Fischer v. Davis

• Decision Date: 04 March 1911
• Citation: 116 P. 412,19 Idaho 493
• Parties: EUGENE FISCHER, Appellant, v. THOMAS J. DAVIS et al., Respondents
• Court: Idaho Supreme Court

116 P. 412

19 Idaho 493

EUGENE FISCHER, Appellant, v. THOMAS J. DAVIS et al., Respondents

Supreme Court of Idaho

March 4, 1911

RIPARIAN RIGHTS-OBSTRUCTIONS TO FLOW OF STREAM-RIGHT OF RIPARIAN OWNER TO MAINTAIN ACTION.

(Syllabus by the reporter.)

1. Riparian owners of lands abutting upon a stream, whether navigable or unnavigable, have the right to place and maintain upon their lands such barriers as will prevent their lands from being overflowed and damaged by the stream, and for the purpose of keeping the same within its natural channel.

2. A riparian owner of lands abutting upon a stream has no right to place obstructions out into the stream for the purpose of changing the natural course of the river, or for any other purpose that would do damage to a riparian owner on the opposite side, or to owners of land abutting upon said stream either above or below.

3. A riparian owner upon any of the streams of this state, whether navigable or unnavigable, takes to the thread of the stream (citing Johnson v. Johnson, 14 Idaho 561, 95 P. 499, 24 L.R.A., N. S., 1240, and Lattig v. Scott, 17 Idaho 506, 107 P. 47), and may maintain an action for an obstruction in such stream which diverts the stream or a portion thereof from its natural course to his damage.

APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. Fremont Wood, Judge.

An action to secure a permanent injunction against maintaining obstructions in the Boise river. Plaintiff appeals from a modified order of the lower court, partially restraining defendant. Reversed.

Reversed and remanded. Costs awarded against the respondent.

B. F Neal, for Appellant.

The owner of land bordering on a body of water is entitled to have the relation of the water to his land remain unchanged so far as interference by third persons or the public are concerned. (Geurkink v. Petaluma, 112 Cal. 306, 44 P. 570; Montague v. Jefferson, 7 Kan. App. 160, 53 P. 145; Farnham on Waters and Water Rights, secs. 76, 79 85.)

A riparian proprietor is liable if he diverts the flow of a stream on to another's land to his injury. Oldenburg v. Oregon Sugar Co., 39 Ore. 564, 65 P. 869, Farnham on Waters and Water Rights, sec. 492.)

A land owner is not permitted to obstruct the flow of a stream on his land to the injury of an adjoining owner. (2 Farnham on Waters and Water Rights, sec. 531.)

Appellant concedes the right of respondents to build levees or embankments on his bank, of a reasonable height, also his right to build bulwarks, riprap or other obstructions on his own bank and immediately adjacent thereto, for the purpose of preventing the bank of the river on his side from being washed or wasted away; but we deny his right to extend these works into the current of a river, so as to change the current, and force it or any part of it on and against the appellant. (Gulf etc. Co. v. Clark, 101 F. 678, 41 C. C. A. 597; Wholey v. Caldwell, 108 Cal. 95, 49 Am. St. 64, 41 P. 31, 30 L. R. A. 820; Paige v. Rockyford etc. Co., 83 Cal. 93, 21 P. 1102, 23 P. 875; 2 Farnham on Waters, 1634.)

"The riparian owner cannot justify the change of channel made by him even though necessary to protect his own interests." (Mohr v. Gault, 10 Wis. 513, 78 Am. Dec. 687; Johnston v. Hyde, 33 N.J. Eq. 632; 2 Farnham on Waters, 1636.)

"A riparian owner on the streams of this state takes to the thread of the stream, subject to an easement for the use of the public." (Johnson v. Johnson, 14 Idaho 561 95 P. 499, 24 L. R. A., N. S., 1240; Rudel v. Los Angeles, 118 Cal. 281, 50 P. 400; 1 Farnham on Waters, 350.)

A riparian owner cannot erect structures to protect his own banks in such a way as to change the natural flow of the water and cast it upon his neighbor's land. (Farnham on Waters, 1725, and cases cited, note 11; Parker v. Atchinson, 58 Kan. 29, 48 P. 631.)

