Hood v. Slefkin

• Citation: 143 A.2d 683,88 R.I. 178
• Decision Date: 24 July 1958
• Docket Number: 2681,Nos. 2680,s. 2680
• Parties: Donald R. HOOD et al. and William E. Powers, Atty. Gen., ex rel. Donald R. Hood et al. v. Hyman L. SLEFKIN et al. Anita H. WINSTEN v. Hyman L. SLEFKIN et al. Eq.
• Court: United States State Supreme Court of Rhode Island

Page 683

143 A.2d 683

88 R.I. 178

Donald R. HOOD et al. and William E. Powers, Atty. Gen., ex rel. Donald R. Hood et al. v. Hyman L. SLEFKIN et al.

Anita H. WINSTEN v. Hyman L. SLEFKIN et al.

Eq. Nos. 2680, 2681.

Supreme Court of Rhode Island.

July 24, 1958.

Harold H. Winsten, Providence, for complainants.

Philip M. Hak, Pawtucket, for respondents.

ROBERTS, Justice.

These two bills in equity were brought by several complainants among whom are the owners of land located on the shore of a pond formed by a dam owned by the respondents. Also parties complainant are the owners of land abutting upon the stream below that dam. Subsequent to the filing of the bill of complaint in the case of Donald R. Hood et al. v. Hyman L. Slefkin et al., by decree of the superior court additional individuals were added as parties complainant, and the attorney general of the state at the relation of such complainants and with his consent was also added as a party complainant. The complainants seek to enjoin the respondents from altering and maintaining the dam in such a way as to bring about a change in the level of the pond, thereby affecting the normal fall of water in the stream below the dam. The causes were heard on their merits in the superior court, and thereafter a justice of that court entered decrees granting the complainants certain injunctive relief. From those decrees the respondents have appealed to this court.

There is no substantial dispute concerning the material facts in these cases. The respondents are the owners of several parcels of real estate in the easterly part of the city of Pawtucket. Located upon one of these parcels is a dam or a complex of dams known as the Lebanon-Walker Dam No. 293. This dam impounds a body of water, known as the Lebanon Pond, which is formed by the confluence of two small streams known respectively as the Seven Mile River and the Ten Mile River. The pond extends in a northerly direction from the dam along the boundary between the city of Pawtucket in this state and the towns of Attleboro and Seekonk in the Commonwealth of Massachusetts. Near its southerly end, a short distance from the dam, the pond is crossed east to west by a public highway known as Central avenue. All of the complainants herein, excepting the complainants William R. Casey and Mary R. Casey his wife, and Anita H. Winsten, are the owners of land located on or near the westerly shore of this pond to the north of said Central avenue.

The Lebanon-Walker Dam No. 293 is so designed as to comprise two impounding structures. The longer of these extends from the west shore of the pond and is known and generally referred to as the westerly dam. The shorter section thereof extends from the westerly dam to the east shore of the pond and is commonly known as the trench dam. At the shore end of the westerly dam there is located a mechanical apparatus designed to permit the diversion of water from the pond into a mill building, which building is in a state of disrepair and no longer is used for manufacturing purposes.

From the downstream face of the dam three channels extend in a southerly direction. These channels finally converge to form a single stream which is known as the Ten Mile River. Between these channels are two small islands which are the property of respondents. The easternmost channel below the dam has always taken care of water flowing over the trench dam. The middle and westernmost of these channels has always taken care of water flowing over the westerly dam. The complainants Casey are the owners of land below this dam which borders upon the westernmost channel as well as upon the property of respondents.

In December 1954 respondents caused to be removed certain flashboards which made up a superstructure along the top of the easterly or trench dam. When these flashboards were removed a substantial volume of the water in the pond flowed over the trench dam into the easterly channel below that dam. As a result thereof the level of the pond has been permanently lowered by about two and one-half feet, and has exposed a large portion of the bottom thereof. Because of this action an unusual volume of water also flooded the easterly channel below the dam, while the supply of water that normally flowed over the westerly dam has been substantially cut off. As a consequence the westernmost channel below the dam has substantially dried up and only a stagnant pool of water remains in this channel. The flow over the dam is now going entirely into the easternmost channel, allegedly flooding a part of complainant Winsten's land. The respondents have not replaced the flashboards on the trench dam, and its lowered height remains with the result that the conditions complained of above appear to be permanent.

In his rescript the trial justice found that complainants had failed to prove by a fair preponderance of the evidence that Lebanon Pond is a natural body of water that existed prior to the construction of the dams. He then went on to treat the complainants who own land on Lebanon Pond as having riparian rights in that body of water. While it is true that the owners of land abutting on an artificial pond may be riparian proprietors therein, Angell on Watercourses (5th ed.), § 41, p. 37, it does not appear from an examination of the record here either that these complainants have proved by a preponderance of the evidence that they have riparian rights in the pond or that their predecessors in title had riparian rights in the streams from which the pond was formed. However, we are of the opinion that a determination of the issue relating to the maintenance of the dam does not turn on the rights of a riparian proprietor, so that for the purposes of this issue we may assume without deciding that those complainants who own land on the west shore of Lebanon Pond are riparian proprietors.

The first question to be considered is whether one who has riparian rights in a body of water obstructed by a dam acquires a right to have that dam so maintained that the level of the water therein will not be lowered. The trial justice found that such riparian owners do acquire a right to the maintenance of the artificial conditions which result from a erection of a dam. In his rescript he said that those 'who have purchased and improved their properties upon the basis of the existence of a pond at a normal level are entitled to prevent the owners of the land on which the obstacle exists from doing any affirmative act, at least, to destroy the pond and substantially the riparian character of their holdings.'

In so finding the trial justice relied in part upon the decision in the case of Marshall Ice Co. v. La Plant, 136 Iowa 621, 111 N.W. 1016, 12 L.R.A., N.S., 1073. That case was concerned with the right of an owner of land bordering on an artificial pond who had purchased the land with a right to harvest ice from the pond. The case was in fact decided upon a narrow ground, the court saying, 136 Iowa at page 635, 111 N.W. at page 1021, that 'where the owner of a dam * * * sells land bordering on the stream obstructed thereby for a purpose dependent on the continuance of the water level so created, and receives the enhanced value due to its adaptability to such use, the conveyance carries with it as appurtenant to the estate conveyed an easement in having prevailing conditions continued.'

It is clear that the Iowa court in deciding that such a purchaser acquired an easement in the pond as it stood at the time of the purchase was limiting its decision to cases where the land was purchased for a purpose dependent upon the continued existence of the pond at the prevailing level. That case is therefore distinguishable from the case at bar, since in the instant case no evidence to which our attention has been directed establishes that any of these particular complainants purchased their land for a purpose dependent upon the continued maintenance of the water level in the pond.

It appears that the trial justice also based his decision in the instant case on the theory that an upper riparian owner may acquire a right to compel the owner of a dam erected below to so maintain the dam as to preserve the water level in the artificial pond formed thereby. It is well settled that where an owner of land has erected a dam and overflowed land in which others have riparian ownership, he may, in appropriate circumstances,...