74 Md. 311 | Md. | 1891
delivered the opinion of the Court.
The appellee is the owner of a grist and flour mill operated by water, supplied from a dam built across the eastern branch of the Potomac River, and conveyed to the mill by means of a race. The mill and the land on both sides of the race and dam belonged originally to George B. Calvert. In 1859 Calvert sold and conveyed the mill and ten acres of land adjoining, “together with all the buildings, loater power, appertaining or belonging to said mill seat, to George W. Taylor, under whom the appellee claims.
In 1887 — nearly thirty years after the Taylor grant— the heirs of Calvert sold and conveyed the land on both sides of the race and dam to one Lutz under whom the appellant claims. The land thus conveyed to Lutz and by Lutz to the defendant, has been laid off as a site for a town, and streets and avenues have been opened and graded, and sewers constructed for the drainage of the
The dam hy which the mill was supplied with water, was washed away by the great freshet of 1889, and, the plaintiff having built a new dam, the defendant, by its agents and servants, attempted to tear down and destroy part of said dam, to prevent which an injunction was granted hy the Court below. The new dam, the defendant contends, is not built on the site of the old dam, its. west end connecting with the hank higher up the stream. Besides, it is higher, it is said, than the old dam, thereby increasing the quantity and volume of water, and causing it to overflow the mouth of the sewer which empties into the race, to the great damage of the appellant.
The record is quite a large one, containing the testimony of no less than thirty witnesses, all of whom were examined, cross-examined, and re-examined at great, and it seems to us, rather- unnecessary length. The real question, however, is a narrow one, and one, too, about which there cannot he, it seems to us, any difficulty. The rights of the parties to this controversy, depend solely upon the construction of the deed from Calvert to Taylor, hy which he conveyed to the grantee the mill and all the water rights appertaining or thereto belonging. So not only the mill, hut all its water rights and privileges, thereby including the dam and the race, with the right to maintain a headway of water sufficient to operate the mill, with the capacity it had at the time of the grant, and which the proof shows to have been fifty barrels of flour a day, all passed under the Oalvert deed to Taylor, and to those claiming under him. By the erection of the mill Calvert himself imposed a burden on one part of his estate in favor of the other, and when he conveyed the mill and water rights to Taylor, the latter as to such water rights and privileges, became the dominant owner, and the owner of the. land along the race became the servient owner.
Passing then from this objection to the dam because of its location, we come to the objection which was urged with so much force, as to the height of the dam. Upon this point, too, there is a good deal of conflicting testimony. But, conceding for the proposes of this case, that it is somewhat higher than the old dam, it cannot he said that the mere height of the dam itself affects injuriously the rights of the appellant. The proof shows that the bed of the stream has been somewhat changed and deepened by recurring freshets; and, if this be so, the dam must he built higher in order to get the same surface level of water to supply the race, for the race, after all, supplies the necessary headway of water for operating the mill. By increasing the height of the dam the appellee has no right, we agree, thereby to increase the quantity or volume of water beyond the quantity or volume of water used by the mill at-the time of the Calvert grant. And this seems to us to he the real question in this case. And as to this question the appellant has wholly failed in proving that either the quantity or volume of water has been increased by the erection of the present dam. All the witnesses agree that the forebay of the race is the absolute test or measure as to the quantity of water used in operating the mill, and they all agree that the forebay is in the same place, with the same width and depth, and that it does not and cannot now draw any more water than it did when Calvert himself owned the mill. And further than this, the proof shows that this mill, with a' capacity of fifty barrels of flour a day, has now, with the present dam, a headway of water barely sufficient to grind thirty barrels, and that with a less headway of water it would be im
A good deal was said about the substitution of a turbine wheel for the old overshot wheel, and the change from a burr mill to a roller mill. But these changes in the machinery of the mill do not affect the question, for the reason that the proof shows that the quantity of water-used by the mill has not been thereby increased. And, so long as the appellee does not increase the quantity or volume of water, it cannot be said that he has imposed an additional burden upon the servient estate. And, though the water in the race may overflow the mouth of the sewer which empties into it, and though the back water may overflow to some extent the adjoining land, these are injuries resulting necessarily from the beneficial enjoyment of the water rights and privileges to which the appellee is entitled under the Calvert deed. If this be so, there can be no question as to the right of the appellee to the writ of injunction. The dam was absolutely necessary to supply the water to operate the mill, and its destruction meant the destruction of the beneficial enjoyment of the mill itself. An action at law would not, under such circumstances, afford an adequate remedy. If the dam was rebuilt, the appellant might again destroy it, and there would be no end to this litigation. An injunction restraining the appellant from tearing away or destroying the dam was therefore a proper remedy.
Decree affirmed.
