Evans v. Merriweather

• Court: Illinois Supreme Court
• Writing for the Court: LOCKWOOD
• Citation: Evans v. Merriweather, 3 Scam. 492, 4 Ill. 492, 1842 WL 3800, 38 Am.Dec. 106 (Ill. 1842)
• Decision Date: 31 December 1842
• Parties: John Evans, appellant,v.Henry W. Merriweather, appellee.

3 Scam. 492

4 Ill. 492

1842 WL 3800 (Ill.)

38 Am.Dec. 106

John Evans, appellant,

v.Henry W. Merriweather, appellee.

Supreme Court of Illinois.

December Term, 1842.

Appeal from Greene.

The language of all the authorities is, that water flows in its natural course, and should be permitted to flow, so that all through whose lands it naturally flows may enjoy the privilege of using it. The property in the water, by virtue of the riparian ownership, is in its nature usufructuary, and consists, in general, not so much of the fluid itself as of the advantage of its impetus.

A riparian proprietor, though he has an undoubted right to use the water of a stream, for hydraulic and manufacturing purposes, must so use it as to do no injury to any other riparian proprietor. ^a

Each riparian proprietor is bound to make such a use of running water as to do as little injury to those below him as is consistent with a valuable benefit to himself.

Where the stream is small, and does not furnish water more than sufficient to supply the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufactures.

Where the water of a stream is not wanted to supply natural wants, and there is not sufficient for each proprietor living on the stream to carry on his manufacturing purposes, and there is no contract or grant, neither proprietor has a right to use all the water; all have a right to participate in its benefit, and an action will lie against a party who diverts or consumes the whole of the stream.

Where all have a right to participate in a common benefit, and no one can have an exclusive enjoyment, no rule, from the very nature of the case, can be laid down, as to how much each may use, without infringing upon the rights of others. In such cases, it must be left to the jury to determine whether the party complained of has used, under all the circumstances, more than his just proportion.

Where an upper riparian proprietor forbade his workmen to divert a stream, upon which his steam mill was situated, and one of them built a dam across it, near the mill, and diverted it for the use of the mill, and the proprietor lived only about half a mile off, and was often at the mill: Held, that a jury might fairly infer that he was conversant with the manner with which his mill was supplied with water, and that he either countermanded his instructions or acquiesced in the construction of the dam, after it was erected.

Where a party avails himself of the illegal act of his servant, the law presumes he authorized it.

Where the damages are small, and justice, upon the whole, has been done, the Supreme Court ought not to remand a cause to see if a jury, upon another trial, would not give less, even if the true principles which govern the case were not correctly given to the jury.

This cause was heard in the court below at the April term, 1839, before the Hon. Wm. Thomas and a jury. Verdict and judgment were rendered for the plaintiff for $150 damages. The defendant appealed to this court.

C. Walker, R. L. Doyle and D. A. Smith, for the appellant, cited Angell on Water Courses, ch. 1, sec. 4; 3 Kent's Com., 444-8; Platt v. Johnson et al., 15 Johns., 213; Martin v. Bigelow, 2 Aiken (Vt.), 184; Merritt v. Brinkerhoff, 17 Johns., 306; 1 East, 106; 17 Mass., 508, 510; 2 Kent's Com., 259-60; 2 Espinasse's N. P., Gould's ed., 220; Croft v. Allison, 4 Barn. & Ald., 590; 5 N. H. Rep., 251; 3 Johns., 64; Angell on Water Courses, 144; 2 Watts, 327; 8 Mass., 136.

J. J. Hardin and S. T. Logan, for the appellee, cited 2 Tuck. Com., 293; 1 Chit. Blac. Com., 343-5, and note; 1 Saund. Plead. and Ev., 407-8; 3 Wils., 313; 2 Blac. Com., 10; 2 Kent's Com., 257, 263-4; 3 Kent's Com., 3d ed., 353-8, 440, in note, 444-5; 1 Chit. Plead., note, 132; 2 Blac. Com., 217; 3 Blac. Com., 218, 220-2; 10 Johns., 241; 17 Johns., 321; 1 Wils., 174; 12 Wend., 331; Maddox, 129; 3 Caines, 320; 17 Mass., 289; Peake, 489, 492, notes.

