4 Ga. 241 | Ga. | 1848
By the Court
delivering the opinion.
This was an action of trespass on the case, for backing the water in the Tussehaw Creek, by means of a dam erected by the defendants, whereby the plaintiff’s mill shoal was overflowed.
The plaintiff and the defendants are riparian proprietors, the plaintiff owning the land on one side of the Creek, and the de
After stating the facts of the case, the Court below charged the jury that “ the plaintiff is not entitled to any damage for simply raising the water in the natural channel of the stream, so long as the water continues to be confined by its banks to the natural -channel; but if, by raising the water by a dam upon his own land, he throws the water oüt of the natural channel of the stream, the party whose land is overflowed, is entitled to damage. You will, therefore, enquire whether the defendants have, by their dam, thrown back the water, and whether it has been thus thrown out of the natural channel, upon the land of the plaintiff; if so, the plaintiff is entitled to recover.” To which charge of the Court the plaintiff excepted. The error assigned is based mainly on the two foregoing exceptions, although there are other exceptions to the rejection of testimony, apparent on the face of the record, but which were not insisted on in the argument before this Court;
The plaintiff, as we have already shown, is the owner of the land bordering upon, and to the centre of the stream, including half the mill shoal. It is his property, and he has the indisputable right to enjoy it, and to appropriate it to any use he may think proper, not inconsistent with the rights of others; it is a part of his freehold estate. Have the defendants the legal right, as riparian proprietors, to throw the water back upon the plaintiff in the ■channel of the creek, and thus convert a running stream into a stagnant pool, by means of the erection of their dam, although the water is not thrown out of the natural banks of the stream ? We think they have not such right, either upon principle or authority. It is true, a riparian proprietor has the right to use the water in the stream, as it was wont to flow, but he has no right to use it in such manner as to alter or change the flow or current of the stream, to the injury of another proprietor. The principle of the Common Law is, that a man must so use his own as not to injure others. “ Sic utere two ut alienum non Icedas.”— As the owner of the land to the middle of the stream, the plaintiff has the right to the middle of the shoal to that extent, with the water running over it as it was wont to run, in its natural state ; and when the defendants, by their dam, prevent it from so running, they deprive him of a right which the law gives him. The plaintiff has the right to use the bank of the stream, down to the water, in its natural current, for every lawful purpose; he has the right to have the water flow over his shoal, and along the channel of the stream, in its natural course ; he has the right to erect his dwelling house on the bank of the stream, and enjoy the pleasure of seeing the water flow rapidly over its shoaly ■ bed.— The plaintiff has the right to the enjoyment of all the springs which may issue from the bank of the stream, between the water in its natural current, and where it is overflowed in consequence of the defendant’s dam. He is also entitled to all the marl and minerals which may be found there — and he has the right to examine there for such objects, if he thinks proper to do so ; but the defendants, by means of their dam, prevent the water from
If this principle can be maintained, then, the defendants as riparian proprietors, can by their own act of appropriating the water first, to the purposes of their mill, wholly defeat and destroy the right of the plaintiff to his shoal as a riparian proprietor; his title to this valuable species of property, is made dependent on the act and will of the defendants. They first appropriate the water in the stream, and flow it back on the land of the plaintiff, and after the expiration of seven years, the period prescribed by the Statute of Limitations,'they will acquire a prescriptive right to throw back the water on the plaintiff’s land, and thus his title to his property, is entirely defeated and destroyed.
The throwing back the water upon the proprietor above, by the proprietor below, is a violation of the fundamental principles of the law, which govern the rights of riparian owners; and prior occupation does not authorise the defendants so to use the water as to prejudice and destroy the rights of the plaintiff to his property. The act of throwing back the water on the property of the plaintiff is a wrong — an act of usurpation on the part of the defendants, and usurpation does not justify itself. This question, however, has been thoroughly discussed and settled,both in the English and American Couits — that occupancy, without grant or license, gives no right to divert or throw back the water in the stream, to the prejudice of other proprietors, unless such occupancy has existed for a period of time which would give the occupant a prescriptive right, under the statute of limitations. Mason vs. Hill, et al 27 English Com. Law Rep. 1. Platt vs. John
The very high respect entertained for that Court, has induced us to examine this question more fully than we otherwise should have done ; and yet, we have not been able to bring our minds, to the same conclusion. We concur in opinion with Mr. Justice Evans, who dissented from the judgment of the Court, that the overflowing of the land of a riparian proprietor, within the banks of the stream, is an injury to the rights of the party whose property is sb overflowed, for which the law will imply damage, and give
Where a man sets up a new mill or school, in the neighborhood of an ancient one, an action will not lie, though a damage may thence accrue to the former mill or school; for such rivalship is of public benefit and advantage, and it is damnum absque injuria. 2 Espinasse, 642. The Common Law gives a prompt and efficient remedy for the redress of all wrongs and injuries, to the person and property of the citizen, so as to preserve the peace and harmony of society, and thereby prevent a resort to force. Every man should know and feel, that all his rights are under the protection of the lato. In Ashley vs. White, 2 Lord Raymond, 953, Lord Holt said, “ If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy, if he is .injured in the enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy ; for want of right and want of remedy are reciprocal.”
