56 Conn. 255 | Conn. | 1888
The rule that now obtains in all jurisdictions, as recognized by all the authorities, is that the use made by
In the first place, the use must be as near as possible an equal use, or rather an equal opportunity to use. “ Equity delighteth in equality.” Every owner improving a mill privilege has a right to consider the law as protecting him against any unfair use by any other owner who may establish a mill above him. The term “unfair use,” is the equivalent of “unreasonable use.” When the owner above him has established his mill he is bound not merely by this obvious rule of the stream, but by another more general rule of universal application, that no one may so use his own as to injure the property of another. This golden rule of the law is not of course to be taken literally for, where there is a concurrent use of water and at the same time a deficiency, the use of one will to some extent injure another.
In the next place, a reasonable use is one adapted to the character and capacity of the stream. Indeed there is no other factor of so much importance that comes into the question as that of the capacity of the stream, and in determining this capacity its condition throughout the year is to be considered. If, for instance, there is an ample supply of water for nine months of the year and a scarcity for three, this scarcity, if it occurs so regularly that it can be anticipated, is to be treated as a fixed quantity in the estimate and
In the next place, a reasonable use must permit the water to flow in its accustomed way, so far as this can be done and a beneficial use,, though a limited one, be made of the reduced stream, each riparian mill-owner having his fair proportion.
It is the right of every mill-owner, large or small, on the stream, that the water be allowed to run in its usual way except where detained by another to secure his fair proportion of beneficial use. A policy of the state may come in to affect the question.
It is for the public interest that all our streams be improved as far as they can be. This rule has sometimes been applied to favor the larger mill-owner, but it should have regard also to small mill-owners, who are the great majority of those in such business or who incline to go into it. These men of moderate capital investing their means in mills upon our lesser streams, should be protected against such a use of the streams by mills disproportioned to their capacities as would practically deprive them of water and ruin their privileges. And where the water is sufficient only for a few hours use in a day it is a reasonable demand of these lesser mills that they should be allowed water enough to run a part of every day rather than it should be detained by any larger mill in such a way as to compel them to crowd into a single day or night all the work of a week. There would be no way in which the lesser mills could hold their own against the disproportionately large ones, with reservoirs of great capacity, but to enlarge their own reservoirs and ponds to an equal capacity, thus compelling all to enlarge their works in a manner not demanded by the capacity of the stream, and involving an unnecessary and perhaps ruinous expenditure.
If a large mill-owner has made a reservoir which it requires several days to fill in the dry season, he has no more right on that account to detain the water for a week to fill it than he would have to detain it a month. His rights are
These principles seem in the highest degree reasonable and just. In their application the particular circumstances of each case must determine the result. What may be a reasonable use in one case may be an unreasonable one in another, even where the general facts are similar. The question is so largely one of fact that, like decisions in the case of wills, one decision can rarely, afford a decisive guide for another; but we believe that most of the principles we have laid down accord well with the best considered cases. A seeming conflict is often occasioned by applying some general principle to the case in hand, without stating the implied qualifications necessary to adapt it to other cases. For instance, in many cases we find the general proposition, upon which the defendant in this case relies, that the upper mill proprietor may detain the water in-times of drouth until he can advantageously and profitably use it to propel his machinery. The leading case in Pennsylvania of Soy v. Sterrett, 2 Watts, 827, adopted in substance this proposition, which was afterwards, in Whaler v. Ahl, 29 Penn. St., 98, applied in a way to indicate that the test as to the extent of the detention of water by the upper proprietor was its usefulness to himself, without regard to his machinery or the size of the stream with reference to the entire use demanded
Our criticism, of the Pennsylvania decisions ought in justice to be qualified by the further statement that the courts of that state have adhered more rigidly and consistently than those of most other states to the rule that the question of the reasonableness of the use of water was exclusively for the jury. In Hetrich v. Deachler, 6 Penn. St,, 32, a detention on the part of the upper proprietor of three, four and five days, and in a single instance of thirteen days, followed upon resuming business by such an abundance of water let down as injured the plaintiff almost as much as the previous detention, was approved, but the Supreme Court, after approving the charge leaving it to the jury to say whether the detention was longer than was necessary for the defendant’s proper enjoyment of the water at his mill, simply say that “the reasonableness of the detention, depending^as it must on the nature and size of the stream, as well as the business to which itfis subservient, and the ever-varying circumstances of each particular case, must necessarily be determined by the jury.” This does not seem to be objectionable, and it involves an important qualification of the principle as stated in the previous case of Hoy v. Sterrett.
