102 Ill. 177 | Ill. | 1882
delivered the opinion of the Court:
Appellee is owner, by grant from Philo A. and Orlando H. Haven, of the property, the water rights upon which were the subject of litigation in Canal Trustees v. Haven, reported in 5 Gilm. 548, and, when again before this court, in 11 Ill. 554. Whatever water rights affecting that property they could convey, he owns. Appellant’s right to draw water from the canal to propel his machinery, is derived from a lease, executed many years subsequent to 1852, by the Board of Canal Commissioners,—who are successors in trust to the Board of Trustees of the Illinois and Michigan Canal. Possession by appellee and his grantors of the property conveyed by them to him is admitted to have been continuous since 1852, and prior thereto. The possession, respectively, of the board of trustees and of the Havens was, therefore, upon well established and familiar principles, notice of the rights claimed by each to all dealing thereafter with either; and inasmuch as their respective rights were materially affected by their agreement of the 22d of August, 1853, the parties to the present suit, in acquiring their rights, were bound to know what that agreement was, and hold subject thereto. This is not seriously contested in argument, and, in our opinion, it can not be.
The inquiry then naturally arises, at the threshold of the case, to what extent did that agreement affect and change the rights of the parties in regard to the use of water at the place involved in this controversy ? The agreement recites the pendency of the suit by the Havens against the board of trustees for the recovery of damages alleged to have been sustained to their mill in consequence of the diverting the waters of the Desplaines river “from said mill, and applying it to the use of the Illinois and Michigan Canal, above said mill, ” and that the parties Avere anxious to avoid further litigation. The Havens do, therefore, and for the consideration then specified as being paid, thereby “release and forever discharge the said board of trustees, and their successors in office, from all actions, rights of action, and all claim arising out of any damages heretofore, now, or hereafter to be sustained by them by reason of the use of the waters of said Desplaines river for the purpose of supplying said canal, in the manner the same is now supplied at the feeder at Joliet;” and they also, in further consideration of the said sum specified as then paid, thereby “remise, release, and forever quitclaim to the board of trustees, and then’ successors in office, and to the State of Illinois, whenever said canal shall revert to said State, the right to use and appropriate the water of the said Desplaines river at the feeder at Joliet, below guard lock No. 1, for supplying the said canal for the purpose of navigation, in the same manner the water in said river, in connection with other feeders, ” was then “used for supplying said canal. ” It had been decided by this court in that suit, that the Havens were riparian proprietors to the center thread of the stream, and, as such, entitled to recover for any diversion of the water to their injury, (5 Güín. ubi supra,) and also that the property in the water was indivisible, each proprietor being bound to use it as an entire stream, in its natural channel, in such way as not materially to injure others who were jointly interested in it. (11 Ill. ubi supra.)
The Havens, therefore, might have persisted, in the enforcement of their right to have the stream continue to flow as an entire stream, in its natural channel, as it had, before the diversion, been wont to flow, or they might relinquish this right in favor of the board of trustees, either wholly or partially. They chose to relinquish the right partially. The board of trustees were only empowered to obtain water for the purposes of navigation, although, as incident to getting rid of waste or surplus water, they might, doubtless, sell water power. See Angell on Water Courses, sec. 468; Cooper v. Williams, 5 Ohio, 391; Buckingham v. Smith, 10 id. 288. And therefore it is to be presumed it was that they only sought to obtain from the Havens, and the Havens only purported to relinquish to them, the right to use this water for the purpose of navigation. It is manifest it was understood that this purpose would not, at all times, require all the water flowing in the river, and that at such times it was not intended the board of trustees should have the right to appropriate the water to any different or new use, for they expressly limited the right to use the water for navigation, “in the same manner the water in said river, in connection with other feeders, was then used for supplying said canal.” The release of damages, also, is of those sustained “by reason of the use of the waters of said Desplaines river for the purpose of supplying said canal, in the manner the same is now supplied at the feeders at Joliet.” So, beyond all question, any use of the water in a different manner from that in which the water in the river was then used for supplying the canal, is unauthorized by the relinquishment, and so, unaffected by it. Plainly, a use in excess of that needed for navigation, creating a motive power for the benefit of others, is a use not within the language or the spirit of the agreement.
