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which the right of the party may be injured, it is a good cause of action, although no actual damage be sustained. In Hodson v. Todd, 4 T. R., 71, 73, the court decided the case upon the very distinction which is most material to the present case, that if a commoner might not maintain an action for an injury, however small, to his right, a mere wrong-doer might, by repeated torts, in the course of time establish evidence of a right of common. The same principle was afterwards recognized by Mr. Justice Grose in Pindar v. Wadsworth, 2 East, 162. But the case of Bower v. Hill, 1 Bing. New Cases, 549, fully sustains the doctrine for which I contend; and, indeed, a stronger case of its application cannot well be imagined. There the court held that a per

a manent obstruction to a navigable drain of the plaintiff's, though choked up with mud for sixteen years, was actionable, although the plaintiff received no immediate damage thereby; for if acquiesced in for twenty years it would become evidence of a renunciation and abandonment of the right of way. The case of Blanchard v. Baker, 8 Greenl., 253, 268, recognizes the same doctrine in the most full and satisfactory manner, and is directly in point; for it was a case for diverting water from the plaintiff's mill. I should be sorry to have

. it supposed, for a moment, that Tyler v. Wilkinson, 4 Mason, 397, imported a different doctrine. On the contrary, I have always considered it as procceding upon the same doctrine.

Upon the whole, without going further into an examination of the authorities on this subject, my judgment is that whenever there is a clear violation of a right it is not necessary in an action of this sort to show actual damage; that every violation imports damage; and, if no other be proved, the plaintiff is entitled to a verdict for nominal damages. And, a fortiori, that this doctrine applies whenever the act done is of such a nature as that by its repetition or continuance it may become the foundation or evidence of an adverse right. See, also, Mason v. Hill, 3 Barn. & Adolph., 304; S. C., 5 Barn. & Adolph., 1.

$ 90. Even though an action at law was not maintainable where no actual damages could be proved, equity would interfere by writ of injunction to protect the right from violation.

But if the doctrine were otherwise, and no action were maintainable at law without proof of actual damage, that would furnish no ground why a court of equity should not interfere and protect such a right from violation and invasion; for, in a great variety of cases, the very ground of the interposition of a court of equity is that the injury done is irremediable at law, and that the right can only be permanently preserved or perpetuated by the powers of a court of equity. And one of the most ordinary processes to accomplish this end is by a writ of injunction, the nature and efficacy of which for such purpose I need not state, as the elementary treatises fully expound them. See Eden on Injunctions; 2 Story on Equity Jurisp., ch. 23, § 86 to $ 959; Bolivar Manuf. Co. v. Neponset Manuf. Co., 16 Pick., 212.

$ 91. A court of equity will by writ of injunction protect a right, the violation of which would, by lapse of time, become the foundation of an adverse right.

If, then, the diversion of water complained of in the present case is a violation of the right of the plaintiffs, and may permanently injure that right, and become, by lapse of time, the foundation of an adverse right in the defendant, I know of no more fit case for the interposition of a court of equity by way of injunction to restrain the defendants from such an injurious act. If there be a remedy for the plaintiffs at law for damages, still that remedy is inadequate


to prevent and redress the mischief. If there be no such remedy at law, then, a fortiori, a court of equity ought to give its aid to vindicate and perpetuate the right of the plaintiffs.

$ 92. In case of mere trespass remediable at law equity will not interfere.

A court of equity will not indeed entertain a bill for an injunction in case of a mere trespass fully remediable at law. But if it might occasion irreparable mischief, or permanent injury, or destroy a right, that is the appropriate case for such a bill. See 2 Story on Equity Jurisp., SS 926–928, and the cases there cited; Jerome v. Ross, 7 John. Ch., 315; Van Bergen v. Van Bergen, 3 John. Ch., 282; Newburgh Turnpike Co. v. Miller, 5 John. Ch., 101; Gardner v. Village of Newburgh, 2 John. Ch., 162.

$ 93. The question whether the right of the plaintiff as mill owner on the lower dam is violated by the diversion of the water by defendants considered.

Let us come then to the only remaining question in the cause, and that is, whether any right of the plaintiff as mill owner on the lower dam is or will be violated by the diversion of the water by the canal of the defendants. And here it does not seem to me that, upon the present state of the law, there is any real ground for controversy, although there were formerly many vexed questions and much contrariety of opinion. The true doctrine is laid down in Wright v. Howard, 1 Sim. & Stu., 190, by Sir John Leach, in regard to riparian proprietors, and his opinion has since been deliberately adopted by the king's bench.

Mason v. Hill, 3 Barn. & Adolph., 304; S. C., 5 Barn. & Adolph., 1. See, also, Bealey v. Shaw, 6 East, 208. Prima facie," says that learned judge, “the proprietor of each bank of a stream is the proprietor of half the land covered by the stream; but there is no property in the water."

$ 94. The rights of the different proprietors stated.