But whatever view may be taken of the cases in Pennsylvania, elsewhere there is scarcely any disagreement among the authorities. The doctrine held by the courts in all the New England states is well stated in the charge of the judge in the case of Thurber v. Martin, 2 Gray, 395, which was as follows: “Every riparian proprietor has aright to use the water of a river or running stream for the purpose of working, operating and propelling artificial works erected upon its banks. Priority of occupation secures to the first occupant the exclusive right to the use of the water to the ex
Shaw, C. J., in commenting upon this charge, says:— “The court are of the opinion that the law was rightly stated by the judge at the trial; that it was laid down with fullness and accuracy and with proper qualifications. Every man has a right to the reasonable use and enjoyment of a current of running water, as it flows through or along his own land, for mill purposes, having a due regard to the like reasonable use of the stream by all other proprietors above and below him.”
A similar doctrine obtains in the state of New York, as laid down in. Merritt v. Brinkerhoff, 17 Johns. R., 321. The court in that case lays down the law as follows:—“ The common use of the water of a stream, by persons having
The cases decided by this court of Twiss v. Baldwin, 9 Conn., 291, decided in 1832, Wadsworth v. Tillotson, 15 Conn., 373, decided in 1843, Parker v. Hotchkiss, 25 Conn., 330, decided in 1856, Agawam Canal Co. v. Edwards, 36 Conn., 497, decided in 1870, and Keeney & Wood Mfg. Co. v. Union Mfg. Co., 39 Conn., 581, decided in 1873, as far as they go accord well with the principles laid down in the cases cited from Massachusetts and New York, only there is perhaps this difference, that in some of the cases before the last one (see Agawam Canal Co. v. Edwards and Twiss v. Baldwin)
But the general principle stated by us at the outset of the discussion, to the effect that to justify a detention of the water by the upper proprietor long enough to make an advantageous use of it, his machinery, or so much of it as he operates, must be adapted to the fixed character of the stream (if it has any) as to deficiency of water during the dry seasons, apparently conflicts with the rule laid down in many cases, that the adaptation referred to must be to the usual quantity of water in the stream, or other equivalent expressions, by which we have no doubt was meant, as applicable to those cases, the medium average flow between a high and low stage of water. But in none of the cases where the rule has been applied, so far as we have examined them, did the seasons of great scarcity of water occur with such regularity year after year as in the case at bar; hence there was nothing to require the mill-owner to take notice of anything more than the average flow.
The case most relied upon by the defendant under this head seems to be Gould v. Boston Duck Co., 13 Gray, 442, which was, as here, an action by a lower mill-owner against an upper owner for detaining and using the water to the injury of the plaintiff’s mill. The facts were found and reported to the court by arbitrators, who found that the defendants’ works “were of such magnitude only as were adapted and appropriate to the size and capacity of the stream and to the quantity of water usually flowing therein. But in our judgment, as to the adaptation and suitableness of said works to the stream, we have had reference to the ordinary volume and flow of water at different seasons; but no reference to the plaintiff’s necessities or demand for water in such periods of extraordinary and extreme drouth as occasionally occur on this stream, when the water, though sufficient to operate the plaintiff’s mills, would be insufficient to operate the defendants’ factory.” The controversy related to the defendants’ use of the water during a period of seven years, or parts of years, from 1851 to 1857 inclusive.
