Burden v. Stein

[BILL BOB INJUNCTION- TO RESTRAIN DIVERSION OE WATER EROM PLAINTIEE’S MILL.] 1. Hiparían proprietor 'may enjoin in equity without first establishing his right at law.— Equity will entertain a bill for injunction by a riparian proprietor, whose title is clear, to restrain a diversion of the water from his mill, without requiring him first to establish his right at law, or to allege that he has been in possession of the land for throe years: such a bill may well be supported on the ground that complainant cannot obtain full reparation in an action at law for damages, and, further, because the injury may involve the necessity of a multiplicity of suits. 2. Reservation of right to divert cannot he implied, as against vendee with absolute conveyance, in favor of stranga-s. — The absolute deed of a riparian proprietor conveys the right to the undiminished flow of the stream, and no reservation of a right to divert can be implied from the fact that, at the time of the execution of the conveyance, he diverted the water to supply a mill on another tract of land owned by him; especially when the claim is set up by a stranger. 3. Laches does not affect plaintiff’s right to enjoin. — In cases where the plaintiff’s right is not clear until established at law, equity will refuse to enjoin,' if it is shown that he has been guilty of any improper delay in applying to the court; but this principle has no application, where his right is clear, and of such a character as entitles him to ask the interference of the court without resorting- to law in the first instance. 4. Right of eminent domain, and its application to the City Water- Works of Mobile. — • The right of eminent domain, in the assumption, and appropriation of private property for public uses, is recognized and admitted, and supplying a city with water is.admitted to be a public use within the meaning of the constitution; but this right can only be exercised upon making just compensation to the owner, nor does it confer on the lessee of the Oity waterworks of Mobile, in connection with the several acts of the legislature relating thereto, the power to deprive other riparian proprietors of their right • to the water of Bayou Chataque, which he can only obtain by pursuing the course pointed out in the statute. 6. Statute of limitations of six years no defence to this suit. — The statute of limitations of six years is no bar to a suit in equity to enjoin and restrain an unlawful diversion of water from complainant’s mill. 6. Corporate authorities of Mobile not necessary parties to Ull. — The lessee of the Oity Water-Works of Mobile, under his lease from the city, can have no higher powers than his lessor had; and if he be enjoined in equity, for an unlawful diversion of water from the mill of another riparian proprietor, his lessor is not a necessary party to the bill.

Appeal from the Chancery Court at Mobile. Heard before the Hon. Wade Keyes. This bill was filed by John Burden, the appellant, to enjoin the defendant’s diversion of the waters of Bayou Chataqne (or Three-mile Creek) from complainant’s mill. It alleges, substantially, that complainant is the owner of a certain tract of land on both sides of said creek,- on which he has erected a grist mill, at an expense of $5,000, on a site where a grist mill has been erected for thirteen or fourteen years, and that the motive power of said mill is the water of said creek, as it has been accustomed to flow through said land from time immemorial ; that defendant, under pretence of authority derived from certain acts of the legislature, has diverted the waters of said creek, at a point above complainant’s land, in such quantities as materially diminish the volume of the stream which would otherwise flow to complainant’s mill, and compel him, at divers periods during the year, to stop running his mill for want of water ;■ and that defendant is now engaged in erecting a forcing mill and other machinery, which will increase the quantity of water thus diverted, to complainant’s irreparable injury. The prayer of the bill is for an injunction and general relief. The complainant’s title to the land on the south side of the creek, as shown by the exhibits and documentary evidence, is derived directly from the United States, by patent dated March 1, 1850 ; and his title to the land on the north side is derived under a deed of mortgage, executed by one Jacob Page to the Branch Bank at Mobile, dated November 11,1837, which was regularly foreclosed in equity, and complainant became the purchaser at the register’s sale. The defendant answered the bill, setting up several distinct grounds of defence, which may be thus stated :— 1. He demurs to the bill for want of equity. 