It is, however, argued, with much ingenuity and plausibility, that the agreement does not contemplate the addition to the waters of the river since caused by the deepening of the Summit level of the canal, hut only such water as naturally flowed in the river without the aid of art. But does it, by fair construction, exclude such addition? We think not. No word is used expressing whence or how it is anticipated the flow of water is to he obtained. The language is, simply, “the water of the Desplaines river.” What that language embraces they intended—nothing ‘more, nothing less. It is not to he presumed that the parties intended only the stage of the water then in the river, or the stage of water that might he brought in by the system of drainage then in use, for it is clear the design was to effect a permanent settlement of the controversy, and it was known the country was then new and hut imperfectly drained, and that enlarged and more perfect drainage would be gradually introduced as the country grew older and became better improved, and hence there would he produced, from-time to time, a material change in the volume and flow of the water in the river. The parties knew the position and possibilities of the river, not only, in respect of the water that naturally flowed into it, hut also in respect of its future use as an outlet for drainage, and it would, therefore, seem not unreasonable that they should, in the absence of anything showing the contrary, be held to have had within contemplation its possible use for all the purposes, and to the extent, to which it has since been applied.
A reference to the well settled legal principles applicable to running waters will, we think, satisfactorily show that the waters introduced into the Desplaines river by the deepening of the Summit level of the canal, thereafter became, in a legal sense, and hence within the language of the agreement, “waters of the Desplaines river. ” The law has been long settled, in this State, that there can be no property merely in the water of a running stream. The owner of land over which a stream of water flows, has, as incident to his ownership of the land, a property right in the flow of the water at that place for all the beneficial uses that may result from it, whether for motive power in propelling machinery, or in imparting fertility to the adjacent soil, etc.,—in other words, he has a usufruct in the water while it passes; but all other riparian proprietors have precisely the same rights in regard to it, and, apart from the right of consumption for supplying natural wants, neither can, to the injury of the other, abstract the water, or divert or arrest its flow. Evans v. Merriweather, 3 Scam. 492; Plumleigh v. Dawson, 1 Gilm. 544; Havens v. Canal Trustees, 11 Ill. 554; Batavia Manf. Co. v. Newton Wagon Co. 91 id. 230. See, also, 2 Blackstone’s Com. (Sharswood’s ed.) 17; 3 Kent’s Com. (8th .ed.) 544; Washburn on Easements, 207, et seq.; Goddard’s Law of Easements, (Bennett’s ed.) 56; Embrey et al. v. Owen, 4 Eng. L. & Eq. 466.
It would seem, when it is once established, that the only property right recognized by the law, as respects running water, is in its use as it passes along and as incident to the soil over which it passes,—it could make but little difference how, in the first instance, the water became running water, for if it were raised from wells, or brought out of reservoirs, the moment the individual thus producing it should allow it to flow into a natural stream, and mingling with its waters thence on towards its mouth, over the soil of another, he would have voluntarily placed it beyond his power of legal reclamation or control; for, without becoming a trespasser upon the soil of that other, or obtaining a license from him, he could then do no act to arrest its onward flow, or divert its course, or in anywise enjoy its use. It would, in our opinion, be conclusive evidence of an abandonment of all right to enjoy the use or control the movement of such water. The principle is broadly stated in text books, but does not appear to have been often the sole point in controversy, though frequently as incidentally and pertinently before the court in adjudicated cases.
In Goddard’s Law of Basements, (Bennett’s ed.) p. 51, the author says: “When a stream is natural, there can be no doubt that all waters which flow into it become a part of that stream, and subject to the same natural rights as the rest of the water, and that it makes no difference that the water so flowing to the natural stream was sent down by artificial means.”
In Washburn on Basements, p. 274, sec. 33, it is said: “There are some cases where a lower mill may acquire the benefit of expenditures laid out by the upper mill owner, without being liable to contribute therefor. Thus, if the owner increases the capacity of the stream, for mill purposes, by enlarging the extent of his pond, or the reservoirs which supply his mill, the lower one has a right to avail himself of the benefit of this, as something incident to the ownership' and situation of his mill. ”
In Angelí on Water Courses, sec. 95, the author says: “It is also important to observe, that as each proprietor through whose land a water course passes, has a right to the natural flow and descent of a water course, subject to a like reasonable use by all others, he necessarily enjoys the benefits in the improvement made by proprietors above. If they increase the head waters, for useful purposes, by flowing increased areas of land, and by making reservoirs to preserve surplus water for dry seasons, and thus increase the volume of water for hydraulic purposes, every lower proprietor necessarily enjoys the benefit of it.”
