Fleming v. Davis

Walker, J. This suit involves a controversy between the riparian owners of the land on and through which a stream known as Simpson’s Creek in San Saba County rises and flows. The county of San Saba is about ninety miles north-west of the city of Austin, and in what is generally known as the western part of the State. The lands owned by the parties are located within the boundaries of Fisher and Hiller’s Colony. One Sherwood appears to have been the first locator; but in 1859 this court declared his location void, and the lands were re-patented to Fleming. In 1856 or 1857, H. Hubert and H. Taylor settled on Simpson’s Creek, and subsequently pur — 193 — chased lands from Fleming. Davis was a purchaser under Sherwood. As early as 1857, one McNeal, who appears to have been a squatter without title to any of the land, used a portion of the water from the headspring of Simpson’s Greek, for the purpose of irrigation. In 1866, Fleming acquired possession of McFTeal’s improvement. The stream appears to be about three miles long, rising in springs on Fleming’s land, and emptying into the San Saba river. After the failure of Sherwood’s title, Davis purchased from Fleming. Hubert’s lands were divided among his children. Marley purchased from Davis; and Brown and Taylor became the owners of the Henry Taylor tract. Thus stand the parties before the court. The. stream appears to have supplied the ordinary and'necessary wants of the land owners for several years, without becoming a subject of contention. Gardens and small fields were irrigated from its waters. But it is said that when Fleming purchased the headspring in 1866, he made more extensive improvements, and claimed the exclusive right to the use of the water for irrigation purposes. In September, 1868, Davis, whose administratrix now represents him, brought this suit, claiming damages for the wrongful diversion and waste of the water. The appellant claims the exclusive right to the water of the stream, for irrigation purposes. The' other parties to the suit are intervenors, who claim a right to a partition of the water, for the purposes of irrigation. We do not propose in this opinion to discuss the errors assigned, otherwise than incidentally, and for the purpose of our opinion we shall not specially call in question the instructions of the District Oourt to the jury. It is contended that public necessity now requires that the rule of law which should govern all such cases should be clearly and distinctly announced by this court, and that the case at bar presents all the necessary facts to render this duty imperative. Ve do not recognize any exclusive right by purchase or by nor occupation, in any of the parties to this suit. The legal nd equitable rights of the parties may be regarded as equal, — 194 — so far as purchase or occupation gives rise to such rights. The ease of Tolle v. Oorreth, 31 Texas, 362, recognizes a right to the use of water for purposes of irrigation, growing out of the colonization and land laws of the Republic and State. Were it not for the concluding paragraph in the opinion of the Chief Justice, we could apply to this case for an authority on which the case at bar might be decided. The court say: “ Where the defendant owned the land upon which there was “ a spring, he had the right to use the water for the purposes of “ irrigation, provided he restored it back to its natural channel “ before it reached the lands of the adjoining proprietor ; and “ if the stream was thus weakened so as to damage the adjoin- “ ing proprietor, the defendant was not liable for such damages.” If this be the true doctrine, then the owner of the headsprings of a stream would appear to have an exclusive right to use the water to irrigate his land, to the extent of weakening the stream and damaging the adjoining proprietor, provided he restored the stream to its natural channel before it reached the lands of the adjoining proprietor. But suppose the owner of the spring should weaken the stream flowing from it to exhaustion, how, then, could he restore it to its natural channel before reaching the lands of the adjoining proprietor? The closing paragraph of the opinion reads thus: “We would not be understood as deciding to what extent a “ stream can be used for irrigating purposes. The relative “ rights or exclusive rights are not before us.” What, then, is decided in this case ? If anything, it is decided that the owner of the headspring may irrigate his land with the water of the stream until he weakens it and damages the adjoining proprietor, and yet not be liable in damages, if he can ■only restore the stream back into its natural channel before it reaches the lands of the injured proprietor. This is physically impossible, and the ease furnishes no rule of decision. Let us look to the common law. A most orthodox authority reads thus: “ Every proprietor of lands on the banks of a river has natu — 195 — “ rally an equal right to the use of the water which flows in “ the stream adjacent to his lands, as it was wont to run {eur- “ rere solébat), without diminution or alteration. Ho propri- “ etor 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 debeb currere ut currere “ solebat, is the language of the law. Though he may use the “ water while it runs over his land, as an incident to the 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 evi- “ dence of it. “ This is the clear and settled general doctrine on the sub- “ ject, and all the difficulty which arises consists in the appli- “ cation. 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 “ a neighbor above him. “ Streams of water are intended for the use and comfort of “ man; and it would be unreasonable, and contrary to the uni- “ versal 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 — 196 — “ 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 unreason- “ ably, or let it off in unusual quantities, to the annoyance of “ his neighbor. Pothier lays 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 pro- “ prietors. 