2. He admits his diversion of the water of the creek, but denies that the quantity of the diversion has been increased since complainant became the owner of the land ; alleges that his diversion of the water commenced in 1841, without any objection being made by the then owners of the land -which complainant now claims ; and insists that complainant is precluded from relief by their long acquiescence in the diversion. 3. He insists that the diversion is in pursuance of law, and for public use; that the Mobile Aqueduct Company was incorporated in 1820, and was authorized by its charter to divert the waters of this creek for the purpose of supplying the city of Mobile with water ; that this franchise afterwards became vested in the city, and was leased to the defendant, by agreement with the corporate authorities of the city in 1840, which agreement was ratified by act of the' legislature of January 7, 1841 ; and that under these acts, in connection with his lease, defendant became vested with all the powers of the old Aqueduct Company, and with full power and authority to divert the waters of said creek in sufficient quantities to supply the city of Mobile with water for culinary and domestic purposes. 4. He alleges that Jacob Page, under whom' comjflainant derives title to his mill-site, and who was in possession of said land in 1837 and prior thereto, had another mill on a tract of land above that now owned by Burden, which was supplied with water diverted, from said creek by means of ditches; that this mill was thus supplied at the time said mortgage deed was executed, and that the land on which it was situated (with the mill privilege and appurtenances) was conveyed by said Page to one Anderson, by deed dated December 21, 1841; and defendant insists that complainant’s rights, as purchaser under said mortgage, are subordinate to Anderson’s rights under said deed. 5. He sets up the statute of limitations of six years. The chancellor held the bill demurrable, for the want of an averment that the complainant had first established his right at law, or had been in possession for more than three years; and he therefore dismissed the bill. This decree is now assigned for error. submitted the case on written arguments, of which the subjoined briefs are abstracts. POINTS AND AUTHOR.ITIES EOR THE APPELLANT. 1. The right for the injury of which complainant seeks redress is the right to the use of the full and uninterrupted flow of the waters of Three-mile creek, as it has been accustomed to flow through his lands from time immemorial; and this right is not an easement, nor dependent on an easement, but is a right incident to the ownership of the soil — a part of the inheritance, and passing with it. — Angelí oñ Water-Courses, §§ 5, 90, 91, 92; Wright v. Howard, 1 Sim.' & S. 190; 8 Croenl. R. 295; Webb v. Portland Manufacturing Co., 3 Sumner's R. 198 ; Tyler y. Wilkinson, 4 Mason’s R. 391; Mason v. Hill, 5 B. & Adol. 1-26; Wood v. Waud, 3 Excheq. (Weis. H. & G.) 148; Embrey v. Owen. 6 ib. 353; Dickinson y. Canal Co., 1 ib. 299. His right is established, then, by establishing his right or title to the possession of the land; and if he seeks redress in equity, it is not necessary that he should have first established Ms right at law. The jurisdiction of chancery, to afford relief in such cases, in the first instance, is founded on the principle of preventing irreparable injury, or a multiplicity of suits, and is established' by a long series of adjudicated cases, both English and American. Ewelme Hospital v. Andover, 1 Tern. 266; Finch v. Resbri-ger, 2 ib. 390; Bush v. Western, Prec.Ch. 530; Martin v. Stiles & Sherman, Moseley’s R. 144 ; Mayor of York v. Pilkington, 1 Atk. 282; Duke of Dorset v. Gircíler, 2 Eq. Abr. 181; Hughes v. Trustees of Morden College, 1 Yesey Sr. 188; Robinson y. Lord Byron, 1 Bro. C. C. 588; Hamilton v. Worse-fold, reported in note to Oourthope v. Mapplesden, 10 Yes. 291; Lane v. Newdigate, ib. 192; Millar v. Taylor, 4 Burr. 2400; University of Oxford v. Richardson, 6 Yes. 101; Hanson v. Gardiner, 1 ib. 301; Mitchell v. Dors, 6 ib. 141; Gardner v. Trustees of Newburgh, 2 Johns. Oh. 162 ; Belknap v. Belknap, ib. 412; Webb v. Portland Manufacturing Co., 3 Sumner’s R. 189; Hulme v. Shreve, 2 Green’s Ch. 116; Shields v. Arndt, ib. 234-45; Belknap v. Trimble, 3 Paige’s R. 511, 600; Reed v. Gilford, Hopk. Oh. 418; Hammond v. Fuller, 1 Paige’s R. 191. 