Vliet v. Sherwood

35 Wis. 229

Opinion

Cole, J.

The plaintiff rests her case entirely upon the prescriptive right which she claims she has acquired to the flow of the water in the stream, from the defendant’s reservoir to her mill, in the same manner it has been accustomed to flow for the past twenty years. This is the foundation of the action. She does not base her claim to the relief asked upon the ground that she as riparian owner is entitled to the natural flow of the water through her lands, which is interfered with by the defendant; nor upon the ground that the defendant does not permit as much water to pass his dam as would naturally flow in the stream were there no dam maintained by him. There is, it is true, an allegation that the defendant wrongfully, unjustly, unlawfully and unnecessarily detains and withholds the waters of the lake from her mill; but this averment, in the connection in which it is used, evidently refers to the fact that the defendant does not let the water flow from the reservoir which he built and has maintained, in the same quantities he was accustomed to do when he was operating his mills.

The whole case, therefore, would seem to be narrowed down to the rights of the plaintiff arising upon these facts:

The defendant and his grantors, in 1845 or 1846, erected a dam on the outlet of Green Lake, about a half mile below the lake, for the purpose of creating a water power by ponding the waters of the lake, and have from time to time built mills and machinery thereon, which were propelled by the power thus created. When all the mills and machinery which were erected on this power which the defendant 'created and owned, were in operation, it required, to propel the same, two thous- and square inches of water taken from the bottom of the dam or head; and from the erection of the dam up to the 16th day of September last, it is alleged that there has passed on an average daily through the defendant’s gates, and through the leakages of his gates and dam, what would be equivalent to six hundred square inches of water taken from the bottom of his head in a continual flow.

The plaintiff and those under whom she claims have for upwards of twenty years been the owners of a grist and flouring mill situated on the outlet of Green Lake, about three-fourths of a mile below the dam and mills of the defendant, and she has used the waters as they flowed to her mill through the gates of the defendant’s mill and the leakages of his gates and dam, to propel her mill; and she has been enabled to run her mill to its fullest capacity, during the twenty years, with one-half the water used by the defendant in operating his mills and machinery.

The defendant’s mills and machinery erected on his powér have been destroyed by fire, or have gone to decay, except a planing mill, which is seldom used, and when used it does not pass more than half water enough to run one run of stone in the plaintiff’s mill; and since the burning of the defendant’s mill, water only sufficient to enable the plaintiff to run one run of stone one-eighth of the time has been permitted by the defendant to pass his dam or reservoir to the plaintiff’s mill, and this in such irregular quantities and at such irregular times that the plaintiff is not able to do much grinding, as she has to use the water in her pond, which she exhausts in a short time, and then has to wait until the pond again fills from the water flowing down the stream. It is also alleged that the defendant, since the burning of his mill, has taken extreme pains to tighten all the leaks in his dam, so that but little in that way comes to the plaintiff’s mill; but, as already remarked, it is not claimed that be does not permit as much water to pass his dam as would flow in the natural stream had he no dam or reservoir upon his land. The plaintiff alleges that she has suffered great loss and damage by reason of the defendant’s withholding the waters in his reservoir, and that she has repeatedly requested him to let them flow to her mill as they had theretofore flowed, and as he has always permitted them to flow for the past twenty years whenever demanded by her or bjr those in the ownership of her mill, so as to supply the immediate wants of the mill.

