Norway Plains Co. v. Bradley

Foster, J. It appears, from the master’s report, that the plaintiffs are, and for more than twenty years prior to 1868 have been, the owners in fee of the mills and dams, and the land on which they stand; and that they have obtained, by purchase or otherwise, the right to maintain forever what is called the lower dam, and to flow and cover with water any and all lands which may or can be flowed by means of the said lower dam at its present height. The alleged obstruction of the plaintiffs’ water rights, to prevent which an injunction is desired, is made by building a foundation wall, extending a distance of about fifty feet along and upon the easterly bank of the Cochecho river, — the said wall extending some thirty feet westerly and into the river. This wall is located upon land about — 103 — twenty or twenty-five rods above and northerly from the upper dam, which land is covered and flowed with water by means thereof. I. The first question is, whether the plaintiffs in fact maintained their upper dam at a greater height than they should, and thereby wrongfully caused the water to flow back upon the defendant’s laud at the point of alleged obstruction; or whether, the dam being no higher than the plaintiffs have a right to maintain it, they have, in such a condition of things, a right to the uninterrupted flow of the water, as regulated by means of the dam. The present upper dam stands substantially upon the site of a frame dam built in 1843, in the place of an old log dam existing long prior thereto, and is maintained by the plaintiffs at the height of the dam built in 1843; and although, in fact, the dam built in 1843 actually held back more water, flowed the mill-pond of the upper dam to a greater depth, and consequently backed the water up higher upon the adjacent lands than the old dam, still, it appears from the master’s report that the plaintiffs have maintained their present upper dam at its present height during the whole of twenty-five years preceding the filing of this bill. The plaintiffs have therefore acquired the right, by prescription, to maintain their dam at its present height, — their occupation and use of the water during the whole period of twenty-five years, by means of the present and former dams, having apparently been adverse, exclusive, and uninterrupted. Watkins v. Peck, 13 N. H. 360. The adverse and exclusive use of water in a particular manner, for the term of twenty years, confers a right to the continuance of such use and enjoyment as effectually as if the same were acquired by express grant. 2 Bl. Com. 402; Bullen v. Runnels, 2 N. H. 257; Angell on Watercourses, sec. 372. If a party claims and exercises for twenty years the right to raise the water as high as his dam will raise it when there is sufficient water to fill it, he will, by such user, acquire a right to the extent of his claim. Winnipiseogee Lake Co. v. Young, 40 N. H. 420; Burnham v. Kempton, 44 N. H. 78; Washburn on Easements 226. It does not appear at what time in 1843 the new frame dam was built. It had been completed prior to August 30. When the new stone dam — founded upon the site of the frame dam, for which it was intended as a substitute — was completed, in October, 1862, it was found to be from li30- to 3X%- inches lower than the dam of 1843. At that time the abundance of water in the dam rendered it unnecessary, difficult, and to some extent, if not wholly, impracticable to make such an addition to the dam as would bring it up to the height of the former dam. But this addition was made on the arrival of the dry season, July 4, 1863 ; and ever since that time, except when the flash-boards have been temporarily broken and pushed off by ice and other means, the dam has been maintained to the height of the frame dam of 1843. The interruption of the plaintiffs’ enjoyment, during the few months — 104 — between the fall of 1862 and the summer of 1863, in the circumstances disclosed by the master, can by no means be construed into a voluntary abandonment of their claims, nor an involuntary forfeiture of their prescriptive rights, by operation of law. Angelí on W atereourses, sec. 211. II. It therefore becomes immaterial to consider whether, independent of a right by prescription, the plaintiffs have a good paper title, by purchase or grant, to the easement in question, with regard to-which, if it were material, the master’s report is not sufficiently explicit. III. The plaintiffs have acquired by purchase certain lands, and the right to flow certain other lands by means of reservoir dams erected and owned by them in Middleton and New Durham. By means of these dams the plaintiffs are accustomed to retain their surplus water in wet seasons, and to let it down in reasonable quantities in drier seasons, so distributing and using it as to equalize, as nearly as possible; the quantity running to their mills throughout the whole year. ' The master finds that the quantity of water so let down from said reservoir is not larger than is accustomed to flow in some seasons of the year, but is considerably larger than the accustomed flow of the stream in such dry season; and the result is, that the channel is more uniformly full of water through the year. The natural channel of the river between said reservoir and said upper dam at Rochester is sufficient to carry all the water which the plaintiffs send down from their reservoir, and the water so sent down has run within the natural banks of the stream until it reached said upper dam mill-pond, and has never, unless a very, heavy rain fell while the gate was open, overflowed the natural banks. But in consequence of tliis