In Wood v. Waud, 3 Exchequer, (Welsby, Hurlstone & Gordon,) 748, one of the questions occurring upon the trial was, whether the plaintiffs had a right to the waters of “Bowling sough, ” and in reference thereto, Pollock, C. B., in delivering the opinion of the court, said: “Have the plaintiffs a right to the waters of this sough, as described in the third count of the declaration ? It appears to us to be clear, that as they have a right to the use of the Bowling beck, as incident to their property on the banks and bed of it, they would have the right to all the water which actually formed part of that stream as soon as it had become part, whether such water came by natural means, as from springs, or from the surface of the hills above, or from rains or melted snow, or was added by artificial means, as, from the drainage of lands, or of colliery works; and if the proprietors of the drained lands, or of the colliery, augmented the stream by pouring water into it, and so gave it to the stream, it would become part of the current,—no distinction could then be made between the original natural (stream and such accessions to it.” .
In Webb v. The Portland Manf. Co. 3 Sumner, 189, a suggestion was made in argument that the defendants had fully indemnified the plaintiff from any injury, and in truth had conferred a benefit on him, by securing the water, by means of a raised dam higher up the stream, at Sebago pond, in a reservoir, so as to be capable of affording a fuller supply in the stream in the dryest season. But Stoby, J., in delivering the opinion of the court, in reply to this, said: “To this suggestion several answers may be given. In the first place, the plaintiff is no party to the contract for raising the new dam, and has no interest therein, and can not, as a matter of right, insist upon its being kept up, or upon any advantage to be derived therefrom. In the next place, the plaintiff is not compellable to exchange one right for another, or to part with a present interest in favor of the defendants at the mere election of the latter. Even a supposed benefit can not be forced upon him against his will, and certainly there is no pretence to say, that, in point of law, the defendants have any right to substitute for a present existing right of the plaintiffs any other which they may deem to be an equivalent. The private property of one man can not be taken by another, simply because he can substitute an equivalent benefit.” See, also, Cooley on Torts, to the same effect, p. 66.
In Tourtelotte et al. v. Phelps, 4 Gray, 370, it was held a grantee of land, including the site of a dam, with the privilege of flowing, during the winter only, the meadow of the grantor higher up on the same stream, “for the benefit of carrying on the blacksmith’s business,” has the right, as against his grantor, or those claiming under him privileges above or below on the same stream, to use, at 'all seasons, for any reasonable purpose, the waters of the stream, including any additional power subsequently created by improvements of his grantor; and in discussing this question the court, per Shaw, Ch. J., said ; “One consideration is important to the present inquiry. It is this: that as each proprietor through whose land a water course passes, has a right to the natural flow and descent of a water course, subject to a like reasonable use by all others, he necessarily enjoys the benefit of any improvements made by the proprietors above him. If they increase the head waters, for useful purposes, by flowing increased areas of land, and by making reservoirs to preserve surplus waters for dry seasons, and thus increase the volume of water for hydraulic purposes, every lower proprietor necessarily t enjoys the benefit of it. * * * ■Indeed, where several successive mills are to be benefited by a reservoir at the head of the stream, it is common for the several proprietors to come into an agreement to contribute proportionally to the expense of an improvement which will mure to their common benefit. But in such case, if the lower mill owner pays anything for the benefit he enjoys, it is in virtue of the obligation he has entered into, and not of any duty incumbent on him by law. ” Like doctrine was announced by this court, in argument, in Batavia Manf. Co. v. Newton Wagon Co. supra. To like effect see, also, Eddy v. Simpson, 3 Cal. 249.
