Upper Ten Mile Plank Road Co. v. Braden

Opinion by Mr. Justice Williams, The report of the learned master deals in an able and logical manner with the questions of fact and law involved in this case. The conclusions reached have however, as it seems to us, been influenced by an inaccurate definition of the respective rights of the owner of the soil and the owner of the easement of way over it. The findings of fact show that the plaintiff corporation is the owner of a wagon road the right of way for which was obtained by the exercise of the right of eminent domain. This road passes over a part of a farm known as the Boyd Farm. In grading the road over this farm it became necessary to make a cut, the banks on the upper side of which were some ten or twelve feet high. In making this cut a fine vein or spring of water was opened which gushed out of the rocks some three or four feet above the roadway. For some years the water was used to supply a watering trough placed below the spring, and the surplus water was conducted away by means of a ditch on the upper side of the roadway. More recentty the corporation has removed this trough several hundred feet to the land of another farm owner, has inclosed the spring in solid masonry made watertight overhead as well as on the sides, and conducted all the water away and off the defendant’s land by means of iron pipes, delivering a small portion of it into the new trough and making some other disposition of the rest of it. The defendant went in search of his spring and opened a hole into the cistern so that he could see what was being done with the water. He also insisted that he had a right to use the water for his cattle and expressed his purpose to blast away the rocks at that point and prepare a permanent and convenient place for the establishment of a watering trough for his own use and the use of the public. To prevent him from opening the watertight cistern built about his spring and to compel him to pay for repairing the damage done to it in his effort to find out what was being done with the water, this bill was filed and the case went to a master to hear the evidence and to make appropriate findings of fact and law under the old practice. The master held upon these facts that the spring belonged to the owner of the soil on which it was, but in his third conclusion of law held that “ the title of the owner is so qualified by plaintiff’s easement that the spring can only be enjoyed sub [466] ject to the easement.” This was a mistake, and it gave direction to all that followed. The plaintiff’s easement qualified the manner in which the defendant might use his spring but it did not qualify his title. The title was as absolute and unqualified to the water as to the rooks out of which it issued, and the defendant had the right to take it where he pleased and use it as he pleased, Mills on Eminent Domain, p. 70. He had no right to use it in such a manner as to inflict injury on the plaintiff’s road bed but he had the right to use the whole of it, to conduct it by pipes wherever he desired, to consume it, to sell it, or waste it. The plaintiff has no easement in the spring. It has a right of way for public travel over the land upon which the waters of this spring descended; and for the purpose of preserving its road bed in a condition suitable for travel it may drain the water off. The right is one of drainage of the road bed only. It is not a right to appropriate, or to take exclusive possession of, the spring itself, or to exclude the owner therefrom: Mills on Eminent Domain, p. 71. The corporation had gone much farther in this case. It had taken exclusive possession of the spring. It had taken upon itself for some purpose the responsibility of preserving the absolute purity of the water so that it could be delivered on the land of another person without contamination from surface water. For this purpose it had literally sealed it up in a watertight reservoir into which iron pipes were introduced by means of which the spring was transported off the land of the owner and set down some hundreds of feet away upon the land of another person. Because the owner was curious to know what was being done with his spring and had opened a hole into the reservoir that he might learn the situation, this bill was filed and a chancellor appealed to in order to restrain his curiosity by injunction, and to punish him for his temerity in seeking to know what the corporation was doing with his spring. An injunction has been decreed and damages have been assessed in accordance with the prayer of the bill. This result is due to the mistaken definition of the rights of the parties found in the third conclusion of law to which we have referred. The master and the court below have proceeded on the theory that the title of the defendant has been qualified and restricted by the easement of passage over the [467] roadway so that as between him and the corporation, he has no right to the use of the spring if the corporation finds it convenient for the purposes of drainage to take exclusive possession of it and transport it to any point where it may wish to use it off the land of the owner. The true rule is that the easement qualifies not the title to the spring but the manner of its use. The corporation has a roadway at the side of which the defendant has a spring. Each must so use his own as to inflict no unnecessary injury on the other, but neither can forcibly exclude the other from what is his own. It was neither against law nor against equity for the defendant to seek access to his spring, and although this may not have been done in a peaceable spirit it was nevertheless in the exercise of a clear legal right. The corporation may drain its road, but it cannot in the exercise of the right of drainage take forcible possession •of this spring, exclude the owner from access to it, and transport it for its own use or for the use of any other person off the owner’s land. The right of drainage does not include the right of appropriation, nor does it justify the forcible exclusion of the owner from access to a spring of water that comes to the surface on his own land outside the beaten track of the roadway. Subject however to the owner’s right of access, the method of drainage to be adopted is for the corporation to determine. The decree appealed from is reversed, the injunction is dissolved and the bill dismissed at the costs of the plaintiff.