-pond, or when ice is taken from the

13 Met. 156; Brace v. Yale, 10 Allen, 444; Pillsbury v. Moore, 44 Maine, 154; Howe Scale Co. v. Terry, 47 Vt. 109, 126; Union Mill Co. v. Ferris, 2 Sawyer, 176; Stillman v. White Rock Co., 3 Wood. & M. 341.

1 Patten . Marden, 17 Wis. 473. 2 Holden v. Lake Co., 43 N. H. 552; Norway Plains Co. v. Bradley, 52 N. H. 110; Bassett v. Salisbury Manuf. Co., 43 N. H. 567; Amoskeag Manuf. Co. v. Goodale, 46 N. H. 53; Hays v. Waldron, 44 N. H. 584; Elliott v. Fitchburg Railroad Co., 10 Cush. 195; Reg. v. North Midland Railway, 2 Railway Cases, Pt. I. p. 1; Union Mill Co. v. Ferris, 2 Sawyer, 176; Miller v. Miller, 9 Penn. St. 74; Arnold v. Foot, 12 Wend. 330; Bullard v. Saratoga Manuf. Co., 77 N. Y. 525; Phillips v. Sherman, 64 Maine, 171; Case v. Weber, 2 Carter (Ind.) 108; Cooper v. Hall, 5 Ohio, 323; Columbus Gaslight Co. v. Freeland, 12 Ohio St. 392, 398; Timm v. Bear, 29 Wis. 254;

Dilling v. Murry, 6 Ind. 324; Gould v. Boston Duck Co., 13 Gray, 442; Thurber v. Martin, 2 Gray, 394; Hinkley v. Nickerson, 117 Mass. 213; Brace v. Yale, 99 Mass. 488; 97 Mass. 18; Clinton v. Myers, 46 N. Y. 511; Hill v. Ward, 2 Gilman, 285; Bisher v. Richards, 9 Ohio St. 495, 503; Dumont v. Kellogg, 29 Mich. 420; Hetrich . Deachler, 6. Penn. St. 32; Parker v. Hotchkiss, 25 Conn. 321; Pool . Lewis, 41 Ga. 162; Prentrice r. Geiger, 74 N. Y. 340.

3 Wheatley v. Christman, 24 Penn. St. 298; Brace v. Yale, 10 Allen, 447 ; 4 Allen, 393; Perley v. Marshall, 57 N. H. 206; Canfield v. Andrew, 54 Vt. 1.

Haskins . Haskins, 9 Gray, 390.
5 Gould v. Boston Duck Co., 13
Gray, 442; Springfield v. Harris, 4
Allen, 494.

6 Bullard v. Saratoga Manuf. Co., 77 N. Y. 525.

stream; and, in such cases, no action can be maintained unless the rights of others are materially impaired.1 In England it is held that any permanent encroachment upon the alveus of a running stream may be complained of by an opposite or adjacent proprietor to whose proprietary right the erection is a present sensible injury, without proof that actual damage has been or will be sustained therefrom.2 In this country it has been held that an encroachment by one proprietor upon his side of the stream does not give a cause of action to another proprietor without proof of appreciable injury.3 If a riparian owner attempts to authorize a water company to take a supply from a watercourse, thereby causing substantial damage to another riparian owner, such a diversion cannot be regarded as a reasonable use of the common property between the co-owners.1

§ 209. When the stream is so used by one proprietor as to injure another proprietor upon the stream, the wrong consists in turning the water where it would not naturally flow; and the source of the water is immaterial, if damage results, whether it is by a retardation or sudden release of the water of the same or another stream, or whether it is made to flow in a course where no water flowed before, or in the channel of an ancient stream. The injured proprietor is equally entitled to redress whether the damage is caused by a diversion of the water, by backwater, by inundation from above his land, or by the percolation of the water

1 Seeley v. Brush, 35 Conn. 419; Cummings v. Barrett, 10 Cush. 195.

2 Brickett v. Morris, L. R. 1 H. L. Sc. 47; Attorney General v. Terry, L. R. 9 Ch. 425; Orr Ewing v. Colquhoun, 2 App. Cas. 839, 853; Attorney General v. Lonsdale, L. R. 7 Eq. 377; Norbury v. Kitchen, 15 L. T. n. s. 501; Menzies v. Breadelbane, 3 Bligh, N. s.

414.

3 Norway Plains Co. v. Bradley, 52 N. H. 108; Niles Works v. Cincinnati, 2 Disney (Ohio) 400.

Higgins v. Flemington Water Co., 36 N. J. Eq. 538.