The principle thus recognized is not restricted, as seems to be supposed by counsel for appellant in argument, to the more remote riparian proprietor, but is equally applicable to those who are proximate to the party causing the artificial addition to the waters, and this will be obvious when it is reflected that intermingled waters become indistinguishable and inseparable, and the right to flowing water is not a right in the water itself, but simply a right to its use as it flows, as an incident to the ownership of the soil over which it passes, and so the party causing the artificial addition has as effectually abandoned all right to use and control it, the moment he has caused or permitted it to commingle with other waters and flow upon the land of another, as he has after permitting it to flow continuously over the soil of numbers of successive proprietors, and to be,come commingled with the waters of many additional streams. Whether sooner or later, the moment he has placed the water beyond his right of legal reclamation or control, he has, in a legal sense, abandoned it, and it is, thereafter, to him only as any other running water.
Counsel for appellant quote and rely upon Elliott v. Fitchburg R. R. Co. 10 Cush. 191, Whittier v. Cocheco Manf. Co. 9 N. H. 454, Society for, etc. Manf. v. Morris Canal Co. Saxton, (N. J.) 157, Hoffman et al. v. Stone et al. 7 Cal. 46, Butte v. Vaughn, 11 id. 143, and Barnett v. Whitesides, 15 id. 35, as establishing the doctrine that if a party take out ánd divert from a stream of water the same amount (or less than that) which he has, by artificial means, before caused to flow into it, a lower riparian proprietor will have no right of action against him on account of such abstraction or diversion.
The following quotation from the opinion of the court in Elliott v. Fitchburg R. R. Co. 10 Cush. 191, very clearly shows the ground of the opinion there: “The question Avas not (if the defendants have caused damage to the plaintiff amounting' in law to a disturbance of his right, for which an action would lie,) whether it Avould be barred by an advantage of equal value conferred, in the nature of a set-off, but whether, the improvements of Clark upon his meadoAV taken together as a whole, including the dam and ditches as a part of one and the same improvement, any damage was done to the plaintiff; and this, Ave think, was correctly so left to the jury. ”
In Whittier v. Cocheco Manf. Co. 9 N. H. 454, the plaintiff had granted to another party, who had subsequently granted to the defendants, certain lands and water power on the south side of a dam across the Cocheco river, at a place called Waldron’s Falls, reserving to himself the right to draw water from the pond above the dam for fulling cloths and skins. The defendants also owned the lands and certain un'lls at the north end of the dam, and in addition thereto certain other mills, lower down, on the same river, and it seems, moreover, they had been in the habit of using and withdrawing water at the north end of the dam for manufacturing, in some certain and definite manner, for more than twenty years, and thus acquired a prescriptive right in that regard. The defendants, and others, had collected, through artificial means, water in a reservoir, called Bow pond, above Waldron’s Falls, which they could there let into the river by means of a gate. In a dry time they opened their gate at Waldron’s Falls and also at Bow pond, and thus permitted the water to pass below. Plaintiff claimed there was a diversion of water to his injury. The court held that the right plaintiff retained in the water above the dam at Waldron’s Falls, was subject to the prior right of the defendants, as mill owners, on the north side of the river, to use the water as they, and those under whom they claimed, had used it for more than twenty years before the acquisition of his right,—that it could make no difference to him whether the defendants used the water to propel machinery at Waldron’s Falls, or let it pass through their gate without any use there, in order that it might be used at their mills below, provided they did not thus withdraw from the pond more water than they were entitled to withdraw for propelling their machinery, had they chosen to have used it at Waldron’s Falls for that purpose, and that plaintiff had no right to require that the defendants should shut down their gates for the purpose of saving, for his use, the water let into the river from Bow pond. What became of the water after it passed out of the pond and beyond the dam in which plaintiff had an interest, was clearly of no consequence to him. The question was, simply, was he entitled to require that the defendants should collect that water and retain it for his use,—and the reservation in his grant, and other circumstances fixing his rights, answered in the negative. That case is plainly, and, as we conceive, vitally, distinguishable from the present case, in that there, by express contract, the plaintiff’s rights to the use of the water above the dam were subordinate to and restricted by the prior rights of the defendants, and those under whom they claimed, to use that water as they had used it for more than twenty years before the acquisition of his right, whereas, here, the plaintiff is, by contract, restricted in his right to the use of the water of Desplaines river only in so far as it may be necessary for purposes of navigation. Had the plaintiff in that case been in nowise restricted in his right to use the waters of the river above the dam for manufacturing purposes, a very different question, as we conceive, would have been presented.
