Hendrick v. Thomas

• Decision Date: 28 February 1848
• Docket Number: No. 29.,29.
• Parties: Gustavus Hendrick, plaintiff in error. vs. Thomas and John Cook, defendants in error.
• Court: Georgia Supreme Court

4 Ga. 241

Gustavus Hendrick, plaintiff in error. vs. Thomas and John Cook, defendants in error.

No. 29.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1848.

Trespass on the case. Tried before Judge Floyd, in Butts Superior Court, September Term, 1847.

This was an action brought by the plaintiff against the defendants, for the recovery of damages for erecting a dam across a certain stream upon their own land, which raised the water in the natural channel of the stream, so as to throw it back upon a valuable mill-shoal above, and raise the water at that point some ten or eleven inches above its natural flow and current, and thereby destroy its value for mill purposes, of which stream at the said mill-shoal, the palintiff and defendants were proprietors, said stream being at that point the dividing line between them.

It appeared upon the trial that the plaintiff and defendants were riparian proprietors, the plaintiff owning the land on one side of the creek, and the defendants on the other side, where the shoal alleged to have been overflowed was located. The defendants erected a mill-dam on the creek below the shoal on their own land, they being the owners of the land on both sides of the creek, at the place where the dam was built. The dam raised the water in the natural channel of the stream, and threw it back on the shoal to the depth of ten or eleven inches, that is, the water in the natural channel of the creek, where the plaintiff and defendants are riparian proprietors, is raised by means of the dam ten or eleven inches above the natural flow and current of the water in the stream, as it was wont to flow before the erection of the dam by the defendants. During the progress of the trial, the plaintiff offered testimony to prove the value of said mill-shoal not when overflowed, and its then value. Also the plaintiff offered to prove what the value of the shoal was previous to the erection of the defendants' dam, and what was the value of it when the witness saw it overflowed; and that the effect of the black-water on the shoal was to render it valueless to the plaintiff. Theplaintiff also offered to prove how much the plaintiff had been damaged by the obstruction of the water on said mill-shoal, which testimony so offered, was rejected by the Court, on the ground that the defendants, by their dam, had not thrown the water out of the natural channel of the creek, and consequently the plaintiff was not entitled to recover damages. To which decision of the Court below, the plaintiff excepted.

The Court below then charged the jury that the plaintiff was not entitled to any damage for simply raising the water in the natural channel of the stream, so long as the water continued to be confined by its banks to the natural channel, but if by raising the water by a dam upon his own land, he throws the water out of the natural channel of the stream, the party whose land is overflowed is entitled to damage, and instructed the jury to enquire whether the defendants had by their dam thrown back the water, and whether it had been thus thrown out of the natural channel upon the land of the plaintiff, and if so the plaintiff was entitled to recover. To which charge the plaintiff excepted.

Bailey & Stark, for the plaintiff in error.

McCune & Harmon, for the defendants in error.

Cited the following authorities: "Williams vs. Moreland, 2 Barn. & Cress. R. Tyler vs. Wilkinson, 4 Mason's R. 12 Mass, R. 311. 17 Mass. R. 289. King vs. Tiffany, 6 Conn. R. 3 Kent's Com. 444. Cooper vs. Hall, Hammond's R.

Bailey, in conclusion for plaintiff.

That there are respectable authorities sustaining the views of the Court below, we do not controvert; but we deny that they are sustained by the law. The several rights of riparian proprietors, in many cases, have not been well defined; in others they have been erroneously and loosely stated. The value of water power, as applied to machinery, has so increased in modem times, that it is important that it should be regulated and protected by fixed and known rules of law. I shall endeavor to show that the Common Law furnishes such rules.

In the progress of this cause the Court below committed seve-ral errors, to which we have excepted; but they all have their origin in, and are referable to this fundamental error predominating in the mind of the circuit Judge who tried the cause, viz.: that a riparian proprietor may throw the water upon his neighbor as far and as deep as he pleases, provided he does not overflow his banks, or drown any machinery of his. That is, he may fill the natural channel of the stream for his own use, he having first occupied. Although this doctrine is sanctioned by high authority, we say in the language of Mr. Angell, "If it were founded in law, it would, in its result, throw to the ground the fundamental principles relating to running water, and all the leading cases respecting the usufructuary rights of riparian proprietors." It is my business here, to endeavor to show, that this doctrine, and these authorities, are not founded in law.