Every proprietor has an equal right to use the water which flows in the stream; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors who may be affected by his operations; no proprietor can either diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor who claims a right, either to throw the water back above or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years, which term of twenty years is now adopted upon a principle of general convenience, as affording conclusive presumption of a grant.” The same doctrine was fully recognized and acted upon in the case of Tyler v. Wilkinson, 4 Mason, 397, 400, 401, 402; and also in the case of Blanchard v. Baker, s Greenl., 253, 266.

$ 95. The doctrine recognized in the case of Blanchard v. Baker as to the right of proprietors of water rights.

In the latter case the learned judge, Mr. Justice Weston, who delivered the opinion of the court, used the following emphatic language: “The right to the use of a stream is incident or appurtenant to the land through which it passes. It is an ancient and well-established principle that it cannot be lairfully diverted unless it is returned again to its accustomed channel before it passes the land of a proprietor below. Running water is not susceptible of an appropriation which will justify the diversion or unreasonable detention of it. The proprietor of the water-course has a right to avail himself of its

momentum as a power which may be turned to beneficial purposes.” The case of Mason v. Hill, 5 Barn. & Adolph, 1, contains language of an exactly similar import, used by Lord Denman in delivering the opinion of the court. See, also, Gardner v. Village of Newburgh, 2 John. Ch., 162. .

$ 96. Mr. Chancellor Kent's opinion noticed.

Mr: Chancellor Kent has also summed up the same doctrine with his usual accuracy in the brief, but pregnant, text of his commentaries (3 Kent's Comm., Lect. 43, p. 439, 3d edit.); and I scarcely knew where else it can be found reduced to so elegant and satisfactory a formulary. In the old books the doctrine is quaintly though clearly stated; for it is said that a water-course begins ex jure nature, and having taken a certain course naturally, it cannot be [lawfully] diverted. Aqua currit, et debet currere, ut currere solebat. Shurry v. Pigott, 3 Bulst., 339; S. C., Popham, 166.

§ 97. The natural flow of a stream cannot be interrupted by one proprietor to the detriment or prejudice of another proprietor.

The same principle applies to the owners of mills on a stream. They have an undoubted right to the flow of the water as it has been accustomed of right and naturally to flow to their respective mills. The proprietor above has no right to divert or unreasonably to retard this natural flow to the mills below; and no proprietor below has a right to retard or turn it back upon the mills above to the prejudice of the right of the proprietors thereof. This is clearly established by the authorities already cited; the only distinction between them being, that the right of a riparian proprietor arises by mere operation of law, as an incident to his ownership of the bank, and that of a mill owner as an incident to his mill. Bealey v. Shaw, 6 East,-208; Saunders v. Newman, 1 B. & Ald., 258; Mason v. Hill, 3. B. & Adolph., 304; S. C., 5 B. & Adolph., 1; Blanchard v. Baker, 8 Green)., 253, 268; and Tyler v. Wilkinson, 4 Mason, 397, 400 to 405, are fully in point. Mr. Chancellor Kent, in his commentaries, relies on the same principles, and fully supports them by a large survey of the authorities. 3 Kent, Comm., Lect. 52, p. 441 to 445, 3d edit.

$ 98. Where the diverting of the water amounts to a mere temporary trespass.

Now, if this be the law on this subject, upon what ground can the defendants insist upon a diversion of the natural stream from the plaintiff's mills, as it has been of right accustomed to flow thereto? First, it is said that there is no perceptible damage done to the plaintiffs. That suggestion has been already in part answered. If it were true it could not authorize a diversion, because it impairs the right of the plaintiffs to the full, natural flow of the stream, and may become the foundation of an adverse right in the defendants. In such a case actual damage is not necessary to be established in proof. The law presumes it. The act imports damage to the right, if damage be necessary. Such a case is wholly distinguishable from a mere fugitive, temporary trespass, by diverting or withdrawing the water a short period without damage, and without any pretense of right. In such a case the wrong, if there be no sensible damage, and it be transient in its nature and character, as it does not touch the right, may possibly (for I give no opinion upon such a case) be without redress at law; and certainly it would found no ground for the interposition of a court of equity by way of injunction.

But I confess myself wholly unable to comprehend how it can be assumed in a case like the present that there is not and cannot be an actual damage to the right of the plaintiffs. What is that right? It is the right of having the water flow in its natural current at all times of the year to the plaintiff's mills.



Now, the value of the mill privileges must essentially depend, not merely upon the velocity of the stream, but upon the head of water which is permanently maintained. The necessary result of lowering the head of water per manently would seem, therefore, to be a direct diminution of the value of the privileges. And, if so, to that extent it must be an actual damage:

Again, it is said that the defendants are mill owners on the lower dam, and are entitled as such to their proportion of the water of the stream ia the natural flow. Certainly they are.

$ 99. The defendants entitled to their proportion of the flow of water at the lower dam, for there is the place their right attaches.