In The Society for Establishing Manufactories, etc. v. Morris Canal Co. Saxton, (N. J.) 157, bill was filed for the purpose of restraining the defendants from diverting the waters of the Passaic river. The defendants claimed the privilege of introducing into the Bockaway (the bed of which, for a distance, they make use of for the bed of their canal,) the waters of Lake Hopatcung and of one of the branches of the Baritan, and then of taking out of the Bockaway, below, so much water as may be necessary for the purposes of their canal, averring that the waters of the stream will be thereby in nowise diminished. The Chancellor refused the injunction. It will be noted there was in that case but a single enterprise, in which the turning of the waters of Lake Hopatcung and the branch of the Baritan into the Bockaway, and the diverting of the waters of the Bockaway into the canal, were concurrent acts, and necessary parts of one common whole. They were each for the purpose of supplying the canal with water. So far as the Bockaway was used, either for the reception or diversion of water, it was as a part of the canal. There could, therefore, be no ground for claiming that by 'turning.the waters of Lake Hopatcung and the branch of the Baritan into the Bockaway, the canal company had abandoned them. Directly the reverse seems to have been true. At all times it retained actual and lawful control of these waters.
It is unnecessary that we should express any disapproval of these cases at this time. Whether rightly or wrongly decided, they do not assert that he who causes a body of water, which he has collected by artificial means, to flow into a natural stream of water, retains a property right in, or ownership of, that water after it has passed on to the soil of another, nor do they assert that oné trespass to the property of an individual may be justified by another and wholly independent trespass beneficial to that individual. This would be contrary to natural justice, and subversive of the fundamental principles of property rights. I may not justify my act of tearing down my neighbor’s inclosure, and destroying his crops, by showing that, unsolicited, and of my own volition, I dug ditches and removed obstructions to cultivation on his lands, whereby I benefited him more than I injured him by tearing down his inclosure and destroying his crops. But these cases, in principle, go no farther than to assert that where, by the accomplishment of a single and entire work, water is both added to and diverted from a stream, a lower riparian proprietor can not complain, provided the same amount and quality of water shall continue to flow to him after as before.' The work is regarded as a single act, and its ultimate result, in that view, whether injurious or beneficial, is alone considered. This view is, however, manifestly inapplicable in an action at law, where the party adding the water, in a legal point of view, abandons it, so that the lower riparian proprietor has a legal right, technical though it may be, to have the added water flow down over his land as a part of the waters of the stream; for no common law doctrine is settled more firmly by the concurrent judgments of common law courts, than that for every distinct invasion of a right, although the invasion itself may be productive of no actual injury, some damage is presumed. See Cooley on Torts, 64, 65 and 66, and notes there cited, and opinion of Story, J., in Webb v. Portland Manf. Co. supra.
The California cases are not applicable. They hold, contrary to what we have shown is the law here, that thefie may be an ownership in the water of a flowing stream. Thus, in Hoffman v. Stone, 7 Cal. 49, Mr. Ch. J. Murray said: “The fact early manifested itself that the mines could not be successfully worked without a proprietorship in waters, and it was recognized and maintained. To protect those who, by their energy, industry and capital, had constructed canals and races, carrying water for miles into parts of the country which must have otherwise remained unfruitful and undeveloped, it was held that the first appropriator acquired a special property in the waters thus appropriated, and as a necessary consequence of such property might invoke all legal remedies for its enjoyment or defence.” There is no pretense in any of those cases, as counsel seem in argument to suppose, that the ownership of the waters is affirmed upon common law principles, but, as appears from the foregoing quotation, it was because of the peculiar circumstances and necessities existing in that country. And this is still more fully shown and explained in the opinions of the court, by Field, J., in Atchison v. Peterson, 20 Wall. 507, Basey et al. v. Gallagher, id. 670, and Jenison v. Kirk, 98 U. S. (8 Otto,) 453. See, also, Irwin v. Phillips, 5 Cal. 140; Davis v. Gale, 32 id. 26.