In this case the decision that the defendants did not exceed their just right in the use of the water was obviously just. The defendants could have had no other standard for the adaptation of their machinery than the average flow of the stream. But in the case at bar the finding is that “as a usual thing, for eight or nine months of each year, extending from September or October to May or June following, there has been flowing in the river an ample supply of water for all the privileges and mills thereon, and during such periods there has been no complaint or ground of complaint against the defendant or any other mill-owner as to the mode of using the water; but during the remaining three or four months, between May and October (subject to a few exceptions in extraordinary seasons) the supply of water has been comparatively small. And during such dry seasons the amount of machinery to be driven at the defendant’s mill has been, and is, greatly disproportionate to the diminished capacity of the stream; and it has been impossible for the defendant at such times to run all his machinery by water power alone, except for a small fraction of the time.” And the other fact found, that five days’ detention of the water has enabled the defendant to run only five hours, shows still more forcibly the enormous disproportion of his machinery to the capacity of the stream during the dry season.
Now, may we not advance a step and adopt the principle that if seasons of great scarcity of water occur so regularly and'continue so long as to fix the character of the stream in that regard, the upper proprietor must adapt the running of his machinery to that condition? We are not able to find any adjudicated case where the principle has been thus announced, but it seems to us in the highest degree reasonable, and it receives strong confirmation from what so distinguished a jurist as Chief Justice Redeield says in his note to the case of Keeney & Wood Mfg. Co. v. Union Mfg. Co., supra, as found in the American Law Register for 1874, (Vol. 13, New Series, page 92,) as follows:—“No doubt
It would seem impossible to find any other intelligent basis for the required adaptation of machinery to the stream, than what may reasonably be anticipated through the year. If periods of scarcity are uncertain as to their occurrence or as to time and extent, it is fair to look to the average flow, for there is indeed no other basis for calculation, but in cases where there exists a more certain basis it is a strange doctrine that it may be disregarded. The reasoning of the court however in Drape v. Hamilton Woolen Co., 99 Mass., 574, suggests the point that the rule to be adopted should be one to promote the largest possible utilization of water power, which can only be accomplished by conceding to the mill-owner the right to erect machinery requiring the full average flow of the stream, with the incidental right to detain the water as may be necessary'during the dry season, as otherwise the workmen must remain idle till the wet season returns and the scarcity is over. We find no fault with this role applied to cases where the season of scarcity cannot be anticipated, but the reason of the'rule makes it inapplicable to the Case at bar, where it is manifest from the finding that if water power alone was used the workmen could be employed only a small fraction of the time during the summer months; so if we concede to the defendant the right to detain the water as claimed for the propulsion of his entire machinery, the certain result would be that there could be no beneficial employment for men and machinery at the defendant’s own mill nor at the several mills of the plaintiffs. There can be no public policy in a rule thus applied. Now the defendant insists that any reasoning which is to determine his water rights must leave out of the account the fact that he has steam power which he can use with facility and without detriment, and this position we accept as substantially correct. At the same time the fact, that steam power
If the principle we have been contending for is not sufficiently established to be accepted as controlling this case, still, the fact of a regularly recurring deficiency of water is at least one important element in determining the question of reasonable use. The defendant knew the fact when he bought the property, and afterwards when, in 1881, he repaired and enlarged his reservoir, and when, with presumptive knowledge of the result to the plaintiffs, he changed the long established mode of running the mill.
And this suggests another element with which to test the reasonableness of the defendant’s use of the water. The immemorial local custom upon the stream, down to the time of the defendant’s interposition, to let the water flow to the plaintiffs’ mills without any long or injurious detention, according to the authorities in this and other jurisdictions has an important bearing upon the question.
Again, there is still another element of great significance as it exists in this case, namely, the extent of benefit to the defendant by his detention as compared with the injury to the plaintiffs. This principle is stated in Hayes v. Waldron, 44 N. Hamp., 580; Union Mills v. Ferris, 2 Saw., 196. It would seem impossible to find a parallel to the-case at bar in the difference found to exist between the benefit to- the defendant and the damage to the plaintiffs. If we take
This discussion, already too protracted, may suffice to show that to accede to the defendant’s claim as to the use of the stream would be to enable him to violate most, if not all, the conditions of reasonable use to which we have referred, and practically to absorb the entire beneficial use of the water during the seasons of scarcity.