detention of the water in the reservoir, and sending it down in a mode different from its natural flow, the channel is kept more uniformly filled with water through the year, so that in the summer months the adjacent meadows of riparian owners are not so thoroughly drained, and the water percolates them during the summer from the stream under the earth ; and thereby, in process of time, the grass is rendered of inferior quality and less in quantity. Another consequence of, and the one especially sought by this detention and letting out of the water by means of the reservoir is, that the plaintiffs’ said upper dam is kept more uniformly full during the summer months, and they are thus enabled, in times of naturally low wate“r, to secure more power and head for driving their machinery. By the same means the land of the defendant is covered and flowed with water more uniformly and to a greater depth than it otherwise would be during the summer months, since the building of said Middleton reservoir. It is well settled that in the use of a stream for domestic, agricultural, and manufacturing purposes, to which every riparian owner is entitled, there may of right be diminution, retardation, or acceleration of the natural current, consistently with the common right, and which is implied in the right to use it at all. — 105 — If the mill-owner, by letting down water from his reservoir dam for use of his mill in the dry season, renders intermediate land less valuable for cultivation, he is not liable in damages, provided the water so let down is reasonably required for the use of his mill, and does not overflow the natural channel. Drake v. The Hamilton Woolen Co., 99 Mass. 574;—see, also, Brace v. Yale, 99 Mass. 488; Springfield v. Harris, 4 Allen 494. We are unable to discover, from the reported facts, that the plaintiffs have made any unlawful or unreasonable use of the streams conducting the water from their reservoir dams to their mills. But an important and perhaps difficult question is presented by the peculiar position of this case. For, although the plaintiffs have the right to maintain the water at a level with the top of their dam, provided they can do so by the appliances controlled by them prior to the acquisition of those rights which have enabled them to construct and maintain their Middleton and New Durham reservoirs ; and although the water sent down the river, by means of those reservoirs, never overflows the natural banks of the river, unless in exceptional times of heavy rains while the gates are open, — still, the water is sent down the stream in a mode different from its natural flow, the channel is kept more uniformly filled with water through the year, and the plaintiffs’ upper dam is kept more uniformly full during tbe summer months. Now the plaintiffs have not acquired the right by prescription nor by grant to increase the natural flow of the water within the channel of the stream, and they clearly cannot have the right, as against riparian owners, so to enlarge the volume of running .water as to fill up the entire width between the river banks, to the detriment of riparian owners. The use of the stream by all parties having rights in it must be reasonable, whether those parties are opposite hr contiguous riparian owners, or whether one or more of the parties be a mill-owner, exercising rights and privileges adverse to riparian ownership and rights. And that may be found to be an essential and important encroachment upon the enlarged volume of water used and enjoyed by these plaintiffs by means of their reservoirs, which would not be an unreasonable encroachment upon, and diversion of, the natural and ordinary current of the stream. And we are of the opinion that, as against the defendant, the plaintiffs have no right to insist that he shall not be at liberty to make just as much use of the water as he might have made, provided the plaintiffs had not interfered with the natural flow of the river by means of the water sent down from these upper reservoirs. With reference to the use of a running stream by riparian owners,, and others having adverse interests, the law has been recently declared in the house of lords in a manner which we regard as at variance-with the general understanding of the true condition of the law, at least in this country. — 106 — It is there held that the soil of the alveus of a running stream is not the common property of the respective owners on the opposite sides. The share of each belongs to him.in severalty, and extends usque ad medium filum aquce; but neither is entitled to use it in such a manner as to interfere with the natural flow of the stream. A fence or bulwark on the bank is allowable, but the alveus is sacred. In the case referred to—Bickett v. Morris, L. R. 1 H. L. Sc. 47—the appellant (to use the language of his counsel) was dragged into court, simply for building on his own property, and taking in a small strip of the alveus — a strip which at one end was only about two feet six inches wide, and which gradually grew less towards the other end. The Lord Chancellor (Chelmsford) said, — “ The important question in the case is, whether the respondents were entitled to a declaration that the appellant had no right or title to erect any building, or otherwise to encroach upon or to interfere with that part of the solum of the river which is immediately opposite their propei'ty, beyond a certain line; and to a decree ordering him to take down andjemove the building, or other erections, in so far as these extend into or encroach upon the solum of the river beyond the said line, and interdicting them from erecting any building or otherwise