These are, in substance, the material allegations of the complaint upon which the plaintiff’s prescriptive right to have the waters flow from the reservoir to her mill is founded. And the question is, Do they show that the plaintiff has acquired the right by prescription to the flow of the waters from defendant’s reservoir to her mill in the same manner and in like quantities as they were accustomed to flow when the defendant’s mill and machinery were in full operation ? It seems to us not. If she has acquired that prescriptive right, it grows out of the fact that the defendant has created a reservoir upon his own land which was filled by the waters of the lake and which he has maintained for more than twenty years, during which time he has managed and controlled the water in the reservoir for the operation of his mills, and has discharged it from his dam and gates in greater or smaller quantities and at other times than it would naturally flow down the stream, which the plaintiff has had the benefit of, and has used for the purposes of working her own mill. But in this she has exercised no right, nor made any use of the water, hostile to the right of the defendant. She appropriated and used the water as it flowed from the defendant’s dam after he had used it for the operation of his own mills, or had all the beneficial use and enjoyment of it which water was capable of affording. A right founded upon prescription must be a right which has been claimed and maintained in hostility to the right of the person against whom it is set up. It is said that the right of the plaintiff to have the water flow from the defendant’s reservoir to her mill as it has flowed for twenty years, is an incorporeal hereditament, or an easement as defined in the law. But it is of the essence of an easement that it exists for the benefit of the dominant tenement alone. Mason v. Shrewsbury, etc., R'y Co., Law Reports, 6 Queen’s Bench, 577. Says Bigelow, C. J., in delivering the opinion of the court in Brace v. Yale, 10 Alien, 441-444, “It is doubtless true that to establish the presumption of a right or servitude or easement over the 'land of another, ora modification or change of corporeal her-editament thereto belonging, it must appear that the use or enjoyment has not been permissive only. It must be shown to have been under a claim of right, and inconsistent with or contrary to the interests and adverse to the title of the original owner of the land; that is, it must have been such a use that it is difficult or impossible to account for it except on the presumption of a grant from the original owner. If the use or enjoyment has been consistent with the existence of the right or title of the latter, no such presumption arises. Thus, the erection of a dam across a stream of water to raise a head for the purpose of driving wheels and machinery, in a mill, and the cutting of canals, sluices and water-ways to conduct, apply and discharge the water, although they may change in some degree the natural flow of the stream and cause a temporary obstruction to the passage of the water, yet, if they do not essentially affect the reasonable use of the current by riparian proprietors above and below for similar purposes, would not be inconsistent with the rights of such proprietors in the stream, and could not be deemed to confer any right or take away any title or privilege. So, too, the erection of a dam for the purpose of forming a reservoir by flowing a large tract of land, by which the water would be obstructed only until such reservoir should be filled, and would then resume its natural flow, could not be deemed to be adverse or inconsistent with, the rights of other proprietors below on the same stream. The obstruction in such case would be only slight and temporary, and would afford no ground for a presumption that any right of others to the use of the stream had been thereby impaired or lost. Pitts v. Lancaster Mills, 13 Met., 156.” These remarks, as well as the whole discussion in this case as found in 4 Allen, 393; 97 Mass., 18; and 99 id., 488, are very instructive, and have a strong bearing upon the question we are considering. See also Gould v. Boston Dock Co., 13 Gray, 442; Felton v. Simpson, 11 Iredell’s Law, 84.

In this case the plaintiff doubtless derived incidentally a benefit or advantage from the erection of the reservoir and the ponding of the waters in the lake, so long as the defendant operated his mills on the power he had created. But her use of the water after he had discharged it from his gates and dam was not inconsistent with or adverse to the use which he made of it while working his machinery. Each was merely exercising the right of a riparian proprietor in the use of the water, and in a manner consistent with the equal and common right of others. Suppose the defendant’s dam or reservoir should be washed away and destroyed, will it be claimed that the plaintiff has the right to insist upon his rebuilding it for her benefit ? Has she acquired the right to a continuance of the reservoir and the incidental advantages arising to her from it, so that the owner cannot abandon it ? If she has acquired a prescriptive right to be supplied with waters from the reservoir “ in the same manner, at the same times and in like quantities as they have so flowed to her said mill for the past twenty years and upwards,” the defendant cannot abandon the work, but must always keep up the reservoir for her benefit. For it is a fundamental principle that an easement exists for the benefit of the dominant owner alone. The plaintiff unquestion ■ ably has the right to the flow of the water, undiminished in quantity, down the stream in its natural current to her mill. She does not complain that she is deprived of that right. But her claim, as forcibly stated by the defendant’s counsel, comes to this: If a party constructs a reservoir upon a stream for his own convenience and use, and maintains it for more than twenty years, he is bound in law to maintain it forever after-wards for the benefit of the lower mill owners.. It seems to us this claim cannot be sustained upon the authorities in regard to the rights of riparian proprietors. "We see no fact in the complaint which gives the plaintiff the right to object if the defendant sees fit to abandon the reservoir, should it become onerous for him to maintain it, or should it cease to be beneficial to-him.

There is an allegation in the complaint that the defendant, whenever the demand was made, has opened his gates and permitted the waters of the lake to flow to the plaintiff’s mill to supply the immediate wants thereof, and that such a demand has been repeatedly made during the last twenty years. But this does not show that the defendant supplied the water from the reservoir as of right, and because the plaintiff was rightfully entitled to it. The defendant might have permitted the water to flow as demanded through a spirit of accommodation, and without intending to acknowledge any right on the part of the plaintiff. From so equivocal an act we cannot presume an adverse user or enjoyment.

. For these reasons we think the demurrer to the complaint should have been sustained.

By the Court. — The order overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.