Patten v. Marden

14 Wis. 473

Opinion

By the Court,

Cole, J.

We concur in the main in the principles and doctrine laid down by the circuit court in the clear and able opinion given on sustaining the demurrer to the complaint in this ease. In one respect the circuit court may have fallen into an error, in supposing that even if the complaint showed an unauthorized obstruction and detention of the waters of the stream by the respondents in their mill and race, it would not then present a case for an injunction. The court seemed to think that the only remedy the appellant would have would be an action for damages sustained in consequence of such unauthorized detention of the waters, but that no injunction would be granted to prevent in future the unlawful act. And the reason assigned was, that it would be difficult to frame an injunction which would effectually restrain the respondents from passing from an to an unauthorized detention of the waters. But however difficult it might be to frame an injunction to meet the emergency of the case, still if the complaint set forth a state of facts calling for the interposition of a court of equity, we'are clearly of the opinion that an injunction should be granted to protect the rights of the appellant from violation and invasion. Eor otherwise the party would be compelled constantly to resort to his action for damages sustained by him, and it is apparent that such a remedy would be entirely inadequate to prevent and redress the injury. Such an unlawful detention of the waters by one proprietor might occasion an irreparable injury to another below, and furnish a fit case for the interposition of a court .of equity to grant an injunction. But we fully agree with the circuit court in the opinion that the complaint as it now stands presents no case for an injunction, and therefore a demurrer to it on that ground was properly sustained.

The complaint evidently proceeds upon the theory that the rights and privileges of the respondents to the beneficial use and enjoyment of the water had been to some extent abridged and made subservient to those of the appellant by virtue of the grant contained in the coveyance from Mapes to Ford, the appellant’s grantor. But this we consider a mistaken view of the effect of that conveyance. It will be borne in mind that Mapes was the owner of the flouring mill, head-race and water power upon the Ripon mill lot, and that after conveying to Ford a small tract of land below his mill, he made a further grant in the following words : “ together with all the water power on said mill lot below the said Ripon mill and clear of the wheel thereof, said Ford having full access to the said race for all necessary purposes and said Mapes covenanted in said deed that he would “ in no case out of its then said artificial channel turn the water, to the injury of said Ford or his assigns.” The wrongful act complained of is,- that the respondents have “ obstructed the water of said stream at the said race and in the said Ripon mill, above the mills and premises of the plaintiff, from day to day for a considerable portion of the time, whereby the plaintiff’s mill and machinery has not been able to run for want of sufficient water to propel the and he has for that reason lost great gains which he could otherwise have made and enjoyed, namely, the sum of one hundred dollars.”

These allegations of the complaint,' taken in connection with the clause in the conveyance from Mapes previously cited, disclose the grounds upon which the appellant bases his right to an injunction. He evidently supposes that by virtue of that conveyance, he has some superior right or title in the water power, or, in the language of. the circuit court, “ that he is entitled, as against the respondents, to have the waters of the stream flow through the héad-race to their mill, and through that mill to his mill and machinery below, with the same constancy and uniformity and in the same volume or quantity as they would flow if the respondents’ mill were not there and the water of the stream were not used in operating the same, and that any obstruction to the flow of the water through said head-race and mill, for using it in operating the mill, or for any other purpose, is an invasion of his rights.” We do not think the words of the grant will bear any such construction. Those words are definite and certain, and ought not to be so extended by construction as to deprive the gtantor, or those claiming under him, of the right to use and enjoy the water in his race and mill according to the clear and well settled rules of law upon this subject, independent of the grant. There is no reason for saying that the rights granted by this conveyance were intended to impair and qualify other rights reserved, and which belong to the grantor. The grant is of all the water power of the lot conveyed, below the said Ripon mill and clear of the wheel thereof accompanied with the right of access to the race for all necessary purposes. This is far from showing an intention to cede superior rights in the water power to the appellant, or to abridge or qualify those previously existing in the race above the mill, and in the mill itself. The grant plainly and clearly relates to the water power below the Eipon mill and clear of the wheel. From the language used in the conveyance, we infer that the appellant’s mill is situated on an channel below the Ripon mill, in such a manner as to use the water from the tail-race, as it is called. Obvious-jy p. wag ¿ght †;0 regular and uninterrupted flow of the water through the head-race — except as it might be lawfully obstructed for the free use of the Ripon mill — thence through the tail-race, that was intended to be conveyed by the deed of Mapes to Eord. We are unable to perceive that any other or greater right to the use of the water was conveyed, than would ordinarily pass to the owner of lands through which a stream flows, forming a water power thereon. Such being the effect of the conveyance, the parties are remitted to their rights as settled and determined by the principles of the common law. Tested by those principles the complaint does not show that the respondents have obstructed or detained the water further or longer than is absolutely necessary for the us'e and enjoyment of their mill. Neither party having a superior right, but both being entitled to the common use of the water, the question then is, Have the respondents unlawfully and improperly withheld the water from .the appellant’s mill ? Upon this point the law was laid down with great clearness and discrimination by the court in the case of Merrit vs. Brinkerhoff, 17 Johns., 306-321, where the court say: “ The common use of the water of a stream by persons having mills above, is frequently, if not generally, attended with damage and loss to the mills below; but that is incident to that common use, and, for the most part, unavoidable. If the injury is trivial, the law will not afford redress, because every person who builds a mill does it subject to this contingency. The person owning an upper mill on the same stream has a lawful right to use .the water, and may apply it in order to work his mills to the best advantage, subject, however, to this limitation, that if, in the exercise of this right and in consequence of it, the mills lower down the stream are rendered useless and unproductive, the law in that case will interpose and limit this common right, so that the owners of the lower mills shall enjoy a fair participationand if thereby the owners of the upper mill sustain a partial loss of business and profits, they cannot justly complain, for this rule requires of them no more than to conform to the principle upon wbicb 'their right is founded.” See also 3 Kent, 439 ; Angell on Watercourses, § 115 et seq.; Tyler vs. Wilkinson, 4 Mason, 397 ; Embrey vs. Owen, 4 Eng. Law & Eq., 466. Within these authorities we think the complaint in this case was defective in not stating a proper case for an injunction.

The order of the circuit court sustaining the demurrer is therefore affirmed.