Beech v. Kuder

15 Pa. Super. 89 | Pa. Super. Ct. | 1900

Opinion by

Rice, P. J.,

Riparian proprietors are entitled, in the absence of grant, license or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration. Each proprietor may, therefore, insist that the stream shall flow to his land in the usual quantity, at its natural place and height, and that it shall flow off his land to his neighbor below in its accustomed place and at its usual level: Gould on Waters, sec. 204. In the leading Pennsylvania case it was said: “ The natural streams of water existing by the bounty of Providence, for the benefit of the land through which they flow, are incidents annexed to the land itself: Tyler v. Wilkinson, 4 Mason, 397; Arnold v. Foot, 12 Wend. 330. They do not begin by consent of parties, nor by prescription, but ex jure naturse, and therefore they are not extinguished by unity ; nor can they be obstructed or diverted to the prejudice of adjacent proprietors: Sury v. Piggatt, Popham, 170; 3 Bulst. 339. It was said by Sir John Leach in Wright v. Howard, 1 Sim. & Stuart, 190, that, “ every proprietor who claims a right either to throw the water back above, or to diminish the quantity which is to descend below, must, in order to maintain his claims, either prove an actual grant or license from the proprietors affected by its operations, or must prove an uninterrupted enjoyment of twenty years: ” Wheatley v. Baugh, 25 Pa. 528. It results from an application of these familiar elementary principles to the facts found by the learned judge that the acts of the defendants in filling up the channel of the stream on their land, and barricading the same with logs, stones and dirt, whereby the water was turned back on the land of the plaintiff, constituted an actionable nuisance. And as the obstruction was manifestly intended to be permanent and continuing, and as there was not even a pretense of right thus to obstruct the stream, the upper riparian owner was not bound to await the slow process of successive actions of trespass, but might in the first instance appeal to a court of equity for relief. But, it is urged, he acquiesced; therefore, he must be deemed to have abandoned his right to have the stream flow off his land as it was wont by nature, and, pursuing the argument to its logical end, the defendants must be held to have acquired the right, for all time, to throw the water back upon his land. We cannot affirm this proposition. There is not a spark of testimony that he ever gave his consent to this change in the course of the stream, nor does the learned judge so find as a fact. What he did was simply to take care of the water, after it had been turned back upon his land, in such a manner as to minimize the damages. To say that he “ accepted ” the water does not correctly define his action. It was forced baclóupon his land, and it seems too plain for argument, that his assent cannot be inferred as a fact or presumed as a matter of law from the mere fact that he did no't invite a personal conflict with his neighbor by opposing force with force. Nor can his declaration to a stranger that “he wasn’t going to anj^ expense about it, and he would fix it up the best he could to keep the water off the ground ” be invoked as evidence of a grant to the defendants of the right to continue the unlawful obstruction, or as an estoppel. Let it be granted that the upper owner did not then intend to go to the expense of a lawsuit over the matter, that he intended to submit to the wrong and make the best of it, can it be contended that he thereby forfeited his right and barred himself from asserting it either in a court of law or of equity? Clearly not. If this intention had been expressed to the defendants and relying upon it they had changed the uses of their land, so that to restore the stream to its original course would do them injury, a different question would be presented, which we need not discuss. There is no evidence that this was ever communicated to the defendants, or that they changed their situation in reliance upon it, or that the restoration of the streárn to its original course will affect their land or its uses differently than it did originally. There are lacking not only the essential, elements of an estoppel, but also the facts essential to the proper application of the equitable principle as to the “ balance of injury.” The doctrine of the two Vermont cases relied on by the appellee’s counsel (Woodbury v. Short, 17 Vt. 387; Ford v. Whitlock, 27 Vt. 265) was thus stated by Chief Justice Redeield in the last cited case : “ It seems to us analogous to the rules of law which have been applied to dedications to public use of land; and it seems to be highly equitable and just, where one has by his own act, either originally changed the course of a stream, or suffered it to remain in a channel cut by some sudden convulsion until others have expended money in erections, as in the present case, in faith of the stream remaining in the new channel, or, as in the case of Woodbury v. Short, maybe supposed to have done so, that the stream should not then be allowed to be restored to its former channel to the detriment of other riparian proprietors.” But in the present case the course of the stream was not changed by a sudden flood, nor by the act or consent of the plaintiff or his predecessor in title, but by the tortious act of the defendants. Nor does it appear that they have improved or changed the uses of their land or incurred expense in the faith of the stream remaining in its changed course. The doctrine of these cases, therefore, does not apply. It might have some pertinency if the plaintiff or his predecessor had changed the course and was now seeking to have the original channel restored. But we know of no principle that will sustain the defendants in saying, “ True we turned the water back on the plaintiff’s land without right, yet as he did not forcibly destroy the dam we had erected on our land but chose the peaceable course of caring for the water so as to damage his land as little as possible, he must be deemed in law to have abandoned his right to have the stream flow in its ancient course and to have agreed to have it flow for all time in its changed course.” We do not think this is the correct legal conclusion from the facts found by the learned judge.

The decree is reversed, the bill is reinstated and it is now ordered, adjudged and decreed that the defendants remove the obstructions upon their land to the natural flow of the water in the stream described in the bill, that they be enjoined and restrained from hereafter obstructing the water in said watercourse so as to prevent the same from flowing off the plaintiff’s land as it was wont to do prior to the placing of said obstruction, and that they pay the costs incurred in the court below and on. this appeal.