Hendrick v. Cook , 4 Ga. 241 ( 1848 )

By the Court

Warner, J.

delivering the opinion.

This was an action of trespass on the case, for backing the water in the Tussehaw Creek, by means of a dam erected by the defendants, whereby the plaintiff’s mill shoal was overflowed.

The plaintiff and the defendants are riparian proprietors, the plaintiff owning the land on one side of the Creek, and the defend ants on the other side, where the shoal, alleged to have been overflowed, is located. The defendants erected a mill-dam on the Creek below the shoal, on their own land, they being the owners of the land on both sides of the Creek, at the place where the dam is built. The dam, however, raises the water in the natural channel of the stream, and throws it back on the shoal, to the depth of ten or eleven inches; that is, the water in the natural •channel of the creek, where the plaintiff and defendants are riparian proprietors, is raised by means of the dam, ten or eleven inches above the natural flow and current of the water in the stream, as it was wont to flow, before the erection of the dam by the defendants. On the trial of the cause, the plaintiff offered testimony, to prove the value of the plaintiff’s mill-shoal when not overflowed, and its present value; also, the plaintiff offered to prove on the trial, what the value of the shoal was, previous to the erection of the defendant’s dam, and what was the value of it when the witness saw it; and that the effect of the back-water on the shoal, was to render it valueless to the plaintiff. The plaintiff, also, offered to prove on the trial, how much the plaintiff had been damaged by the obstruction of the water on his mill-shoal; which testimony, so offered,'was rejected by the Court, on the ground, as we understand from the record, that the defendants, by their dam, had not tthrown the water out of the natural channel of the creek, and -consequently the plaintiff was not entitled to recover damage; to which decision of the Court the plaintiff excepted.

After stating the facts of the case, the Court below charged the jury that “ the plaintiff is not entitled to any damage for simply raising the water in the natural channel of the stream, so long as the water continues to be confined by its banks to the natural -channel; but if, by raising the water by a dam upon his own land, he throws the water oüt of the natural channel of the stream, the party whose land is overflowed, is entitled to damage. You will, therefore, enquire whether the defendants have, by their dam, thrown back the water, and whether it has been thus thrown out of the natural channel, upon the land of the plaintiff; if so, the plaintiff is entitled to recover.” To which charge of the Court the plaintiff excepted. The error assigned is based mainly on the two foregoing exceptions, although there are other exceptions to the rejection of testimony, apparent on the face of the record, but which were not insisted on in the argument before this Court; our judgment will therefore be confined to the points made and urged on the argument growing out of the assignment of errors, predicated on the foregoing exceptions.

[1.] What are the rights and privileges of riparian proprietors of lands, bordering on streams, above the ebb and flow of tide water 1 When there are two opposite riparian proprietors, each owns that portion of the bed of the river or creek, which is adjoining his land, usque ad fihvm aquce, or in other words, to the thread, or central line of the stream; and if hydraulic works he erected on both banks, each is entitled, to use an equal share of the water. The water can only be used by each as an entire stream in its natural channel; for, of the property in the water, there can be no severance. Angell on Water Courses, 4. Arthur vs. Case, lit Paige’s Rep. 447. Vanderberg vs. Van Bergen, 13th John, Rep. 217. Exparte Jennings, 6th Cowen’s, Rep. 518. And see the valuable note on page 536. Every pi-oprietor of lands, says Chancellor Kent, 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, (cwrere solebat,) without diminution or alteration. No proprietor has a 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. Aquacurrit et debetcurrere, is the language of the law. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water bach on the proprietors above, without a grant or an uninterrupted enjoyment of twenty years, which is evidence of it. 3d Kent’s Com. 439. In Wright vs. Howard, 1st Sim. and Stuart’s Rep. 190, Sir John Leach states the law which governs the rights of riparian proprietors, with great force and accuracy. ‘'Prima facie, (says the learned judge,) the proprietor of each bank of a stream is the proprietor of half the land covered by the stream ; but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream ; and, consequently, no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors, who may be affected by his operations; no proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the'water hack on the proprietors above. ' Every proprietor who claims a right, either to throw the water hack above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected- by his operations, or must prove an uninterrupted enjoyment of twenty years, which term of twenty years is now adopted upon a principle of general convenience, as affording conclusive presumption of a grant.” In Mason vs. Hill, 27th English Com. Law Rep. 22, the case of Wright vs. Howard is cited with marked approbation by Chief Justice Denman, who delivered the judgment of the Court of King’s Bench, and who refers to it as the “ luminous judgment” of the Master of the Rolls. The plaintiff, then, as the riparian proprietor, was the owner of the land to the middle or centre of the Tussehaw Creek, including the shoal. One half of the land covered by the water of the creek, as it was wont to flow in its natural channel, including the shoal therein, was the separate property of the plaintiff; the defendants, as riparian proprietors, being entitled to the other half, in like manner as the plaintiff. Each proprietor of the land on the banks of the creek, has a natural and equal right to the use of the water which flows therein as it was wont to run, without diminution or alteration. Neither party has the right to use the water in the creek, to the prejudice of the other. The plaintiff cannot divert or diminish the quantity of water which would naturally flow in the stream, so as to prejudice the rights of the defendants, without their consent ; nor can the defendants, without the consent of the plaintiff, throw the water back upon him to his injury, for it is his right to have the water run in the channel of the stream as God made it to run.

