Canfield v. Andrew

[In Chancery.] Mill Owners. Riparian Rights. Depositing Sawdust in a Stream. Injunction to Restrain. Two mill-owners occupying on the same stream, one below the other, a short distance apart, the questions being as to the right of the upper owner to divert the stream; to store or pond the water; to discharge his sawdust and waste into it; and the power of the Court of Chancery to restrain by injunction. Held, 1. That he could divert it on his own land by an artificial channel, as the water was conducted back into its natural course with reasonable care and prudence, before reaching the premises of the orator, and he having received no appreciable injury. 2. That the maxim, sic utere two ut alienum non laedas, applies; and that, while the upper owner can use the water in a proper and reasonable manner, yet he must respect and regard the rights of riparian proprietors below him; and is limited in discharging into the stream his sawdust and refuse to what is absolutely and indispensably necessary for the beneficial use of the ivater; and that it is not a question of convenience or economy. 3. Ordered that an account be taken to determine the damage to the lower mill-owner in filling up his dam with sawdust, &c.; that a decree be rendered for this, deducting the proportion occasioned by depositing in the stream the refuse that was absolutely and indispensably necessary for the beneficial use of the water; and an injunction be granted perpetually enjoining the defendants to the use as stated above. 4. That there was no legal injury in storing, or ponding the water, as it was detained only as long as was reasonably necessary. 5. The lands of the orators below their mill were injured by the deposition of refuse; but this was partly from the defendants’ mill, partly from the orators' mill, and partly from other sources; but the whole was so inconsiderable that the court refused to apportion the damages. fi. The court has jurisdiction. As this question was not made by plea, answer or motion, it might properly have been treated as waived.

This cause was heard at the December Term, 1880, Veazby, Chancellor, on bill, answer, replication and proofs. The bill was fro forma dismissed. The facts sufficiently appear in the opinion of the court, except the following. The bill states : “That in 1857, one Property McDonald built, with orators’ consent, a saw-mill on said land and stream ; that in 1863 orators owned and took possession of said mill, and have ever since owned the same, and the dam and privilege connected therewith, and have ever since continuously and are now running and using the same, and for the motive power have and do use said stream and those who used the mill before them did the same. That for this purpose, at the time the mill was built, said McDonald in 1857, erected a mill-dam on said lands across said stream about eight rods above the mill; that same, with some alterations and repairs, is still standing and used by orators; that said dam with the banks of said stream which are part of said land, form a reservoir or mill pond covering about a quarter of an acre; that said dam is about fourteen feet high, and when full of water is about eight feet deep in deepest part, and said pond holds a large quantity of water; that orators use and always have used for driving the machinery in the mill a large overshot wheel, and the water is brought from the pond upon the same through a wooden tube, which takes it from the pond so near the bottom of the same that nearly all the water in the pond can be carried through said tube on to said wheel, so that when the water is low in the stream, as it frequently is, that there is not enough running to drive the wheel and machinery all of the time, orators can and frequently do run the mill to advantage by shutting the gates and letting the pond fill up, and then drawing it down, and so using the water by ‘ ponds full.’ That the water of said northerly branch does not enter and flow into and through said orators’ lands, by reason of being so turned into said ditch in the same channel, course, direction or place in which it has been accustomed previous to its being so turned, and in which orators have a right to have it flow and enter their land. That frequently in low water there has not been and is not sufficient water running in said westerly branch, with what comes , into it through said ditch, to run said mills and machinery ; that said Caleb, Ernest, and Mattison at such times often have, since said mill was built, shut the gates of their said dam-and let their pond fill up, and thereby stopped all the water from running to orators’ millpond, and orators have been compelled to stop their machinery for want of water until they chose to open their gates and let the water run again ; that frequently in low water said Andrews and those running their mill, will open their gates and let the water down to orators’ mill in a large volume, when orators’ pond is full of. water, and at such times much of it runs over their dam and is of no benefit to them, as it would be if it run into their pond in its natural