« PreviousContinue »
of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence.
It is only therefore for an unreasonable and unauthorized use of this common benefit that an action will lie; for such an use it will; even, as the case above cited from the American reports shows, though there may be no actual damage to the plaintiff. In the part of Kent's Comnientaries to which we have referred, the law on this subject is most perspicuously stated, and it will be of advantage to cite it at length: “Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat), without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere, is the language of the law. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it. This is the clear and settled general doctrine on the subject, and all the difficulty that arises consists in the application. The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water; nor can he, by dams or any obstruction, cause the water injuriously to overflow the grounds and springs of his neighbor above him. Streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned ; and there will, no doubt, inevitably be, in the exercise of a 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 upon 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 diminish or affect the application of the water by the proprietors above or below on the stream. He must not shut the gates of his dams and detain the water unreasonably, or let it off in unusual quantities, to the annoyance of his neighbor. Pothier lay's down the rule very strictly, that the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below. But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned, otherwise rivers and streams of water would become utterly useless, either for manufacturing or agricultural purposes. The just and equitable principle is given in the Roman law: Sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat.”
In America, as may be inferred from this extract, and as is stated in the judgment of the Court of Exchequer in Wood v. Waud, a very liberal use of the stream for the purposes of irrigation and for carrying on manufactures is permitted. So in France, where every one may rise it " en bon père de famille, et pour son plus grand avantage:” Code Civil, art. 640, note a, by Pailliet. He may make trenches to conduct the water to irrigate his land, if he returns it with no other loss than that which irrigation caused. In the above-cited case of Wood v. Waud, it was observed, that in England it is not clear that an user to that extent would be permitted ; nor do we mean to lay down that it would in every case be deemed a lawful enjoyment of the water, if it was again returned into the river with no other diminution than that which was caused by the absorption and evaporation attendant on the irrigation of the lands of the adjoining proprietor. This must depend upon the circumstances of each case. On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose; on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream, in order to water lis garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application ; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not; and in this we think, that as the irrigation took place, not continuously, but only at intermittent periods, when the river was full, and
was done thereby to the working of the mill, and the diminution of the water was not perceptible to the eye, it was such a reasonable use of the water as not to be prohibited by law. If so, it was no infringement of the plaintiffs' right at all; it was only the exercise of an equal right which the defendant had to the usufruct of the
1 See his Manuel de Droit Français. Paris, 1838.
We are therefore of opinion that there has been no injury in fact or law in this case, and consequently that the verdict for the defendant ought not to be disturbed.
The same law will be found to be applicable to the corresponding rights to air and light. These also are bestowed by Providence for the common benefit of man; and so long as the reasonable use by one man of this common property does not do actual and perceptible damage to the right of another to the similar use of it, no action will lie. A man cannot occupy a dwelling and consume fuel in it for domestic purposes, without its in some degree impairing the natural purity of the air; he cannot erect a building, or plant a tree, near the house of another, without in some degree diminishing the quantity of light he enjoy's; but such small interruptions give no right of action ; for they are necessary incidents to the common enjoyment by all.
Rule discharged, the defendant consenting that the verdict on the fourth, seventh, and tenth issues be entered for the plaintiffs."
BROADBENT v. RAMSBOTHAM,
(Reported 11 Ex. 602.) Action for diverting water from a mill stream belonging to the plaintiff. A verdict was entered for the plaintiff by consent, subject to a special case to be settled by an arbitrator. The case sufficiently appears in the opinion.”
1 " It may be conceived, that if a field be covered with houses, the ordinary use by the inhabitants might sensibly diminish the stream; yet no action would, we apprehend, lie, any more than if the air was rendered less pure and healthy by the increase of inhabi. tants in the neighborhood, and by the smoke issuing from the chimneys of an increased number of houses.” Per POLLOCK, C. B., in Wood v. Waud, 3 Ex. 748, 781 (1849).
"By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land ; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up the stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury.” Per LORD KingsDOWN, in Miner v. Gilmour, Moore, P. C. 131, 156.
In Sandwich v. Gt. N. R. Co., 10 Ch. D. 707, Bacon, V. C., held that a railroad company whose track crossed a stream, and which was a riparian proprietor, could take water from the stream for its locomotive engines.
2 This statement is substituted for that in the report.
Knowles (R. Hall and Pickering with him), for the plaintiff.