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 Homan law: Sic enim debere quem meliorem “ agrum suum facere, ne vicini deteriorem faciat (3 Kent, pp. 561-565.) This is the rule of the common law; but it has not "been everywhere recognized as applicable to the wants and condition of the people, and a maxim of the common law, cessante ratione legis, cessat ipsa lex, is cited to defeat the application of the rule in this State. That certain portions of the State of Texas are subject to periodical drouth, and that the growth of vegetation would be greatly improved by the artificial application of water, are well understood facts ; but whilst irrigation may be recommended by economy, must it be regarded as a thing of necessity ? If so, does the necessity exist throughout the State? If not, must we lay down a rule predicated upon supposed public necessity, — 197 — which is to apply only to certain portions of the State, for the reason that it could not find its predicate elsewhere ? In Arnold v. Foot, 12 Wendell, the learned Savage, O. J., delivering the opinion of the court, it was decided that where a spring of water rises upon the land of one owner, and from it runs a stream on the land of another, the owner of the land upon which is the spring has no right to divert the stream from its natural channel, although the waters of the stream are not more than sufficient for his domestic uses, for his cattle, and for the irrigation of his land. The Chief Justice also quotes from the opinion of Mr. Justice Story, 4 Mason, 400: “ The “ natural stream existing by the bounty of providence, for the “ benefit of the land through which it flows, is an incident “ annexed to the land itself.” “ Each riparian proprietor is hound to make such a use of “ running water, as to do as little injury to those below him, as “ is consistent with a valuable benefit to himself. The use “ must he a reasonable one. How, the question fairly arises, “ is that a reasonable use of running water by the upper pro- “ prietor, by which the fluid itself is entirely consumed ? To “ answer this question satisfactorily, it is proper to consider the “ wants of man in regard to the element of water. These “ wants are either natural or artificial. Hatural are such asare “ absolutely necessary to he supplied, in order to his existence. “ Artificial, such only, as by supplying them, his comfort and “ prosperity are increased. To quench thirst, and for house- “ hold purposes, water is absolutely indispensable. In civilized “ life, water for cattle is also necessary. These wants must he “ supplied, or both man and beast will perish. “ The supply of man’s artificial wants is not essential to his “ existence; it is not indispensable; he could live if water was “ not employed in irrigating lands, or in propelling his machin- “ ery. In countries differently situated from ours, with a hot “ and arid climate, water doubtless is absolutely indispensable “ to the cultivation of the soil, and in them, water for irrigation would he a natm*al want. Here it might increase the — 198 — “ products of the soil, but it is by no means essential, and can- “ not therefore be considered a natural want of man. So of “ manufactures, they promote the prosperity and comfort of “ mankind, but cannot be considered absolutely necessary to his “ existence; nor need the machinery which he employs be set “ in motion by steam. “ From these premises would result this conclusion, that an “ individual owning a spring on his land, from which water “ flows in a current through his neighbor’s land, would have “ the right to use the whole of it, if necessary to satisfy his “ natural wants. He may consume all the water for his domes- “ tic purposes, including water for his stock. If he desires to “ use it for irrigation or manufactures, and if there be a lower “ proprietor to whom its use is essential to supply his natural “ wants, or for his stock, he must use the water so as to leave “ enough for such lower proprietor. Where the stream is small, “ and does not supply water more than sufficient to answer the “ natural wants of the different proprietors living on it, none “ of the proprietors can use the water for either irrigation or “ manufactures. So far, then, as natural .wants are concerned, “ there is no difficulty in furnishing a rule by which riparian “proprietors may use flowing.water to supply such natural “ wants. Each proprietor in his turn may, if necessary, eon- “ sume all the water for these purposes. But where the water “ is not wanted to supply natural wants, and there is not suffi- .“ cient for each proprietor living on the stream, to carry on his “ manufacturing purposes, how shall the water be divided ? “We have seen that without a contract or grant, neither has a “ right to use all the water; all have a right to participate in “ its benefits. Where all have a right to participate in a com-^H “ mon benefit, and none can have an exclusive enjoyment, no “ rule, from the very nature of the case, can be laid down as to^H “ how much each may use without infringing upon the rights^H “ of others. In such cases, the question must be left to the^H “ judgment of the jury, whether the party complained of has^H “ used, under all the circumstances, more than his just propor-^B — 199 — “tion.” Such is the reasoning of the able opinion of the Supreme Court of Illinois, Evans v. Merriweather, 3 Scammon, pages 495-497. We are not certain that the country through which Simpson’s Creek flows, is so anomalous in its character as to require either legislative or judicial departure from the rules laid down by these able common law authorities, and as shown by the extract from Kent. There is no material difference between the common law rule and that of the Homan and French law. In the learned and able argument of appellee’s counsel, we are referred to the customs of the Lombards, French, Italians, etc. We have not access to the laws of these people; but we know something of their history in this behalf. Hot only in the countries mentioned, but in all the Spanish provinces, in French and British India, and in Mexico, the subject of irrigation is taken under direct