Gehlen v. Knorr
| Decision Date | 10 April 1897 |
| Citation | 70 N.W. 757,101 Iowa 700 |
| Parties | GEHLEN BROTHERS, et al., v. J. F. KNORR, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Plymouth District Court.--HON. JOHN F. OLIVER, Judge.
THIS is an action in equity, by the plaintiffs, to restrain the defendants from erecting a dam across the Floyd river, at any point thereon within such distance above plaintiffs' dam as would interrupt or stop the natural flow of the water in said stream, to plaintiffs' detriment. The plaintiffs allege: That they own and operate a steam and water power grist mill, which was erected in 1870, and has since been used as a flouring mill. That part of the power with which said mill has been operated, was derived from water taken from said river, and, to utilize the water of said river, a dam was built, which has ever since been maintained. Before erecting said dam, the then owner of said mill site, brought an action in the proper court against parties owning land adjacent to said river above the point where said dam was thereafter located, and which might be overflowed by back water from the dam, to which action Jacob Ruble was made a defendant. He then owned the land upon which the dam objected to by the plaintiffs was afterward built. That the free and uninterrupted flow of the water in said river above plaintiffs' dam is essential for the full enjoyment and operation of plaintiffs' mill. It is averred, that the defendants are about to construct a dam, which will stop the flow of the water down said stream, which would irreparably damage plaintiffs. The defendants admit the ownership of the property where said dam was proposed to be built; that they expected to erect a dam thereon, for the temporary purpose of forming a pond of water, from which to harvest ice during the winter months; and say, that such acts would not divert the flow of the river, or decrease the volume of water therein. They deny all other allegations of the petition. A temporary injunction issued, as prayed, and on final hearing it was made perpetual. Defendants appeal.
Reversed.
P Farrell and Ira T. Martin for appellants.
The mode and extent to which one mill-owner may use and apply the waters of a stream, as between him and another mill-owner, is not what would be reasonable for his particular business, but what is reasonable, having reference to the rights of the other proprietors on the stream.
Washburn Easem., 379.
Plaintiffs can have no monopoly in the flow of the water; every proprietor above them has the same right to the use of the water for artificial purposes that plaintiffs have, and every one of the upper proprietors, for the purpose of enabling themselves to reap the benefit of this right, have, as a natural consequence, the right to temporarily stop the flow of the stream for such length of time as will put them in position to reap the benefits of their rights.
Cooley Torts (2d Ed.), page 693; Union Mill & Min. Co. v. Dangberg, 2 Sawy. 450; Tyler v. Wilkinson, 4 Mason, 397; Union Mill & Min. Co. v. Ferris, 2 Sawy. 176; Dumont v. Kellogg, 29 Mich. 420 (18 Am. Rep. 102); Bullard v. Saratoga Victory Mfg. Co., 77 N.Y. 525; Palmer v. Mulligan, 3 Cai. 307, 2 Am. Dec. 270; Merritt v. Brinkerhoff, 17 Johns. 306, 8 Am. Dec. 404; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636; Clinton v. Myers, 46 N.Y. 511 (7 Am. Rep. 373); Wadsworth v. Tillotson, 15 Conn. 366, 39 Am. Dec. 291; Elliot v. Fitchburg R. Co., 10 Cush. 191, 57 Am. Dec. 85; Haskins v. Haskins, 9 Gray, 390; Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723; Miller v. Miller, 9 Pa. 74, 49 Am. Dec. 547; Gibson v. Fischer, 68 Iowa 29.
There can be no prescriptive right because the water has never flowed back upon the lands of the defendants, and if it were conceded that such back flow for the necessary length of time would create a prescriptive right, still, there having been no back flow in this case, no such right could exist.
Springfield v. Harris, 4 Allen, 494, 81 Am. Dec. 715; Van Hoesen v. Coventry, 10 Barb. 518; Oregon Iron Co. v. Trullenger, 3 Ore. 1; Keeney & W. Mfg. Co. v. Union Mfg. Co., 39 Conn. 577; Timm v. Bear, 29 Wis. 254; Whaler v. Ahl, 29 Pa. 98; Gould v. Boston Duck Co., 13 Gray, 442; Hoy v. Sterrett, 2 Watts, 327, 27 Am. Dec. 313; Elliot v. Fitchburg R. Co., 10 Cush. 191, 57 Am. Dec. 85; Snow v. Parsons, 28 Vt. 459, 67 Am. Dec. 723; Ware v. Allen, 140 Mass. 513; Red River Roller Mills v. Wright, 30 Minn. 249 (44 Am. Rep. 194); Ashby v. White, 1 Smith, Lead. Cas., 9th Am. Ed., page 489.
I. S. Struble for appellees.
I.
Plaintiffs claim that by virtue of the condemnation proceedings they have acquired a right, as against the defendants, not only to flow the water back upon their land, but also a right to the use and enjoyment of the water of the stream which they would not otherwise possess, as riparian owners.
