City of Emporia v. Soden

25 Kan. 588

• Court: Supreme Court of Kansas
• Decided: January 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered.by

Bbewee, J.:

This case presents some questions which are new in the history of this state, and upon which, indeed, few authorities can be found anywhere. The facts are these: Soden is the owner of some mills, built on his own land, on the banks of the Cottonwood river. These mills are propelled exclusively by water power. To secure this power Soden erected and maintains a dam, which raises the water some seven or eight feet, and makes above the dam quite a pond. The mills are of great value, having cost many thousands of dollars. Soden’s title to this water power is clear and full. He has used and maintained it for nineteen years. He owns the land upon which the dam is built, and purchased and obtained a conveyance from the. upper riparian owner of the right of flowage. This conveyance was executed and recorded in 1860. In 1880, the city of Emporia, a prosperous city of 5,000 inhabitants, constructed a system of water works for the purpose of supplying its citizens with water, and purchased a tract of land adjoining and above the mill property and extending to the center of the river. On this land, and from seventy-five to a hundred feet from the bank of the river, it dug a well twenty-five feet in diameter and twenty-six feet in depth. The court found that this well drew its supply of water from the plaintiff’s mill-pond. Into the well it sank one pipe, and another it ran into the mill-pond. The latter, however, it intended to use only in case of fire, depending on the former for the ordinary supply of the city. Soden duly warned the city not to attempt, directly or indirectly, to take water from his mill-pond. No condemnation of the water, and no arrangement with Soden, were ever made. Whereupon Soden brought this action, and obtained an injunction in the district court restraining the city from taking water from the pond or well. To reverse such judgment, this proceeding in error has been brought.

With this general statement we proceed to consider 'the specific errors alleged. And first, it is insisted that the court erred in refusing a jury. This was an action of injunction, an equitable action, and neither party had a right to a .jury. Of course in such an action questions of fact may arise, and the court has power to submit those questions to a jury, but neither party has a right-to a jury. Whether one shall be called or not, rests in the discretion of the court. (Hixon v. George, 18 Kas. 256; Carlin v. Donegan, 15 Kas. 496.) And generally, in a case like this, we think the wiser course is to refuse a jury. An individual has a dispute with a community. A. jury will naturally gravitate towards the majority. Its sympathies are with the many, and against the individual. Then, generally, a court does well in declining to submit questions of fact to a jury, and in assuming the full responsibility of the decision. In this case it may be remarked that the learned judge is himself a citizen of Em-poria. So far as sympathy and interest may affect the judgment, his would naturally be with the city. For eight years he has been the honored and respected judge of that district. Many cases have come to this court from his decisions, and we have had repeated occasion to notice his fairness and candor. We desire to place upon record our unqualified approval of his con. uct and*ruling in cases like this, where many a weaker and less brave man would have avoided the responsibility which fairly belongs to a judicial office.

The next question to be considered is one of-fact, and that is, Whether this well draws its supply of water from the millpond of plaintiff? Of course there are two allegations in the petition — one, of the direct abstraction of the water in the mill-pond by the pipe placed in it; and the other, of the indirect abstraction by the well. The former, according to the testimony, is to be resorted to only in case of fire; - at least, that .is the present intention of the city officers. The latter is denied, and as a question of fact, is to be determined by the evidence. The finding in this respect was against the city, and that the well draws its supply of water from the pond by percolation through a bed of gravel at the bottom; and upon the testimony this finding must be sustained. We may have something to say hereafter as to the character of the evidence by which such a fact is sought to be established. For the present, it is enough to say that there was testimony clearly tending to establish it. The proximity of the well to the bank of the pond suggests that the latter is the source of its supply. The rapid rise of water in it — one foot in thitty-seven minutes — confirms this. At the bottom of the well is a stratum of gravel, which appears also in the river. In digging the well, no water was found till this bed of gravel was struck, and then it flowed in in streams. The water, as admitted by one of the defendants, rises and falls with the rise and fall of water in the poud. While the pumps ordinarily keep the water in the well below the level of the pond, yet, if they are stopped, it slowly rises to the same level. These are facts which, if they do not compel, certainly justify the finding "of the court. It is true that the water reaches the well by percolation though this bed of gravel, and not by flowing in a distinct channel. The effect of this upon the legal right of the parties will be considered hereafter. It may be conceded also that it is not shown that the pond is the only source of supply to the well. Witnesses speak of water coming into the well from a direction opposite to that of the river, and it may be that hidden springs, subterranean streams, unknown sources, contribute to the supply.

