Helfrich v. Catonsville Water Co.

Bryan, J.,

delivered the opinion of the Court.

The Catonsville Water Company was incorporated by the Act of 1886, chapter 100. It was chartered for the purpose of enabling it to supply with pure water the inhabitants of Catonsville and the adjoining portion of Baltimore County. In pursuance of its charter it has acquired a tract of land, and constructed at large expense a dam and reservoir, water-works, mains and pipes; and is engaged in supplying a large number of people with water for drinking and other necessary purposes. A *274 pure, clear, natural stream of fresh water flows through and along the land of Samuel D. Helfrich, and through the land of the Water Company, which is situated about a hundred and forty perches further down the stream, and is the principal sottrce of supply for the purposes of the company’s business.

A hill of complaint was filed by the Water Company on the equity side of the Circuit Court for Baltimore County, in which it was alleged that Helfrich permitted a large number of his cows to enter said stream, and stand therein, and that they dropped their excrement, dung and filth into its waters, and greatly polluted and befouled them, and that in consequence of such deposits, when the stream flowed through the Water Company’s land and supplied its works, the purity of the water was greatly impaired, and it was rendered unhealthy and unfit for drinking purposes. On these grounds an injunction was prayed and granted, restraining Helfrich from permitting cows or other animals to enter or stand, in the stream, and to drop or deposit therein any excrement, dung or filth, or in any manner to pollute or befoul it. The injunction as granted, also prohibited the erection of a hydraulic ram; but (as we shall see) this question is not now presented by the record. After answer and testimony, the Court on final hearing made the injunction perpetual so far as it related to the pollution of the stream, and dissolved it as to the erection of the hydraulic ram. The defendant appealed to this Court.

Helfrich’s lot is on the south side of the Frederick Turnpike, about one mile west of the village of Catonsville, and about half a mile from the Water Company’s property. The lot has been used by the owner as a pasture for his cows, and so .far as the evidence shows, it seems to be .well adapted for such a purpose, being well provided with shade, grass and water. Helfrich at the time the injunction was issued, owned'six *275 ■cows, and it appears that he used his lot for the purpose of pasturing them in the way a proprietor under ■ordinary circumstances might reasonably use his own property. The question seems to be whether his rights have been in any way abridged or diminished by the incorporation of the Water Company, and the construction of its works. The rights of riparian owners are well understood, and there is, a general concurrence of ■opinion in the Courts as to the manner in which they must be exercised. The law on this subject is strictly in accord with the common sense- and general convenience of mankind. The .owner of land has a right to the use of a stream of water which flows through it, for all useful and reasonable purposes. This use is not an easement, but. is an incident to his property in the soil; a . necessary, inherent and inseparable portion of his ownership. But there is an equality of right in other riparian owners above and below him op the same stream; and from the necessary conditions of the case, they must not use the water to the prejudice of each other’s rights. Hence difficult questions frequently arise; not as to the •ascertainment of the principle of decision, but as to its application to interests which are in collision. It is laid down in general terms that every owner has the right to enjoy the stream of water which flows through his land in its natural state, without diminution to its flow, quantity or purity. It is also held with like generality of statement, that any defilement or corruption ■of the water, which' prevents its use for any of its reasonable or proper purposes, is an infringement of the rights of riparian owners, which will entitle them to a remedy suited to the nature of the case. But alio •abstract rules are subject to considerable modification, when they are applied to the exigencies of human life. The right to the use of a stream of water in its natural purity cannot override other co-equal and co-existing *276 rights; it must certainly yield to those of a more absolute and unqualified character. The tillage of the soil, and the tending of flocks and herds, were the earliest occupations of the human race. The husbandman soweth his seed, and gathereth the harvest to furnish us with food; and the flocks and .herds bring forth their increase for our use. It would bd most unnatural and unwise to put any unnecessary restrictions on those pursuits which furnish the world with the means of subsistence. We must confess that the right of a man to cultivate his own^fields and to pasture his cattle on his own land is of an original and primary character, and that it would he oppressive 0to interfere with the free exercise of it, except under a necessity caused by grave public considerations. The washings from cultivated fields might, and probably would, carry soil and manure into streams of water, and make them muddy and impure. And so> the habits of cattle according to their natural instincts, would lead them to stand in the water and befoul the stream. But nevertheless the owner of the land must not lose the beneficial use of it. The inconveniences, which arise from the pollution of the water by these causes, must he borne by those who suffer from them. The ordinary requirements of domestic life diminish the purity of the atmosphere; hut as long as these causes are within the limits of reason and necessity, the law recognizes no ground of complaint against them. The reasonable and proper exercise of acknowledged right by one man, may and often does work annoyance and loss to another; hut rights cannot be forfeited for this reason.

So far as we can see from the record, there was noth¿ng unreasonable or umisual in the way in which the cattle were pastured in this lot. If Helfrich had wantonly or recklessly befouled the water of the stream, or had harassed the Water Companjr, or injured its business by an immoderate and excessive exercise of his *277 ucknow]edged rights, he would justly have been responsible for his conduct. But nothing of this kind can be justly attributed to him. He seems to have used his pasture, as all men, time out of mind, have done in like cases. We are not unmindful of the vast number of cases where persons have been enjoined from committing nuisances in running streams, and from depositing, or permitting to he deposited in them noxious, deleterious or unwholesome matter, and from any unlawful or unreasonable thing which impairs the legitimate use of the water by riparian owners. Hor have we overlooked the numerous cases where it has been held that certain kinds of manufacturing establishments have infringed the vested rights of such owners. Our opinion is placed on the distinct ground that Helfrich was using his pasture lot in a reasonable manner, and that he had a right so to use it. His right was .not in any way abridged by the incorporation of the Water Company and thé establishment of its works. And it was not in the power of the Legislature to abridge it. It is a right of property protected by the Declaration of Rights. The Water Company has power under its charter to acquire the water-right by making due compensation to the owner, and not otherwise.

(Decided 16th June, 1891.)

The decree of the Circuit Court must he reversed, and the bill of complaint dismissed.

Decree reversed, and hill dismissed.