[2.] Each riparian proprietor is entitled to a reasonable use of the water, for domestic, agricultural and manufacturing purposes ; provided, that in making such use, he does not work a material injury to the other proprietors. The defendants have appropriated the water for the use of their mill on their own land, and the question is, whether they have done so, without injury to the legal rights of the plaintiff. The record shows, that the water in the channel of the creek, along which the plaintiff and defendants are riparian proprietors, is raised by the defendant’s dam ten or eleven indies above its natural level, and that the plaintiff’s mill-shoal is drowned to that extent. Does the law, independent of proof of special damages, (for we will now consider the question independent of the proof offered to shew damages,) give the plaintiff a right of action against tlp.e defendants?

The plaintiff, as we have already shown, is the owner of the land bordering upon, and to the centre of the stream, including half the mill shoal. It is his property, and he has the indisputable right to enjoy it, and to appropriate it to any use he may think proper, not inconsistent with the rights of others; it is a part of his freehold estate. Have the defendants the legal right, as riparian proprietors, to throw the water back upon the plaintiff in the ■channel of the creek, and thus convert a running stream into a stagnant pool, by means of the erection of their dam, although the water is not thrown out of the natural banks of the stream ? We think they have not such right, either upon principle or authority. It is true, a riparian proprietor has the right to use the water in the stream, as it was wont to flow, but he has no right to use it in such manner as to alter or change the flow or current of the stream, to the injury of another proprietor. The principle of the Common Law is, that a man must so use his own as not to injure others. “ Sic utere two ut alienum non Icedas.”— As the owner of the land to the middle of the stream, the plaintiff has the right to the middle of the shoal to that extent, with the water running over it as it was wont to run, in its natural state ; and when the defendants, by their dam, prevent it from so running, they deprive him of a right which the law gives him. The plaintiff has the right to use the bank of the stream, down to the water, in its natural current, for every lawful purpose; he has the right to have the water flow over his shoal, and along the channel of the stream, in its natural course ; he has the right to erect his dwelling house on the bank of the stream, and enjoy the pleasure of seeing the water flow rapidly over its shoaly ■ bed.— The plaintiff has the right to the enjoyment of all the springs which may issue from the bank of the stream, between the water in its natural current, and where it is overflowed in consequence of the defendant’s dam. He is also entitled to all the marl and minerals which may be found there — and he has the right to examine there for such objects, if he thinks proper to do so ; but the defendants, by means of their dam, prevent the water from flowing in its natural course; they cause the water to overflow a portion of Ms soil, by raising the water ten or eleven inches within the hanks of the stream — they render the bank of the stream unfit for the erection of a dwelling, by creating a stagnant pool, for the generation of poisonous reptiles and noxious insects — they have, by means of their dam, invaded, Ms property and deprived him from exercising dominion over it, and enjoying it in as full and ample manner as of right he is entitled to do; and they do this without any pretended license or authority from the plaintiff, whose rights are thus invaded. In the case of Webb vs. The Portland Manufacturing Company, 3 Sumner’s Report, 189, Mr. Justice Story, after reviewing the authorities as to the rights of riparian proprietors, says : “ The same principle applies to the owners of mills on a stream. They have an undoubted right to the flow of the wj’ter, as it has been accustomed of right, and naturally to flow, to their respective mills. The proprietor above has no right to divert, or unreasonably to retard this natural flow to the mills below; and no proprietor below, has a right to retard or turn it bach upon the mills above, to the prejudice of the rights of the proprietors thereof. This is clearly established by the authorities already cited; the only distinction between them being, that the right of a riparian proprietor arises by mere operation of law, as an incident to his ownership of the bank — and that of a mill-owner, as an incident to his mill.” Our judgment, therefore, is, that the defendants, as riparian proprietors, have not the right, by the erection of the dam on their own land, to raise the water in the channel of the creek, so as to drown the plaintiff’s shoal in the manner stated in the record. Tyler vs. Wilkerson, 4 Mason’s Rep. 397. Blanchard vs. Baker, 8 Greenleaf’s Rep. 253. Omelvany vs. Jaggers, 2 Hill’s S. Carolina Rep. 634. Pugh vs. Wheeler, 2 Dev. & Battle Rep. 50.