For the present, and to determine the„ legal rights of the parties, we shall assume that in case of fire the water will be taken directly from the mill-pond by means of the pipe running into it, and that generally the supply of water in the pond will be reduced by means of the indirect abstraction through the well, and the subsequent transmission through the streets of Emporia for the accommodation of its citizens. Has the plaintiff any remedy for this direct and. indirect abstraction of water, and consequent diminution in amount of power? The amount of water.now used by the city and its present effect upon the plaintiff’s business do not determine the question of right or remedy. The continuance of the water works, as well as the growth of the city, will increase the demand; and, if the present abstraction can be sustained, there is no legal principle upon which the future and larger abstraction can be restrained. No,w, .that the flow of water in the natural channel of a surface streám is a prop- ' ert-y right of the riparian owner, is unquestioned and familiar law. (Shamleffer v. Mill Co., 18 Kas. 24.) If an individual should, by digging a new channel a few hundred feet above Soden’s dam, attempt to divert the flow of the stream, beyond doubt he would be restrained. And this restraint would be granted, not because of the mere fact of digging a channel, but because thereby the natural flow of the stream was prevented; not because of the manner, but because of the fact of the diversion. The restraint would be granted as readily if the abstraction was by pipes and pumps, as if by channel and a change of current. The principle is this: That whatever of benefit, whether of power or otherwise, comes from the flow of water in the channel of a natural stream, is a matter of property and belongs to the riparian owner, aud is protected in. law just as fully as the land which he owns. It cannot be taken for private use except by his consent, and for public use only upon due compensation.

With these general and conceded principles, let us now inquire as to the validity of the grounds upon which the action of the city is sought to be justified. The fact is obvious, that by means of the pipe running into the pond, there will be in case of fire a direct abstraction of water, and the fact is found that by means of the well there is an indirect abstraction. The flow of water is, as heretofore stated, thus interfered with and the power diminished. It is in evidence that while at certain seasons of the year the water supply is more than enough for all of plaintiff’s present uses, and that during such seasons the consumption of water in the city would work no present injury, yet at other seasons the supply is insufficient, and some, or all, of his mills are compelled to stop running. Hence, naturally, any abstraction of the water would tend to increase the time during which his mills must be idle, and therefore work present and positive injury — an injury increasing with the increasing consumption by the city. Further, if plaintiff is entitled to this water power at all, he is entitled to all of it, and may increase the number of mills, or amount of machinery propelled by it, until his uses shall wholly exhaust it. So that matters of amount really fade out of sight, and the question is one of Tight and title.

The city defends its action upon three grounds. First, as to the pipe running into the pond and the water thus taken therefrom, that such use is intended in cases of fire only, and that then “salus populi suprema lex” controls. As, in case of fire, the general safety justifies thé destruction of one building, to prevent the spread of fire and the ruin of all, so such emergency will justify, the appropriation of even the entire flow of any* river. We do not doubt that emergencies may arise which justify the most extreme measures, and that in such emergencies the individual must suffer for the needs and protection of the public. But it is not every fire that creates, such an emergency. An isolated building on fire endangers little or nothing. Yet to save somebody’s barn, whose burning endangers no other building, the city, proposes to take from plaintiff some portion of the power necessary for the running of his mills. Is this not very like robbing Peter to pay Paul? May the city take one man’s property to prevent another man’s loss? Doubtless the public owes to the individual the duty of reasonable effort to prevent destruction by fire, but such duty does not compel premeditated and uncompensated appropriation of private property. The public may justify the destruction of one building by powder, to save' many buildings from destruction by fire; but the possibility of such an emergency will not authorize the public to take possession of every individual’s cellar and turn it into a powder magazine, so as to be ready for the emergency.