We advise the Superior Court that the defendant upon the facts found has unreasonably detained the water of the stream in question, and that judgment should be rendered against him in favor of .the plaintiffs.
In this opinion Park, C. J., and Beardsley, J., concurred.
I am not able to concur in the foregoing determination.
The water wheel of one of the plaintiffs is driven by water from a pond covering an acre and a half, which can be drawn down eighteen inches ,* it is his custom when water is scant to draw it down six or eight inches, and then shut his gate and allow the pond to fill. The wheel of another plaintiff is driven by water from a small pond, but only for a few hours without supply from ponds above. The wheel of the third plaintiff is driven by water from a pond covering less than an acre.
The finding is “ that the machinery and business at each, is and has been such that the ordinary flow of the stream during the dry seasons of the year, as they ordinarily occur, would (except for the acts of the defendant mentioned hereafter) have been ample to continue the business and meet its ordinary demands.” Indeed, upon the finding, the plaintiffs did not use one fourth of the ordinary flow during nine months of the year.
The wheel and machinery of the defendant are adapted
The finding proceeds as follows r—“ The defendant has detained for periods varying from two to five days in the week and for many weeks during the dry season of eaqh year, substantially all the natural flow of the stream, except so much as he required daily for washing wool and cloth and for his Boiler, (which usually has been much less than the natural flow of the stream,) and then ,by the use of water power alone for periods of five or six hours a day, once or twice during the week, and sometimes oftener, the water has flowed from his wheel in-quantities far in excess of the natural flow of the stream during such seasons, which has resulted in quickly filling the small ponds of the plaintiffs and then running to waste over their several dams. The defendant, however, has not let down at such times more water than was required to run all his own machinery. In this Avay each of the plaintiffs has suffered great inconvenience, damage and loss. The defendant in this matter has not acted maliciously, but from a firm belief that he had a lawful right to make such use of the water. The plaintiffs have repeatedly informed him of their annoyance and injuries and remonstrated against his mode of using the water.”
That is, the stream in the drought shrinks to so small a thread that the detention of the whole of it during five days will accumulate only sufficient water to operate the defendant’s mill six hours, and yet the flow, during the drought as it ordinarily occurs,«is ample to continue the business and meet the ordinary demands of the plaintiffs.
The power of a running stream is valuable property; it is the source of large profits to the owners, and therefore is beneficial to the state. When courts have been required to adjust controversies between mill-owners as to the time, manner, and degree of use of the common element in seasons of drought, they have endeavored to establish a rule which will secure the fullest possible use of the stream for
The flow during nine months of the year is to stand for the stream; the diminished flow of three months is the exception. The rule of law which permits the mill-owner to adapt his machinery to the power of the stream and encourages him so to build as to compel it to do the greatest possible amount of work during the longest time and therefore make the largest possible additions to the wealth of the country, has reference to this long period of fullness.
Of course this case is to stand as if the owner whose needs are the least had been sole plaintiff; and his contentention is, in effect, that no owner shall be permitted so to build as to need more than himself; that during eight or nine months of the year the largest portion of the water shall pass unused by anybody in order that his small wheel may have some on every day of the summer’s drought.
In establishing principles which are to govern in such matters courts are required to.make them of as wide application as is possible. Upon every stream the proportion of ownership as between large and small proprietors may be and usually is a varying quantity. No rule of law can find a resting place upon it. Therefore, without inquiry in any case whether most proprietors are large or small, the courts have said -in reference to every stream, that an owner may adapt his machinery to its fullest capacity when in ordinary flow, and may so long detain the water in times of drought as that he may even then have some profitable use thereof.
The plaintiffs and defendant were each lawfully upon the stream, with equal rights when it is in the condition of ordinary flow. In time of drought it is so small, and the disparity between the needs of the parties is so great, that the lost time cannot be equally apportioned. In this state of things that proprietor whose mill is adapted to ,the best and fullest use of the stream during the entire period of ordinary flow of nine months, is preferred in the eye of the law over one whose mill allows a large portion of the water to
The defendant by his utmost detention only accumulated sufficient water for use during six hours in the week. Of course such use must be of little value to either proprietor; but upon the finding it is the most that either can have, if all have something ; and there is no finding that the detention and use'were in fact unreasonable. I am unable to say that they were as a matter of law. The misfortune of the plaintiffs results from the fact that they are upon a stream of little value to any one in a time of drought; that there is another proprietor upon it; and that the law, in its inability to be impartial, gives the preference to the most beneficial use.