way and volume.” The answer states : “ Denies that orators have always used a large overshot wheel for driving their machinery ; but avers that prior to eight years ago said mill and machinery were run by a small flutter or float wheel, and that the overshot wheel now used by the orators was placed there by them within eight years prior to the commencement of this suit. Admits that water is taken from said pond to said wheel in a wooden tube; but denies that said tube is so inserted or placed in said dam as to draw the water from near the bottom of the pond; but avers that the same is inserted or placed at or near the top of the dam, and that but very little water can be drawn from the pond as the tube or trunk now is and has been since the overshot wheel was put in. Admits that during all the time the mill was run with a flutter or float wheel, the water was taken from the pond to the mill in a trunk placed at the opposite end of the dam from where the water is now taken, and was placed near the bottom of said dam so as to draw the water down to the bottom of said dam, and did so draw it; and avers that during all the time the water was so drawn, until the orators put in their overshot wheel and changed said trunk, no deposit of earth, gravel, sawdust, or refuse from defendants’ mill ever accumulated in orators’ pond, but on the contrary, the earth, gravel, sawdust and refuse from defendants’ mill, which was washed down from above on said stream into said pond was immediately discharged through said trunk into the stream below. Admits that said streams flow in the direction set forth in the bill; but denies that they are about equal in volume of water, and avers that the west branch is more than twice as large as the north branch. Admits that said streams flow through lands of these defendants and west and north of and adjoining lands of orators ; and that in 1871 defendants built a saw-mill on the west branch, and afterwards removed a shop standing about four rods above their saw-mill down to their mill and connected the same therewith, and put in machinery and used the same for making clothes pins ever since, and have used a large overshot wheel and used the water of said stream as they lawfully might do. Avers that said shop so situate on said stream was built more than 18 years ago, and that the same was constantly used for turning works, and lathes and other machinery were driven by the water of said stream, and clothes pins and other wooden wares made therein, and that defendants’ grantors were the first persons who appropriated the water of said stream to the above uses, and that the same was upon the lands of said defendants, and such use and occupation has been continued ever since. Admits that a dam was built across said stream above the mill and shop of defendants, by one William Holden, about 1866, for a water privilege to make clothes pins, and used by him for two or three years thereafter ; but denies that defendants, after they became the owners thereof, ever enlarged or made higher said dam, or made the mill-pond of larger capacity, or altered or changed the same in any way, except that in a few instances, when water was low, they have put flush boards on top of the dam at night to raise the water in the pond for use next day, which was as much for the benefit of orators as of defendants, their mill being situate below defendants’ mill on the same stream. Avers that defendants claim that the dam so built by Holden, was built to take the place, and serve the same purpose, of an "old dam which had stood a short distance below on said stream, and a short time previously had been washed away in a freshet, which old dam had been used for a long' time, and until swept away, to make a water power to run the machinery in said shop, (so removed by defendants,) in making clothes pins.” . . . “ Avers that persons living in the vicinity of defendants, and owners of clothes-pin shops and factories and saw-mills have from time immemorial constantly been in the habit and practice of allowing their sawdust, shavings and refuse, or such portion thereof as were worthless, to fall into the stream and be removed by its current, and such is now the prevailing and universal custom in this town and county, which was fully known to orators, and that they themselves have always been in the habit of discharging their sawdust, shavings and refuse made in their works, or the greater portion thereof, into said stream, and defendants and their grantors have so used their mill and shop for more than fifteen years before the commencement of this suit.” It is a principle of law now well established, that a riparian owner has a right to have the stream of water which passes over his land flow unobstructed in its natural channel without being accelerated or retarded, but with its natural volume and velocity as it has been accustomed to flow. This right is incident to the property of his land, and he cannot be deprived of it by grant, actual or presumptive. Aqua eurrit et debet currere ut eurrere solebat is the' language of the law. The doctrine that priority of occupation, unless