221 F. 200 | 7th Cir. | 1915
(after stating the facts as above). As usual in such cases, the testimony is conflicting. Out of the vast volume of it, however, the District Court, which heard and saw the witnesses, must have found, and doubtless did find: (1) That defendant’s discharge of from 3,000,000 to 4,000,000 gallons per day into the Rock river during the ice-forming weather conditions, at a temperature of from 50° to 60°, resulted in an increase of the temperature of the water of the river opposite and adjoining complainant’s plant, or that part thereof used by complainant as and for its ice-cutting field, of 47/ioo°; (2) that such increase in temperature was sufficient to and did practically retard the formation* at the times when it would be otherwise naturally produced, of ice thereon of a commercial charac
“Tile limitation and extent oí the use of the water is that it shall not interfere with the public right of navigation, nor in a substantial degree diminish and impair the right of use of the water by other riparian owners.”
In Palmer v. Mulligan, 3 Caines (N. Y.) 307, 2 Am. Dec. 270, it was held lhat the upper owner had the right to erect a dam, when necessary for the enjoyment of his riparian rights, even though such obstruction necessitated increased expense on the part of the lower owner and greater difficulty in getting logs to his mill, provided enough water was left to work the lower mill. To the same effect is Gould v. Boston Duck Co., 13 Gray (Mass.) 442.
So in Keeney & Wood Manufacturing Co. v. Union Manufacturing Co., 39 Conn. 576, where the upper owner was obliged 1o run his mill by day only, and where he allowed the water to accumulate overnight to the injury of the lower owner, whose mill ran day and night, a restraining order was denied. It was there held that each had the right to a reasonable use of the running water; that the burden of showing unreasonable use by the upper owner was on the lower owner; that in deciding the conflicting rights the court should consider (1) the-custom of the country; (2) the local custom; (3) what general rule will best secure the entire stream to useful purposes; and (4) whether the injury to the lower owner does not arise from the insufficiency of his own privilege.
The running of water in a heated state down upon a lower riparian owner has several times been before the courts. In Mason v. Hill, 5 B. & A. 11, damages so sustained were awarded and allowed to stand. “However great his ’ necessity,” says the court in Walker Ice Co. v. American Steel & Wire Co., 185 Mass. 463, 70 N. E. 937, “one riparian owner would have no right to foul the water of a stream or turn in hot water to the injury of another riparian owner”—citing Merrifield v. Lombard, 13 Allen (Mass.) 16, 90 Am. Dec. 172.
“Each, proprietor may make any use of the water flowing over his premises which does not essentially or materially diminish the quantity, corrupt the quality, or detain it so as to deprive other proprietors, or the public, of a fair and reasonable participation in its benefits. Race v. Word, 30 Eng. L. & Eq. 187; Johnson v. Jordon, 2 Metc. [Mass.] 234, 37 Am. Dec. 85; Dickinson v. Grand Junction Canal Co., 7 Ex. 282; Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312. This rule does not require that there shall be no diminution, abstraction, or detention whatever, by the lower or upper riparian proprietor, as that would be to prevent all reasonable use of it. The same principal in regard to use by the riparian proprietors, applies, as in the public use of the stream as a highway; it must be a reasonable use, and not inconsistent with the reasonable enjoyment of the stream by others who have ah equal right to its use. Reasonable use is the touchstone for determining the rights of. the respective parties.”
Authorities to the same effect might be multiplied indefinitely. We do not deem it necessary. We conclude that the use made by defendant
The decree of the District Court is affirmed.