[blocks in formation]

through the banks. Each proprietor is entitled to enjoy the natural fall of the stream,2 and a mill-owner cannot lawfully appropriate additional power, to the injury of a lower proprietor, by lowering the natural channel even on his own land. In Pennsylvania it is held that the method of measuring the fall of the stream by instrumental levellings must yield to actual visible facts; but the opposite has been held in Minnesota.5

§ 210. It is not a trespass to flow the land of another with water by erecting a dam below his land, for any one may lawfully build a dam on his own land, and the act, being injurious only in its consequences, is to be redressed by an action on the case.8 An injunction may also be granted in cases of flowage when there is a clear violation of the

1 Pixley v. Clark, 35 N. Y. 520; Cooper v. Barber, 9 Taunt. 99; Wilson v. New Bedford, 108 Mass. 261.

2 McCalmont v. Whitaker, 3 Rawle, 84; Brown v. Bush, 45 Penn. St. 61; Oakley Manuf. Co. v. Neese, 54 Ga. 459; Dorman v. Ames, 12 Minn. 451; Plumleigh v. Dawson, 1 Gilman, 544.

3 Gleason v. Assabet Manuf. Co., 101 Mass. 72; Arthur v. Case, 1 Paige, 447; Webster v. Fleming, 2 Humph. 518; Townsend v. McDonald, 2 Kernan, 391.

4 Brown v. Bush, 45 Penn. St. 61. 5 Finch v. Green, 16 Minn. 355. See Perry v. Binney, 103 Mass. 156.

6 Perrine v. Bergen, 14 N. J. L. 357; Reynolds v. Clark, Stra. 634; Cooper v. Hall, 5 Ohio, 320; 3 Black. Com. 220.

7 Ibid.; Orr Ewing v. Colquhoun, 2 App. Cas. 839; Snow v. Cowles, 22 N. H. 302; Delaware Canal Co. v. Lee, 22 N. J. 243; Ten Eyck v. Delaware Canal Co., 3 Harr. (N. J.) 200; Vandewere v. Delaware Canal Co., 2 Dutch. 151; Ward v. Ward, 2 Zab. 699; Beissell v. Sholl, 4 Dall. 211; Hoy v. Sterrett, 2 Watts, 327; Whaler v. Ahl, 29 Penn. St. 98; Oregon Iron Co. v. Trul

lenger, 3 Oregon, 1; Shaw v. Etheridge, 7 Jones (N. C.) 225; Sackrider v. Beers, 10 Johns. 241; Clinton v. Myers, 46 N. Y. 517; Bullard v. Saratoga Victory Manuf. Co., 13 Hun, 43; Hill v. Ward, 2 Gilman, 285; Johns v. Stevens, 3 Vt. 308; Schoff v. Upper Connecticut Improvement Co., 57 N. H. 113.

8 Ibid.; Hutchinson v. Coleman, 5 Hal. (N. J.) 74; Keller v. Stoltz, 71 Penn. St. 356. Trespass lies under the statutes of Maine. Reynolds v. Chandler River Co., 43 Maine, 513. The declaration or complaint need not aver that the defendant's act was wrongful or without license. Wilkinson v. Applegate, 64 Ind. 98; Akin v. Davis, 11 Kansas, 580. Where the defendant, who owned a mill above that of the plaintiff on the same stream, wilfully, and with intent to injure the plaintiff, accumulated a large head of water by shutting down his gates, and then discharged an immense volume of water against the plaintiff's dam, which was washed away, trespass vi et armis was held a proper remedy. Kelly r. Lett, 13 Ired. 50; Hogwood r. Edwards, Phil. Law, 350.

plaintiff's right and irreparable injury or danger thereof.1 In an action for backwater, the plaintiff, in order to recover more than nominal damages, must show that the water flowed back upon his land; that a wrongful act of the defendant caused it so to flow, and that he suffered injury therefrom before suit brought.2 The wrong begins when the water is appreciably raised at the point where it leaves the plaintiff's land or is ponded back beyond that point, whether the plaintiff has a mill upon his land or not, and although the water does not overflow his banks.5 The owner of the overflowed land may maintain successive actions when, as in the case of the destruction of crops from year to year, the wrong does not involve the destruction of the entire estate or its beneficial use; but recovery in a single suit, for any unauthorized use of the stream, is a bar to a subsequent action, where, as in the case of a permanent and complete deprivation of the use of the land, or of the water of the stream, the injury is of a permanent character and goes to the entire value of the estate.

1 Sheldon v. Rockwell, 9 Wis. 166; Cobb v. Smith, 16 Wis. 661; Newton v. Allis, 12 Wis. 378; Shannon v. State, 18 Wis. 604; Halm v. Thornberry, 7 Bush, 403; Ogle v. Dill, 55 Ind. 130; Carlisle v. Cooper, 21 N. J. Eq. 576; Fulton v. Greacen, 36 N. J. Eq. 216; Bradwell v. Dewell, 48 Mich. 9. As to the form of a bill in equity to restrain obstruction, see Rigg v. Hancock, 36 N. J. Eq. 42. In a suit to lower a dam a mandatory judgment may be issued to lower to the proper height, but neither an extra allowance computed on the value of the land flowed nor the expense of surveys, &c., are allowable. Rothery v. N. Y. Rubber Co., 90 N. Y. 30; Mark v. Buffalo, 87 N. Y. 184.