But where are they so entitled to take and use it? At the lower dam; for there is the place where their right attaches, and not at any place higher up the stream. Suppose they are entitled to use for their own mills on the lower dam half the water which descends to it; what ground is there to say that they have a right to draw off that half at the head of the mill-pond? Suppose the head of water at the lower dam in ordinary times is two feet high; is it not obvious that, by withdrawing at the head of the pond one-half of the water, the water at the dam must be proportionally lowered? It makes no difference that the defendants insist upon drawing off only one-fourth of what they insist they are entitled to; for, pro tanto, it will operate in the same manner; and if they have a right to draw off to the extent of one-fourth of their privilege, they have an equal right to draw off to the full extent of it. The privilege attached to the mills of the plaintiff is not the privilege of using half, or any other proportion merely, of the water in the stream, but of having the whole stream, undiminished in its natural flow, come to the lower dam with its full power, and there to use his full share of the water-power.

$ 100. Where two parties own a water right at a certain dam in the stream, the law presumes that they hold a right to the entire stream undiminished in its natural flow on its arrival at the dam.

The plaintiff has a title, not to a half or other proportion of the water in the pond, but is, if one may so say, entitled per my et per tout to his proportion of the whole bulk of the stream, undivided and indivisible except at the lower dam. This doctrine, in my judgment, irresistibly follows from the general principles already stated; and what alone would be decisive, it has the express sanction of the supreme court of Maine in the case of Blanchard v. Baker, 8 Greenl., 253, 270. The court there said in reply to the suggestion that the owners of the eastern shore had a right to half the water and a right to divert it to that extent: “ It has been seen that, if they had been owners of both sides, they had no right to divert the water without again returning it to its original channel [before it passes the lands of another proprietor]. Besides, it was iinpossible in the nature of things that they could take it from their side only. An equal portion from the plaintiff's side must have been mingled with all that was diverted."

$ 101. It is no answer to plaintiff's complaint that the defendant had increased the quantity of water in the stream by an act wholly his own.

A suggestion has also been made that the defendants have fully indemni. fied the plaintiff from any injury, and in truth have conferred a benefit on him by securing the water by means of a raised dam higher up the stream, at Sebago Pond, in a reservoir, so as to be capable of affording a full supply in the stream in the dryest seasons. To this suggestion several answers may be given. In the first place, the plaintiff is no party to the contract for raising



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the new dam and has no interest therein, and cannot, as a matter of right, insist upon its being kept up, or upon any advantage to be derived therefrom. In the next place, the plaintiff is not compellable to exchange one right for another, or to part with a present interest in favor of the defendants at the mere election of the latter. Even a supposed benefit cannot be forced upon him against his will; and, certainly, there is no pretense to say that, in point of law, the defendants have any right to substitute, for a present existing right of the plaintiff's, any other which they may deem to be an equivalent. The private property of one man cannot be taken by another simply because he can substitute an equivalent benefit.

Having made these remarks upon the points raised in the argument, the subject, at least so far as it is at present open for the consideration of the court, appears to me to be exhausted. Whether, consistently with this opinion, it is practicable for the defendants successfully to establish any substantial defense to the bill, it is for the defendants, and not for the court, to consider. I am authorized to say that the district judge concurs in this opinion.

Decree accordingly. TYLER v. WILKINSON. (Circuit Court for Rhode Island : 4 Mason, 397-413. 1827.) Opinion by STORY, J.

STATEMENT OF Facts. This is a very important case, complicated in facts and voluminous in testimony. It will not, however, be necessary to go over the details of the proofs, or even of the arguments, urged at the bar, further than may serve to explain the opinion of the court, and give a clear understanding of the points in controversy.

The river Pawtucket forms a boundary line between the states of Massachusetts and Rhode Island, in that part of its course where it separates the town of North Providence from the town of Seekonk. It is a fresh-water river above the lower falls between these towns, and is there unaffected by the ebb or flow of the tide. At these falls there is an ancient dam, called the lower dam, extending quite across the river, and several mills are built near it, as well on the eastern as on the western side of the river. The plaintiffs, together with some of the defendants, are the proprietors in fee of the mills and adjacent land on the eastern bank, and either by themselves or their lessees are occupants of the same. The mills and land adjacent, on the western bank, are owned by some of the defendants. The lower dam was built as early as the year 1718 by the proprietors on both sides of the river, and is indispensable for the use of their mills respectively. There was previously an old dam on the western side, extending about three-quarters of the way across the river, and a separate dam for a saw-mill on the east side. The lower dam was a substitute for both. About the year 1714 a canal was dug, or an old channel widened and cleared, on the western side of the river, beginning at the river a few rods above the lower dam, and running round the west end thereof, until it emptied into the river about ten rods below the same dam. It has been long known by the name of Sergeant's Trench, and was originally cut for the passage of fish up and down the river; but having wholly failed for this purpose, about the year 1730 an anchor-mill and dam were built across it by the then proprietors of the land, and between that period and the year 1790 several other dams and mills were built over the

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