Wadsworth v. Tillotson

15 Conn. 366

• Court: Supreme Court of Connecticut
• Decided: June 15, 1843
• Status: Published

Opinion

Storrs, J.

The charge of the judge below went on the ground that the admitted acts of the defendant, in taking from the spring on her land a greater quantity of water than she needed for domestic and culinary purposes, and watering her cattle, in such a manner that the surplus was not returned to the natural channel of the stream running from the spring, before it reached the plaintiff’s land, amounted to such a diversion of the water as constituted an infringement or violation of the rights of the plaintiff, as owner of the land below, to have the water run in its accustomed course; and that a continuance of such diversion, for the period of fifteen years, with the acquiescence of the plaintiff, would confer on the defendant what is termed a prescriptive right so to divert the water; and that, as the plaintiff’s right to the use of such surplus ■would be, thereby barred, she might maintain this action for the vindication and preservation of her rights, although she had suffered no sensible or specific damage, by such acts of the defendant.

The result to which we have come, on the other part of the caso, makes it unnecessary to examine the question, whether, if the court were correct in considering the conduct oí the defendant an infraction of the legal rights of the plaintiff, the latter could sustain this action, without showing that she had suffered some actual damage thereby. The decisions on this subject are not uniform, and it may perhaps admit of a question, on which side is the weight of authority. Bealy v. Shaw, 6 East, 208. Hodson v. Todd, 4 Term Rep. 71. Crooker v. Bragg, 10 Wend. 260. 264., 5. Fuller v. Acker, 1 Hill, 487. Bolivar Manufacturing Company v. Neponset Manufacturing Company, 16 Pick. 241. 247. Chapman v. Thames Manufacturing Company, 13 Conn. Rep. 269. Mason v. Hill & al., 3 B. & Adol. 304. (23 E. C. L. 76.) S. C. 5 B. & Adol 1. (27 E. C. L. 11.) Williams v. Morland, 2 B. & Cres. 910. (9 E. C. L. 269.) 2 Metc. 469. 470. 1 Sim. & Stu. 190.

The propriety of that part of the charge, which assumed, that the said acts of the defendant amounted to such a diversion of the water as constituted, necessarily, a violation of the rights of the plaintiff, depends, of course, on what were the rights of the parties, and the character of the acts of the defendant.

Every proprietor of land, through which a natural watercourse runs, has an equal right to the use of the water, for every useful purpose to which it can be applied, as it is wont to run, without diminution or alteration. This right is not an easement or appurtenance ; but is inseparably annexed to the soil, and is parcel of the land itself. Consequently, no proprietor has the right to use the water to the prejudice of any other proprietor above or below him, unless he has acquired a right to use the water in some peculiar manner, and differently from what he would be entitled to do, as mere riparian proprietor ; which he may do, by an actual grant or license from the proprietor affected by his operations, or an uninterrupted enjoyment for such a length of time as would afford a conclusive presumption of a grant, which, in this state, is fifteen years. But whatever may be the rights of any proprietor, or however acquired, it must be exercised in a reasonable manner, and so as not unnecessarily' to injure the rights of others. Twiss v. Baldwin, 9 Conn. Rep. 291.

Each of the parties, in this case, was entitled to those rights in the water flowing from the spring in question, which are annexed to land through which runs a natural watercourse ; it being conceded, on the trial, that no such use had been made of said spring, or the water flowing therefrom, as to vary the natural riparian rights of the parties thereto. The defendant, therefore, as proprietor of the land on which the spring was, had the undoubted right to use the water of it> for the purposes for which she used it, namely, for her domestic and culinary purposes, and watering her cattle. This has not been questioned. The question then, is, whether she exercised this right in an improper manner, or so as to violate the rights of the plaintiff.

The ground, on which the plaintiff claims, that the defendant is liable for a diversion of the water, is, that the latter, by means °f ai> artificial aqueduct from the spring to her house barn, took more water from the spring than was needed for the above purposes, and that the surplus was not returned tjle S{ream before it reached the plaintiff’s land, but was suffered to run off, and either irrigate the defendant’s land, or be lost. The water was thus allowed to escape, by flowing constantly through small apertures, at said house and barn, in order to keep the water from freezing in winter, and becoming impure in summer; and it must be here considered, that for those purposes, it was necessary that it should be kept thus running. If these acts did not necessarily constitute an injurious diversion of the stream, the claim of the plaintiff fails.