government control. The irrigation canals are constructed at the public expense, much upon the principle that our large cities are supplied with water through the public reservoirs and hydrants, those who use the water paying a tax or assessment for the purpose of meeting expenses. Such works are sometimes constructed under a corporate franchise, by private capital. We believe that in our own State where irrigation is carried on to any extent, as at the city of San Antonio and its vicinity, and at El Paso, the local authorities have charge of the canals, and the water is used by private subscription, or in some cases it may have become a corporeal hereditament where it runs upon the land of the user, or an incorporeal hereditament where it passes over the lands of another. We know not under what system of laws or customs the canals at El Paso were constructed and used; they were found in existence and use by the earliest Spanish explorers, showing that they were built and used by a people who have left but few monuments of civilization behind them. The Spanish missionaries in Mexico, Texas, and California, it is said, in the construction of these canals, imitated the engineering of the Aztecs ; however, this maybe — 200 — true or not. No law has been handed down to us which can throw a single ray of light upon the question now before us. The very able counsel who represent both sides of this case furnish us a learned expose of the common law. On the one side it is admitted that the common law decisions of other States, and of England, are not applicable to the condition of Texas, and it is claimed that a rule should be laid down applicable to the wants of our people. What Mr. Justice Bronson said in Starr v. Child, 20 Wend., 149, may have its weight in every proper ease; for it is wisely said by a great man. Such portions of the law of England as are not adapted to our condition certainly form no part of the law of this State. We never dreamed of a law of primogeniture. We eschew entails. There are very many of the peculiarities of British law which have no adaptation to our system ; but when we come to questions purely of the common law, for the decision of which our own courts have prescribed no principle, then we are expressly directed to go to the common law of England for a rule of decision. The concluding paragraph of the brief for appellee virtually admits that we are, in this case, at sea without chart or compass. The paragraph reads thus: “ Upon the determination of “ the rule by which a division of this water should be made, “ although there may not be exact certainty of measurement, “ yet with the many examples Texas ingenuity will not be at “fault.” We confess we have not yet found the “ examples,” nor can we discover any precedent, for the partition of a stream ■of water, other than that fixed by the rules of the common law already stated in this opinion. We have heard of the glorious uncertainty of the law; but .always regarded the “ uncertainty ” as a slander. The law has its certain rules, which, although not mathematically, are morally exact. This court meet with many difficulties in arriving at the moral exactitude attainable, but, we apprehend, were we to attempt judicial legislation on this subject, we should find ourselves much more at fault than we now are, acting under long and well-settled principles. , — 201 — Mr. Angell in his work on water-courses has very ably treated this subject, giving prominence to the opinions of able jurists who have decided the question. The case of Cary v. Daniels, 8 Metcalf, 466, and also the case of Hart v. Evans, are referred to on page 99 as sustaining Johnson v. Jordan, 2 Metcalf, 239. In this case Shaw, C. J., remarks: “ Every person through' “ whose land a natural water-course runs, has a right, pulMei “juris, to the benefit of it as it passes through his land, for “ all the useful purposes to which it may be applied; and no “ proprietor of land on the same water-course, either above or “ below, has a right unreasonably to divert it from flowing into “ his premises, or obstruct it in passing from them, or to cor- “ rupt or destroy it. It is inseparably annexed to the soil, and “ passes with it, not as an easement, nor as an appurtenance, ‘‘ but as parcel. Hse does not create it, disuse cannot destroy “ or suspend it. Unity of title and of possession in such land with “ the lands above or below it does not extinguish or suspend it.” This doctrine is founded on the well-known maxim, sic utere tüo ut alienum non loedas. We adopt this maxim as the rule for our decision in this case. It is explained clearly by t|ie able authorities we have quoted. It appearing to this court that Fleming has asserted a right to which he is not entitled, and that the damages awarded to Mrs. Davis, being in the sum of seventy-five dollars, are not unreasonable for the trespass against her rights as a riparian proprietor in the ordinary use of the water, the judgment of this court will be that she have her judgment for the sum of seventy-five dollars, together with interest and costs, against Fleming; and that the intervenors pay the costs of intervention, and their petitions be dismissed. It may not be improper, as the honorable Legislature is now in session, that we call attention to the subject-matter of this suit; that if, in the wisdom of that body, legislation be required to adapt the law to the peculiar wants of any portion of our State, appropriate action may be had at an early day. It can scarcely be doubted that the wealth and comfort of our people throughout a large portion of the State might be greatly aug- — 202 — merited by wise legislation on this subject. Our sister State of California found it necessary, at an early day, to legislate for the protection of her mining and agricultural interests. The decisions of her courts are not applicable to the case at bar. They are mostly made upon the statutes of the State, and touching rights which had grown up among her people, who were merely occupying tenants, or rather squatters, upon government land. Reversed and rendered.