Smith v. Youmans
70 N.W. 1115
Wis.
1897
Check Treatment
Pinney, J.

It clearly appears that H. A. Youmans, the lessor of the defendant Howitt, and ancestor through whom the other defendants derived their rights to the mill power and water rights and privileges in question, acquired a right by prescription, or an easement, to maintain the waters of *109Lake Beulah at the level to which they were finally raised, and at which they had been maintained for a period of over forty years, and consequently to set the waters of the lake back against and over and upon the lands of the riparian proprietors, the plaintiffs and others, on the lake, for the purpose of creating and maintaining the necessary power for propelling a grist mill. His mill site, dam, and appurtenances constituted the dominant estate, and the right which he acquired was an easement in the one estate, and a servitude upon the estates of other riparian owners. Washb. Easements, 5. It seems to be a fair inference that such riparian owners, in view of the advantages that might or would accrue to them by raising the level of the waters of the lake by the dam in question, were induced to consent or acquiesce therein, and in the user of the dam and waters of the lake by Youmans and his predecessor in interest until their •acts had ripened into an easement by prescription. The relative relations and interests of the parties which have thus originated, grown up, and become fixed, by prescription, would seem to impose upon the parties reciprocal rights and •duties, at least to the extent that, so long as such relative rights exist and are asserted, each party is bound in equity to abstain from doing anything to the prejudice of the other’s rights, founded upon the relations thus created between them, and that they are equitably bound to deal fairly, reasonably, and justly with each other in respect thereto.

It has long been settled that the artificial state or condition of flowing water, founded upon prescription, becomes a •substitute for the natural condition previously existing, and from which a right arises on the part of those interested to have the new condition maintained. The watercourse, though artificial, may have originated under such circumstances as to give rise to all the rights that riparian proprietors have in a natural and permanent stream, or have been so long used as to become a natural watercourse prescriptively; and *110“when a riparian owner has diverted the water into an artificial channel, and continued such change for more than twenty years, he cannot restore it to its natural channel, to the injury of other proprietors along such channel, who have erected works or cultivated their lands with reference to the changed condition of the stream, or to the injury of those upon the artificial watercourse who have acquired by long user the right to enjoy the water there flowing.” Gould, Waters, § 225, and cases there cited. It is upon this ground that when the natural outlet of Lake Beulah was closed, and so remained for over twenty years, the artificial outlet at that time opened, and since maintained during that period, became the natural outlet, with all its legal incidents and consequences. In Belknap v. Trimble, 3 Paige, 517, 605, it was held “ that the rule must be reciprocal; that the proprietor of land at the head of a stream, who changes the natural flow of water, and has continued such change for twenty years, cannot afterwards be permitted to restore the flow of water to its natural state, when it will have the effect to desti’oy the mills of other proprietors, which have been erected in reference to such change in the natural flow of the stream.” Washb. Easement, *313-315. In Mathewson v. Hoffman, 77 Mich. 421, 434, the rule thus stated in Belknap v. Trimble, supra, was approved. Lampman v. Milks, 21 N. T. 505; Roberts v. Roberts, 55 N. Y. 275. It is also supported by Delaney v. Boston, 2 Har. (Del.), 489-491; Middleton v. Gregorie, 2 Rich. Law, 631-637. In Washb. Easements, *313-315, the learned author lays it down that “ where one who owns a watercourse in which another is interested, or by the use of which another is affected, does, or suffers acts to be done, affecting the rights of other proprietors, whereby a state of things is created which he cannot change without materially injuring another who has been led to act by what he himself had done or permitted, the courts often apply the doctrine of estoppel; and equity, *111and sometimes law, will interpose to prevent his causing such change to be made.” In Woodbury v. Short, 17 Vt. 387, it was held that, where a diversion of the stream affects other proprietors favorably, and the party on whose land the diversion is made acquiesces in the stream running in the new channel for so long a time that new rights may be presumed to have accrued, or have accrued, in faith of the new state of the stream, the party is bound by said acquiescence, and cannot return the stream to the former channel. Ford v. Whitlock, 27 Vt. 265; Norton v. Volentine, 14 Vt. 246.