The remark of the court in Hoffman v. Stone, supra, referred to by couhsel, in regard to framing rules conforming, as nearly as possible, to the analogies of the common law, has reference to the protection of rights already ascertained and defined, and not to the ascertainment and definition of rights in waters, and as illustrative of this, the court, in cases where waters of different owners become mingled in the same channel, applied the common law doctrine in regard to the confusion of goods of equal value. (Butte Canal Ditch Co. v. Vaughn, 11 Cal. 151.) This was not the common law doctrine, because in such case, the common law recognizing no property right in the water, there could be no property confused upon which the rule could operate. But holding, as, the court there did, that from the peculiar circumstances and necessities of that country there should be property rights in running waters, it was very logical to frame and apply this rule according to the analogies of the common law, as was done.
The facts in the present case are plainly distinguishable from those in each of the cases referred to by counsel for appellant. The stipulation shows that there is more water introduced into the Summit level of the canal, by reason of the improvement known as the “deep cut,” than is required for navigation purposes, and more than is required for the purposes of the canal between locks one and two, two and three, and three and four, on said canal, between Lockport and Joliet; that the use of such surplus water is leased to Norton & Co., at Lockport, so far as they may require, and the balance is discharged by a waste-weir, both the water used by Norton & Co. and that discharged by said waste-weir being conducted by a race into the Desplaines river, and mingling with its waters at that point. After the water passes into the Desplaines river, the mingled waters, for near the distance of three miles, pass over soil owned by parties other than the State, or canal trustees or commissioners, among whom is the owner of a mill, at which these waters are used, a short distance below Lockport, and there is, for that distance, no connection between the canal and the river, and no structures, works or improvements of any kind were ever placed on the river, or any control exercised over the same, by the canal authorities or the State, for any purpose. So, it is quite clear, at no point within that distance could the State or the. canal authorities do any act in regard to this water. At the mill it is as completely beyond their legal power of control as are the waters of the Mississippi. It is quite true the owner of the mill and the other riparian proprietors have no legal right to exact that this water shall be discharged into the river; but when it is discharged into the river, by virtue of the character it then assumes as running water in a natural stream, and their position as lower riparian proprietors, they are lawfully entitled to the same use and benefit to result from it thato they are from any other water of the stream.
If it were not for the fact that the canal, at Joliet, uses the waters of the Desplaines river, there could certainly be no question but that those controlling the canal had completely abandoned the waters discharged into that stream at Lockport. Yet suppose there had been no agreement between the Havens and the canal trustees allowing the trustees to use the waters of the river at that place, those waters must have been permitted to -flow on in their natural channel, and, necessarily, with them the waters added at Lockport from the Summit level. Those operating the canal acquire their rights at Joliet, not because of ownership in the water coming down the stream, but because of the riparian rights of the State at that place, and the agreement with the Havens. It is the fact, alone, of riparian ownership that puts them in a position to obtain a lawful use of the water there, and it is the agreement that authorizes them to arrest its flow and confine it within the banks of the canal,—and this, as has been seen, is limited to purposes of navigation.
The deepening of the Summit level, and the cutting of the tunnel, and doing of the other work enabling appellant to withdraw water from the canal to propel his machinery, were not concurrent acts, nor parts of a single improvement. The acts were disconnected in point of time, and disconnected in purpose. Appellant’s water power was obtained by him from the Board of Canal Commissioners long subsequent to the deepening of the Summit level, and, for aught that is disclosed in this record, it was not even thought of while that work was in progress, nor until some time after its completion.
