38 S.E. 456
S.C.
1901

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

1

The plaintiffs own and operate a corn and flour mill, together with a cotton gin and ice factory, situated on Lawson’s Fork Creek, which are propelled by the waters of that stream; and the defendant owns and operates a cotton factory situate on the same creek, some distance above plaintiffs’ mill, the machinery in which is likewise propelled by the waters of the said creek. The plaintiffs allege that the defendant company has restrained the waters of said creek from their natural flow and detained the same for its own purposes, *265 without regard to the rights of the plaintiffs, whereby the plaintiffs have sustained damages which they seek to recover in this action, as well as to enjoin the defendant company from thus restraining and detaining the waters of said' creek. The well settled rule of law upon this subject is thus stated in 3 Kent’s Com., 353 : “Every proprietor of lands on the banks of a river -has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has the right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Acqua currit et debet currere, is the language of the law; though he may use the water while it runs over his lands, he cannot unreasonably detain it or give if another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietor, he cannot divert or diminish the quantity of water, which would otherwise descend to the proprietor below, nor throw the water back upon the proprietor above, without a grant or an uninterrupted enjoyment for twenty years, which is evidence of it. This is the clear and settled general' doctrine on the subject, and all the difficulty that arises consists in the application. The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below, who has an equal right to the subsequent use of the same water. Streams of water are intended for the use and comfort of man; and it would be unreasonable and contrary to the universal sense of mankind to debar every riparian proprietor from the application of the water to domestic, agricultural and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned, and there will, no doubt, evidently be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of it, and some varia *266 tions in the weight and' velocity of the current; but de mini-mis nos curat lex, and a right of action by the proprietor below, would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party, by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish, or affect the application of the water by the proprietor below on the stream; he must not shut the gates of his dams and detain the water unreasonably, or let ii off in unusual quantities, to the annoyance of his neighbor. Pothier lays down the rule very strictly, that the owner of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do and injure the proprietor below. But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned, otherwise rivers and streams of water would become utterly useless either for manufacture or agricultural purposes.” This general doctrine upon the subject has been expressly recognized in our own case of Omelvany v. Jaggers, 2 Hill, 634. It is proper to note that there is serious misprint in that case, on page 640, where, in the quotation from Kent, the word “reasonably” is substituted for the word “unreasonably.” That case was recognized in the subsequent case in Garret v. McKie, 1 Rich., 444; see, also, Chalk v. McAliley, 11 Rich., 153. See, also, to the same effect Angell on Water Courses, secs. 115-119 of the 5th edit, and 28 Am. & Eng. Ency. of Law, 955, et seq. The case of Dumont v. Kellogg, 29 Mich., 420 — reported, also, in 18 Am. Rep., 102 — is very much like the case under consideration. In that case it was held that the different owners of land through which a stream flows are each entitled to a reasonable use of the same, and an injury to one owner, incidental to the reasonable use of the stream by *267 another, gives no right of redress. There, as here, the grievance complained of by the plaintiff was that the defendant had erected a dam across the natural water course, and by means thereof wrongfully detained the water in the stream to the prejudice and' injury of the plaintiff-, who was the proprietor of a mill previously erected on the stream below; and the case turned upon the question as to whether the defendant had made an unreasonable use of the water in the stream, as it was passing through his land. In delivering the opinion of the Court, Cooley, J., uses this language: “As between two proprietors, neither of whom acquired superior rights to the other, it cannot 'be said that one ‘has no right to use the water to the prejudice of the proprietor below him,’ or that he cannot lawfully ‘diminish the quantity which would descend to the proprietor below,’ or that ‘he must so use the water as not materially to effect the application of the water below or materially to diminish its quantity.’ Such a rule would be in effect this: That the lower proprietor must be allowed the enjoyment of his full common law rights as such, not diminished, restrained or in any manner limited or qualified by the rights of the upper proprietor, and must receive the water in its natural state, as if no proprietorship above him existed. Such a rule could not be the law so long as equality of right between the several proprietors was recognized; for it is manifest it would give to the lower proprietor superior advantages over the upper, and in many cases give him, in effect, a monopoly of the stream.” And after referring to the authorities, he proceeds as follows: “But as between different proprietors on the same stream, the right of each qualifies that of the other, and the question always is not merely whether the lower proprietor suffers damage by -the use of the water above him, nor whether the quantity flowing on is diminished by the use, but whether, under all the circumstances of the case, the use of the water by one is reasonable and consistent with a correspondent enjoyment by the other.” This he follows with the following quotation from the opinion of that great *268 Judge, Shaw, C. J., in Cary v. Daniels, 8 Metc., 477: “Each proprietor is entitled to such use of the stream, so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, and not inconsistent with a likewise reasonable use by the other proprietors of land on the same stream above and below.” There can be no doubt, from the reasoning employed and the authorities cited by that distinguished jurist, Cooley, J., in the case from which we have felt justified in making these liberal quotations, that the conclusion which he reaches is sound — that an injury incidental to a reasonable enjoyment of the common right by the riparian proprietor above, affords no ground for legal redress by the proprietor below. It seems to be well settled that the question whether a riparian proprietor has made a reasonable or unreasonable use of the water in a stream, is a question of fact for the jury. As is said in 28 Am. & Eng. Ency. of Eaw, 955-6: “The reasonableness of use is a question of fact to be determined by the jury from the circumstances of each particular case; from a consideration of the capacity of the stream, the adaption of the machinery to it, and upon all attendant circumstances — one of which is the general usage of the county in similar cases. As was said by the late Mr. Justice Cooley, in the case of Dumont v. Kellog, supra: “We think the Court erred, also, in declining to instruct the jury, on defendant’s request, that in determining the question of reasonable use by the defendant, they might consider, among other thing's, the general usage of the country in similar cases. As was said in Gould v. Boston Duck Co., 13 Gray, 452: ‘Usage is some proof of what is considered a reasonable and proper use of that which is a common right, because it affords evidence of the tacit consent of all parties interested to the general convenience of such use;’ and see Thurber v. Martin, 2 Gray, 394; Snow v. Parsons, 28 Vt., 459. Indeed, in most cases this proof is the most satisfactory and conclusive that could be adduced, being' established by the parties concerned, who *269 understand better than any others what is reasonable and convenient, and who would not be likely to acquiesce in anything which was not so.” It seems to us that a consideration of the charge of the Circuit Judge to the jury (a copy of which, together with the exceptions of the appellant should be incorporated by the Reporter in his report of the case), will show that the instructions to the jury were in conformity to the principles of law laid down above, and, therefore, none of the exceptions to the charge can be sustained.