These cases relate, it is true, to diversions of water in running streams, but we are unable to perceive any reason why the same principle is not equally applicable to changes made in the level of a lake or pond, where, by means of a dam, the natural level has been raised for hydraulic purposes. The maintenance of the higher level of waters in the lake for the period of prescription secured to the owners of the mill site an easement in their favor to keep up the water to the necessary level to furnish water power for their mill. So, on the other hand, the riparian owners above have enjoyed, without question or interruption, for the same period of time, the advantages resulting from the flooding and submersion of their lands, by which the depth .of water in the lake was greatly increased, and low, boggy, swampy, and unsightly lands were flooded, so that the waters extended to the high banks, whereby their access to and from the lake was improved, and the adjacent'lands, with the resulting amenities and advantages, have been rendered extremely desirable for the particular use for which they have been improved at great cost and expense, namely, for summer resorts, relying upon.the continued level of the water in the lake without change, without which they would be deprived of the greater portion of their present value. May it not be justly said that the respective tenements or estates, by the acts of their respective owners, have become each dominant, and each *112servient to the other in respect to the respective easements and advantages thus acquired by them, and enjoyed during the usual prescriptive period ?

In the case of Cedar Lake Hotel Co. v. Cedar Green Hydraulic Co. 79 Wis. 297, this court held that one who owns land on the shores of an inland lake, which is valuable for use as a pleasure resort on account of its proximity thereto and the easy access to its waters for boating and fishing, can maintain an action to restrain other riparian proprietors from so drawing off the waters of the lake as to lower its level, and leave a wide margin of bog, covered with decaying vegetation along its shores, making it repulsive in appearance and unhealthy in effect, and thus injurious to the plaintiff’s property ; and this was so held in view of the relative rights and duties of the riparian proprietors, and not because of the restrictive grant of power to the corporation, one of the defendants. It is true that this was held in relation to an attempted change in the natural level of Cedar lake, but the conclusion seems irresistible that the increased level of the lake, in view of the facts found, by parity of reasoning from the adjudged cases referred to in relation to streams, must be esteemed as having the legal incidents of the natural level; certainly so long as the defendants retain and insist upon their easement to keep and maintain the dam at a height to keep up such new level in the lake. . They have not and do not propose to abandon or surrender this easement. They are certainly bound to exercise their rights in a fair and reasonable manner, and as they had been accustomed to do, and not capriciously or wantonly, so as to prejudice the existing rights and interests of the plaintiffs as riparian owners. The judgment of the circuit court is in accordance, we think, with sound principles, and the doctrines recognized and enforced in such and similar cases in courts of equity.

We have no doubt but that the defendants may abandon their water rights and easement, so as to escape all liability *113•at law for consequent damages, if they are not bound by law or agreement to maintain the higher level of the waters in the lake. It was held in Mason v. S. & H. R. Co. L. R. 6 Q. B. 578, that the owners of the servient estate could acquire, by the mere existence of the easement, no right, as against the owner of the dominant tenement, to the continuance of its use and exercise, as in the case of an easement for diversion of water; that he had the right to abandon the exercise and use of his easement, as it was not compulsory. But here, as ■stated, there has been no abandonment or surrender, and the case must be determined upon the eq%iitable grounds arising out of the special facts found by the trial court.

2. As to the defendant Howitt, it is necessary only to observe that he stands, in respect to his lease, in the same plight ,-and condition of his lessor, and with no other or greater rights. He has no right, under the lease, to use the dam, bulkhead, etc., as a reservoir to accumulate water in a manner not permissible to his lessor, or to accumulate and hold water for his mill on the stream below, in order to discharge it irregularly and in great volumes, as may suit his convenience, thus drawing down wholly, or in great part, the waters of the • lake to the level of the flume. As a riparian owner on Muk-wanago creek below, he has no such right, but is entitled only to the accustomed flow of the water as it had been wont to run, without material alteration or diminution, to his mill on the stream below (Kimberly & Clark Co. v. Hewitt, 79 Wis. 334), all of which he obtains by the flow of the water over the dam or waste gates.

Eor these reasons we think that the judgment of the circuit oourt is correct.

By the Court.— The judgment of the circuit court is affirmed.