And before this Court I shall assume certain postulates as axioms not to be discussed.

1. That property in a water course is derived from the ownership of the land through which it flows, and to which it is an incident.

2. That a grant of land carries to the grantee the use of the water on its surface, above tide, in its natural state, as essentially and as absolutely as it does the rocks or trees. or other thing upon its surface.

3. That property in water is not in the corpus, but in its use, present and prospective.

4. That he who owns land, bounded on either side by a water course, is a riparian proprietor.

5. That where there are two riparian proprietors directly opposite to each other, each proprietor owns to the middle or thread of the stream, unless limited to the bank by prior deed or grant.

These five foregoing propositions we trust will be taken for granted, but are important to be kept in mind while we discuss the following disputed propositions, but which we maintain are legally correct.

1. That each riparian proprietor has a right to the exclusive use of the water in its natural state, as it flows through or over his land.

2. That neither riparian proprietor has a right, unless by deed or grant, or use long enough to presume a grant, to increase or diminish the water beyond the line of his boundary, to the preju-dice or injury of any other riparian owner, and without his consent.

3. That prior occupancy of itself gives no rights, unless long enough to presume a grant.

4. That the water power to which a riparian owner is entitled, consists of the difference of level between the surface where it first touches his land, and the surface where it leaves it.

5. That no riparian proprietor above, below, or collateral, has a right to change or alter this level, to the prejudice or injury of any other.

6. That although such change or alteration produces no present damage, yet an action lies for prospective injury, and to prevent such wrong from ripening into a right.

7. That an incorporeal mill-privilege upon a stream, is as essentially property, and as much protected by law, as any corporeal thing or right.

8. That the law protects such incorporeal property from destruction or injury, while not used or occupied, as effectually as any corporeal thing out of use.

Before we refer to the authorities on which we rely, I beg leave for a moment to test the principal maintained by the Court below, by the rules of reason—the soul of the law—and if we prove it has no soul, it is not law.

The Court held that the defendants had a right to throw the water back on plaintiff's shoal to any amount, so long as it is conlined to the natural run or channel within the banks. And when plaintiff offered to prove the amount of damage he had sustained, by defendants' thus throwing back the water on his shoal, the Court repelled the evidence, and said, "If the defendants have a right to the use of the water, (as riparian proprietors,) surely plaintiff is not entitled to damages from them for the exercise and enjoyment of this right." Here is clearly a non sequitur. Does not. every lawyer perceive that the right to the use of the water, as a riparian owner, and the right to damge or injure another by such use, are distinct and separate? Does not every one understand, that a riparian owner may not only use the water on his own land, but so use it as to increase or diminish its depth on that of his neighbor, provided by so doing he does not injure his neighbor's rights. The plaintiff attempted to prove injury or damage, and its amount. He did not deny the defendants' right to the useof the water, so long as they did not injure him. By repelling the testimony the Court affirmed the right of defendants to damage the plaintiff to any amount, and that he has no redress! Is this either law, reason or justice? We contend it is neither; nay, more, it involves a gross absurdity, for the Court said, since the plaintiff and defendants are riparian owners, [ he doubtless intended to say riparian owners on opposite sides of the stream,] and as such were each entitled to a use of the water in the natural channel—therefore he refused to let the plaintiff prove either any damage or its amount! That is, each party has a right to use the water as he pleases, or for what purposes he pleases, and yet if defendants make such use as to totally destroy or prevent any use whatever by the plaintiff, he has no redress; he shall not prove such damage; he has an equal right, but no remedy; a right in fancy, but not in fact.

With all respect, I beg leave to say, the ideas of the Court below, as developed in the record, do not seem to be very clear or well defined. What principle of law he intended to lay down, applicable to the case before him, does not, from the record, clearly appear.

It can only be inferred that he holds, that riparian owners, on opposite sides of a stream, have...