Rome Railway & Light Co. v. Loeb , 141 Ga. 202 ( 1914 )

Hill, J.

(After stating the foregoing facts.) The court held, in effect, that the defendant had no riparian rights in the water of the mill-pond. Both the plaintiff and the defendant claim title to their respective tracts of land from a common source. The plaintiff claims title to 16.3 acres of land, upon which is situated a mill-pond, with the privilege contained in the grant of backing water as far as a dam thirteen feet in height would back it, and also the grant of “mill privileges.” At the time of filing the suit the mill was not in operation, the mill-house having been burned; but the dam and pond were maintained at the usual height, which covered a portion of the land owned by the defendant. The defendant owned a tract of six acres of land adjoining the millpond, the western boundary of which extended to the middle of the stream, the pond at this point being of an average width of forty-five feet, and of a depth of six feet. The defendant- was engaged in operating a plant for generating power and electric current; and in order to do so it was necessary to use a certain, quantity of cool water — about 400,000 gallons daily — in the operation of its condensing engines. This water the defendant takes from the mill-pond and returns substantially the same quantity thereto by means of pipes. It insists that it has the title to the land to the center of the stream, and the right to the use of the water as it flows along the natural channel of-the stream, for domestic, agricultural, and mechanical purposes, by reason of being a riparian owner; and that in using the water there is no material injury to the rights of other proprietors. The plaintiff, on the other hand, contends that she has the exclusive right to all the water in the pond for “mill privileges,” without any diminution whatever, and that this excludes all other riparian rights of every character. The controlling question in the case, therefore, is whether the defendant has riparian rights in the use of the water in the mill-pond in question.

The general rule is that riparian owners are each entitled to the center of the stream. Civil Code (1910), § 3630. But it is insisted that the plaintiff, by the division of the property in kind and the order of the court, had the right to “mill privileges,” and that this included all the water in the pond. But we can not agree to that proposition without qualification. The general rule as to the rights of riparian proprietors is that each may use the water for any purpose to which it can be beneficially applied without material injury to the rights of others. Gould on Waters (3d ed.), § 20.4. Every riparian owner may make a reasonable use of the stream passing by his land. 76. § 208. Prior to the building of the mill and pond and the grant of the “mill privileges” to the predecessors in title of the plaintiff, the riparian owners would undoubtedly each have the right to the use of the water to the middle of the stream, provided the use was reasonable and did not injure other riparian proprietors; and though she subsequently became the owner in fee, yet in the partition of the property the “mill privileges” were carried forward. We do not understand that the term “mill privileges,” as contained in the order of the court, gives the plaintiff the exclusive use of all the water in the pond, whether needed or not for mill purposes, to the exclusion of a reasonable use by other riparian proprietors. The grantee of a mill privilege, without special mention of water rights, takes a right to the actual flow of the stream, subject to its reasonable use by upper riparian owners. Whitney v. Wheeler Cotton Mills, 151 Mass. 396 (24 N. E. 774, 7 L. R. A. 613): As to what constitutes a “mill privilege,” see 5 Words & Phrases, 4505.

It will be observed that the grant of the mill property and of mill privileges was to Joseph J. Cohen, the predecessor in title of the plaintifE, and that no express grant was ever made to the plaintiff; but whatever right she has is by virtue of the setting apart of the mill property in question to her guardian for her, under and by virtue of the proceedings to divide the property of the estate of Joseph J. Cohen in kind, and the order of the court based thereon. The effect of the proceedings to divide the property in kind was to vest in the plaintiff the title to the mill property described in the division, as set aside to her, and also to the "appurtenant mill privileges,” with the use of so much' of the water in the mill-pond as is necessary for the operation of the mill in a reasonable manner. See Gould v. Boston Duck Co., 13 Gray, 442. But we do not understand the law to be that the owner of the mill property, with mill privileges, can deprive riparian owners con-' tiguous to the stream of a reasonable use of the water, where it does not interfere with the operation of the mill in a reasonable manner. It is to be observed that the plaintiff does not own the title to the land under the pond at the point where the defendant takes its water, but the title is .in the defendant to the center of the original stream. Under these circumstances, we think the defendant is entitled to a reasonable use of the water in the millpond adjacent to its property, provided it does not materially interfere with the mill privileges of the plaintiff or other riparian proprietors. There is no contention that it does so materially interfere; but the plaintiff insists that the adjacent proprietor (the defendant) is not entitled to use any water therefrom. We do not think the fact that at the point of intake of the water by the defendant the water is not from a running stream, but is from the pond, makes any difference, under the facts'of this case. Á riparián owner is one having land bounded on a stream of water, as such owner having a qualified property in the soil to the thread of the stream. Bardwell v. Ames, 22 Pick. 355. Riparian rights ’are such as grow out of the ownership of the banks of'streams, and not out of the ownership of the bed of the stream. The word "riparian” has reference to the bank, and not to the bed of the stream. For a general discussion of what constitutes riparian rights, see note to Mobile Dry Dock Co. v. City of Mobile, 9 Ann. Cases, 1229, and Price v. High Shoals Mfg. Co., 132 Ga. 246 (64 S. E. 87, 22 L. R. A. (N. S.) 684). As to the grants of water-powers, see note to Merrified v. Canal Commissioner, 67 L. R. A. 369.

In the instant ease the defendant claims under a grant conveying the land upon which its power-plant is situated, to the center of the stream; and it is alleged that its upland, upon which its plant is situated, is in actual contact with the mill-pond out of which it takes the water to supply the plant. From the authorities cited, and a review of the whole case, we conclude that the defendant has riparian rights in the mill-pond, so as to entitle it to a’ reasonable use of the water without material injury to the mill privileges of the plaintiff. Having shown that the defendant, as a riparian owner, has the right to make a reasonable use of the stream and a reasonable use of the water from the pond adjacent to its property, provided that it does not thereby materially interfere with the mill privileges of the plaintiff or other riparian proprietors, and it not appearing from the petition that, considering the character of the use to which the water was put by the defendant or the quantity of water consumed thereby, there was an unreasonable use of the water, or that the owner of the mill privileges was materially injured in consequence of this use or the consumption of the small amount of water, it follows that the plaintiff-was not entitled to the injunctive relief applied for. Consequently the court erred in overruling the general demurrer to the petition, and in enjoining the defendant from maintaining its reservoir, and from using the waters of the mill-pond in accordance with the principles announced in this opinion.

Judgment reversed.

All the Justices concur, except. Fish, C. J., absent. Atkinson, J., concurs in the judgment, but not in all that is said in the opinion. .