Mayor of Baltimore v. Appold

42 Md. 442 | Md. | 1875

Robinson, J.,

delivered the opinion of the Court.

At the time of the application for the writ of injunction in this case, the appellant had nearly' completed the works necessary for the introduction of an additional supply of water into its corporate limits, to be used as the exigencies of the season might require.

The plan was to bring the water from Gunpowder-River through pipes to a point on “Roland’s Run,” at which point, it was to empty into the stream, and thence flow with the stream to Lake Roland, the main water reservoir of the appellant.

The water was to be forced into the pipes by engines capable of furnishing a supply of ten millions of gallons in every twenty-four hours.

The appellee alleges, that he is the owner of the land on both sides of “ Roland’s Run,” below the point at which this additional supply of water was- to empty into the stream — that the banks of the stream are not more than sufficient to contain within them the waters of said stream, as they flow at certain portions of the year — that the introduction of this additional quantity of water will cause the stream to overflow its banks, prevent the drainage of the adjacent land, render it valueless, and cause great, continued and irreparable damage to the same.

The first question to be determined is, whether the appellant is entitled to the use of the stream for the introduction of this additional supply of water ? and secondly, if not, whether the appellee is entitled to the writ of injunction as prayed ?

The right of every riparian owner to the enjoyment of a. stream of running water in its natural state, in flow, quantity and quality, is too well established to require the citation of authorities. It is a right incident and appurtenant to the ownership of the land itself, and being a common right, it follows that every proprietor is bound so to use the common right as not to interfere with an equally beneficial enjoyment of it by others. This is the necessary result of the equality of right among all the proprietors of that which is common to all. As such owner, he has the right to insist that the stream shall continue to run uti currere solebat, that it shall continue to flow through his land in its usual quantity, at its natural place and at its usual height. Without a grant either express or implied, no proprietor has the right to obstruct, diminish or accelerate the impelling force of a stream of running water. Of course we are not to be understood as meaning there can be no diminution or increase of the flow whatever, for that would be to deny any valuable use of it. There may be, and there must be allowed to all of that which is common, a reasonable use, and such a use, although it may, to some extent, diminish the quantity, or affect, in a measure, the flow of the stream, is perfectly consistent with the common right.

The limits which separate the lawful from the unlawful use of a stream, it may be difficult to define. It is, in fact, impossible to lay down a precise rule to cover all cases, and the question must be determined in each case, taking into consideration the size of the stream, the velocity of the current, the nature of the banks, the character of the soil and a variety of other facts. It is entirely a question of degree, the true test being whether the use is of such a character as to affect materially the equally beneficial use of the stream by others.

In this case, the appellant proposes to empty into “Roland’s Run” an artificial stream of water, to the extent of ten millions of gallons in every twenty-four hours. It can hardly be contended that such a user is consistent with the common enjoyment of the stream by all other riparian owners. If the appellant has the right to empty an artificial stream of water into “Roland’s Run,” every other riparian owner would be entitled to the same right, and the necessary consequence would be, not only to affect the quantity and increase the natural current of the stream, but in fact to change the character and nature of the stream itself. Such a use cannot be said to be incident to the reasonable user of a stream: on the contrary, it goes beyond the natural right to which the appellant, in common with all other proprietors, is entitled, and being an unreasonable and unauthorized use of the stream — an invasion, in fact, of the rights of the appellee — an action would lie, even though he might not have suffered any actual damage. It is well settled that every injury to the rights of another imports damage, and if no other damage is established, the party injured is at least entitled to a verdict for nominal damages. Especially is this the case where the invasion of a right may become the foundation of an adverse claim, and thereby operate as an extinguishment of the right itself.

Assuming then, that the use of the stream in the manner proposed by the appellant, to be in violation of the rights of the appellee, the question is, whether he is entitled, under the circumstances of this case, to a writ of injunction. The jurisdiction of Courts of Equity in cases affecting the rights of riparian owners, is well established, both in this country and in England, and rests upon the necessity of granting relief to prevent permanent and lasting injury ; or where full and adequate relief cannot be had at law, or where it is necessary to prevent a multiplicity of suits, and vexatious litigation.

Here the complainant alleges that he is credibly informed and believes that the introduction of the proposed additional quantity of water will cause the stream to overfloio its banks, render valueless Ms land, and cause great, continued and irreparable damage, &c. ■

The averment that he is credibly informed and believes, together with the statement of facts upon which his belief is founded, are, in our opinion, sufficient. He was not obliged to wait until actual damage was sustained, nor was he bound to obtain the opinions of scientific persons as to the probable consequences resulting from this artificial addition of water. In Bicket vs. Morris, 14 Law Times Reports, N. S., 838, Lord Cranworth said:

“ The owners of the land on the banks are not bound to obtain or to be guided by the opinions of engineers or other scientific persons as to what is likely to be the consequence of any obstruction set up in waters in which they all have a common interest. They are allowed to say we have all a common interest in the unrestricted flow of the water, and we forbid any interference with it.”

Taking then, the allegations in the bill to be true, which we are obliged to do in this appeal, we think the apjaellee is entitled to the equitable interposition of the Court. It was suggested, however, that in any event, the injunction ought not to go further than to enjoin the introduction of the proposed additional supply of water in such a way, or to such an extent as would cause the stream to overflow its hanks, or would interfere with the ordinary use of the stream by the appellee. But the answer to this is, that the use of the stream by the appellant for the purpose of introducing within its corporate limits an additional artificial supply of water, being an unauthorized use and an invasion of the rights of the appellee, as riparian owner, an action would lie, even though no actual dam'age be sustained. The daily use of the stream, therefore, even for such a purpose, would lead to a multiplicity of suits, and to vexatious and oppressive litigation. Moreover, an injunction thus modified, might deprive the appellant of a supply of water absolutely necessary in the emergencies of a drought, and thus defeat the purpose for which the works in question were constructed. So looking to the case as it is presented by this record, we feel constrained to affirm the order granting the writ of injunction. The appellant can of course acquire the right to use the stream in the manner proposed, by condemnation, and a jury can determine, with the evidence before them, what damage, if any, is likely to be sustained, and what compensation the appellee ought to receive. For these reasons the order below, granting an injunction, will be affirmed.

(Decided 3rd June, 1875.)

Order affirmed.