[3.] Have the defendants the right to throw back the water on the plaintiff’s shoal, on the ground of prior occupancy ? It was urged on the argument, that the defendants having first appropriated the water by building their mill, had the right to water sufficient to work their wheels ; notwithstanding they might by such appropriation and occupation, render useless the privilege of any one above or below them, on the same stream, and there is some dicta and authority in the books, which go to that extent. The case of Hatch vs. Dwight et al, 17 Mass. Rep. 289, is one. If, however, this should be held to be the law, it would, in our judgment, as stated by Mr. Angelí, overturn and throw to the ground the fundamental principles relating to running water and all the leading cases respecting the usufructuary rights of riparian proprietors. Angelí on Water Courses, 22. Why,should a riparian proprietor, because he has a reasonable use of the water as it flows in the natural current of the stream, be allowed to trespass on the property of another, by throwing the water back upon his mill or shoal, and thereby render it valueless to the owner? Upon what principle, either of law or morals, can such a right be maintained ? Certainly not on the ground of his being a riparian proprietor, for we have already shewn, in that character, he has no right to use the water to the prejudice of another proprietor.

If this principle can be maintained, then, the defendants as riparian proprietors, can by their own act of appropriating the water first, to the purposes of their mill, wholly defeat and destroy the right of the plaintiff to his shoal as a riparian proprietor; his title to this valuable species of property, is made dependent on the act and will of the defendants. They first appropriate the water in the stream, and flow it back on the land of the plaintiff, and after the expiration of seven years, the period prescribed by the Statute of Limitations,'they will acquire a prescriptive right to throw back the water on the plaintiff’s land, and thus his title to his property, is entirely defeated and destroyed.

The throwing back the water upon the proprietor above, by the proprietor below, is a violation of the fundamental principles of the law, which govern the rights of riparian owners; and prior occupation does not authorise the defendants so to use the water as to prejudice and destroy the rights of the plaintiff to his property. The act of throwing back the water on the property of the plaintiff is a wrong — an act of usurpation on the part of the defendants, and usurpation does not justify itself. This question, however, has been thoroughly discussed and settled,both in the English and American Couits — that occupancy, without grant or license, gives no right to divert or throw back the water in the stream, to the prejudice of other proprietors, unless such occupancy has existed for a period of time which would give the occupant a prescriptive right, under the statute of limitations. Mason vs. Hill, et al 27 English Com. Law Rep. 1. Platt vs. Johnson, 15 John. Rep. 213. Merritt vs. Brinkerhoff, 17 John. Rep. 320. Tyler vs. Wilkinson, 4 Mason’s Rep. 401. Pugh vs. Wheeler, 2 Dev. Battle’s Rep. 50. Omelvany vs. Jaggers, 2 Hill’s Carolina Rep. 634.

