Guynn v. Wabash Water & Light Co.

Spencer, J. This is an appeal from a judgment for appellee rendered on conclusions of law and a special finding of facts in an action wherein appellant sought to enjoin appellee from maintaining a dam across a natural watercourse, thereby backing water upon and over lands of appellant, and to recover damages therefor. [488] Appellant was the upper and appellee the lower adjoining riparian owners of real estate through which flowed a natural watercourse known as Treaty Creek. On October 20, 1908, appellee constructed on its own land across such stream a eencrete dam three feet in height for the purpose of ponding the waters of such creek in order to furnish its boilers with water for steam making purposes. Said dam was about 200 feet down stream from appellant’s lands and so backed up the water for some 600 feet as to cover part of said lands. An eight-inch tile drain belonging to appellant empties into Treaty Creek about ten feet south of appellee’s line and the mouth of said drain is tweny-four inches above the bed of the creek. The mouth of this drain was submerged to within one inch of the top, causing some damage to appellant. 1. 2. 3. Any swelling of the water of a natural watercourse on the lands of an upper riparian owner by the act of the lower owner is an invasion of the rights of such upper owner, who has the right to the stream in its natural condition, which he may protect, not only for present needs, but for possible future ones. Ramsdale v. Foote (1882), 55 Wis. 557, 13 N. W. 557; Haas v. Choussard (1856), 17 Tex. 588. One hour’s obstruction would furnish as complete a cause of action as any longer period of time. Corey v. Silcox (1854), 6 Ind. 39. To cause the waters of a lake to overflow an owner’s land creates a liability, although the outlet is not a running stream in the usual sense, but submerges itself and filters through a bed of gravel. Hebron Gravel Road Co. v. Harvey (1883), 90 Ind. 192, 46 Am. Rep. 199. 4. [489] 5. 6. [488] The general rule of property is applicable to a riparian proprietor and he is restricted in the management of his property by such rule. “So use your own as not to injure others.” He cannot take the initiative and construct a dam across a stream which will cause the water to overflow and injure the lands of his neighbor, that [489] lie opposite or above his own premises, either when the water is at its usual height or in an ordinary freshet; or that so obstructs its flow as to prevent the land of the other riparian owner from being properly drained. Wilhelm v. Burleyson (1890), 106 N. C. 381, 11 S. E. 590. The upper proprietor has a right to protect himself from the acquisition of prescriptive rights at least, and that right is not diminished by the fact that he has no present use for his rights to their full extent. A riparian owner may, by means of a dam, swell water, when in its natural state, to his neighbor’s line above, but not further, without being guilty of a wrong. Miller v. Shenandoah Pulp Co. (1893), 38 W. Va. 558, 18 S. E. 740. The water cannot be set back one foot by the lower proprietor upon the land of the upper proprietor. Hill v. Ward (1845), 7 Ill. 285. The mere throwing the water back in the channel upon the land of the upper proprietor, although it does not overflow its bank, is actionable. Wright & Rice v. Moore (1863), 38 Ala. 593, 82 Am. Dec. 731. That the injury from the setting back of water by a dam is small will not prevent the maintenance of the action. Alexander v. Kerr (1828), 2 Rawle (Pa.) 83, 19 Am. Dec. 616. The slightest flooding back caused by a dam complained of will entitle the upper proprietor to damages, nominal if the injury is very slight, compensatory if substantial. Kemmerer v. Edelman (1854), 23 Pa. St. 143. Plowing water back on the land of another is not answered by the plea that the portion flooded was not thereby depreciated in value. The law implies damages for such an act, not alone for the present injury, but also to preserve the rights of property, distinct and free from encroachment. Graver v. Scholl (1862), 42 Pa. St. 58. Judgment reversed, with instructions to grant appellant a new trial and to proceed therewith in accordance with this opinion.