Smith v. Adams

The Chancellor.

I concur with the vice chancellor in the Conclusion that the evidence in this cause establishes a prescriptive right in the complainant to divert a portion of the waters of the Spring from them natural channel across the defendant’s land, in the manner and to the extent that the complainant and those under whom he claims have been in the habit of diverting the same since 1804. In the case of Belknap v. Tremble, (3 Paige’s Rep. 605,) I had occasion to advert to the rule of law on this subject, as correctly laid down by the learned commentator on American law, that the exclusive enjoyment of water in a particular way for twenty years or more, without interruption, is sufficient to raise a presumption of a grant to use it in that manner ; and that it is not necessary that the person claiming this prescriptive right should have used the waters exactly in same way for the whole twenty years, provided the mode of using it has not been materially'varied to the prejudice of the rights of others during that time. In the present case the water diverted from the spring to the ten acre lot was at one time used for the purposes of a distillery, at another for scouring and dressing cloth, and at other times for domestic purposes at the dwelling houses on the complainant’s ten acre lot. But the extent and manner of diverting the water of the spring for these several purposes, by means of an aqueduct of a particular size and construction at the spring, has at all times been substantially the same. The prescriptive right established, therefore, is not a right to divert water for any specific purpose, or to divert so much water as may be necessary for a particular object; but it is the right to divert the water in a particular manner and to a certain extent, from its accustomed channel, for the purpose of being used on the complainant’s ten acre lot.

Although the complainant’s right to the use of a portion of the water of the spring out of its natural channel is thus' *442 established by prescription, the defendant’s counsel insists that the complainant has not been deprived of that right, in point of fact, by any act of their client; and that the deficiency of water at the factory, if any, was the result of the complainant’s own negligence in permitting the strainer at the head of his aqueduct to be obstructed by leaves, &c, or in suffering the aqueduct to be out of repair so that the usual supply of water which was received into the same at the spring ran to waste. Upon this point I think the weight of testimony is clearly with the defendant; and such appears to have been the opinion of the vice chancellor. He says, “ Perhaps, taken altogether, the weight of evidence supports the defendant’s allegation that the quantity of water in the complainant’s aqueduct is not diminished by the act of the defendant.” He therefore appears to have based his decree, for a perpetual injunction against the defendant and for costs, solely upon the technical right of the complainant to have all the residue of the water of the spring, which was not wanted for the supply of his aqueduct, flow in its natural channel for a few rods upon his spring lot. It is necessary then to examine wdiether the diverting of water found in the earth in the defendant’s own land, to the extent to which the water has been diverted by Adams in this case, entitles the complainant to the extraordinary remedy of a perpetual injunction under a decree of this court.

Upon principle I think the rights of the parties must be the same whether the spring issues from the earth upon the land of Adams, or after passing under ground through his land first makes its appearance upon the surface of the earth upon the lot of Smith, a little further down. The only difficulty presented in the latter case is to establish the fact that the water diverted is the same which in its natural course issued upon and flowed across the lands below. And such was the decision of Lord Ellenborough in the case of Balston v. Renstead, (1 Camp. 463.) Here the fact, is clearly established that the stream of water of half an, inch in diameter, which the defendant has diverted to his house by means of the aqueduct upon his own land* is a part of the larger stream which naturally issued from the *443 earth upon the spring lot below. The law being well settled that the owner of the superior heritage has no right to detain or divert the water which passes through his land, to the injury of those who were accustomed to receive it upon their lands below, there can be no reasonable doubt of the complainant’s right to sustain an action, in the appropriate tribunal, for this abstraction of a part of the water of the spring, if he has in fact sustained any damage either directly or by the prospective diminution of the value of the spring lot. (See Arnold v. Foot, 12 Wendell, 330 . Williams v. Moreland, 4 Dowl. & Ryl. Rep. 583. Mason v. Hill, 2 Nev. & Man. Rep. 747.)

But in this case I find no evidence from which it can fairly be inferred that the complainant has sustained any injury whatever on the ground that the water which flows through the defendant’s half inch quill is not suffered to run in its accustomed channel across the corner of the spring lot. The defendant might therefore say to the complainant, in the language of Latona to the Lycian clowns,

“ What rudeness water for my use denies,

“ Whose endless store the common world supplies ?

“ Nor light nor air did Heaven create for one,

“ Nor gentle streams.” '(Ovid’s Met. 4.)

Indeed it appears from the testimony, that the complainant had himself said he would have been willing to let the defendant have the water for the use of his family for six pence a year. And as he waited until the defendant had completed his aqueduct before he applied to this court for an injunction, I think he should have been left to his appropriate remedy by a suit in a justice’s court to recover the damages, if any, which he had sustained by the defendant’s proceedings. (See Coalter v. Hunter, 4 Rand. Rep. 58 .)

Again; had the complainant succeeded in satisfying the court that he had sustained a few dollars damages by the wrongful act of the defendant, the bill should have been dismissed with costs on the ground that the claim was wholly beneath the dignity of this court. The legislature has wisely ordained that parties shall not be subjected to the expense of litigating questions of property here, where the object to *444 be obtained by the complainant’s suit is of trifling importance when compared with the necessary expense of a chancery suit. And the statute is imperative, that this court shall dismiss every suit concerning property where the matter in dispute, exclusive of costs, does not exceed one hundred dollars. (2 R. S. 173, § 37.) In this case, as the defendant had not diverted the water to the injury of the complainant’s prescriptive right to carry a portion of it through his aqueduct to the ten acre lot, the only real ground of complaint at the time of filing the bill was the amount of injury which had been or might thereafter be done to the spring lot, in consequence of the diminution of the quantity of water which would naturally have flowed across the corner of the same after supplying the complainant’s aqueduct. And to make this a matter in dispute of the value of $100, the amount of the injury, present and prospective, must have amounted to that sum. In other words, the continued injury to the spring lot must have been equal to six or seven dollars annually, or the interest on $100, If the complainant in the present case has sustained any injury whatever, of which fact I must still be permitted to doubt, no one who reads the testimony can believe that the damage he has sustained or ever "can sustain, by this trifling diminution of the quantity of water flowing across the spring lot will amount to one quarter of that sum. It may be said, perhaps, that the right of the complainant to divert the water to the ten acre lot was disputed by the answer, and that such right was worth more than $100, The testimony shows, however, that the defendant had not interfered with that right, and that on the contrary he had endeavored to construct his own aqueduct in such a manner as to leave the complainant in the full enjoyment of that right. It is evident, therefore, that if the residue of the water had not been diverted from its accustomed channel across the spring lot, the bill would have been dismissed. That part of the case cannot then be brought in aid of the jurisdiction of the court as to another and distinct claim; nor can it excuse the complainant from paying the costs of a suit which should not have been commenced in this court.

*445 The decree of the vice chancellor must be reversed with costs, and the complainant’s bill be dismissed with costs to be paid to the defendant. The decree of dismissal must, however, be without prejudice to any right the complainant now has or may hereafter have to sue the defendant, in the appropriate tribunal, for diverting the water from its natural course to where it issues from the earth on the spring lot. But the parties are not to be again permitted to litigate the question whether the defendant had, previous to the filing of the complainant’s bill, actually diverted the water which had been accustomed to flow through the aqueduct to the ten acre lot; as that question has been fully litigated here upon its merits, and the decision of the court is against the complainant thereon. But there being no doubt as to the prescriptive right claimed, if the defendant shall alter the manner of using the water by means of his aqueduct, so as to diminish the quantity of water which flowed to the ten acre lot at the time this suit was commenced, he will be responsible to the complainant for the injury thereby sustained.