[4.] Let us examine move closely, the right of the plaintiff to recover damages of the defendants in_ this action, for this invasion of his right. Trespass on the case, is an action for the recovery of damages, for acts unaccompanied with force, and which in their consequences only are injurious; for though an act may he in itself lawful, yet, if in its effects or consequences, it is productive of any injury to another, it subjects the party to this action: as where the defendant put up a spout on his own premises, which was an act lawful in itself, but when it produced an injury to the plaintiff, by conveying the water into his yard, trespass on the case was adjudged to lie, for such consequential injury. 2 Espinasse, 598. I find one case reported in 1 Richardson’s Rep-. 445, Garrett vs. McKie, in which the majority of the Court held, that an action on the case by one riparian proprietor, of an unnavigahle stream, against another, for erecting a dam on the stream, whereby the water in the channel of the creek, is, raised along the plaintiff’s land, above its natural level, cannot be sustained, without proof of special damage. Mr. Justice O’Neal, who delivered the judgment of the Court in that case, concedes that in cases for throwing back water in the channel of a stream, the party claiming to recover, may state and prove some special injury resulting' from it — “ Such as deepening and rendering dangerous a ford which he was accustomed to use, or drowning a shoal which might he useful as a site for machinery, or preventing or retarding the operation of a mill or other machinery.” The position maintained by the Court in that case is, that the flowing back the water in the natural channel of the creek, is not per se actionable in law, without proof of some special damage sustained by the plaintiff.

The very high respect entertained for that Court, has induced us to examine this question more fully than we otherwise should have done ; and yet, we have not been able to bring our minds, to the same conclusion. We concur in opinion with Mr. Justice Evans, who dissented from the judgment of the Court, that the overflowing of the land of a riparian proprietor, within the banks of the stream, is an injury to the rights of the party whose property is sb overflowed, for which the law will imply damage, and give a Tight of action. The law, as we have already seen, prohibits one rip aiian proprietor from throwing back the water in the channel of the stream, to the prejudice of the rights of another. Whenever the Common Law gives a right or prohibits an injury, it also gives a remedy, by action. 3 Bl. Com. 123. But it is said, there must be some perceptible damage shown, to entitle the plaintiff to recover; that injury without damage, is not actionable. The reply to that argument is, that the act of the defendants throwing back the water on the plaintiff’s land, in the stream, is an invasion of his right to exercise the control and dominion over his property — and according to our understanding of the principles of the Common Law, whenever there has been an illegal invasion of the rights of another, it is an injury, for which he is entitled to a remedy by an action. There does exist a class of cases to which the maxim, damnum absque injuria, may properly be applied, but they are not such as where there has been a direct invasion of personal rights, or the rights of property.

Where a man sets up a new mill or school, in the neighborhood of an ancient one, an action will not lie, though a damage may thence accrue to the former mill or school; for such rivalship is of public benefit and advantage, and it is damnum absque injuria. 2 Espinasse, 642. The Common Law gives a prompt and efficient remedy for the redress of all wrongs and injuries, to the person and property of the citizen, so as to preserve the peace and harmony of society, and thereby prevent a resort to force. Every man should know and feel, that all his rights are under the protection of the lato. In Ashley vs. White, 2 Lord Raymond, 953, Lord Holt said, “ If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy, if he is .injured in the enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy ; for want of right and want of remedy are reciprocal.”

