Dumont v. Kellogg

• Decision Date: 08 July 1874
• Citation: 29 Mich. 420
• Court: Michigan Supreme Court
• Parties: John B. Dumont v. John G. Kellogg

29 Mich. 420

John B. Dumont v. John G. Kellogg

Supreme Court of Michigan

July 8, 1874

Heard May 8, 1874

Error to Allegan Circuit.

Case. Defendant brings error. Reversed.

Judgment reversed, with costs, and a new trial ordered.

Norris Blair & Kingsley, for plaintiff in error.

Williams & Humphrey and Hughes, O'Brien & Smiley, for defendant in error.

OPINION

Cooley J.

The grievance complained of by Kellogg in the court below was that Dumont had constructed a dam across a natural water course, and by means thereof wrongfully detained the water in the stream to the prejudice and injury of the plaintiff, who was proprietor of a mill previously erected on the stream below. The reservoir created by defendant's dam was quite a large one, and plaintiff gave evidence that the flow of water in the stream below was considerably diminished by the increased evaporation and percolation resulting from the construction of this dam. The plaintiff had judgment in the court below, and the case comes here upon exceptions, the errors principally relied upon being assigned upon the instructions to the jury, and involving the relative rights of riparian proprietors to make use of the waters of a running stream which is common to both, and to delay its flow for that purpose.

The instructions given were numerous, and the most of them were unexceptionable. Others appear to be based upon a view of the law which is not to be reconciled with the authorities. Of these are the following:

"Every proprietor of lands on the banks of a stream, and every mill owner, has an equal right to the flow of the water in the stream as it was wont to run, without diminution or alteration; no proprietor has the right to use the water to the prejudice of the proprietors below him, without the consent of the proprietors below; he cannot divert or diminish the quantity which would otherwise descend to the proprietors below.

"He must so use the water as not materially to affect the application of the water below or materially diminish its quantity.

"If the jury find, from the evidence, that Dumont's dam and pond have diminished, by the increased evaporation and soakage occasioned by it, the flow of the water in the Dumont creek one-third, or any other material amount, and that the plaintiff has sustained damages thereby, then the plaintiff is entitled to recover in this action.

"The rights of a riparian proprietor are not to be measured by the reasonable demands of his business. His right extends to the use of only so much of the stream as will not materially diminish its quantity, so that in this case the question whether defendant needs the water as he uses it in his business is entirely immaterial.

"The defendant had the right to build a dam upon his land, but he must so construct the dam and so use the water as not to injure the plaintiff below in the enjoyment of the same water, according to its natural course."

In endeavoring to determine the soundness of these instructions, we may dismiss from the mind the fact that the plaintiff had first put the waters of the stream to practical use, since that fact gave him no superiority in right over the defendant. The settled doctrine now is that priority of appropriation gives to one proprietor no superior right to that of the others, unless it has been continued for a period of time, and under such circumstances as would be requisite to establish rights by prescription.--Platt v. Johnson, 15 Johns. 213; Tyler v. Wilkinson, 4 Mason 397; Gilman v. Tilton, 5 N.H. 231; Pugh v. Wheeler, 2 Dev. & Bat., 50; Hartzall v. Sill, 12 Pa. 248; Gould v. Boston Duck Co., 13 Gray 442; Wood v. Edes, 2 Allen 578; Parker v. Hotchkiss, 25 Conn. 321; Heath v. Williams, 25 Me. 209; Snow v. Parsons, 28 Vt. 459; Bliss v. Kennedy, 43 Ill. 67; Cowles v. Kidder, 24 N.H. 364. It is not claimed that any question of prescription is involved, and the case is consequently to be regarded as only presenting for adjudication the relative rights of the parties at the common law to make use of the flowing waters of the stream, unaffected by any exceptional circumstances.

And in considering the case it may be remarked at the outset that its differs essentially from a case in which a stream has been diverted from its natural course and turned away from a proprietor below. No person has a right to cause such a diversion, and it is wholly a wrongful act, for which an action will lie without proof of special damage. It differs, also, from the case of an interference by a stranger, who, by any means, or for any cause, diminishes the flow of the waters; for this also is wholly wrongful, and no question of the reasonableness of his action in causing the diminution can possibly arise. And had the instructions which are excepted to been given with reference to a case of diversion, or of obstruction by a stranger, the broad terms in which the responsibility of the defendant was laid down to the jury might have found abundant justification in the authorities.

But as between two proprietors, neither of whom has 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 affect 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.

Cases may unquestionably be found in which the rule of law is laid down as broadly as it was given by the circuit judge in this case, but an examination of them will show either that the facts were essentially different, or that the general language was qualified by the context. Thus the language employed in the first instruction as above given seems to have been quoted from Lord Tenterden in Mason v Hill, 3 B. & Adol., 312. But there it had reference to a case of diversion of water, and was strictly accurate and appropriate. The same...