Carpenter v. Gold

Lewis, P., delivered the opinion of the court. [552] The bill then states, in substance, that the said James hi. Carpenter, a short while before the filing of the bill, cut a ditch on his land, which has diverted the water from its natural channel, and deprived the plaintiff of access to it, in consequence of which the plaintiff has been great-ly and irreparably injured, and for which, from the continuous character of the injury, there is no adequate remedy at law. And the prayer of the bill is for an injunction, and that the defendants be compelled to restore the -water to its natural channel. The appellee filed his hill in the court below for relief against an alleged nuisance. lie alleges in the bill that he is the owner of a certain parcel of land, situate in Clarke county, adjoining a tract belonging to the defendant, James H. Carpenter, trustee for his wife, Mary F. Carpenter, of which tract the appellee’s laud was formerly a part; that one of the boundary lines of the two tracts runs a considerable distance with a natural water-course, which has supplied both tracts with water for stock and other agricultural purposes from the date of appellee’s purchase, nearly fifteen years before the commencement of the suit. The circuit court granted the relief prayed for, and the defendants have appealed. Their contention is : Hirst, that injunction is not the proper remedy for past injuries; and, secondly, that the stream in question neither naturally passes through, nor along the boundary of, the appellee’s land. The first of these propositions is a question of law; the second is a- pure question of fact. By the general law applicable to running streams, every person through or past whose land a natural water-course runs, has a right to the reasonable use of the water, and no proprietor, above or below, has a right to divert or obstruct it. This right is not an easement, but is inseparably annexed to the soil, and passes with it. It is, moreover, a principle of the common law that every riparian proprietor on either side of a [553] stream not navigable prima facie owns to tlie middle or thread of the stream (usque ad flam aquae), and has an equal right to the use of the water without diminution or alteration. Ang., Wat. Conrs. (7th Ed.), secs. 92-95; 3 Kent, Comm., 439; Atchison v. Peterson, 20 Wall. 507; Hardin v. Jordan, 140 U. S. 371. Accordingly, the diversion of a natural stream is a private, nuisance, and, therefore, from an early period, courts of equity have granted relief by way of injunction, in such eases, at the suit of the injured party. The jurisdiction is founded upon the. notion of restraining irreparable mischief, or of preventing vexatious litigation, or a multiplicity of suits. And where, the complainant’s legal right is clear, and the case is one “ of strong and imperious necessity ”; or, in other words, where the right is clear, and its violation palpable, and the complainant. has not slept, upon his rights, equity will ordinarily interfere, although the right has not been established at- law; and in such a case a preliminary mandatory injunction, as it is called, will be granted, which is so framed that it restrains the defendant from permitting his previous act to operate, and, therefore, virtually compels him to undo it — -that is, to restore the water to its natural channel. 1 High, Inj. (3rd Ed.), sec. 804; Gardner v. Newburgh, 2 Johns, Ch. 162; Corning v. Troy Factory, 40 N. Y. 191; Webb v. Portland Manf’g Co., 3 Sunm. 189; Hanna v. Clark, 31 Gratt. 36; Parker v. Manf’g Co., 2 Black, 545; Switzer v. McCullock, 76 Va. 777. In Durell v. Pritchard, the Master of the Rolls, relying on Dure v. Guest, 1 Myl & C. 516, laid down the rule that a mandatory injunction would not be granted where the act complained of was complete before the filing of the hill. But. on appeal this ruling was reversed. L. R., 1 Ch. App. 244. And the rule is now fully established, as already observed, that in cases like the present, where the facts are clearly established and the injury is real, and the plaintiff acts promptly upon acquiring knowledge of the defendant’s proceeding, an inter [554] locutory mandatory injunction will be granted, although the act complained of was fully completed before the suit was commenced. If relief is deferred until the final hearing, and then granted, the decree is, in fact, an ordinary decree for an abatement, and is in no proper sense an injunction at all. 3 Pom. Eq., sec. 1359. It is clear, therefore, that the bill in the present case states a proper case for the equitable relief prayed for, and that the objection to it, which was taken by demurrer, was rightly overruled. But as to whether the case thus stated is proved with the requisite clearness, there is a diversity of views. The appellee’s land was conveyed to him by deed dated November 20, 1868, to which deed Special Commissioner William II. Moore and the appellants and others were parties of the first part. The land -was conveyed by metes and bounds, as follows : “Beginning at a stone corner to the timber lot laid off for Thomas E. Gold; thence S. 37° 19' W. 226 poles to a stone corner to Eunsteeu; thence with his line E\ 74-1° W. 83 poles to a small walnut in the fence corner on the east side of the run; thence E". 24|° E. 50.8 poles to a stone in the water near the head of the run,” &e. In the progress of the cause several surveys were made, one of which was by S. Howell Brown, a surveyor of o rer forty years’ experience, and another by J. C. Fletcher, the county surveyor. The former testified that he had no difficulty in running the lines according to the description given in the deed, and that the stream mentioned in the bill was the boundary-line between the parties for some distance. There was also evidence tending to show that up to the time of the diversion of the stream complained of the stream had been regarded by the parties themselves as the boundary-line, and that the line-fence was so arranged as to give access to the stream both by the plaintiff and defendants for the purpose of supplying water for stock, etc. On the other hand, according to Fletcher’s [555] survey, the stream is not on the appellee’s land, and does not touch it at all. In this state of the evidence the court is equally divided in opinion as to whether the plaintiff is entitled to the relief prayed for, and, therefore, upon this branch of the case no opinion of the court can he given. The consequence is that the decree in this particular must be affirmed by an equally-divided court; and it is so ordered. Decree affirmed.