Cur. adv. vult. , The judgment of the court was delivered by
ALDERSON, B. In this case we have been relieved from the consideration of the several pleas justifying the abstraction of the water under the provisions of the Huddersfield Waterworks Acts, by the admission very properly made by Mr. Cowling on this argument, that he could not support them; and the questions are now reduced to this one alone, whether the defendant Atkinson has improperly diverted, by the acts which he has undoubtedly done, four sources of water which have, as the plaintiff contends, supplied the Longwood Brook on which his mill is situated. There are three of these included in the first count of the declaration, namely, a pond of six and a half acres, a swamp of about sixteen perches, and a well. The fourth is a well, included in the second count. There is no doubt that in the course of the drainage these sources of water have been diverted, and now fall into the drain made by the defendant. The arbitrator describes them thus: “ And, first, as to the six and a half acre pond,” he says, “ from the sides of the hill called Pighill Wood and Pendle Hill the natural flow of water is northward till it reaches Longwood Brook, and all water passing over the lands there naturally runs down towards and into Longwood Brook. Above Pighill Wood a shallow basin is formed by the land slips which bare from time to time occurred, and the water collected in it, if it exceeds the depth of about three feet above the lowest point of the basin, escapes northward and runs down over the surface of the hill towards Longwood Brook. The rest sinks into the ground or remains as a pond in the hollow thus naturally created by the form of the land.” We think that this water, both that which overflows and that which sinks in, belongs absolutely to the defendant, on whose land it arises, and is not affected by any right of the plaintiff. The right to the natural flow of the water in Longwood Brook undoubtedly belongs to the plaintiff'; hat we think that this right cannot extend further than a right to the flow in the brook itself, and to the water flowing in some defined natural channel, either subterranean or on the surface, communicating directly with the brook itself. No doubt, all the water falling from heaven and shed upon the surface of a hill, at the foot of which a brook Funs, must, by the natural force of gravity, find its way to the bottom, and so into the brook ; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please and appropriating it. He cannot, it is true, do so if the water has arrived at and is flowing in some natural channel already formed. But he has a perfect right to appropriate it before it arrives at such a channel. In this case a basin is formed in his land, which belongs to him, and the water from the heavens lodges there. There is here no watercourse at all
. If this water exceeds a certain depth it escapes at the lowest point, and squanders itself (so to speak) over the adjoining surface.
The owner of the soil has clearly a right to drain this shallow pond and to get rid of the inconvenience at his own pleasure. We have no doubt, therefore, that, as to this source of feeding the Longwood Brook, the plaintiff has no title. The same may be said of the swamp of sixteen perches, which is merely like a sponge fixed (so to speak) on the side of a hill, and full of water. If this overflows it creates a sort of marshy margin adjoining; and there is apparently no course of water, either into or out of it, on the surface of the land. As to the subterranean courses communicating with this swamp, which must no doubt exist, it is sufficient to say, that they are not traceable, so as to show that the water passing along them ever reaches Longwood Brook. This falls, therefore, into the same category, or rather is a stronger instance of the rule before mentioned. The well at this point is also in simili
It is not found in the case that it has any subterraneous communication with Longwood Brook. Indeed, if it had any such communication (inasmuch as the brook seems far below the bottom of this shallow well), the communication would probably draw off all the water in it. It is sufficient, however, to say, that it is not found so to communicate. But no doubt, when this well overflows, the overflow pours itself over and down the declivity towards the brook. But this gives no right to the water, as we have already shown in the case of the six and a half acre pond. These are the three grounds of the plaintiff's complaint in the first count of his declaration. They all seem to us to fail.
We come now to the second count. The stream here said to be diverted is one in which, on the side of a hill, a stream wells out from the ground at a depth of about two feet, and is received into a basin of about three feet square, and used as a watering place for cattle. This stream in dry seasons was somewhat scanty, so as to compel the cattle at those periods to go down on their knees to reach it. At other times it overflowed its basin, and then it ran down part of the way in an open and, as we presume, artificial ditch, for it is described as a ditch beside a hedge. The water lower in its course flows on in a small channel worked by the water and over swampy places where the cattle had trodden in the soil. Still lower down, after passing through one or two fields, it arrives in what is described as a natural valley, and after this it would have probably communicated with Longwood Brook, but for its diversion into the Mill Owners' Compensation Reservoir, which is in fact the same thing.
There is here also, we think, nothing found to take the water from this well out of the same class as the three former cases. We must consider the stream in its beginning, not after it has arrived in the natural valley communicating with the reservoir. If the water, after haring arrived there, had been then diverted, the case would be different. The water falling from heaven on the side of a hill, we have before said, may be appropriated, though not after it has once arrived at a defined natural watercourse; and here the question is, whether this water in its