Chatfield v. Wilson

Barreit, J. The case comes before us upon the report of the referees, and the judgment rendered thereupon by the county court. Upon any fair construction of the report, taken in all its parts, we are unable to see any difference between the case as it now stands, and as it stood when before the court, as reported in 28 Vt. 49, so far as relates to the acts of the defendant in cutting off the water by the ditch and fill upon Ms own land, and thereby preventing it from percolating under ground to the plaintiff’s tub.. [362] But that feature of the present case which consists of the defendant’s digging out the bed of the brook, and thereby causing the water of the brook to run in a lower channel, requires a distinct consideration. The report shows that the defendant’s farm adjoins the plaintiff’s on the north and east; that the north-east corner of the plaintiff’s land is the centre of the brook, and thence westward the centre of the brook is the line between the parties ; that about eight days after the plaintiff got his aqueduct in use, the defendant dug out the channel of the brook several inches deep,' sinking the bed of the brook north of the stake, and causing it to pass by the plaintiff’s corner on a lower bed than it had been accustomed to flow upon; that this digging out and sinking of the bed of the brook abridged and diminished the plaintiff’s facility for obtaining water in his tub from the channel of the brook at his corner ; that this right was to him of some value, We adopt as sound law the language of Baron Parke, in Dickinson v. The Grand Junction Canal Co., 9 Eng. L. & Eq. 513: “ that the right to have a stream running in its natural course, is not by a presumed grant from long acquiescence on the part of riparian proprietors above and below, but is ex jure! naturae, and an incident of property, as much as the right to> have the soil itself in its natural state, unaltered by the acts of neighboring proprietor, who can not dig so as to deprive it of the support of his land” * * * “ that each riparian owner is entitled, not to property in the flowing water, but the usufruct of its stream for all reasonable purposes.” See also the comprehensive and elaborate summary of the principles applicable to this subject by Judge Story, 4 Mason 400, in Tyler et al., v. Wilkinson et al.; also, Angell on Watercourses, § 95 and the cases there cited. It is clear, then, Upon Well settled principles, that the plaintiff had the right to have the brook flow in its natural and accustomed channel by his corner and along between his and the defendant’s land; and as a correlative of this propsition, the defendant had not the right to interrupt or alter that natural and accustomed flow, without the consent and to the injury of the plaintiff. The digging out and sinking of the bed of the stream by the defendant was, therefore, clearly [363] against right. This is rendered the more palpable, as well as less justifiable, by the fact that it was not done for the purpose of securing or facilitating any reasonable use and enjoyment of the water of the stream by the defendant. It is granted that adjacent riparian owners, whose land is bounded by the centre of a stream, are entitled to the water per my et per tout, and neither owns any specific part of the water. And yet it is equally true, that each has a right to the reasonable use of the water of the stream for proper and legitimate purposes. 'The right of each thus to use the water in its practical enjoyment, must have reference to the equal right of the other, and must not be so exercised as to infringe the other’s equal right. It is held in all the books and cases upon the subject, that each may use the water for ordinary culinary purposes in the family, and for drink and the watering of cattle, and may thus use it in any reasonable and proper way. That the plaintiff might go with his pail and dip and carry away water for his family or his herds, or might drive his herds to the brook and let them drink, when and so often as it might be needful, will not be denied, provided that thereby he did not deprive the defendant of an equal enjoyment of the same right. If this be so it would seem difficult, upon any ground of reason, to deny that the plaintiff might facilitate the enjoyment of this right by ordinary and appropriate means. It certainly was indifferent to the defendant by what means the plaintiff exercised and enjoyed that right, if his own equal right was not thereby interfered with or abridged. Now, it is to be observed, there is no pretence that the plaintiff, by his tub and aqueduct, appropriated the water of the stream to any but a lawful and proper purpose, or that he did it in any but an ordinary and reasonable manner, or that, by what he did, he, in any way, interfered with or abridged the defendant’s ability to enjoy his equal right to the use of the stream. For the lawfulness of what was thus done by the plaintiff the authorities already cited develope the principle, , and the case of Wadsworth v. Tillotson, 15 Conn. 365, clearly illustrates the practical application of it. These views are entirely consistent with the citations from [364] Angelí on Watercourses made by tbe counsel for the defendant. To the intimation that the plaintiff had no right to divert any of the water from the stream without returning it, what is above said, as well as the case in 15 Conn. cited supra, is a sufficient answer. But if it were conceded to be as the defendant claims on this point, he could not avail himself of it in defence to this suit upon the facts reported. The use of the water by the plaintiff, and the means by which that use was secured, are shown to be proper, reasonable and legitimate. If the plaintiff had been guilty of any actionable fault in respect to the excess of water thus diverted, a remedy could only be obtained by suit. The wrong of the plaintiff in this respect could neither be offset, nor used in bar to his right of recovery for the wrongful acts of the defendant in infringing his right to have the water flow in its natural channel, and to the reasonable use thereof in the manner shown by the report. We regard the second count in the declaration to be well adapted to the facts shown by the report, and to authorize a recovery under the second finding and estimate of damage by the referees. The judgment of the county court is affirmed.