Wash. Water Co. v. Garver , 91 Md. 398 ( 1900 )

This is an action on the case brought by the plaintiff, Samuel B. Garver, against the Washington County Water Company to recover damages alleged to have resulted from the unlawful diversion by it of a water-course.

The only question presented is as to the propriety of the rulings upon the prayers.

During the course of the trial the plaintiff offered testimony tending to prove that he was the owner of the land through which the water-course in question runs; that on said land there was erected a flouring and chopping mill, and that from time immemorial this stream of water, known as "Raven Rock Stream," flowed free from obstruction in a well-defined channel to and through the land of plaintiff and to his mill, except when the waters were low in the summer; that at a point not far from the bed of said stream, about a half-mile up stream from the mill, and several hundred feet from the plaintiff's mill-dam, there is a spring known as "Rohrer's Spring," from which the water also flows into said mill-dam during certain portions of the year; that there is a sink-hole in the bed of said stream about a thousand feet from the point where said stream leaves the defendant's land; that the land between the sink-hole and the spring is limestone; that during all the time, whether there was sufficient water to carry the stream to the sink-hole or beyond it, a large amount of water goes into said sink-hole and under the surface of the ground at a point in said hole where limestone rocks project into the bed of the stream; that the defendant in 1896, near the head waters of said stream and about two miles from the lands and mill of the plaintiff, erected dams across the same for the purpose of retaining the water and distributing the same through pipes to its reservoir and from thence to Hagerstown; that at the time and immediately after the water of said stream was thus diverted by the defendant, the water in the spring sank 8 or 10 inches, and that this diversion has continued to have this effect. In order to show that the water of the stream flows to the spring through a subterranean passage, the plaintiff offered testimony tending to prove that when the water of the stream runs into the sink-hole the spring is 8 to 10 inches higher than when it does not so run; that when muddy water runs into the sink-hole the water in the spring soon thereafter becomes muddy also, and that this happens when it has not rained near the spring, but has rained near the source of the stream; that many years ago an experiment was made by throwing chaff into the sink-hole, and that a short time thereafter chaff appeared on the surface of the water of the spring, and was seen coming out from under the rocks where the spring emerged. It was further proved that by reason of the diversion of the stream and the sinking of the spring the plaintiff's mill was deprived of sufficient water to operate it, and that prior to said diversion he had sufficient water for that purpose, except in the dry season, when the water was low. There was also evidence tending to show that the loss to the plaintiff by reason of the diversion of water from the mill amounted to $100 per year, and that the loss arising from deprivation of water for his stock was from fifteen to twenty dollars per year, and that the loss he suffered from the time of taking the water to the time of bringing this suit, was at the same rate for the respective items of loss for such proportion of the year.

The defendant offered evidence admitting the erection of the dam as alleged, but tending to prove a state of facts contradicting the case made out by the plaintiff in regard to the amount of water in the stream and its connection with the spring through the underground passage.

There was a verdict and judgment for the plaintiff for $33.75, the Court having instructed the jury that the plaintiff could only recover for the loss which accrued between the time of diverting the water and the bringing of the suit, that is to say, between the 1st of July and 14th of November, 1896. The defendant has appealed.

As we have seen, the only exception in the record before us relates to the granting of certain of the plaintiff's, and the refusal to grant certain of the defendant's prayers. The first, third and fourth prayers of the plaintiff were granted as offered, and his second as modified by the Court, and the first, fourth, fifth and seventh of the defendant rejected.

Before proceeding to consider the action of the Court as above set forth, we will briefly state the general principles of law applicable to a case like this. However interesting it might be to examine the text-books and the decisions of other States to determine what these principles are and their limitations, we would hardly be justified in so doing when it has been so recently done in the opinion of this Court delivered by JUDGE ALVEY in the case of Baltimore v. Warren Manufacturing Co.,59 Md. 103. While it is true that the case just cited was one in which the defendants were charged with having unlawfully polluted the stream, yet the general principles announced were applied and are applicable as well to an unlawful diminution of quantity as to deterioration of quality. After stating that, before the time of LORD COKE, the general principles in relation to the pollution of streams had been settled in England, the learned Judge says: "In more recent times all common law authorities agree that a riparian owner has the right to the natural stream of water flowing by or through his land, in its ordinary natural state, both as to its quantity and quality, as incident to the right to the land on or through which the water runs; and that right continues, except so far as it may have been derogated from by user or by grant." These general principles are not, and cannot be, controverted by the defendant in this case, but he contends that they have no application to the case at bar, first, because the evidence does not show that there was a flowing water-course which could have been diverted, and secondly, that if there was any such water-course it was in part underground and percolated, in contradistinction to flowing, in a channel to a point from whence it flowed into the plaintiff's mill. But, whatever may be the merits of these contentions, they both relate to questions of fact which are for the jury. The plaintiff offered evidence to show that the diverted stream flowed through his land and supplied his mill all the time except for a short period in summer, when the waters are low. Among the definitions of a water-course is the following by JUDGE BIGELOW in the case of Luther v. Winnisimmet Co. 9 Cush. 174, which Prof. Washburn characterizes as most accurate and compendious. "A stream of water usually flowing in a definite channel, having a bed, sides or banks, and usually discharging itself into some other stream or body of water. To constitute a water-course, the size of the stream is not important; it might be very small and the flow of water need not be constant. But it must be something more than a mere surface drainage over the entire face of a tract of land occasioned by unusual freshets or other extraordinary causes." The evidence offered by the plaintiff fully answers the demands of the foregoing definition, and we think it may be concluded that whether the existence of the alleged diverted water-course be a question of fact or of mixed fact and law, the jury were fully justified in its finding by the evidence and the Court's instructions. And so in regard to the other contention based on the fact that the stream flowed underground. Again it is and must be conceded that such a stream will be protected the same as one upon the surface, if it constitutes a stream the channel or course of which is known. Washburn on Easements, s.p. 370. "It is otherwise when nothing is known as to the sources of supply" —Ib. But in the case at bar, whatever the evidence of the defendant may be, that of the plaintiff is strong and convincing of a direct connection or channel between the sink-hole and the spring. The muddy water of the stream passing into the sink-hole was always followed by water of same character in the spring. When chaff was thrown into the water in the sink-hole, chaff was in a short time thereafter seen to appear on the surface of the spring as it emerged with the water from under the rocks, and finally when water was not running in the sink-hole the spring sank 8 or 10 inches, and a corresponding rising was the result when water flowed into that hole. It may be also remarked that the fact that muddy water found its way from the stream to the spring affords an additional proof that it passed underground in a channel and did not percolate through gravel and sand, as suggested by the defendant, for if it reached the spring by percolation it would have been clarified and freed from mud.