2. The deed from Page to Anderson, of December 21,1841, does not estop the complainant in this suit. The land embraced in it does not lie on the creek, and has, therefore, as an incident to it, no riparian rights which Page could convey. So far as the ditch was outside of this land, Page had not even an easement', but was a inere naked trespasser. Aside from this, complainant claims under a mortgage from Page, dated November 11, 1831, more than four years prior to Anderson’s deed, which was regularly foreclosed; and Anderson’s rights, therefore, were entirely subordinate to those -of complainant. But if the reverse was the fact, and complainant’s rights were subordinate to Anderson’s, this could confer no rights on Stein, who claims under neither Page nor Anderson, but independently of them. 3. The acquiescence of the prior owners of the land, through whom complainant derives title, confers no right on the defendant to divert the stream. In order that the former owners should have lost their right by acquiescence, their acquiescence must have continued such a length of time as, if applied to an adverse enjoyment of the land itself, would have barred its recovery. — Pugh v. Wheeler, 2 Dev. & Bat. Law R. 50 ; Angelí on Water-Courses, §§ 132,133,134. There are cases in which acquiescence constitutes an equitable estoppel, because it amounts to a fraud (2 Atk. 83; 2 Yern. 150 ; Prec. Oh. 31); but there can be no pretence that this is such a case. Watkins v. Peck, 13 N. PI. 360; 4 Barr, 353. 4. The acts of the legislature relating to the Water-Works of Mobile, under which defendant claims the right to divert the waters of this creek, neither expressly nor by.implication grant him any such right; and courts are not disposed, unless fettered by the express words of the act, to construe a statute in such a manner as to deprive individuals of their property. Stracey v. Nelson, 12 Mees. & Weis. 535; Rex v. Croke, Cowp. 21; 4 Queen’s Bench R. 46.' If, however, these acts had expressly conferred the power to divert the water, without providing for compensation, they would be unconstitutional. — Constitution of Alabama, art. I, § 13; Amendments to Constitution U. S., art. Y; 2 Johns. Oh. 162, supra; Thacher v. Dartmouth Bridge Co., 18 Pick. 501; 2 Harrison’s R. 129; Bloodgood v. Mohawk & Hudson Railroad Co., 14 Wend. 51; same case, 18 ib. 59 ; 2 Kent’s Com. 392, note. 5. The defendant cannot avail himself of prescription, because his appropriation of the water has not continued long-enough to afford any presumption of a grant. — Angelí on Water-Courses, §§ 209, 216, 211, 218. Ho can derive no aid from the old Water-Works, which took the water, not from the creek, but from a spring on the north side of it, and through pipes of three or four inches diameter ; and this diversion had wholly ceased, and the charter under which it was made was declared null and void, before the defendant was authorized to commence his works, which divert the water directly from the creek, and in quantities which materially diminish the flow of the stream. POINTS AND authorities POR THE APPELLEE. I. The demurrer to the bill for want of equity was properly sustained. 1. The act complained of is consequential in its injury to complainant, and is in fact but a trespass which is cognizable at law. By analogy to the statute of limitations barring suits for trespasses, the bill should have been filed within six years from the commission of the act complained of. — Nimmo v. Stewart, 21 Ala. 682. It is no answer to say that complainant was not owner at that time : he is bound by the acquiescence of his vendor. In such a case as this, more than in ordinary cases, it is incumbent on the complainant to apply without delay for redress. — Agar v. Regent’s Canal Co., cited in 1 Swanst. 250; Drewry on Injunctions, (side) p. 293. 2. The bill is defective for the want of proper parties. It shows that the defendant claims as lessee of a franchise granted to the mayor and aldermen of the city of Mobile, and the prayer is for a perpetual injunction against the exercise of that franchise. The corporation of Mobile, therefore, should have been made a party defendant, since the injunction, if perpetuated against Stein, would not prevent the city from proceeding under the authority granted to it by the legislature. II. The case is with the defendant on the merits. The defendant claims as lessee of the city of Mobile. A charter was granted to certain individuals in 1820 (Toulmin’s Digest, p. 193), vesting in them “ the exclusive right and privilege of conducting and bringing water for the supply of the city of Mobile”, from some of the running streams, in its vicinity, “for forty years”; and this franchise was surrendered by the corporators to the city, then transferred by the city to Hitchcock, and by Hitchcock back to the city ; and in 1840, by agreement between Stein and the city authorities, Stein became lessee of the works for twenty years. If the condition annexed to the act of 1820 (viz., that the water should be conducted to the city before the expiration of three years) was not complied with, the forfeiture (if any) has been waived, and the franchise confirmed. But, independently of this, the complainant in this case could not avail himself of the noncompliance of the .corporation with the provisions of the act of 1820 ; nor did the non-compliance of the corporation, ipso facto, work a forfeiture of the