In the condemnation proceedings it appears that the defendant, Rubel, the owner of the land, was found not entitled to any compensation for damages. It is fair to presume, in view of this and other evidence in this case, that such finding was based upon the theory that the back water from the plaintiff's dam would not overflow Rubel's land, and hence he was not entitled to damages. We think the testimony in the case before us shows that ever since the erection of plaintiff's dam there has been a current in the river below Ruble's land, hence it cannot be said to be affected with back water from the dam. Such being the case, plaintiffs acquired no right as against the upper landowner, Ruble, to the water itself, or its use, which is not enjoyed by riparian owners generally.
II. We first proceed to state the law applicable to this case. We shall then be better able to apply it to the facts as they are disclosed by this record. Plaintiffs use the waters of the stream for propelling, in part, the machinery of their mill. Defendants propose to use the water from the same stream, in a congealed state, in the form of ice, which is to be gathered for sale. Both uses are what is known in law as artificial, as distinguished from natural uses. Willis v City of Perry, 92 Iowa 297 (60 N.W. 727). We need only consider, then, what the law is as to the rights of riparian owners to the use of the waters of a non-navigable stream for artificial purposes. Some general propositions may well be stated. The law is that as to such use, and in the absence of superior rights acquired by license, grant, or prescription, the rights of such proprietors in the water of the stream are equal. Willis v. City of Perry, supra. It follows, therefore, that the defendants had the right to use the water reasonably, having reference to plaintiffs' rights therein. Washburn Easem page 379. Broadly stated, the general rule is that the owner of the land through which a stream of water runs, has a right to have it flow over his land in the natural channel, undiminished in quantity, and unimpaired in quality, except in so far as diminution or contamination is inseparable from a reasonable use of such water. Willis v. City of Perry, supra; Ferguson v. Manufacturing Co., 77 Iowa 576 (42 N.W. 448); Spence v. McDonough, 77 Iowa 460 (42 N.W. 371); 28 Am. & Eng. Enc. Law, page 948; Elliot v. Railroad Co., 64 Mass. 191, 10 Cush. 191, 57 Am. Dec. 85, notes; Moulton v. Water Co., 137 Mass. 163; Garwood v. Railroad Co., 83 N.Y. 400; Hydraulic Co. v. Butler, 91 Ind. 134; Heilbron v. Canal Co., 75 Cal. 426 (17 P. 535); Dumont v. Kellogg, 29 Mich. 420; Mining Co. v. Dangberg, 2 Sawy. 450, 24 F. Cas. 590, Fed. Cas. No. 14,370; Tyler v. Wilkinson, 4 Mason C.C. 397, Fed. Cas. No. 14,312; Bullard v. Manufacturing Co., 77 N.Y. 525; Palmer v. Mulligan, 3 Caines 307; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636, note; Wadsworth v. Tillotson, 15 Conn. 366; Haskins v. Haskins, 75 Mass. 390, 9 Gray 390; Snow v. Parsons, 28 Vt. 459; City of Springfield v. Harris, 86 Mass. 494, 4 Allen 494; Red River Roller Mills v. Wright, 30 Minn. 249 (15 N.W. 167). No statement can be made as to what is such reasonable use which will, without variation or qualification, apply to the facts of every case. But in determining whether a use is reasonable we must consider what the use is for; its extent, duration, necessity, and its application; the nature and size of the stream, and the several uses to which it is put; the extent of the injury to the one proprietor, and of the benefit to the other; and all other facts which may bear up on the reasonableness of the use. Red River Roller Mills v. Wright, 30 Minn. 249 (15 N.W. 167), and cases cited. Washburn, Easem., page 379. Now, while one riparian proprietor may not divert the water of a stream so as to deprive a lower proprietor on the same stream of the benefit thereof, such upper proprietor may reasonably detain the water for proper purposes. Washburn, Easem., page 380; Hydraulic Co. v. Butler, supra; 28 Am. & Eng. Enc. Law, page 955; Gould, Waters, section 213; Angel, Watercourses, sections 90-96; Gillett v. Johnson, 30 Conn. 180. The doctrine that such use by the upper proprietor may result in diminishing the quantity of water which will go down the stream, and may affect the current by retarding the flow to a reasonable extent, and still be consistent with the existence of a common right, was early held in this country, and has been constantly adhered to. Tyler v. Wilkinson, supra; Dumont v. Kellogg, supra; Bullard v. Manufacturing Co., supra; Ice Co. v. Guthrie (Neb.) 42 Neb. 238, 60 N.W. 717; Gould, Waters, section 191; Palmer v. Mulligan, supra; Davis v. Getchell, supra; Van Hoesen v. Coventry, 10 Barb. 518; Iron Co. v. Trullenger, 3 Ore. 1; 3 Kent, Comm., page 439; Keeney & Wood Mfg. Co. v. Union Mfg. Co., 39 Conn. 576...
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