encroaching upon the solum of the river beyond the line in question. “ There is a general statement in the pleas in law of the encroachment complained of being injurious to the respondents’ property; but no proof was given by them of any actual injury, but only of a probability of injury, from the building being advanced farther into the river than the line agreed upon. “ The result of the opinion of the judges of the second division appears to be, that a riparian proprietor has no right to erect any building in álveo fluminis; and if he does so, although the opposite proprietor may be unable to prove that any damage has actually happened to him by the erection, yet,.if the encroachment is not- of a slight and trivial, but of a substantial description, it must always involve some risk of injury. Lord Benholme said, — ‘ Without my consent [i. e., the consent of the proprietor of the other side of the river] you are not to put up your building in the channel of the river, for that, in some degree, must affect the natural flow of the water. What may be the result, no human being with certainty knows; but it is my •right to prevent your doing it; and when you do it, you do me an injury, whether I can qualify damage or not.’ And Lord Neaves said, — ‘ Neither can‘any of the proprietors occupy the alveus with solid erections without the consent of the other, because he thereby affects the course of the whole stream. The idea of compelling a party to define how it will operate upon him, or what damage or injury it will produce, is out of the question.’ “ These views appear to me to be perfectly sound in principle, and to be supported by authority. “ The proprietors upon the opposite banks of a river have a common interest in the stream; and although each has a property in the alveus — 107 — from Ms own side to the medium filum fluminis, neither is entitled to nse the alveus in such a manner as to interfere with the natural flow of the water. “ My noble and learned friend, the late Lord Chancellor, during the argument put this question: ‘ If a riparian proprietor has a right to build upon the stream, how far can this right be supposed to extend ? Certainly [he added] not ad medium filum; for, if so, the opposite proprietor must have a legal right to build to the same extent from his side.’ It seems to me to be clear that neither proprietor can have any right to abridge the width of the stream, or to interfere with its regular course; but anything done in álveo, which produces no sensible effect upon the stream, is allowable. “ It was asked in argument whether a proprietor on the banks of a river might not build a boat-house upon it. Undoubtedly this would be a perfectly fair use of his rights, provided he did not thereby obstruct the river or divert its course ; but if the erection produced this •effect, the answer would be that, essential as it might be to his full enjoyment of the use of the river, it could not be permitted ; a fortiori, when the act done is the advancing solid buildings into the stream, not in any way for the use of it, but merely for the enlargement of the riparian proprietor’s premises, which must be an infringement upon the right and interest of the proprietor upon the. opposite bank. * * * “ In this case, mere apprehension of danger will not be sufficient to found a complaint of the acts done by the opposite proprietor, because, being on the party’s own ground, they were lawful in themselves, and only became unlawful in their consequences, upon the principle of sie utere tuo ut alienum non Icedas. But any operation extending into the stream itself is an interference with the common interest of the opposite riparian proprietor, and, therefore, the act being prima' facie an encroachment, the onus seems properly to be cast upon the party doing it, to show that it is not an injurious obstruction.” If we consent to this view of the law, it seems to follow, by analogy, that what would be an interference with the common interest of an opposite riparian proprietor must be regarded as an interference with the interest of these plaintiffs, who, by prescription or grant, have acquired a right to the unobstructed flow of the water for the use of their mills below the point of the defendant’s encroachment. Lord Cranworth said, — “ It is impossible to calculate or ascertain beforehand what may be the effect of erecting any building in the stream, so as to divert or obstruct its natural course.” “ If the proprietor on one side can make an erection far into the stream, what is there to prevent his opposite neighbor from doing the same ? The most that can be said in favor of the appellant’s argument is, that the question of the probabilities of damage is a question of degree, and so, if the building occupies only a very small portion of the alveus, the chance of damage is so little that it may be dis108 But this is an argument to which your lordships cannot ifc %c % ¿ft ■ffc regarded. listen. “ It was said, in argument, — ‘ Then if I put a stake in the river, am I interfering with the rights of the riparian proprietors ? ’ To this I should answer, de minimis non curat praetor. But further, it might be demonstrated, in such a case, not that there was an extreme improbability, but that there was an impossibility of any damage resulting to any one from the act. It is, however, unnecessary for us to speculate on any such infinitesimal obstruction. No one can say that in this case the extent to which the appellant has built into the river is so small as to be, like the case of a stake driven into the soil, inappreciable. I find nothing in the cases or text-books, to which we were referred, at