A second matter of defense is this: While the undiminished flow of the stream is conceded to be the right of every riparian owner, yet this right has always been limited to this extent, that each riparian owner may, without subjecting himself to liability to any lower riparian owner, use of the water whatever is needed for his own domestic purposes and the watering of his stock. The city is a riparian owner, and, whether it uses little or much, it is simply taking for domestic purposes. Each individual citizen of Emporia may buy land on the banks of the river and then take for domestic uses whatever amount of water he needs. Whát the individual separately may do, the city, representing all the individuals, has done. Does the manner in which the result was accomplished make any difference in the right?

This argument is plausible, but not sound. A city cannot be considered a riparian owner within the scope of the exception named. The amount of water which an individual living on the banks of a stream will use for domestic purposes, is comparatively trifling. Such use maybe tolerated ' upon the principle da minimis non eurat lex. It is a use which must always be anticipated, and may reasonably be considered as one of the benefits of the ownership of the banks of a natural stream. Every one proposing to utilize the power of running water should, reasonably expect that the stream is chargeable with such a slight burden. It is only a fair equalization of rights. But the taking of water for the supply of a populous and growing city, stands upon an entirely different basis. No man can foresee this; and if it were tolerated, no one would dare to expend money in utilizing this power for fear of its being soon taken from him without compensation, and with total loss to his investment. The city, as a corporation, may own land on the banks, and thus in one sense be a riparian owner. But this does not make each citizen a riparian owner. And the corporation is not taking the water for its own domestic purposes; it is not an individual; it has no natural wants; it is not taking for its own use, but to supply a multitude of individuals; it takes to sell. Again, the statute under which the city is acting (Comp. Laws 1879, p. 997, § 1) authorizes the taking of water “for the purpose of supplying the inhabitants of such cities with water for domestic use, the extinguishment of fires, and for manufacturing and other purposes.” It would be strange if the city could destroy plaintiff’s water power without compensation, and then, sell it to other manufacturers, and thus build up rival establishments. This same question was before the supreme court of Alabama, and in a well-considered case the same conclusion was reached. We quote from the opinion in that case:

“It is insisted, however, that the fact that the city of Mobile owned land on the creek, upon the point where the mill of the defendant in error was located, gave to that corporation the right to the use of the water in sufficient quantities to supply the domestic purposes of its inhabitants. That a riparian proprietor has the right to consume even the whole of the water of a stream, if absolutely necessary for the wants of himself and family, has received the sanction of judicial decision. (Evans v. Merriweather, 3 Scam. 496; Arnold v. Foot, 12 Wend. 330.) But if this doctrine be correct, it can have no application in the present instance, because it rests upon reasons which are wholly inapplicable to corporations, which are artificial bodies, and can have no natural wants. There are, however, other considerations which would forbid the extension of this rule to the case before us. The city of Mobile is not located upon the creek; it is from three to five miles distant. To hold that a municipal corporation can, from the mere fact of owning land upon a watercourse, acquire the right to divert the water in sufficient quantities to supply the domestic wants of its inhabitants, residing at a distance of from three to five miles, to the injury of other proprietors, would be unreasonable in itself and unjust to those who have an equal right to participate in the benefits of the stream.” (Stein v. Burden, 24 Ala. 130. See also Garwood v. N. Y. C. & H. R. Rld. Co., N. Y. Court of Appeals, 23 Alb. L. J., p. 215.)

