Kennedy v. Niles Water Supply Co.

Ostrander, J. Proprietors of the land upon the banks of a stream, or a lake, have a common usufructuary right to the water as it is in a state of nature. So long as the use made of the water by a common proprietor is the common use, an excessive use, however long continued, will not ripen into a prescriptive right, so long as other common owners are not injured thereby, or prevented, or excluded from making such use as of common right belongs to them. If a wrongful use is made of the water of a running stream by a common proprietor, as if he finally diverts the water, such use is by common consent presumed to be injurious to other common proprietors and therefore adverse. As in other cases, the adverse user, in. order to ripen into a right to use, must be visible, continuous, and notorious, and must continue for the period required to acquire rights in real property adversely to the owner. 2 Farnham on Waters and Water Rights, §§ 537-541. [476] Assuming for the purposes of this case (we may indulge the assumption because complainants have not appealed from the decree of the court below) that defendants have acquired the right to take water from Barron Lake, I think the proposition advanced by Mr. Justice Brooke in his opinion, namely, “that the gist of the easement lies in the quantity of the water taken and not in the particular method in which it is taken,” cannot be sustained. It was a common right of the particular riparian owners to have the lake at its natural level. The level of a lake, it is true, depends upon the quantity of water it contains; it is higher or lower as the quantity of water. But the interest of the owners of the shore, there being visible neither an inlet nor outlet, was affected by a diversion of water only as such diversion affected the level of the lake. With the laying of the first, or 12-inch, pipe, the level of the lake could be in no case reduced below the mouth, or intake, of the pipe. What was threatened (and this is the measure and limit of the adverse right asserted by defendants’ assignors) was the lowering of the level of the lake to the level of the mouth of the pipe. Whether much or little water was taken hourly, or daily, no lower level could result. The case is not different from one where a ditch had been cut to the lake through which, as was desired, or required, water was diverted. This 12-inch pipe and such apparatus as was used with it furnished the visible evidence of the nature and extent of the trespass which was being committed by the defendants, or, as has been stated, of the right which was being asserted. Assuming that acquiescence in such diversion of the water as could be accomplished by the means thus employed continued for such length of time that complainants would be estopped to deny the right to continue the taking, it does not appear that there has been any acquiescence in the taking of water through pipes laid lower than the original pipe. The argument advanced by Mr. Justice Brooke leads irresistibly to the conclusion that, because complainants [477] acquiesced in the taking of such amount of the water as would flow through the pipe originally laid, defendants have the right, as the level of the lake is lowered, to lay successive pipes until they draw off the last drop of water which the lake contains, provided they do not on any day, or at any time, take a larger quantity of water than was originally taken through the pipe first laid. I conceive that in laying a 6-inch pipe lower than the original pipe, and in laying a 9-inch pipe, lower than the 6-inch pipe, defendants committed distinct trespasses — asserted new rights. Those pipes were laid shortly before the bill was filed, and complainants have not acquiesced in diverting the waters of the lake by means of these last-mentioned pipes. By the laying of those pipes they were threatened, not with the diversion of a larger or smaller quantity of water than formerly, but with a further reduction of the level of the lake below its natural level, with an injury to their premises never threatened before. The learned circuit judge, as I understand the decree, requires the defendants to obstruct all pipes except the one originally laid and to take no water from the lake except such water as can be taken through the original pipe. Whether the decree gives to defendants rights greater than they are entitled to is, as I have stated, immaterial because complainants have not appealed. I am of opinion that the defendants have no ground for complaint, and that therefore the decree ought to be affirmed. Steers, C. J., and Moore, Kuhn, and Stone, JJ., concurred with Ostrander, J.