All of the evidence in this case shows that the appellant is in possession of the riparian lands claimed by him. However, for the purposes of this case, possession alone is a sufficient right. (McDonald v. Bear River etc. Co., 13 Cal. 220, and cases cited; Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Rathbone v. McConnell, 20 Barb. (N. Y.) 311; 2 Farnham on Waters, 1667.)

Richards & Haga, for Respondents.

The testimony clearly shows, as shown by respondents' affidavits, that the levee and embankments of the appellant have changed the current of the Boise river upon and against the lands of the respondents, eroding and washing them away, with the crops growing thereon. But the appellant has cited no cases to the effect that the respondents have no right to defend against the acts of the appellant by erecting cribbing on their side of the stream to preserve and protect their lands and property. (Wilhelm v. Burleyson, 106 N.C. 389, 11 S.E. 590; Blaine v. Brady, 64 Md. 373, 1 A. 609; Barnes v. Marshall, 68 Cal. 571, 10 P. 115; Gulf C. & S. F. Ry. Co. v. Clark, 101 F. 680, 41 C. C. A. 597.)

The affidavit of William H. Ridenbaugh is not necessary to explain the deeds, but was introduced for the sole purpose of contradicting the specific descriptions in the instruments. "Private declarations of the grantor as to the boundary lines are not admissible to control the language of the deed" (Jones on Ev., 2d ed., sec. 485.)

"Parol evidence is not admissible . . . . to alter or vary the boundary stated or to substitute another and different boundary." (9 Ency. of Ev. 400; Guilmartin v. Wood, 76 Ala. 204; Olson v. Keith, 162 Mass. 485, 39 N.E. 410; Shaffer v. Gaynor, 117 N.C. 15, 23 S.E. 154; Fuller v. Weaver, 175 Pa. 182, 34 A. 634.)

The court below could do nothing else than apply the doctrine of balance of convenience and inconvenience in determining whether the restraining order should be modified. This doctrine is the principal guide upon which courts of equity determine the rights of litigants to an injunction. (High on Injunctions, sec. 13; 22 Cyc. 751-782, and cases cited.)

BUDGE, District Judge. Ailshie, Presiding J., and Sullivan, J., concur.

OPINION

BUDGE, District Judge.

This was an action brought by the appellant against the respondent to secure a permanent injunction against the respondent from erecting certain dams, cribs and obstructions in the Boise river at a point opposite the south end of a certain bar which is described as beginning at a point about 150 feet northerly from the bridge of the Boise Valley Railway. The appellant in his complaint, among other things, charges that the defendant is erecting said dams, cribs and obstructions at a point opposite the south end of said bar, and connecting said bar with the west bank of said river with the intent, object and purpose of preventing the flow of the waters of the Boise river in, on and over the channel on the west side of said bar, and for the purpose of diverting said water and compelling the whole of the water flowing in said channel of the Boise river to flow on, to and against the east bank of said river and on, to and against the lands of the plaintiff, and causing said stream to be wholly diverted through one of its natural channels and causing the whole of said stream to be thrown against the east bank of said river and against and upon the lands owned by the appellant, and causing the banks of said river to erode and be washed away and inflicting upon the appellant great and irreparable damage and injury.

The erection by respondent of said dams, cribs and obstructions at the point alleged in the appellant's complaint is admitted by the respondent, who alleges in his answer that the appellant constructed and erected certain cribs and obstructions along the east bank of the said Boise river. It also appears from the pleadings that the respondent has constructed along the west bank of the said Boise river cribs and cribbing and obstructions.

The appellant and respondent are riparian owners of the lands abutting upon the said Boise river, and in order to protect their said lands each have constructed along the respective banks of the said Boise river at different points within the boundary lines of their said lands certain obstructions, cribs and cribbing for the purpose of preventing the waters from overflowing their respective holdings.

The respondent constructed at the point heretofore indicated a dam or cribbing from the west bank, on his land, in a northerly direction, connecting said...