A final matter, applicable solely to the well, and the most serious and difficult question in the case, is, that as the water enters only by percolation through the soil, the law will permit no inquiry into the sources of supply, or the effect of such percolation upon the quantity of water in any other tract-of land. It is doubtless true, as a general proposition, that the law takes no cognizance of percolating water. The impossibility of proving with reasonable certainty the sources of supply, is a strong if not the principal reason therefor. But upon whatever founded, the doctrine may be considered settled. Chief Justice Chapman, in delivering the opinion of the court in the ease of Wilson v. New Bedford, 108 Mass. 265, says: “The percolating water belongs to the owner of the land as much as the land itself, or the rocks and stones in it; therefore he may dig a well, and make it very large, and draw up the water by machinery or otherwise, in such quantities as to supply aqueducts for a large neighborhood. He may thus take the water which would otherwise pass by natural percolation into his neighbor’s land, and draw off the water which may come by natural percolation from his neighbor’s land.” See also the following cases: Acton v. Blundell, 12 M. & W. 352; Chasemore v. Richards, 7 H. L. Cas. 349; Wheatley v. Baugh, 25 Pa. St. 528; Ellis v. Duncan, 21 Barb. 230; Greenleaf v. Francis, 18 Pick. 117; Brown v. Illins, 27 Conn. 84; Chase v. Silverstone, 62 Me. 175; Chatfield v. Wilson, 38 Vt. 49; Frazier v. Brown, 12 Ohio St. 294; Roath v. Driscoll, 20 Conn. 532. Does this case furnish an exception to or limitation upon this doctrine?

It is also a general proposition, that a man may not do indirectly what he may not do directly. Unquestionably, a party may not run pipes into plaintiff’s mill-pond, or dig a channel to it and thus divert the water. May he accomplish the same result by digging a well upon the very banks, and so near thereto that the water oozes out from the pond into the well, and be beyond the reach of the law so long as he keeps a wall of earth between the well and the pond ? If this were recognized as law, protection to the owners of water power would rest on slender foundations. Often the banks of a stream are composed of very porous soil; or it may be there is, as in this case, a bed of gravel through which the water runs as through a sieve. Is the owner of the pond, then, at the mercy of any one who, avoiding the more direct and public method of pipe or channel, resorts to the equally effective means of adjacent wells? And if a well on the very bank would be restrained, may the same result be accomplished by digging one a few feet off? It would seem as though but one answer could in justice be given — that the owner of an established power is entitled to protection against any subtraction therefrom, whether sought to be accomplished by direct or indirect methods. We are aware that the further the well is removed from the bank of the stream, the more difficult and uncertain the evidence of the abstraction of the water; but when the fact of the abstraction is proved, it would seem that relief must necessarily follow. It is a matter of common knowledge that water, passing through but a narrow passage and finding at the end an outlet, soon increases by its flow the size of the passage; and thus, that which at first was but a mere trickle, becomes in time a sizable stream, and the abstraction which at first was limited, soon increases, until it may eventuate in a general exhaustion. Of course, the mere" proximity of the well to the stream does not prove the abstraction— there may be other and subterranean sources of supply, and he who alleges the abstraction has the burden of proof; and if he fails to establish the fact, he fails to show a right to reliei, and if he asks compensation for the abstraction, he can recover only for the amount which he is able to prove. Here the fact is found, and upon that finding plaintiff is entitled to relief.