We will now briefly consider the prayers of the plaintiff which were granted. By the first prayer the jury were instructed that the plaintiff was entitled to recover if the defendant diverted "an appreciable quantity of water * * * and thereby diminished the flow of water through the said lands and to plaintiff's mill."

The defendant contends that the words "appreciable quantity of water" as used in this prayer are misleading, and would permit recovery for a very small quantity of water without regard to and irrespective of the fact whether the quantity so diverted affected the uses of the mill. But, although we think this objection somewhat hypercritical, yet when the prayer objected to is read with those of the defendant all difficulty disappears. For by the defendant's second, which was granted, the theory is announced that the plaintiff is not entitled to recover for damages to his mill unless they find that the water diverted would have been sufficient, if added to the other sources of supply, to operate the mill. And so by the defendant's third, which was also granted: That to enable the plaintiff to recover in this action for loss of profits in running the mill, it is incumbent on him to show to the satisfaction of the jury that the quantity of water flowing from the streams, known as Raven Rock and Warner Gulch streams, together with the other sources of supply, furnished sufficient power for the proper operation of his mill, and if they further believe that at certain portions of each year the quantity of water, the diversion of which is here complained of, was very small and not of a quantity to affect the operations of his said mill, that for such portions of each year the plaintiff is not entitled to recover for such loss of profits. The plaintiff's second prayer. This was substituted by the Court. No objection was made to it, and we know of none. It states the proper rule of damages applicable to this case. Sedgwick on Damages, sec. 941. Plaintiff's third and fourth prayers were objected to on the ground that there was no evidence to support them. But we find nothing in the record to show such an objection was made in the Court below, and therefore it will not be entertained here. Poe's Prac., sec. 299A and authorities cited in notes.

From what we have already said it is apparent we are of opinion that the evidence offered by the plaintiff in regard to the character of the underground stream was properly submitted to the jury and if they believed it, it justified their verdict, and therefore the defendant's first prayer was properly rejected. There is no evidence in the record that the water, the diversion of which is complained of in this action, gradually and at different points along the bed of the stream sinks and disappears, before reaching the spring. On the contrary, as we have already said, there is ample testimony which was properly submitted to the jury from which they were justified in finding that some of said water reached the spring through the underground stream flowing from the sink-hole to the spring. It follows that defendant's fourth prayer was properly rejected, because it is based upon the theory that none of said water reached the spring. And so also we think defendant's fifth prayer was properly rejected. It is founded on the hypothesis that after the diversion of the stream by defendant there was sufficient water at certain portions of the year to operate the mill in the same manner it was run before the injury complained of, and that the jury ought to make an allowance to the defendant for such time as they believe from the evidence there was sufficient water for the operation of the mill. There is no evidence in the record that at any time after the diversion of the stream there was sufficient water to operate the mill in the same way it was operated before the injury complained of. It is true one of the witnesses says "that in wet seasons the plaintiff could grind his mill," but to what extent, or whether with profit or at a loss, does not appear. On the contrary the evidence of both sides show that there was a deficiency — the plaintiff ascribing it to the diversion of the stream and the defendant to a lack of water produced by natural causes. It would have been error, therefore, to grant the fifth prayer of defendant, because there is no evidence to support it. But if the defendant was entitled to have such an instruction we think he got the full benefit of it by his third prayer by which the jury were told that if they believed that at certain portions of each year the quantity of diverted water was so small as not to affect the operation of the mill, that for such portions of each year the plaintiff is not entitled to recover for loss of profits.

Defendant's seventh prayer was properly rejected because we think there is legally sufficient evidence of the loss of profits in operating his mill. Thus there was testimony tending to prove that the capacity of the mill before the diversion was about 12 barrels per day and that the loss caused by deprivation of the water was $100 per year, and that from the time of taking the water to the time of bringing the suit the loss was at the same rate for such proportion of the year as expired between the periods mentioned.

Finding no reversible error in the rulings of the learned Court below, the judgment appealed from will be affirmed with costs.

Judgment affirmed with costs.

(Decided June 14th, 1900.)