2 Lewin v. Simpson, 38 Md. 468; Shafer v. Stonebraker, 4 Gill & J. 345; Godfrey v. Maberry, 84 N. C. 255; Jones v. Lavender, 55 Ga. 228; Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 241; Brown v. Bowen, 30 N. Y. 519; Cobb v. Smith, 38 Wis.

A judgment for the defend

21; Langdon v. C. B. & Q. R. Co., 48 Iowa, 437. Damages for a continuing trespass are computed only to the beginning of the action. Close v. Samm, 27 Iowa, 503.

3 Heath v. Williams, 25 Maine, 209; Munroe v. Gates, 42 Maine, 178; 48 Maine, 463; Amoskeag Manuf. Co. v. Goodale, 46 N. H. 53; Alexander v. Kerr, 1 Rawle, 83, 89; McCalmont v. Whitaker, 3 Rawle, 84; Graver v. Sholl, 42 Penn. St. 58.

4 Hill v. Ward, 2 Gilman, 285; Stout v. McAdams, 2 Scam. 67; Cory v. Silcox, 6 Ind. 39; New Britain . Sargent, 42 Conn. 137; Williamson v. Lock's Creek Canal Co., 76 N. C. 448; Hatch v. Dwight, 17 Mass. 289.

5 Garrett v. McKie, 1 Rich. (S. C.) 444; Chalk v. McAlily, 11 Rich. (S. C.) 153; Little v. Stanback, 63 N. C. 285; Johnson v. Roan, 3 Jones (N. C.) 523; Burnett v. Nicholson, 72 N. C. 334.

6 Stodghill v. C. B. & Q. R. Co., 53

ant, in a suit for flowing land, is a bar to a subsequent suit between the same parties and depending upon the same facts; but a judgment for the plaintiff in such suit establishes the right and estops the defendant from asserting injury resulting from the same continuing cause.2 When successive actions lie, the statute of limitations is not a bar to an action for the continued flooding of land within the statutory period, although the first flowage may be barred.3 Where a stream was obstructed wrongfully, and several years later this act caused the plaintiff's land to be overflowed, it was held that the statute of limitations ran only from the latter event. If a trespass is committed by breaking barriers, and water is thereby let in, the flow of water is merely consequential, and a verdict for the plaintiff in a suit for breaking the barriers and for damages resulting therefrom precludes the recovery of further damages. But if a trench is dug or a ditch deepened on a man's own land, whereby water is injuriously diverted from a neighboring stream, or the supply of water to a neighbor's mill is diminished, it is a continuing injury. The owners of non-riparian lands are entitled to use the stream for drainage, and may

Iowa, 341; Van Hoozier v. Hannibal Railroad Co., 71 Mo. 145; Dickson v. Chicago Railroad Co., 71 Mo. 575; Close v. Samn, 27 Iowa, 503; Hester v. Broach, 84 N. C. 252; Bare v. Hoffman, 79 Penn. St. 71; Cumberland Canal. Hitchings, 65 Maine, 140; Savannah Canal Co. r. Bourquin, 51 Ga. 378; Cobb v. Smith, 38 Wis. 21; Fowle v. New Haven Co., 107 Mass. 352; 112 Mass. 334.

1 Dick v. Webster, 6 Wis. 681; McDowell v. Langdon, 3 Gray, 513.

2 Casebeer . Mowry, 55 Penn. St. 419; Plate v. New York Central Railroad, 37 N. Y. 472. See Burwell v. Cannady, 3 Jones (N. C.) 165.

3 Spilman v. Roanoke Navigation Co., 74 N. C. €75. A recovery for erecting a nuisance bars another action for the erection, but not other actions for the continuance of the

nuisance. Staple v. Spring, 10 Mass. 72, 74; Hodges r. Hodges, 5 Met. 205. In McCoy v. Danley, 20 Penn. St. 85, it was held that, if the continuance of a dam is of great value to the defendant, and causes but inconsiderable injury to the plaintiff, the latter is entitled to such damages as will compel an abatement of the nuisance. Battishill v. Reed, 18 C. B. 696. In White v. Moseley, 8 Pick. 356, it was held, upon the facts of the case, that two distinct trespasses were committed in removing a dam.

4 Devery r. Grand Canal Co., Ir. R. 9 C. L. 194.

[blocks in formation]
« ՆախորդըՇարունակել »