variance with the view I have taken of the law. And the cases of the Town of Aberdeen v. Menzies and Farquharson v. Farquharson, cited by the Lord Ch. J. Clerk, are in exact conformity with it. I therefore come, without hesitation, to the conclusion that the appellant had no right, independently of contract or consent, to build, as he has built, into the bed of the river.” And Lord Westbury said, — “ This is a case of very considerable importance, because, as far as I know, it will be the first decision establishing the important principle that an encroachment upon the alveus of a running#stream maybe complained of by an adjacent or an ex adverso proprietor, without the necessity of proving either that damage has been sustained, or that it is likely to be sustained from that cause. The examination that has been given at the bar to the cases cited upon that point of law, certainly had led me to the conclusion that it has not yet been clearly established by decisions. I have felt much difficulty upon it, because, undoubtedly, a proposition of that nature is somewhat at variance with the principles and rules established on the subject by the civil law. I am, however, convinced that the proposition, as it has been laid down in the court below, and as it has received the sanction of your lordships in your judgments, is one that is founded in good sense, and ought to be established as matter of law.” Ho concludes as follows: “It is wise, therefore, to lay down the general rule, that even though immediate damage cannot be described, even though the actual loss cannot be predicated, yet, if an obstruction be made to the current of the stream, that obstruction is one which constitutes an injury which the courts will take notice of, as an croachment which adjacent proprietors have a right to have removed. “ In this sense, the maxim has been applied by the law of Scotland, that melior est conditio prohibentis, namely, that where you have an interest in preserving a certain state of things in common with others, and one of the persons, who has that interest in common With you, desires to alter it, melior est conditio prohibentis; that is to say, you have ‘a right to preserve the state of things unimpaired and unprejudiced in which you have that existing interest.” We find ourselves unable to assent to these doctrines: but we have — 109 — devoted so much space and time to the case, not only because of the exalted character of the tribunal and its officers by whom the doctrines have been announced, but also by reason of the importance of the questions involved. It is quite manifest that the practical application of such principles and rules would be disastrous to the manufacturing interests of this community and this country — interests of such vast importance to the welfare and prosperity of the people as to require and demand, if not active encouragement, at least protection from unnecessary invasion; for, if the law be established in accordance with the doctrine of Bickett v. Morris, it inevitably follows, not only that a riparian proprietor on shores above the dam which a mill-owner has acquired a prescriptive right to maintain, controlling thereby the waters of the stream, may not make improvements upon his own land, using thereby the waters of the stream, or any portion of the alveus, to such an extent as sensibly to divert the current, — but it must also follow, that no bridge with piers laid upon and within the alveus, no wharf, no boat-house, much less the dam of an upper mill-owner, can be placed in, upon, or across the stream, whereon a lower mill-owner has established his dam by prescription, even though the consequences may be woefully disastrous to the interests of the proprietor above, and utterly insignificant to him whose rights are technically invaded. It is difficult to perceive how such doctrines can be applied with practical advantage or safety to a country like Scotland; but we have no hesitation in repelling the effort to apply them to this land, where mighty rivers flow, whose abundant waters may be diverted, here a little and there a little, and used over and over again, not only without detriment to individual rights, but to the comfort and prosperity of many. A different rule has certainly been applied in this country — one too universally recognized by this court, as also in our sister States, to be disregarded, the operation of which has not yet been found disadvantageous, namely, that no priority of occupation or use of water by a mill-owner, upon a stream within the limits of his own estate, affects the right of a riparian proprietor above to erect and operate a mill in a suitable and reasonable manner upon his own land, or to cultivate or make improvements thereon, using or diverting the waters of the stream for that purpose, unless he thereby sensibly affects the rights of such mill-owner in the use of the water, and works an injury to his mill. It is competent for a riparian proprietor to change, obstruct, diminish, or deepen the channel of a stream within his own premises, or the mode of applying- it to use, provided he return the water in its accustomed channel on to the land of the next proprietor at its accustomed point, and do nothing that materially affects the enjoyment of the water by the adjacent proprietors, according to their legal rights. In short, every riparian ‘proprietor may make a reasonable use of the — 110 — stream running over his own land. Washburn, Easements, 251, 265, 280. “ What is a reasonable use,”* said Bellows, J., in Hayes v. Waldron, 44 N. H. 584, “ must depend upon a variety of conditions, such as the size and character of the