Although some stress has been laid on the circumstance that the water was conducted to the defendant’s house and barn, by means of an artificial aqueduct, which, by its construction, rendered it necessary that a portion of the water should be lost, in order to preserve the remainder from the effects of stagnation, — as if there were something in the mode of obtaining the water adopted in this instance, which was unlawful, — it is plain, that the defendant, having a right to use the water, for the purposes for which she did use it, had, by consequence, a right to do so, by such means as were suitable for that purpose. If in doing so, she does not abuse her right of using the water, and inflicts on the plaintiff an injury, by unnecessarily depriving her of the water which would otherwise come to her land ; if she appropriate to herself only the proportion of the water, to which she is fairly entitledit is as immaterial to the plaintiff what means she adopts for that purpose, as it would be, if she should, by an unreasonable exercise of her rights, inflict an injury on the plaintiff. The liability of the party depends rather on the result, than the means by which it is produced. And the mode taken in order to obtain the benefit of the water, can be no otherwise important, than as it may be evidential of the quantity taken, or some other circumstance attending it, which may shed light on the main enquiry, whether the defendant has made a proper use of her rights. For most of the purposes for which water is needed, it is applied, and necessarily so, by artificial means of some description; and in far the greatest proportion of cases, where questions have arisen on this subject, it appears that it has been appropriated, by means of dams, sluices, conduits, or other artificial works ; but no argument has ever been attempted to be drawn merely from any such mode of appropriation.

It is however claimed, that here has been an improper diversion or waste of the water, by reason of the surplus not being returned to the natural channel of the stream. Now, it is obvious, that there is scarcely any mode whatever, whether artificial or not, by which water can be beneficially used, which would not be necessarily attended with some degree of loss. It is not practicable for every particle of it, which is not used or consumed, to be returned to the original stream. It does not, however, necessarily follow, that in such cases there has been an improper use of one’s own rights, or an infringement of the rights of others. The principles on this subject, as they are generally, and with substantial accuracy, stated in the books, that each proprietor through whose land the stream runs, is entitled to its use, as it is wont to run (ut currcre solebaf) without diminution or alteration; and, that the water cannot be diverted, in whole or part, but must be returned, after it is used, to its ordinary channel, — are not to be understood so literally as to prevent that small, or unessential, or insensible diminution, variation or loss of the water, which is necessarily consequent upon the beneficial and proper enjoyment of it; for such a strictness of construction would be wholly incompatible with the nature of the element, and most of the important purposes for which it was created; and indeed,in most cases, would prevent its beneficial enjoyment at all. As remarked by chancellor Kent, “There will, no doubt, inevitably be, in the exercise of the perfect right to the use of the water, some evaporation and decrease of it,, and some variations in the weight and velocity of the current. But de minimis non curat lex; and a right of action by the proprietor below, would not necessarily flow from such consequences, but would depend on the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party, by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially dimmish or affect, the application of the water, by the proprietors below on the stream.” 3 Kent 439. In Palmer v. Milligan, 3 Caines 312. Spencer J. said, the -act of erecting a dam, by the defendants, was a lawful act; and though in its consequences slightly injurious to the plaintiffs, they are remediless. The erection of dams on all rivers is injurious,in some degree, to those who have mills on the same stream below, in withholding the water, and by a greater degree of evaporation in consequence of an increased surface ; yet such injuries, I believe, were never thought to afford a ground of action. And in Platt v. Johnson, 15 Johns. Rep. 218. Judge Thompson says, Although some conflict may be produced in the use and enjoyment of such rights, it cannot be considered, in judgment of law, an infringement of the right. If it becomes less useful to one, in consequence of the enjoyment by another, it is by accident, and because it is dependent on the exercise of the equal rights of others.’’'

The loss of water, which is merely incidental to the proper use and enjoyment of it, cannot therefore be considered an injurious diversion of the stream. The increased evaporation, produced by the exposure of a larger surface, by means of the erection of a dam, would be, in a loose sense of the term, a diversion of the water; but it is not a diversion, in the technical sense in which it is used, when it is intended to denote that peculiar species of injury. The constant escape of the water from the defendant’s penstocks, was indeed literally a diversion of a portion of the stream ; but the occurrence of the loss by this means, might, notwithstanding, be merely incidental to the use of the water, and the particular purposes for which it was used, in this instance, by the defendant, and should be governed by no other rule than what would apply to an incidental escape, by any other means. If, therefore, the defendant has not made an unreasonable use of the water; if she has used it with a prudent and cautious regard to the rights of the plaintiff; she is not liable, although in so doing there may have been some loss of the water. If, on the other hand, such use was unreasonable, and, from a want of such prudence and caution, the water was unnecessarily wasted, the defendant is answerable for the consequences.

Nor-is the case, in our opinion, varied, by the circumstance, that the water was appropriated, by the defendant, to her use, at a place on her premises lower than where the stream, in its natural course, enters the land of the plaintiff. The privilege which the defendant has of using the water, is a right - "which is annexed to and parcel of her land bordering on the stream ; and we know of no principle, by which such use must be confined to that portion of land only, which is on a higher level than the place where the'plaintiff’s land receives the stream, or is restricted by any other limitations than those before mentioned.

There being, therefore, nothing wrong in using the water, by means of an artificial aqueduct; and the defendant not being necessarily liable, because a portion of the water not used was not returned to its ordinary channel; the question was, whether she used the water in a proper and reasonable manner. We think, therefore, notwithstanding the facts admitted by the defendant, she should have had the benefit of having those which she claimed to have proved submitted to the jury, with a view of ascertaining whether she was obnoxious to the charge of not having done so.

A new trial is, therefore, advised.

In this opinion the other Judges concurred.

New trial to be granted.