Fernald v. Knox Woolen Co.

Walton, J. This is a bill in equity the prayer of which is that the defendants may be restrained by injunction from drawing off the waters of certain ponds named in the bill below their natural low-water mart. It appears that the plaintiffs own land bounded on the ponds — 56 — and that the defendants own mills on the outlet, and the complaint is that by excavating the channel, the defendants are able in times of drought to draw down the water in the ponds below their natural low-water line, and that this is a damage to the plaintiffs’ land. We think the injunction prayed for must be granted. We do not think the owners of mills on a stream, flowing from a great natural pond or lake, have a right to lower the outlet and draw down the water in the pond or lake below its natural low-water line. Such a right is inconsistent with the existence of the pond as a pond. If exercised to its fullest extent it would destroy the pond. All the water might be drawn out and its bed left dry, a mere stream of running water only remaining. And if exercised, to any extent, the necessary effect must be to widen the shores and deprive the adjoining land owners of their natural water frontage; for it is the settled law of this state that lands, bounded on a great pond or lake, extend only to the natural low-water line, and that all beyond is owned by the state. And tins natural water frontage may be as valuable to the land owner as the right to draw water is to the mill-owner. But whether of equal value or not, it is of equal validity in law, and entitled to equal pro-' tection. This precise question was recently considered in Massachusetts, and the court held that the water of a great pond could not be lawfully drawn down below its natural low-water line; that such a use of the water would be unreasonable; that great ponds belong to the public; that to draw down the water below its natural level is inconsistent with the common right to the use of the pond as a pond; that for such an abstraction of the water an information or an indictment would undoubtedly lie for the public wrong; and that an adjoining land owner thereby deprived of his natural water frontage could obtain redress by injunction. Potter v. Howe, 141 Mass. 357. As great ponds and lakes are public property, the state may undoubtedly control and regulate their use as it thinks proper. But in the absence of legislative authority, no individual or — 57 — corporation can lawfully draw down the water of a great natural pond or lake below its natural low-water line. It is urged in defense, that our mill act secures to mill-owners the right to cut canals and divert water, and that the lowering of the outlet of a pond and the drawing down of the water may be justified under this act. We think not. The language of the statute is that a man may cut a canal on his own land, “and thereby divert from its ¡natural channel the water of any stream,” etc. It. R. S. 92, § 1. To divert is to turn aside. The mere abstraction, of water can hardly be called a diversion of it. The lowering of a uatural channel can hardly be called the diversion of water “from its natural channel.” Nor can the water of a pond properly be called the water of a stream. The terms pond and stream do not moan the same thing. Nor is there any thing in the history of the act, or the inconvenience to be remedied, which leads us to believe that the legislature could have intended that the word stream should include a pond. We think the statute does not apply. The evidence fails to satisfy us that at the time of the commencement of this suit the defendants had drawn down the waters of the ponds referred to in the. plaintiffs’ bill below their natural low-water level more than once, and then only for a short time during the dry season of 1886. The damages, therefore, can be nominal only. But as the defendants admit that they have lowered the outlet of the ponds some four feet or more, and avow their intention to draw down the water below its natural low-waterline, whenever in times of drought the water is needed for their mills, we think the. plaintiffs are entitled to the injunction prayed for. Bill sustained, injunction as frayed for, with nominal damages and, costs. Peters, C. J., Dan forth., Virgin, Emery ,and Haskell, JJ., concurred.