Authorities, as was stated in the outset of this opinion, are. few; but those most directly in point sustain the views we have expressed. The case of Dickinson v. Canal Co.,7 Exch. 280, was decided in 1852. In this case it appeared that defendant had dug a well, out of which it pumped water to supply its canal. The effect of this was to intercept water which theretofore percolated through the ground into the river Bul-bourne, and also to abstract from said river a portion of the water which had already entered into and become a part of the stream. The plaintiffs, the owners of certain mills propelled by -the water power of said river, brought their action, and it was held maintainable on both grounds. In 1859, the case of Chasemore v. Richards was decided in the house of lords. (7 House of Lords Cases, 348.) This case overrules Dickinson v. Canal Co., so far as respects the interception of water percolating toward and into the stream, but leaves unquestioned the other ground, that of the abstraction of water_ from a natural stream. The facts were these: Plaintiff was the owner of a mill propelled by the water power of the river Wandle. The defendant, for the purpose of supplying the town of Croydon with water, dug a large well on ground belonging to the town, and about a quarter of a mile from the river. Out' of this from 500,000 to 600,000 gallons were daily pumped. The effect of this was to intercept underground water in the vicinity of the well, which theretofore had percolated through the soil toward and into the river Wandle, and thus diminished the supply of water and amount of power in the river. It was held that the action could not be maintained. The opinions announced in that case (and five are reported) are interesting and instructive. All concurred in the judgment, though Lord Wensleydale evidently did so with reluctance. All rest upon the general thought that there is so much uncertainty as to the direction and flow of underground water which has not assumed the form of a distinct, definite subterranean stream, that to attempt to apply the 'settled law as to surface streams would cause great confusion, and tend to prevent drainage and improvement of lands. There is in some of the opinions a distinct concession that no natural, definite stream, surface or subterranean, can be interfered with. ' The chancellor, Lord Chelmsford, says: “I agree with the observation of Lord Chancellor, Baron Pollock, in Dickinson v. Grand Junction Canal Co., ‘ that if the course of a subterranean stream were well known, as is the ease with many which sink underground, pursue for a short space a subterraneous course, and then emerge again, it never could be contended that the owner of the soil under which the stream flowed could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover had the stream been wholly above ground/ ” And certainly nowhere in the case is any attempt made to deny protection to any established and definite natural stream against the abstraction, direct or indirect, of its waters. In the subsequent case of Grand Junction Canal Co. v. Shegar, reported in 6 Ch. Ap. Cases, 487, it appeared that a local board of health had by its drains drawn off a subterranean spring, and also water from a running stream. In sustaining an injunction, Lord Hatherly said: “I do not think Chasemore v. Richards has decided more than this, that you have a right to all the water which you can draw from the different sources which may percolate underground ; but that has no bearing at all on what you may do with regard to water which is in a defined channel, and which you are not to touch. If you cannot get at the underground water without touching the water in a defined surface channel, I think you cannot get at it at all. You are not, by your operations, or by any act of yours, to diminish the water which runs in the defined channel, because that is not only for yourself, but for your neighbors also, who can have a clear right to use it and have it come to them unimpaired in quality and undiminished in quantity.”

The three cases of Bailey v. Woburn, 126 Mass. 416, Ætna Mills v. Waltham, 126 Mass. 422, and Ætna Mills v. Brookline, 127 Mass. 69, are instructive. In each of these cases the town had constructed a water gallery near the banks of the river. In the first case it appeared that connection between the gallery and the river was made by pipes and conduits; in the second, the water passed into the gallery through an artificial embankment, while in the third, it simply passed in by percolation through the natural soil. In each case this was adjudged a taking of the water of the river, for which damages could be recovered under the statute. In the last case the court notices the distinction between appropriating by well or otherwise that which is merely underground and percolating water, and diverting from a natural stream by means of an adjacent well, and clearly intimates that the last cannot be.permitted.

In the case of The Village of Delhi v. Youmans, 45 N. Y. 362, the defendant dug a well on his own land, whereby water was drawn away from plaintiff’s land. Peckham, J., for the court says: “If the action of the defendant took the water away from the springs after it had reached there, after it had become part of an open running stream, then this action would lie.”

In Pixley v. Clark, 35 N. Y. 520, a different question was presented, but one which shows that the percolation of water may be the subject of judicial inquiry, notwithstanding the difficulties in the matter of proof. In that case the defendant built a dam across a stream, which raised the water so that it percolated through the natural bank and saturated an adjacent field, and it was held that he was liable for the damages. See also Rawstron v. Taylor, 33 Eng. L. & Eq. 428; Broadbent v. Ramsbotham, 34 Eng. L. & Eq. 553; Goddard on Easements, 248; Washburn on Easements, 449; Dexter v. Providence Aqueduct Co., 1 Story, 387; Col. Silver Mining Co. v. Virginia & Gold Hill Water Co., 1 Sawyer, 470; Bassett v. Salisbury Manfg. Co., 43 N. H. 569; Wheatley v. Baugh, 25 Pa. St. 528; Whetstone v. Bowser, 29 Pa. St. 59.

Our conclusion then is, that the judgment of the district court was correct, and must be sustained. Before the city can destroy or ^diminish the water power of Mr. Soden, it must make compensation. We think the statute under which the city was proceeding broad enough to include the condemnation of water; so that, if the parties cannot agree, proceedings may be had for a condemnation, and in such proceedings plaintiff can recover compensation for such injuries as he is able to prove.

The judgment will be affirmed.

All the Justices concurring.