The position of counsel that it is shown that one of the. purposes of the deepening of the Summit level was to procure water to be leased as motive power, as a source of revenue by those in charge of the canal, is, as .we think, based upon a misapprehension. The agreement with the Havens, it has been seen, shows, at least, that at that time the creation of such water power was not in view, and the stipulation of the parties discloses no such fact. The act of April 16, 1865, under which the city of Chicago deepened the Summit level, discloses no such purpose. It shows that, so far as the city of Chicago was concerned, the sole purpose was to purify or cleanse the Chicago river. It is true, it is therein shown that it was desirable to cut down the Summit level, so as to draw a large supply of water from Lake Michigan ; but this was not for motive power, but is expressly said to be “for navigation.” Indeed, it has been held by this court, in an action on the case against the city of Chicago for negligence in prosecuting the work of deepening the Summit level, wherein the defence was interposed that the city was the agent of the State in executing a public work for the public benefit, and that it could not therefore be liable, that the city was not the agent of the State, but acting simply, under legislative authority, in a matter that concerned its own interests,—namely, the preservation of the health of the city. It was said: “The facts stated in the preamble to the act of 1865, show conclusively that this enlargement of the canal was a suggestion of the city of Chicago, and recommended for the only purpose of cleansing their river, which had become, by reason of having no current, a nuisance. The act of 1865 bears on its face the impress of benefit to Chicago, and nothing more. That was the moving cause, as we infer, for the passage of the act. The city was in no sense the agent of the State. ” (Joney v. Chicago, 60 Ill. 383.) And this was followed and approved in The City of Chicago v. McGraw, 75 Ill. 566. Of course, the State is benefited by the act, and tfie property— water power and all—is its property. But this would seem to effectually answer the argument sought to be drawn from the assumed purpose of deepening the Summit level.
It may be quite true that appellee has now more water than he had before the deepening of the Summit level, and that, contrasting his condition now with his condition then, he is not injured; but he is entitled, by virtue of his position as lower proprietor, as has been shown, to the benefit of all improvements whereby the flow of the water in the river is increased, and this property right can not'be taken from him without his consent. The right which the lower riparian proprietor has to avail himself of all benefits resulting from improvements by upper riparian proprietors, is obviously a property right, growing out of the nature and necessities of flowing water and his position upon the stream, and of which, therefore, he can no more be deprived, without his consent, than of any other property right. In brief, the lower riparian proprietor has a legal right to profit from the necessities of the upper proprietors, and of this he can not be deprived without his consent, and so his relative condition with and without regard to the upper improvements does not, necessarily, control or affect the question of damages. And the rule is, where a riparian proprietor is deprived of his right, the law will imply a damage to him, and entitle him to nominal damages, at least, and therefore an action may be maintained in such case without proof of actual damages. Plumleigh v. Dawson, supra; Parker v. Griswold, 17 Conn. 288.
Counsel for appellant make the point that the water is carried by the Canal Commissioners beyond a point at which appellee could possibly derive any beneficial use from it before it is diverted to the use of appellant, and hence contend that the act of diversion, to appellee’s injury, is the act of the Canal Commissioners, and in no legal sense the act of appellant.6 The facts admitted by the stipulation are: “That defendant’s premises are located on the berme or western bank of said canal, on said Channahon level, about half a mile south-west of plaintiff’s dam; that defendants built a tunnel under said canal, put in water wheels, and at the date of commencing said suit had been drawing water from said Channahon level of said canal, to the extent of from 6000 to 8000 cubic feet per minute, to operate their mill, discharging the same into the Desplaines river below the plaintiff’s dam, and a lower level on said river than said dam, so that the use of said water was wholly lost to plaintiff ; that but for the diversion of said water from the pool above dam No. 2 of the Illinois and Michigan Canal into the Channahon level of said canal, and for such use by defendants, ajl of said water would have naturally flowed in the bank and bed of said river to said plaintiff’s dam and water wheels, and could have been used by him. ” It thus appears that the act of -appellant in using said water directly contributed to prevent the water from naturally flowing within the banks and bed of the river to appellee. Moreover, it is stipulated appellant’s use of said water is by virtue of a lease from the Canal Commissioners, so it is quite apparent, as respects this diversion, the acts of each are the acts of all. The water is brought down to appellant by his procurement, and therefore the act of bringing the water to the point where it runs into his tunnel is, constructively, his act.
It was not competent for the State to take rights belonging to appellee and transfer them to appellant, (Cooley’s Const. Limitation, 530,) and what the State, through its agents, could not do, it could not authorize appellant to do. The lease was void, and can therefore form no justification for the act of appellant. Angell on Water Courses, sec. 468; Cooper v. Williams, supra; Buckingham v. Smith, supra; Varick v. Smith, 5 Paige, 136.
Perceiving no error in the record, the judgment below is affirmed.
Judgment affirmed.