enjoyed for a sufficient length of time to create the presumption of a grant, is no longer sustained by authority, and has never been sanctioned by the courts of this State. The riparian proprietor through whose land a stream flows is not the owner of the water ; all the right he has in it or to it (unless it be to so much of it as he may require for culinary or domestic purposes), is the right common to all the riparian proprietors upon the stream from its source to its mouth. He has no property in the water itself but a simple usufruct while it passes along. Each may use it as it flows through his land, but not in such a manner as to deprive or injure the proprietors above or below in the equal enjoyment thereof. Sic utere tuo ut alienum non laedas —is a maxim of the law peculiarly applicable to the rights and obligations of riparian owners upon a stream. The flow of water and its volume, as it passes from one boundary to the other, determines to a great extent the value of the privilege. Destroy either the volume or the flow, and the power is gone; both are essential; lessen either, and the value of the property is injured. In times of drouth the ponding of the water, when thus used, is no material injury. It is discharged in quantities not beyond the usual flow; of the stream, and the owner below can useit to advantage and without loss, for it comes to him in such quantities as are required to propel his machinery. If, on the other hand, the proprietor above was allowed to use the water to propel machinery requiring a larger volume than the ordinary flow, great detriment would be sustained by those below. Further, the water would sometimes be kept back and held, when if allowed to run as it is accustomed to run, he could operate his machinery to advantage, and at other times it would be let down upon him in such quantities as to waste the power which he otherwise would have. Angelí on Water Courses, 101, 102, 104, 107, 108, 200, 201, 203, 206, 207, 113 ; Johns v. Stevens, 3 Yt. 314 ; Davis v. Fuller, 12 Vt. 190 ; 3 Kent, 439 ; Brown v. Best, 1 Wilson, 174; Bellinger v. B. B., 23 N. Y. 47; Clinton v. Myers, 46 N. Y. 517; Angelí on Water Courses, 547 ; Brown v. Bowen, 30 N. Y. 537 ; Saeredor v. Buss, 10 Johns. 241; Thurber v. Marsh, 2 Gray, 394 ; 10 Wend. 260 ; Wood on Nuisances, 320, 369, 370, 458, 467,468; Gould v. Boston Dock Co., 13 Gray, 452 ; Miller v. Lapham, 44 Vt. 435. If the injury to the proprietor below is so great as to essentially lessen the usefulness of his mill, the mill-owner above must remove his waste, though it can be done only at great cost. If the owner above erect works upon the stream greatly disproportionate to the capacity of the stream, and then runs his mill to its capacity, either by ponds full or in times of high water, he cannot deposit his waste in the stream while so running, if by so doing he damages the privilege below. Angelí on Water Courses, 238, 240 ; Johns v. Stevens, 3 Yt. 314; Snow v. Parsons, 28 Yt. 459; Mousse v. Mammond, 39 Barb. 89; Swindon Water Works v. Wilts, 14 Eng. Rep. 91; Prentice v. Gergen, 74 N. Y. 352 or 341; Washburn v. Gilman, 18 Am. Rep. 246 ; Post v. Lewis, 5 Am. Rep. 526 ; 18 Am. Rep. 102 ; Monsell v. Mammond, 39 Barb. 89 ; Mowell v. McCoy, 3 Rawle, 256 ; Moskins v. Mos-kins, 9 Gray, 390 ; MBeily v. McChesney, 3 Lansing, 278; Thomas v. Brackney, 17 Barb. 654; Wood on Nuisances, 704, 705, 714, 715, The defendants have diverted the water of the easterly stream into the westerly one. The orators have a right to have the water of the easterly stream flow upon their land in its natural channel. It is not a question of reasonable use. Whether it is beneficial to the defendants or injurious to the orators has nothing to do with it. It is a question of strict right. Angelí on Water Courses, 107, 111, 229 ; Chatfield v. Wilson, 27 Yt. 670 ; 10 Johns. 240. Has the Court of Chancery equity jurisdiction over the subject-matter of this suit ? The diversion of the small stream of water was in 1871 — was a past diversion ; this is not sufficient to give the Court of Chancery jurisdiction ; and is no ground for equitable interference. Marble ¿• Slate Co. v. Adams et al., 46 Yt. 496. The ponding of the water as set forth in the bill, answer and testimony, in this cause, furnishes no ground for equitable interference. The defendants had the right to erect their dam and thereby create a pond, and to so use the water, and obtain the benefit of the fall of the water in the stream on their own land, and to shut their gate in low water, and allow the water to raise in their pond. These were rights which appertain to all water privileges and belong to all riparian proprietors ; and the right cannot be abridged or coctrolled by courts of equity. The abuse of the right would be the proper subject of a suit at law, where the question to be decided is whether the defendant in exercise of his right has made a reasonable use of the water. There is no evidence in this case that the defendants detained the water longer than was necessary for their proper enjoyment and use of the same, in running their mill and shop. The orators have no right of action in law, or grounds of complaint in equity, for so detaining the water. The evidence all shows that the pond of defendants is small, covering only about one eighth of an acre, and the water was at no time detained to exceed one or one and a half hours, and only sufficient time to enable the defendants to use the same. Angelí on Water Courses, sec. 119; Davis v. Winslow, 51 Me. 290 ; Pitt v. Lancaster Mills, 13 Met. 156 ; Bruce v. Yale, 10 Allen, 444. 