In Hunt vs. Denman, Croke Jac. 478, the lessor brought an action against the lessee, for disturbing him from entering into the house leased, in order to view it and to see whether any waste was committed: and it was held that the action will lay, though no waste was committed, and no actual damage done ; for the lessor had a right so to enter, and the hindering of him was an injury to that right, for which he might maintain an action. So in Wells vs. Watling, 2 Black. Rep. 1238, where the plaintiff brought his action for a surcharge of his Common; it was held, he need not show that he had actually turned any cattle on the Common, at the time of the surcharge laid : it is sufficient to show, that by the number turned in by defendant, he could not have enjoyed his Common in so ample manner as he was entitled. In Patrick vs. Greenway, cited by Mr. Sergeant Williams, 1 Saunders’ Rep. 346, which was an action for fishing in the plaintiff’s several fishery, it appeared in evidence, that the defendant fished there, but did not take any fish — neither was it alleged in the declaration, that the defendant caught any fish — the plaintiff obtained a verdict, which the defendant moved to set aside, but the Court refused even a rule to shew cause, upon the ground, that the act of fishing was not only an infringement of the plaintiff’s right, but would hereafter be evidence of an using, and exercising -of the right by the defendant, if such an act were overlooked.

In Hobson vs. Todd, 4 Term Rep. 73, which was an action on the case for surcharging the .Common, Butler, J. said, “ the only question then is, whether any injui-y has been done by the defendant, to the plaintiff.. Here he' is a wrong-doer, and the plaintiff is entitled to an action, without proving any specific damage. There is also another ground on which this action may be supported, which is, the right has been injured, and if a commoner cannot bring such an action as this, because his cattle had grass enough to prevent them from starving, he must permit a wrong-doer like the defendant, to gain a right by the length of possession.” If there had been no perceptible damage done the plaintiff, by the defendants throwing back the water upon his land, and shoal, in the channel of the creek, there was an injury done to his right, and shall the defendants, as wrong-doers, be permitted to acquire a prescriptive title, to enjoy the plaintiff’s property, for their own benefit, under the statute of limitations % In the great case of Millar vs. Taylor, 4 Burrow’s Rep. 2344, Mr. Justice Aston cites a case from the year book of 12th Henry VIII, in which there •was a great dispute, whether an action would lie for taking away ■a bloodhound, whether it was to be considered as property. It was argued, the dog was of no value, nor profit, but for pleasure; that felony could not be committed of it, consequently not trespass; •that a dog was not titheable, &c. But upon what principles, asks Mr. Justice Aston, did the Court determine the action lay 1 Upon these — “ That where any wrong or damage is done to a man, the law gives him, a remedy : that if it was only a thing for pleasure ; yet, it was sufficient; as a popinjay, which sings and refreshes my spirits ; that it was not lawful to take him against my will.” After reviewing the cases, that learned Judge says — “the Common Law being founded on such principles as have been laid down, and which are avowed by the above authorities, the remedy by action upon the case is suited to every wrong and grievance that the subject may suffer, from a special invasion of his right.” In Omelvany vs. Jaggers, 2 Hill’s Rep. before cited, Chancellor Harper says : “ It may be observed, that water cannot be thrown back on the land of the proprietor above, without overflowing his soil; and though the water still remain within its natural channel, being only raised to a greater height upon the banks ; yet„ still it is in strictness an invasion of the proprietor's soil, overwhieh,. on general principles of law, he has the exdnsiveright of dominion.”'

In Bowen vs. Hill, 27 Eng. Law. Rep. 460 the defendants erected a bridge andtunnáf'6¡»¿íteTr ownTMU^fcross a navigable drain, which passed fron&tmi river NejjnsJbiftugh the defendants’ close up to the close above the obstruction erected by the defeadant had been sa c®tructed by the accumulation of mud in no barge-could pass along it, and the plaimSSLhad notj^g#sd<S^ould not use-it. The Court held, however, that it wa^we right of the plaintiff to navigate it, provided he should think proper to remove the mud, and that the voluntary suspension by the plaintiff, of the exercise and enjoyment of a right, did not form any justification to the defendant for preventing him from the possibility of enjoying it. Although the plaintiff had not sustained any specific damage by the obstruction erected by the defendant; yet he invaded the plaintiff’s right; and the Court held he was entitled to recover nominal damages for the protection of that right; otherwise his right might be entirely destroyed by lapse of time, and the defendant acquire a right by his adverse enjoyment.

