3 Rawle 84 | Pa. | 1831
The opinion of the court was delivered by
The water power to which a riparian owner is entitled, consists of the fall in the stream when in its natural state, as it passes through his land, or along the boundary of it, or in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it. This natural power is as much the subject of property as is the land itself, of which it is an accident; and it may, in the same way, be occupied in whole, or in part, or not at all, without endangering the right, or restricting the mode of its enjoyment, unless where there has been an actual adverse occupancy or enjoyment for a period commensurate with that required by the statute of limitations — a fact that is not pretended here; and as to.a right by prior appropriation, that has regard to the quantum of water withdrawn from a stream common to both parties, and not to the quantum of fall. The latter can be augumented only by subtracting from the proprietor above, by swelling back on him ; or by appropriating a part of the adjoining proprietor’s fall below, by excavating the channel within
The subject of the use of a flowing stream, and the nature and extent of the right to this use, are of much importance ; may come into discussion under a great variety of circumstances, and may require very nice discrimination in the application of principles in the different cases which will occur. It is very common to assume a general principle, or principles, without a very extended view of the subject; without considering all the cases which then exist or may arise. The general principle thus assumed may be correct in the case under consideration, and not correct on a different state of facts and rights. Is it then a general principle? Although it is stated as one by the judge who delivers it, and has been repeated as such never so often, yet if a case not before thought of, occurs, if a person- assuming that principle as universal, proceeds to act on it, in a way to produce undue advantage to himself, or injury to another, it is the duty of a court, to consider carefully, and if necessary, to modify or limit the extent of the principle.
It may be admitted that, generally, a man has a rjght to use all the fall in a stream of water, from the place where it enters his land to the spot where it leaves it: nay more, that if at the first erection of his machinery he did not use it all, he may change his site within his land, or raise his dam to flow it hack to his line, or deepen his tail-race as low as he can, so as to deliver the water into its natural channel at his lower line. But he cannot raise his dam so as to throw the water back on the man above him; nor can he dig his tail-race through the land of the owner below, so as to deliver the water into its natural channel at a point where that channel is lower than at his own line; nor can he go into the channel of the creek in the farm below, and deepen that channel so as to make the bottom of the creek lower at his own lower line, than it was in a state of nature. He has no better right to blow rocks, or dig out gravel, or
Every man who has seen a stream of water, knows that its bottom is not a regular inclined plane. If it were, the depth and the current would be equal; it is often very far from it; for many yards we find it almost a stagnant pool, and several feet deep ; immediately below this we find a ledge of rock or of slate, or of hard pan, over which the water flows only a few inches in depth, and flows rapidly, and exhibits a ripple of more or less length, or a succession of ripples. Now if you dig away the hard pan or gravel, or blow out the rocks the whole length of these ripples, to the depth of a foot or two, you change the pool above, and its surface is sunk a foot or two. Suppose the line of the tract above crossed the creek over this pool; by taking down the bottom of the creek below, the owner of the land above can then lower the surface of the water on the tract above — can do so ? But can he do it legally ? Certainly he cannot.
Suppose in a stale of nature there was four feet fall in the space of one hundred yards in the land below'; if M‘Calmont could dig out all this fall, so as to make it level for the whole of the hundred yards, he w'ould have four feet fall at his own lower line, and by sinking his tail-race up to his wheel, could sink his wheel four feet, and make four feet addition to his head; but if the man below cannot dam back on this new wheel, he has taken four feet of water power from the man below, and that he has no right to do. The principle then is, that he may use all the fall from hisown upper to his own low'er line, but he cannot add to that by sinking the bed of the creek on the land below: and this last limitation is as essential and important ioMCalmont the plaintiff, as to the defendant;, for if the plaintiffcan do this, the man above him may do the same thing. Rowland could then sink the bottom of the creek on M‘Calmonfs land and on his own land above, and lower his wheel, so as that M‘Calmont’s pi’esent dam will throw back water on his wheel, and then sue him ; and the principle adopted by these referees will lower M‘Calmonfs own dam, and so it may proceed from dam to dam to the head of the stream.
The rule must be, that a man has a right to dam back the water to his own upper line, as the water was, and as the bottom of the creek was in a state of nature, when he built his dam; and the man above, although it is possible to sink the bottom of the creek so as to make the dead water to extend, and the back water to stand over and on to his own land, he does not and he cannot make the man below a trespasser by so doing.
I consider this, then, a case of plain and palpable mistake of both fact and law, and would have set aside the report. I would have set it aside if there were reason to suspect that the matter had not been viewed in the true light. The plaintiff will allege this settles the rights of the parties finally; I would then be certain they were settled rightly. There is no good reason why a report of three men should have more sanctity than a verdict of twelve instructed by a judge. The law makes them equal: I would not give any preference to the report.
Judgment on the award.