2. The defendants claim and insist that they have the right to discharge their sawdust into the stream, while running their sawmill and clothes-pin shop ; and have the right to use the stream in removing waste ; and the rule of law upon that subject has been fully settled in this State. See Snow v. Parsons, 28 Yt. 459 ; Jacobs v. Allard, 42 Yt. 303. The common-law maxim, “ Aqua currit et debet currere,” &g., is not the rule of law adopted by our courts in this State; but on the other hand, all riparian proprietors are entitled to use the water of streams flowing through their lands for manufacturing purposes, and so far as other riparian proprietors are concerned, are not responsible therefor, although damage and inconvenience may arise therefrom, provided the use of the .water is reasonable or necessary in carrying on their works. The defendants have the right to put thefr sawdust into the stream in running their mill, for such has been the custom iu this State for so long a time that it is now the 'law of the State. They have also the right to use the water in a reasonable manner to carry away their waste, and are not obliged to draw the same away with teams, as was held in Jacobs v. Allard, supra. The evidence in this case plainly shows that the stream upon which the orators’ and defendants’ mills are situated is constantly changing in volume of water, depending upon surface water, the spring and fall freshets, and that neither has water to run his works more than eight months in the year. The defendants claim that at no time have they unreasonably used the water to remove their waste. But if it were otherwise, has the Court of Chancery any right or power to intervene to say what is a reasonable user of this right, and by a perpetual injunction say how much waste the defendants may so remove, at what stage of the water in the stream, and when the defendants shall be restrained from so doing, and to what extent ? An injunction should be certain and definite in its commands', so that the party enjoined may certainly know that the act he proposes to do is or is not a breach of the injunction. If this cannot be made certain, it is a sufficient reas,on for refusing the injunction. The question of reasonable use depends upon the necessity and benefit to the defendants, the condition of the water in the stream, the extent of injury to the party complaining, and all the facts connected therewith at the time .when such right is claimed to. have been transcended. These facts and circumstances are constantly changing. What is reasonable use at one time may be unreasonable use at another. The subject-matter, reasonable use, is too uncertain, indefinite and changeable to afford proper or just grounds for granting a perpetual injunction, fixing the rights of the parties and deciding what shall be reasonable use of the water at defendants’ mill and shop at all times hereafter. The answer alleges that the diversion of the water of the easterly stream, on the defendants’ land, was so made under the license and permission of the orators, and defendants’ evidence establishes the same. The defendants had the right to use the water in the stream flowing through their land, and the use being lawful and beneficial, it must be deemed reasonable if in such use no substantial or actual injury or damage was done to the orators. Elliot v. Fitch-burg R. R. Go., 10 Cushing, 191. 3. The testimony in this cause proves that it is the universal custom of clothes-pin shops in Bennington County and vicinity, to use the water of the streams upon which they are situated, to remove to a large extent the waste made at their shops, and that orators are constantly doing the same. The testimony further shows that the defendants and their grantor had used the water of this stream to remove their sawdust, turning shavings and clothes-pin waste for more than fifteen years prior to the commencement of this suit, and had acquired thereby the right to so use the water in the stream to the extent of the user. The damage complained of at orators’ mill and shop, is small indeed, the cleaning out of the mill-pond twice, and an estimated diminution of water contained in the pond, with slight inconvenience about the wheel and gate'. This to a very large extent is caused by the acts of. the orators themselves, in raising their trunk in their dam some three.or four feet. Previous to that time, as the evidence shows, no sawdust to any inconvenient amount was deposited in said pond, although the defendants and their grantor had for many years before that run their sawdust and clothes-pin waste down the stream. See Jacobs v. Allard, before cited.