We will now very briefly consider the exceptions as they have been presented in the appellant’s argument here. The first, tenth and eleventh exceptions, relating to damages, may be considered together. The first is taken under a misconception of the Judge’s charge, for he nowhere instructed the jury that the plaintiffs were not entitled to recover unless they proved “a serious injury.”

2 As to the tenth, it cannot be sustained, if for no other reason, because even if the error there imputed was committed, it was harmless error; for as the verdict establishes the fact that the plaintiffs were not entitled to recover any damages, any error in instructing the jury as to the elements composing the damages would be wholly immaterial. Besides, we are not prepared to admit that the loss of custom at plaintiffs’ mill would constitute an element of damage, as such damage would be more or less speculative, for the loss of custom might have resulted from other causes than the conduct of defendant. See Pearson v. County of Spartanburg, 51 S. C., 480.

As to the eleventh exception, the fact that the Judge charged plaintiffs’ sixth request, sufficiently disposes of that exception.

3 As to the eighth exception, the authorities above cited showing that whether there was a reasonable use of the water by the defendant, is a question of fact for the jury, sufficiently disposes of that exception. The case of Frost v. Berkeley Phosphate Co., 42 S. C., 409, cited by appellant, is not in point. There the question was *270 as to the unreasonable and unlawful use of a person’s own premises, while here the question is as to what would be a reasonable use of water to which the parties had a common right. In addition to this, it was not held that the question whether the use of a person’s own exclusive property was unreasonable or unlawful, could not be left to a jury; but the error there complained of was that such question should not have been left to the jury without instructions as to what would constitute an unreasonable or an unlawful use of a man’s own exclusive property. So, also, the quotation from the case of Omelvany v. Jaggers, supra, is misleading, as it takes no notice of the limitation or qualification of the general rule, as shown in the authorities above cited.

i All the other exceptions, down to the sixteenth, imputing errors in the charge, alleged to have been given to the jury, in regard to what would be a reasonable use of the water by the defendant, the effect of the usage of the country, and other circumstances which the jury might consider in determining the question, and whether there had been a reasonable or unreasonable use of the water by the defendant, are more or less open to the objection that they do not correctly represent the charge of the Judge. We do not understand that the jury were instructed that the defendant could by the usage of the country acquire the right to unreasonably detain the water, nor that any one of the circumstances referred to in the charge — such as the size and velocity of the stream, the usage of the country, the progress of improvement in machinery, and the other circumstances — would constitute a test of the question whether the defendant had made a reasonable or an unreasonable use of the water, but that all these circumstances might be considered in determining such questions. This certainly was proper under the authorities above cited.

4 In the argument of appellant here, he imputes error to the Circuit Judge by charging on the facts. A sufficient answer to this question is that there is no exception raising that point. But even if there was, we are *271 unable to discover wherein the Circuit Judge has disregarded the constitutional provision upon that subject.

5 Lastly, we come to the several exceptions raising questions as to the admissibility of certain testimony, from the sixteenth to the twentieth, though really the twenty-second, as there is a clerical error in numbering the exceptions. The points raised by all these exceptions, except the one numbered “seventeenth,” though it should be the “nineteenth,” are disposed of by what has already been said. The nineteenth, as to Lad'shaw’s testimony, requires some notice. That witness was examined as an expert, and after stating that he had developed the water at the defendant’s mill, and the question asked him was how he developed' it, and'why you developed it in the way' that you did, to which he replied that he thought it was good engineering so to do; and then proceeded to state what was considered good engineering practice all over the country. This was objected to, and the objection was overruled, and the witness said: “According to ordinary engineering methods, what we call a twelve-hour basis is reasonable detention of water, according to law and engineering practice, and that is the case in a number of States elsewhere. We found that the case in North Carolina, and we had to- provide for it — Mr. Carson: I object to North Carolina. By the Court. You can’t tell that — tell the basis on which you worked. A. That was the way we developed Whitney.” It will be observed that what the witness said as to the twelve-hour basis being a reasonable detention of water, according to law and engineering practice, and as to the usage in this respect in other States, was not in response to any question, and when it was objected to, it was ruled out, and there was no motion to strike out that portion of his testimony. The question asked the witness was not objected to, and if the real objection was, as seems from the argument, to that portion of the testimony which was not responsive to the question, then appellant should have moved to strike out the testimony.

*272 The judgment of this Court is, that the judgment of the Circuit Court be affirmed.