In Webb vs. the Portland Manufacturing Company, 3 Sumner’s Rep. 192, Mr. Justice Story discusses the question of injury without damage, in so clear and satisfactory a manner, that we feel entirely persuaded that all who love and reverence the principles of the common law, will be gratified to see them vindicated and maintained by one whose profound learning and wisdom in his profession has commanded the universal approbation of his countrymen. Speaking with regard to the diversion or obstruction of water in a stream, he says: “ As to the first question, I can very well understand that no action lies in a case where there is damnum absque injuria, that is, where there is a damage done without any wrong, or violation of any right of the 'plaintiff. But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact; in other words, that injuria sine damno is not actionable. On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law, that wherever there is a wrong, there is a remedy to redress it; and that every injury imports damage in the nature of it; and if no other damage is established, the party injured is entitled to a verdict for nominal damages. A fortiori, this doctrine applies where there is not only a violation of a right of the plaintiff, but the act of the defendant, if continued, may become the foundation, by lapse of time, of an adverse right in the defendant; for then it assumes the character, not merely of a violation of a right, tending to diminish its value, but it goes to the absolute destruction and extin-guishment of it. Under such circumstances, unless the party injured can protect his right from such violation by an action, it is plain that it may be lost or destroyed without any possible remedial redress. In my judgment, the common law countenances no such inconsistency; not to call it by a stronger name. Actual perceptible damage, is not indispensable as the foundation of an action. The law tolerates no further inquiry, than whether there has been the violation of a right; if so, the party injured is entitled to maintain his action for nominal damages, in vindication of his right, if no other damages are fit and proper, to remunerate him.

The plaintiff, however, as it appears by the record, offered to prove the value of the shoal, before is was submerged by the backwater thrown upon it in consequence of the defendants’ mill-dam and its value in its submerged condition; also offered to prove the damage done the plaintiff’s mill-shoal in consequence of the back-water, which evidence so offered, was rejected by the Court. We are of the opinion, that the evidence offered to prove the damage sustained by the plaintiff, ought to have been admitted, as the -verdict of the jury must necessarily be regulated by the extent to which the property of the plaintiff was damnified, by throwing the water hack upon his shoal by the dam of the defen-. dants. Our judgment, therefore, is, upon the facts presented by the record in this case, that the plaintiff is .the owner of the land to the centre of the Tussehaw Creek, as the same flows in its natural channel, which necessarily includes one-half of the mill-shoal ■situated therein; that the defendants, as riparian proprietors of the other side of the creek, have the right to a reasonable use of the water, as it flows along in the natural channel thereof, for domestic, agricultural and manufacturing purposes; provided, that in making such use, they do not prejudice or injure the rights of the plaintiff to his property. The altering and obstructing the natural flow of the water in the channel of the creek, by means of the defendants’ dam, whereby the water is thrown back upon the land and mill-shoal of the plaintiff in the natural channel of the creek, as stated in the record, is an injury to, and an invasion of the plaintiff’s right of property to his land, bordering upon, and situated in the natural channel of the stream to the central line thereof; and that for such injury and invasion of the plaintiff’s right of property, by the defendants, he is entitled to maintain an action against them, and to recover nominal damages for the protection of that- right, if no perceptible damage shall be proved on the trial; that prior occupation of the water by the defendants, does not give them the right, either to divert the water from the plaintiff’s land in the natural channel of the stream, or to throw the water back upon his land therein, without a grant or license from the plaintiff so to do, unless they have been in the peaceable enjoyment of the easement claimed, for a period of time, which would give them a right, under the Statute of Limitations, and that the testimony offered by the plaintiff to prove the actual damage sustained by him in consequence of throwing back the water upon his mill-shoal, ought to have been admitted; therefore,

Let the judgment of the Court below be reversed, and a new trial granted.