In Hunt vs. Denman, Croke Jac. 478, the lessor brought an action against the lessee, for disturbing him from entering into the house leased, in order to view it and to see whether any waste was committed: and it was held that the action will lay, though no waste was committed, and no actual damage done ; for the lessor had a right so to enter, and the hindering of him was an injury to that right, for which he might maintain an action. So in Wells vs. Watling, 2 Black. Rep. 1238, where the plaintiff
In Hobson vs. Todd, 4 Term Rep. 73, which was an action on the case for surcharging the .Common, Butler, J. said, “ the only question then is, whether any injui-y has been done by the defendant, to the plaintiff.. Here he' is a wrong-doer, and the plaintiff is entitled to an action, without proving any specific damage. There is also another ground on which this action may be supported, which is, the right has been injured, and if a commoner cannot bring such an action as this, because his cattle had grass enough to prevent them from starving, he must permit a wrong-doer like the defendant, to gain a right by the length of possession.” If there had been no perceptible damage done the plaintiff, by the defendants throwing back the water upon his land, and shoal, in the channel of the creek, there was an injury done to his right, and shall the defendants, as wrong-doers, be permitted to acquire a prescriptive title, to enjoy the plaintiff’s property, for their own benefit, under the statute of limitations % In the great case of Millar vs. Taylor, 4 Burrow’s Rep. 2344, Mr. Justice Aston cites a case from the year book of 12th Henry VIII, in which there •was a great dispute, whether an action would lie for taking away ■a bloodhound, whether it was to be considered as property. It was argued, the dog was of no value, nor profit, but for pleasure; that felony could not be committed of it, consequently not trespass; •that a dog was not titheable, &c. But upon what principles, asks Mr. Justice Aston, did the Court determine the action lay 1 Upon these — “ That where any wrong or damage is done to a man, the
In Bowen vs. Hill, 27 Eng. Law. Rep. 460 the defendants erected a bridge andtunnáf'6¡»¿íteTr ownTMU^fcross a navigable drain, which passed fron&tmi river NejjnsJbiftugh the defendants’ close up to the close above the obstruction erected by the defeadant had been sa c®tructed by the accumulation of mud in no barge-could pass along it, and the plaimSSLhad notj^g#sd<S^ould not use-it. The Court held, however, that it wa^we right of the plaintiff to navigate it, provided he should think proper to remove the mud, and that the voluntary suspension by the plaintiff, of the exercise and enjoyment of a right, did not form any justification to the defendant for preventing him from the possibility of enjoying it. Although the plaintiff had not sustained any specific damage by the obstruction erected by the defendant; yet he invaded the plaintiff’s right; and the Court held he was entitled to recover nominal damages for the protection of that right; otherwise his right might be entirely destroyed by lapse of time, and the defendant acquire a right by his adverse enjoyment.
In Webb vs. the Portland Manufacturing Company, 3 Sumner’s Rep. 192, Mr. Justice Story discusses the question of injury without damage, in so clear and satisfactory a manner, that we feel entirely persuaded that all who love and reverence the principles of the common law, will be gratified to see them vindicated and maintained by one whose profound learning and wisdom in his profession has commanded the universal ap
The plaintiff, however, as it appears by the record, offered to prove the value of the shoal, before is was submerged by the backwater thrown upon it in consequence of the defendants’ mill-dam and its value in its submerged condition; also offered to prove the damage done the plaintiff’s mill-shoal in consequence of the back-water, which evidence so offered, was rejected by the Court. We are of the opinion, that the evidence offered to prove the damage sustained by the plaintiff, ought to have been admitted, as
Let the judgment of the Court below be reversed, and a new trial granted.