77 N.Y. 525 | NY | 1879
The defendant by means of the canals which it has constructed around Marshall's and Winne's reefs, has made subservient to its use at the "Victory" mill in time of drought, a large quantity of water detained by the reefs in the stream above. By opening the gates in the canals in the morning, and closing them at night, it secures for the use of its mills during working hours, in addition to the natural flow of the stream, the water stored in the reservoirs, formed by the reefs, and is thereby enabled, during times of low water, with occasional exceptions, to operate its mills without interruption from lack of water, which it would be unable to do if compelled at such times to rely exclusively upon the natural flow of the stream. The reefs operate as natural dams and the defendant, by the use of the canals, derives the same advantage as if it had constructed dams at the reefs, of capacity sufficient to hold a quantity of water equal to that which may now be drawn through the canals from the reservoirs above. It is plain, however, that the defendant, by the manner of using its gates and canals, disturbs and interrupts the natural flow of the stream. It operates its mill by day only. By opening the gates during the day it draws upon the water stored above the reefs. It closes them at night and keeps them closed until morning, to allow the reservoirs to refill. But while the process of replenishing the reservoirs is going on, the natural flow of the stream below is arrested, and it is only after a sufficient time has elapsed to accumulate sufficient water to fill the reservoirs, that the water passes over the reefs and regains its normal flow. *528
The controversy in this case turns upon the right of the defendant thus to obstruct the natural flow of the waters of the creek. The plaintiff is the owner of a paper-mill situated a short distance below the defendant's mill, operated by the water drawn from the same stream and he derives through various grants, the right to the use of more than one-half of the waters of the creek. The plaintiff operates his mill day and night, Sundays excepted, according to the custom of paper mills, and it appears from the findings in the case that the manufacture of paper to be successfully and profitably conducted requires that a paper-mill should be operated continuously. The plaintiff's mill can be run to advantage by the use of 3,486 cubic feet of water per minute. Fish creek has an annual average flow of 20,000 cubic feet per minute, and the judge at Special Term finds that during the lowest water that had been known in fifteen years prior to the trial, the natural flow exceeded 7,000 cubic feet per minute. It seems to follow as a necessary inference from the facts found, that if the flow of the creek was not interrupted by the acts of the defendant, the plaintiff would be enabled, under his grants, to operate the paper-mill continuously at all seasons of the year and in all stages of the water. It is only during times of low water, periods varying from four weeks to three months in each year, that the canals of the defendant are used. The machinery of the defendant's mill is adapted to the capacity of the stream in its ordinary stages or flow, and during nine months in the year, and in some years for much more than that time, the natural flow is adequate to propel the defendant's mill without the use of the canals. From the 13th day of May, 1870, when the plaintiff acquired title to the paper-mill, to the time of the commencement of the action on the 8th day of August, 1872, the paper-mill was stopped from want of water occasioned by the shutting of the gates 128 times, from which stoppages the plaintiff sustained damages to an amount exceeding $4,000. The court at Special Term found that the detention of *529 the water by the defendant was for the sole purpose of enabling it to use the same to propel its machinery in its mill; that it had not unreasonably detained the same, and that its use of the stream was a reasonable use. Upon the facts found the court held and decided that the defendant had the right to detain, use and discharge the waters of the creek in the manner and for the purpose in which it did detain, use and discharge them, and directed judgment dismissing the complaint upon the merits.
The law governing the rights of riparian owners to the use of natural streams and water-courses upon their premises has become, by the increase of manufacturing establishments and the large investments of capital in hydraulic works, of great importance, and the questions arising out of the conflicting interests of different mill owners, upon the same stream, are frequently perplexing and difficult. The maxim "Aqua currit et debetcurrere ut currere solebat" prescribes the general rule in respect to running streams, but it is to be interpreted and applied in connection with another rule which is well settled, that each riparian owner has a right to a reasonable use of the water. But the right to a reasonable use being common to all the proprietors, it is often difficult to determine whether a particular use is consistent with this common right. Injury to one proprietor in consequence of the use of the water by another is not an invariable test of the right of such use. For instance, the use for domestic purposes, or for the watering of cattle, is permitted, although by reason of the small amount of water in the stream such use may be injurious to the proprietor below and he may thereby be deprived of water sufficient for similar purposes. The law allows an appropriation of the water for such uses by the owner of premises which are so situated as to give him the first opportunity to use the stream, and this appropriation is not deemed to be an invasion of the common right. The question of reasonable use most frequently arises between mill owners on streams which afford a power available for the propulsion of machinery. The maxim that *530
water should be allowed to flow, as it is wont to flow, if strictly construed and applied, would prevent the use of such streams for manufacturing purposes. The construction of dams to collect a head of water, and of sluices and canals to convey and discharge it, is necessary to the operation of mills propelled by the water of a stream. The use of these appliances necessarily, to a greater or less degree, disturbs and interrupts the natural flow of the current, and often injures the proprietors below. But the fact that injury is occasioned to other riparian owners from the construction and use of dams, is not, in this case, any more than in the case of injury by the abstraction of water for domestic uses, decisive upon the question whether such use is permissible. In Palmer v. Mulligan (3 Caines' R., 308), SPENCER, J., said, that the erection of dams on all rivers was injurious in some degree to those who have mills on the same stream below, by withholding the water and by the greater evaporation in consequence of the increased surface, but that this was never thought to afford a ground of action." But dams may be constructed and used so as to interfere with the common right of riparian owners and subject the party maintaining them to an action. The party claiming the right to interrupt the natural flow of a water-course must show that such interruption is consistent with a reasonable exercise of his right as riparian owner. The question of reasonable use is ordinarily a question of fact to be determined upon a consideration of all the circumstances. (Prentice v. Geiger,
The exceptions to the admission of evidence are not well taken. The question to the witness Mayhew, called simply for his knowledge, derived from observation, as to the fact whether the natural flow of the stream in ordinary stages was sufficient to propel the defendant's mill, and was unobjectionable. There are other exceptions of the same character, and none of them require special consideration.
The judgment should be affirmed.
All concur, except RAPALLO, J., absent at argument, and DANFORTH, J., not in court at time of argument.
Judgment affirmed. *533