Ferrea v. Knipe

By the Court, Currey, J. In 1863, as appears by the finding, the defendant .erected a dam across the creek above the plaintiff’s dam, by which the natural flow of the stream was obstructed. In April, 1864, he erected two other dams across the same creek above the plaintiff’s dam, by means of which several dams the water of the stream was entirely obstructed and prevented from flowing to the dam of the plaintiff, whereby the plaintiff was wholly deprived of the waters of the stream, and his vegetables and fruit growing at the time of the erection and continuance of these dams were injured to his damage in.the sum of two hundred dollars. It further appears by the finding that the object of the defendant in erecting his dams was only to detain sufficient water for his stock, apd that he used the same for no other purpose, and that when the action was brought there was not water enough in the creek to flow to the plaintiff’s reservoir if no dams had been erected above it. The evidence in the case shows that the last named year was one of extreme drought, and that at the time this action was commenced the water of the creek was so reduced in quantity at the place where the defendant had erected his dams (which were more than a mile from the plaintiff’s land) as to be insufficient to flow over such dams. Every proprietor of lands through or adjoining which a watercourse passes has a right to a reasonable use of the water; but he has no [344] right to so appropriate it as to unnecessarily diminish the-quantity in its natural flow. The use of the water of a stream for domestic purposes and for watering cattle necessarily diminishes the volume of the stream. This is unavoidable, and though by reason of such diminution a proprietor on the stream below fails to receive a supply commensurate with his wants, he is without remedy, because his right subsists subject to the rightful use of the water by his neighbor on the stream above him. But while admitting that a riparian owner to whom the water first comes in its flow, has the right to use it for domestic purposes, and for watering his cattle, it is proper to observe that he has not the right to so obstruct the stream as to prevent the running of water substantially as in a state of nature it was accustomed to run. The maxim of the law which he is bound to respect while availing himself of his right is, sic utere tua ut dlienum non lócelas. (3 Kent, 440; Angel on Watercourses, -Section 195; Tyler v. Wilkinson, 4 Mason, 440.) The Court found that by reason of the dams erected by the defendant “the flow of the stream was wholly obstructed, and the waters detained were prevented from flowing to .the dam of the plaintiff", and that he was thereby deprived of the use of the same, prior to the commencement of this suit,” and “that the plaintiff has sustained damages, by reason of said acts of defendant, in the sum of two hundred dollars.” The Court also found that the defendant was insolvent and unable to respond to any judgment that might be recovered against him. The Court further found that the defendant erected the dams “only to gather sufficient water for watering his stock, and used it for no other purpose,” and “that at the time this suit was commenced there was not water enough to flow to the plaintiff’s pond, had no dams been built.” The fact that the water was so reduced in quantity at the time the action was commenced as to be insufficient to flow to the plaintiff’s premises, had the same been unobstructed, was not a circumstance decisive of the case. If before then the creek was wholly obstructed by the defendant, and the water [345] of the stream was prevented by him from flowing to the plaintiff’s land, by reason whereof he was deprived of the use of the water, and thus suffered damages, he had just cause of complaint, and was entitled to relief and to the remedy which, he sought to prevent the continuance of the injury. Though the defendant had the right to use the stream for watering his cattle and for household purposes, he had not the right under the circumstances to dam up the creek and spread out the water over a large surface, by which it would become lost by absorption and evaporation to'an extent to prevent the stream from flowing to the plaintiff’s premises, as it would have done had it not been for the defendant’s dams. It cannot be held in this case that the obstruction and diversion of the water of the creek was necessary to the proper and beneficial use of the stream by the defendant, and that as a consequence the injury sustained by the plaintiff was clamnwm absque injuria. The facts found by the Court preclude such a conclusion. From the facts found the plaintiff was entitled to judgment, on the ground that he had the right to the water of the creek in the.natural flow, subject only to the use thereof by the defendant in a reasonable manner, without unnecessary obstruction or diminution. (Angel on Watercourses, Chapter 4, and the authorities therein cited.) The judgment must be and is hereby reversed, and the cause remanded to the Court below with directions to enter judgment for plaintiff. 1 Neither Mr. Chief Justice Sanderson nor Mr. Justice Sawyer expressed any opinion.