Hayden v. Long

By tbe Court, Prim, J.: Tbe first assignment of error is that tbe court erred in admitting S. B. Frazier to serve as a juror at tbe trial of said cause. Tbe bill of exceptions discloses that upon said Frazier being challenged for actual bias, on behalf of tbe appellant, he was examined under oath, as follows: 1. Were you a juror in tbe case of Brown v. Long, tried here yesterday ? Answer: “I was.” 2. Have you formed any opinion, from the evidence in that case, relative to tbe diminution or absorption of water from tbe stream in question, in consequence of tbe diversion of a part of tbe same by defendant, Long? Answer: “I have.” 3. Have you that opinion now ? Answer: “ I think I have.” Tbe bill of exceptions does not purport to give all tbe [246] evidence given on the trial of this challenge. In the case of the State v. Tom (ante, 177), this court held that it would not receive the ruling of the court below, in a matter of this kind, unless all the evidence introduced in the court below is reported to this court. The next error complained of is as to the instructions of the court. It appears from the bill of exceptions that there was evidence at the trial tending to show that, by the flow of water through the ditch dug by the respondent, portions thereof were wasted by absorption, evaporation, and percolation, and that the quantity of water in said stream was small, and all needed by the appellant in driving the machinery of his said factory. The court instructed the jury as follows: 1. “Every person through whose premises water naturally flows has a lawful right to the flowing of the water in its natural channel, and no person has a right to divert the stream or any part of it from its natural channel, unless he causes it to return again before it leaves his premises, so that it will not injure those below, and be lessened or diminished only by such quantity as may be necessarily used for domestic purposes and watering stock, and in some cases for irrigation; and also by evaporation, and natural and necessary wastage.” 2. “Defendant had a right to take as much of the water in the stream in question as was necessary for domestic uses, and if his convenience required it he has a right to divert a portion of the stream from its natural channel; but he must return so much of it as he does not use for such purposes, or is lost by evaporation or unavoidable wastage, to the stream before it reaches plaintiff’s premises.” 3. “ If he diverts the water and does not so return it, and thereby the plaintiff is damaged, then the diversion is wrongful, and the plaintiff is entitled to a verdict in some amount of damages to be fixed by you.” * * * 4. “If, from the evidence, you find that the defendant did divert the water and did not return it before it reached the plaintiff’s land, then the plaintiff is entitled to damages if sustained by him. But if, on the contrary, you find that he did not divert or turn the water, or if he did divert it and turned it all back to its natural channel above plaintiff’s [247] place without greater waste than was consistent with his use of the water, as before stated, then you should find for the defendant.” While these instructions contain a correct statement of the law as to the respective rights of riparian owners, they were inapplicable to the facts developed by the pleadings in this case, and should not have been submitted to the consideration of the jury. They are based upon the theory that both parties are riparian owners of the land lying along and adjoining the stream in question, whereas it appears from the pleadings that respondent is not such owner. In fact, it fails to appear that he is the owner of any land anywhere; but it is admitted that he diverted a large portion of the’ water of the stream from its natural and usual channel, by tapping the same above the land of appellant in the public highway, and conducting it across the said road and over land owned by other men, by means of artificial ditches. If the respondent had been the owner of the land adjoining the stream where this diversion was made, then the instructions would have been applicable to the case. But the appellant, being a riparian owner, was entitled to have the water run through his place, undiminished by the use of any one, except such as own the land adjoining the stream above his land. We hold that the instructions complained of were improperly submitted to the consideration of the jury, and that the judgment be reversed, and the cause remanded to the court below for a new trial. Judgment reversed.