LOCKWOOD, Justice, delivered the opinion of the court:¹

This was an action on the case, brought in the Greene Circuit Court, by Merriweather against Evans, for obstructing and diverting a water course. The plaintiff obtained a verdict, and judgment was rendered thereon. On the trial the defendant excepted to the instructions asked for and given, at the instance of the plaintiff. The defendant also excepted, because instructions that were asked by him, were refused. After the cause was brought into this court, the parties agreed upon the following statement of facts, as having been proved on the trial, to wit: “It is agreed between the parties to this suit, that the following is the statement of facts proved at the trial in this case, and that the same shall be considered as part of the record by the court, in the adjudication of this cause. Smith and Baker, in 1834, bought of T. Carlin six acres of land, through which a branch ran, and erected a steam mill thereon. They depended upon a well and the branch for water in running their engine. About one or two years afterwards, John Evans bought of T. Carlin six acres of land, on the same branch, above and immediately adjoining the lot owned by Smith & Baker, and erected theron a steam mill, depending upon a well and the branch for water in running his engine.

“Smith & Baker, after the erection of Evans' mill, in 1836 or 1837, sold the mill and appurtenances to Merriweather, for about $8,000. Evans' mill was supposed to be worth $12,000. Ordinarily there was an abundance of water for both mills; but in the fall of 1837, there being a drought, the branch failed, so far that it did not afford water sufficient to run the upper mill continually. Evans directed his hands not to stop, or divert the water, in the branch; but one of them employed about the mill did make a dam across the branch, just below Evans' mill, and thereby diverted all the water in the branch into Evans' well. Evans was at home, half a mile from the mill, and was frequently about his mill, and evidence was introduced conducing to prove that he might have known that the water of the branch was diverted into his well. After the diversion of the water into Evans' well, as aforesaid, the branch went dry below, and Merriweather's mill could not and did not run, in consequence of it, more than one day in a week, and was then supplied with water from his well. Merriweather then brought this suit, in three or four weeks after the putting of the dam across the branch for the diversion of the water, and obtained a verdict for $150. This suit, it is admitted, is the first between the parties litigating the right as to the use of the water. It is further agreed, that the branch afforded usually sufficient water for the supply of both mills, without materially affecting the size of the current, though the branch was not depended upon exclusively for that purpose. Furthermore, that at the time of the grievances complained of by the plaintiff below, the defendant had water hauled in part for the supply of his boilers. That the dam was made below the defendant's well, across the branch, which diverted as well the water hauled and poured out into the branch above the well, as the water of the branch, into the defendant's well.

HARDIN & LOGAN,

for Merriweather.

SHIELDS & SMITH,

for Evans.”

Upon this state of facts, the question is presented, as to what extent riparian proprietors, upon a stream not navigable, can use the water of such stream? The branch mentioned in the agreed statement of facts, is a small natural stream of water, not furnishing, at all seasons of the year, a supply of water sufficient for both mills. There are no facts in the case showing that the water is wanted for any other than milling purposes, and for those purposes to be converted into steam, and thus entirely consumed. In an early case decided in England,¹ it is laid down that “A water course begins ‘ ex jure naturæ,’ and having taken a certain course naturally, can not be diverted.” The language of all the authorities is, that water flows in its natural course, and should be permitted thus to flow, so that all through whose land it naturally flows, may enjoy the privilege of using it. The property in the water, therefore, by virtue of the riparian ownership, is in its nature usufructuary, and consists, in general, not so much of the fluid itself, as of the advantage of its impetus.² A riparian proprietor, therefore, though he has an undoubted right to use the water for hydraulic or manufacturing purposes, must so use it as to do no injury to any other riparian proprietor. Some decisions, in laying down the rights of riparian proprietors of water courses, have gone so far as to restrict their right in the use of water flowing over their land,...