The question is as to division of the use of water when drought prevails to such a degree that there is not enough for either party; therefore there is no opportunity for the application of the rule which requires every person so to exercise his rights ks not to injure those of another. Loss of time is inevitable. The only question -is as to the apportionment of that loss.
That they have so built that they cannot have the best use of the stream during nine months, is not a reason for permitting them to deprive another of all use during three months.
The plaintiffs can take nothing by any suggestion as to the custom upon this stream. For the finding is that the custom has been for each proprietor to shut his gate and detain water, sufficient for profitable use.
The fact that the defendant owns a steam engine does not diminish his right to the use of water.
The principle which I have mentioned has, I believe, the unanimous support of courts and text-writers, where they
I cite a few of the decisions. They are from states covering wide territory, and apply to streams which are subject to drought in time and degree precisely the same as the one under consideration.
In Drake v. Hamilton Woolen Co., 99 Mass., 574, it is said:—“ The rights of riparian proprietors to vary the natural flow of a stream in order to use it most advantageously for the working of mills, was thoroughly considered in the case of Gould v. Boston Duck Co., 13 Gray, 442. * * * It was held that a riparian proprietor might disturb and vary the natural flow, of a stream for driving machinery, notwithstanding its injurious effect upon an ancient mill below him. The right is founded upon the consideration that water power is property of great value, and that a large part of the power must run to waste if mills may not be constructed sufficiently large to use all the power of the stream at its ordinary height; and if mills of such a character may be constructed, it is but reasonable that the proprietor should have a right to husband the power in seasons of extraordinary drought, so that he may use it m6st advantageously, and not be compelled to let his machinery and workmen remain entirely idle till the stream may be raised by rains. It is a reasonable use of his right with reference to the proprietors below him. * * * This interpretation of the rights of riparian proprietors tends to promote the interests of the public, because it enables-the owners of water power, which has proved to be a species of property of great value to the ' public, to avail themselves of it to the utmost extent that
In Gould v. Boston Duck Co., 13 Gray, 442, the court said:—“One of the grounds of the plaintiff's complaint was, that when the water was very low, in time of drought, and the defendants detained it a few hours, or in one instance a whole day, to raise the water to a sufficient height to work their own factory, it came to the plaintiff’s mill faster than he could use it, and ran to waste over his dam. If this was so it was because he had works not adapted to the entire or best use of the stream; because his dam was too low, his reservoir not of sufficient capacity, or other cause, by which he was prevented from making the best use of the power of the water, when only low by reason of drought. If there was a loss of water at such times and from such cause, it was not one for which the defendants were responsible. As there was no detention of the wáter in ordinary stages of water, and no other detention of the water by the defendants, in time of drought, than what was necessary to the reasonable use of their own mills, we are of opinion that it was not their duty, in point of law, to open their gates or‘leave them open without using the amount to such extent as they might, merely because the plaintiff’s works were of such a character that his necessities required such flow of the water.”
See Davis v. Getchell, 50 Maine, 602; Timm v. Bear, 29 Wis., 255; Soy v. Sterrett, 2 Watts, 327; Whaler v. Ahl, 29 Penn. St., 98; Clinton v. Myers, 46 N. York, 511.
In the case of Keeney & Wood Mfg. Co. v. Union Mfg. Co., 39 Conn., 576, (1873,) the plaintiffs owned paper mills on the Hockahum river, and the defendants a cotton factory a quarter of a mile above on the same stream. The plaintiffs ran their paper mills day and night when they had water, and the defendants their cotton mill only by day. The defendants detained the water of the stream during the night
See also Washburne on Easements and Servitudes, 272, sec. 30 b.; Gould on Waters, sec. 218; Wood’s; Law of Nuisances, sec. 371.
Caepehtee, J., concurred in this opinion.