stream, and the uses to which it can be or is applied; and, from the nature of the case, it is incapable of being defined to suit the vast variety of circumstances that exist; but the rule is flexible, and suited to the growing and changing wants of communities.” Whether the diversion or interference with the stream is rightful in a particular case must depend upon the question whether, under all the circumstances of the case, it is or is not a reasonable use of the stream ; and, in determining that question, the extent of the benefit to the mill-owner, and of inconvenience or injury to others, may, very properly, be considered. These general propositions are sustained by a great weight of authority ; for which see, among others, the cases cited in the opinion of the court in Hayes v. Waldron;—see, also, Seeley v. Brush, 35 Conn. 419. It seems to be conceded by Mr. Gale, in his work on Easements, that “ all the proprietors of the banks on each side have a natural right to the reasonable enjoyment of the same stream.” Gale on Easements (4th ed.) 210. Whether there is any inconsistency in holding this doctrine, and also that declared in the case of Bickett v. Morris, is not for us to determine. It is observable that the Lord Chancellor, in that case, unhesitatingly declares that it is not a reasonable use of a river for a riparian proprietor to erect a permanent building, one corner of which shall project 2|- feet into the channel of the stream. We should regard this matter as a question of fact, and not a question of law. These reservoir dams, it will be remembered, were built only some six or seven years ago. They are not maintained by any prescriptive right, nor by any grant which can conclude the rights of the defendant.. But they increase the height and volume of water irpon the defendant’s land, and so must be regarded as an encroachment and invasion upon his rights, which cannot be justified, unless upon the ground that such use of the stream, by means of these reservoirs, is reasonable, as was held in Drake v. Hamilton Woolen Co., before cited. Manifestly, this doctrine of reasonable use must be allowed to work both ways. — 111 — In view of all the facts and circumstances, so fully reported by the master, we certainly cannot find, either as matter of law or fact, that the diversion of the alveus of the river upon the defendant’s land is an unreasonable use of the land, or an unreasonable diversion of the stream; but the decision of this question is unnecessary for the purposes of this case. The plaintiffs, admitting that their damages by reason of the defendant’s technical invasion are small, but failing to show that they have sustained any whatever, or even the slightest inconvenience, ask for the extraordinary interposition of the court, by way of injunction, to restrain apprehended encroachments by others, and prevent the possible damage that may result therefrom. It is by no means manifest that proceedings at law are not abundantly sufficient to compensate the plaintiffs for any damages sustained by reason of the acts whereof they complain. If such remedy is adequate, this court would be very slow to proceed by way of injunction. Neither does it follow that, because the court is vested by statute with .almost unlimited discretion in this particular, an injunction will or should be granted, even where a plaintiff has not only established his right and title at law, but has also recovered damages for the very invasion, the continuance of which he seeks by bill in equity to prohibit and restrain. The principles governing the court in such cases, and, in our judgment, peculiarly applicable to the present, are stated in Wason v. Sanborn, 45 N. H. 169, and Bassett v. Salisbury Manuf. Co., 47 N. H. 426. In the former case, Bell, C. J., says, — “To authorize the court’s interference by injunction, there should appear imminent danger of great and irreparable damage, and not of that for which an action at law would furnish full indemnity.” In the latter case, Bellows, J., remarks, — “ The power to grant injunctions to prevent injustice has always been regarded as peculiar and extraordinary. It is not controlled by arbitrary and technical rules, but the application for its exercise is addressed to the conscience and sound discretion of the court. “ Ordinarily it will not be exercised when the right of the complainant is doubtful, and has not been settled at law ; and even where it has been so settled, an injunction will not be granted when the remedy at law is adequate. It is not enough that an injury merely nominal or theoretical is apprehended, even although an action at law might be maintained for it; but to justify the interposition of this summary power, there must be cause to fear substantial and serious damage, for which courts of law could furnish no adequate remedy. What injuries shall be regarded as irreparable at law must depend upon the circumstances of the particular case. If the injury be trivial, as by slightly darkening a neighbor’s window, or raising the water of a river a few inches upon his rocky shore, doing him no appreciable or serious damage, equity would not, ordinarily, interfere by injunction, even in cases where the right had been established at law; for the power is extraordinary in — 112 — its character, and is to be exercised, in general, only in cases of necessity, and when the court can see that other remedies are inadequate to do justice between the parties ; and even then it is to be exercised with great care and discretion.” In support of these views many authorities are cited. The result of all these considerations is, that the bill Must be dismissed.