Anderson v. Cincinnati Southern Ry.

• Decision Date: 18 June 1887
• Citation: 5 S.W. 49,86 Ky. 44
• Parties: ANDERSON v. CINCINNATI SOUTHERN RY.
• Court: Kentucky Court of Appeals

5 S.W. 49

86 Ky. 44

ANDERSON v. CINCINNATI SOUTHERN RY.

Court of Appeals of Kentucky.

June 18, 1887

Appeal from circuit court, Pulaski county.

Curd &amp Waddle and Parker & May, for appellant.

Morrow & Newell, for appellee.

LEWIS J.

Appellant is the owner of a water grist-mill erected by him, in 1872 on Pitman's creek, under an order of the Pulaski county court granting the leave as provided by law in such cases. Across the same creek, about one mile below its source, and two miles above appellant's mill, appellees, the trustees of the Cincinnati Southern Railway, under charter granted by the general assembly, subsequently built their road; and at the same time erected, just above the railroad crossing, a wooden dam four feet high, by which a reservoir was formed from which water was taken to a supply tank to be used in running their trains. But in 1877 or 1878, several years after the completion of their road, they erected, in place of the wooden dam, one built of stone laid in cement, 14 feet high, by which a reservoir was formed covering 10 or 11 acres of land purchased by them of the riparian owner. This action was brought by appellant against appellees for the alleged wrongful and unlawful obstruction and diversion, by reason of the stone dam, of water that hitherto flowed to and supplied the power for the operation of his mill, whereby, as he states, he has been injured, and to a great extent deprived of the use and enjoymentof said mill. For their defense, appellees answer-- First, that since July, 1877, the railroad built by them, together with its franchises, appurtenances, and including the stone dam and reservoir, had been leased by them to the Cincinnati Railway Company and the Cincinnati, New Orleans & Texas Pacific Railway Company, and appellees have not since that time been in the possession or had control of the dam or reservoir, and are not, therefore, liable for the injury complained of; second, they deny that the flow of water to appellant's mill has, to any extent, been perverted or delayed by the erection of the stone dam, and state that there is no stream of water having channel or banks above the point where the dam is located,--the reservoir being supplied with water by surface drainage at times of heavy rains,--and that, if the water which flows above the dam was unobstructed, it would not in any way affect appellant's mill, because the quantity, during a portion of each year, is so small as, even when added to that below, to be insufficient to run the mill, while during the residue of the time the quantity flowing below is sufficient to operate it as fully as if the dam had not been erected.

In our opinion, the first defense is not available. The stone dam which it is alleged by appellant obstructs and diverts the natural and accustomed flow of water to his mill was erected by appellees as an appurtenance to their road, and, being the primary and continuing cause of the injury complained of, there can be no question of his right to maintain this action against them for whatever damage has been unlawfully caused thereby. How far the lessees of the railroad may be liable, if at all, for taking the water already obstructed by the dam of appellees, and using it in operating their trains, is a question not now presented.

The right of every riparian owner to the enjoyment of a stream of running water in its natural state in flow, quantity, and quality is now well established. "Every proprietor of lands on the banks of streams has naturally an equal right to the use of the water which flows in the stream adjacent to his lands as it is wont to run, without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above 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. ' Aqua currit et debet currere ut currere solebat,' is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. 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 back upon the proprietors above without a grant, or an uninterrupted enjoyment of twenty years, [fifteen under our statute,] which is evidence of it. This is the clear and settled general doctrine on the subject. All the difficulty that arises consists in its application." 2 Kent, Comm 439. "The primary use...