Gillett v. Johnson

30 Conn. 180 | Conn. | 1861

Butler, J.

The facts detailed in this motion do not show that any injustice was done to the defendant by the decision of the court below. It clearly appears that a water-course existed from the spring to the premises of the plaintiff, which had been immemorially and beneficially used by him for watering his cattle. It was a small but constant stream, failing only when all or nearly all such small streams fail, by reason of drought; - running rapidly in a well defined course between abrupt banks, where the fall was considerable ; and sluggishly but continuously in a natural and defined bed, where the fall was less; and it had in these respects the characteristics observed, to a greater or less extent, in all such small streams. The quantity of water was also considerable to be furnished by a single spring, and it required a dam and ditches to divert it on to the defendant’s land, and when so diverted it served a useful and valuable purpose. These facts are sufficient to show that a water-course, valuable to both plaintiff and defendant, existed.

The right of the defendant to use the stream for purposes of irrigation can not be questioned. But it was a limited right, and one which could only be exercised with a reasonable regard to the right of the plaintiff to the use of the water. It was not enough that the defendant applied the water to a useful and proper purpose, and in a prudent and husbandlike manner. She was also bound to apply it in such a reasonable manner and quantity as not to deprive the plaintiff of a sufficient supply for his cattle. This principle was fully discussed and recognized by this court in Wadsworth v. Tillotson, 15 Conn., 377, and the earlier cases there cited, and a new or extended examination of the authorities is unnecessary. The claim of the defendant was that she had a right to divert the whole for the purpose of irrigation, regardless of the rights and necessities of the plaintiff, and she did so divert it. Such diversion tinder the circumstances was clearly unreasonable and therefore illegal, and the court correctly rendered judgment for the plaintiff.

A new trial should be denied.

In this opinion the other judges concurred.