franchise. — Angelí & Ames on Corporations, pp. 503-4-, 510-11. The only material question, then, is, whether the defendant has exceeded the power and authority ■ conferred on him by the laws under which he claims ; and this involves the question, whether the legislature had the right to pass the acts referred to. The complainant claims a common-law right to the flow of the water without diversion as it had been accustomed to flow to his mill; and if all the riparian proprietors had none other than common-law rights, the claim would be good. But the legislature has declared the running streams of the State to be part of its eminent domain, and has legislated accordingly : in 1820, two days before the passage of the act creating the Aqueduct Company, it was enacted that “ it shall not be lawful for any person, or persons, under any pretence whatever, to obstruct or divert any stream of water from its natural channel, which would otherwise flow through the land of any other person”; and the second section gives an action for damages to the party aggrieved. — Toulmin’s Digest, pp. 708-9. At the same session, and only two days afterwards, the right to divert the water of this creek is granted to the Aqueduct Company; and at every session since, the legislature has exercised its sovereign will, without doubt or contestation, whenever the public interest or public health required it — in declaring certain creeks to be highways, and granting privileges to erect dams, mills, bridges, &c., in navigable and unnavigable rivers and crooks. The act of 1820 was one of internal police, and intended as a great public benefit, and it rests on clear constitutional grounds.— City of New York v. Miller, 11 Peters, 139. The defendant has not exceeded the privileges conferred upon him; nor in any manner departed from the objects of the charter. The evidence shows that 7,900,000 gallons of water flow by a given point on the creek in twenty-four hours, and that the quantity running by a given point from the WaterWorks, which are not supplied from the creek, but from two or three springs which would otherwise run into the.creek, is considerably less than 200,000 gallons. The testimony of complainant’s witnesses goes to show that one-fourth, one-half, or three-fourths of the entire body of water flowing along the creek, is diverted by the pipes and ditches ; but it is evi-' dent that the pipes, which are eight-inch- bore, cannot carry off this quantity of the waters of a creek sixteen feet wide and two feet deep. The ditch, therefore, which conveys the water to Anderson’s mill, purchased from Page, must cause the injury inflicted on complainant by the diversion of the water; and with this Stein has no connection whatever. Further, it is shown that Page, under whom both Burden and Anderson claim, granted and relinquished to Anderson the right to divert and use the water of the creek-for the benefit ' of his mill; and as Burden purchased with a knowledge of this fact, his rights are subordinate thereto. in the similar case of Burden v. Portier, brought up to this term of the court, submitted a written argument, in which he made the following points : 1. That the long acquiescence of the riparian proprietors of Three-mile creek, in the use of the water for mill purposes, gave to those so using it such an apparent right, that complainant ought not to receive the aid of a court of equity, until ho has first established his right at law. — -Weller v. Smeaton, 1 Cox's Oh. Rep. 101; Birmingham Canal Co. v. Lloyd, 18 Yes. 515, which is a later case than any English deL cisión cited for appellant; 6 Johns. Oh. 19. The American cases cited by appellant’s counsel do not conflict with these : they are cases of protection to those who have undisputed right, or long enjoyment of privileges, while the object of this suit is to disturb such Jong enjoyment. 2. That the mortgage deed of 1837, under which complainant derives title, should bo construed subject to a right in Pago to use the water diverted in running the mill which he retained. If the mortgage had been of the property retained, instead of that which was conveyed, Page would have had no right, by reason of his reserving the land and mill-site now owned by Burden, .to destroy the value of the mill conveyed, to the mortgagee or purchaser under the mortgage, by stopping the flow of water, which was essential to the use of that mill, and to the value of the land on which it was situated. It would be bad faith for him to do so; and it would be equally bad faith for the mortgagee, or the purchaser under him, their places being changed, to destroy by the same means the value of the property retained by the mortgagor. — Nicholas v. Chamberlain, Cro. Jap. 121; Clarke v. Cogge, ib. 170; United States v. Appleton, 1 Sumner’s R. 492 ; Hazard v. Robinson, 8 Mason’s R. 219; 2 Term Rep. 500.