Gerrish v. New Market Man. Co.

Woods, J. In general, each proprietor of land through which a stream flows, has an equal right to the use of the water in its natural course, without diminution or alteration, and neither has a right to use or obstruct the water to the prejudice of the other proprietors, unless he has acquired a title to some exclusive enjoyment, by an actual appropriation and use of the water during the legal period, or by some other mode of gaining a title. The principle is, however, subject to this qualification, that each proprietor may use and apply the water, while it runs over his land, to domestic, agricultural, and manufacturing purposes, provided he uses it in a reasonable manner, and so as to work no actual, material injury or annoyance to others. And a proprietor below can maintain no action for any damage he may incidentally suffer from such use or interruption of the water, if it is not detained unreasonably, or let off in unusual quantities, so as to deprive him of the use of it, or to cause some actual injury. Neither can a proprietor above maintain an action for an obstruction of the water below, unless he has sustained some actual damage. But if his land is thereby flooded, or the obstruction or annoyance is a material injury to him, he may maintain an action for the damage. Braly v. Show, 6 East 214; Mason v. Hill, 3 Barn. & Adol. 304 Wright v. Howard, 1 Sim. & Stu. 190; Johns v. Stevens, 3 Vt. Rep. 308; Crooker v. Bragg, 10 Vt. Rep. 260; 2 Cow. & Hill’s Notes 379. In Davis v. Fuller, 12 Vt. Rep. 190, Mr. Justice Col-lamer, after a careful review of the authorities, says : “ The result of the authorities, then, is, that every owner of land over which a stream flows, has the right to the natural flow of the stream; that he can never be deprived of this right but by grant, actual or presumptive. Whenever this right is encroached upon by obstructions or reservoirs, above or below, and actual injury ensues to any material amount, an [484] action accrues, however valuable or convenient the use of such obstructions may be to him who erected them.” These principles of law are well settled, and, indeed, they are not drawn in question, by either party, in this case. Their application will be found, upon examining the cases, to be not very difficult. By actual, material damage is to be understood simply damage, without epithet, or the qualification of much or little. In Thompson v. Crocker, 9 Pick. 59, the court had instructed the jury “ that if the plaintiff had proved that his mills had sustained any actual, perceptible damage, in consequence of the erection of the defendant’s dam, he was entitled to recover.” This instruction was holden by the supreme court to have been correct. The chief justice remarked : “ ,rWe do not see how he can be refused his legal compensation because his damage was small; and we should feel at a loss to fix the amount of injury above which there should be a right of action, and below it none.” In Woodman v. Tufts, 9 N. H. Rep. 88, it was decided that where an individual erected a dam, so as to flow back water upon the land of another, it is a presumption of law that the act is a damage, and no special damage need be shown in order to sustain an action. In conformity with this principle was the instruction of the court, “that if the plaintiff’s land was overflowed, or his river banks and soil carried away, or his land and grass injured, they would return a verdict for the plaintiff.” They were directed to inquire into the extent of the damage, not to test the right of the plaintiff to maintain his action, but for the legitimate purpose of assessing damages. It is impossible to impeach the instructions, on that ground, without disregarding principles that have always been observed, and the only reasonable ones that can easily be conceived to govern such cases. The court, with equal propriety, instructed the jury that they could not properly compare the damage which the de [485] fendants’ acts had caused in one part of the plaintiff’s land, with benefits they may have done in other parts, and deduct the latter from the former, in assessing damages. The instructions for which the defendants’ counsel moved the court were to the contrary of this, and were, therefore, denied. There is no set off or recoupment of damages, not founded on the undertaking or default of the party sought to be subjected to such adjustment, nor can he who has inflicted a wrong, require the injured party to accept indemnity in any other manner than such as the law provides. No precedent is found for such a claim as is made in the motion adverted to, nor indeed is the point urged in argument. Instructions given to the jury, on the trial, refer to the evidence, and must be interpreted by such reference, and enlarged or limited accordingly. In the case before us, there was evidence that the plaintiff’s banks and soil were carried away, and his grass damaged, not by restraining the flow of the water in the spring and autumn, but by increasing it in the summer months. It is true, the water was so restrained in the spring and autumn, but no evidence points to that as the cause of the damage. The grass was killed or depreciated, by overflowing some low parts of his land, and the soaking of the water through the banks in other places. Such were the very consequences of the obstructing, diverting and flowing set up in the declaration. Such damage was, in short, itself the drowning, said, in the argument, to have been the gravamen of the suit. It seems, therefore, an unfounded objection to the instructions, that they omitted to limit the plaintiff’s right to recover to those injuries which are embraced in his declaration, since, there being no evidence of any other damage, the jury could not possibly have found any other, upon the instructions given them. The instructions appear to have been, in all respects, correct. The cause of action was, that the defendants, by accumulating the water in the autumn and spring, and letting it off in unusual quantities in the summer, caused the land [486] of the plaintiff to be flowed, and the grass and other herbage, which had been accustomed to grow upon the, banks, to be drowned and destroyed, and the banks to be damaged to an extent that enabled the jury to estimate the damage. Such a use of the channel was not justified by any rights accruing to these defendants, from the mere fact of their owning mills above and below. It was most clearly “ letting off the water in Unusual quantities,” and if the plaintiff’s land was thereby flooded at the season when it was accustomed to be dry, and that, too, the only season in which it could be of any use to him, he was entitled to his action, and to an estimate of the extent of the injury, to be made by the jury. Judgment on the verdict.