Liles v. Cawthorn

Terral, J., delivered the opinion of the court. The appellee, Cawthorn, plaintiff in the circuit court of Marshall county, sued Lyles and another in tort in the sum of five hundred dollars, and recovered -a judgment for fifty dollars. From that judgment Lyles appeals. A motion to dismiss the appeal is made, and this raises the first question for decision. The ground of action is based upon the entry by defendants below upon the lands of the plaintiff and the destruction of his milldam; to which wrong the defendants pleaded that one of them owned and operated a water mill and gin just above the water mill and gin of plaintiff upon Coldwater creek, and that plaintiff’s dam caused the water of the creek to flow back upon the defendant’s mill and destroy his water power, and was thereby a nuisance to him, and that by the authority of the board of supervisors, which had ordered said dam to be abated as a nuisance, he entered upon the lands of the plaintiff and took down his milldam, but only to such extent as would relieve the defendant’s mill from the refluent water thrown back upon it by the milldam of plaintiff; and offered evidence tending to support such contention. 1. We are of the opinion that the appeal was properly brought in this case. Section 32, annotated code, gives an appeal to the supreme court from any final judgment of a circuit court in a civil case. Where the suit is brought in the circuit court [564] it is not necessary that the amount involved' should be more than fifty dollars, as is the case under section 85 of causes originating before a justice of the peace. 2. We are of the opinion that the board of supervisors of Marshall county,under section 289, annotated code, had no power to decree themilldam of Cawthorn a nuisance, and that the proceedings of said board in reference to that matter were properly-excluded from the jury. But, nevertheless, the law is quite uniformly held to be that a person injured by a private nuisance may, of his own authority, abate such nuisance. “ Water runs, and ought to run, as it was wont to run,” is a principle of the common law. Every proprietor of the soil through which a stream passes, has a right to have it run in its natural current without diminution or obstruction. The difference of level between the surface where the stream first touches his land, and the surface where it leaves it, is the privilege of water power, which the proprietor may use and appropriate in any way desired by him for his advantage, without interruption on the part of others, and any interference on the part of others will subject the wrongdoer to all the consequences imposed by law thereon. An inferior proprietor may not, by any dam however useful to him, throw back the water in any appreciable degree, however small, upon the proprietor above him, and if he do so, he would be guilty of an actionable nuisance, for which a remedy is provided. Angelí on Water Courses, ch. iv. A private nuisance may be abated by any person injured thereby. If the nuisance be by refluent water thrown back in the channel of the stream so as to raise the level of the water where it passes from his land, thereby diminishing his waterpower, and such refluence of water is caused by a dam or obstruction made by the inferior proprietor, he may, of his own authority, enter upon the land of the inferior proprietor, and remove so much of the dam or other obstruction as causes the refluent water. This redress, like every redress, which a party may do for himself, must be exercised reasonably, with [565] out strong hand, and must not exceed the measure of right. And the right is to remove only so much of the dam or obstruction as will free the stream on his own land from refluent water caused by such dam or obstruction. The right of Lyles was only to remove so much of Cawthorn’s dam as makes it a nuisance to him, that is, to stop the refluence of the water of Cold-water river, upon his, Lyles’, land. We append the following' authorities as sustaining, in our view, the doctrine here announced: 3 Bl. Com., 5; Wright v. Moore, 82 Am. Dec., 735; Addison on Torts, 396; Perry v. Fitzhowe, 55 E. C. L. R., 776; Cooper v. Marshall, 1 Burrow, 267; Roberts v. Rose, 1 L. R., Ex. Cas., 89; Wood on Nuisances, sec. 834. The case below did not proceed upon the principles herein stated, therefore The verdict is annulled, the judgment is reversed, and the case is regianded for a new trial.