Lawson v. Mowry

• Decision Date: 10 May 1881
• Citation: 9 N.W. 280,52 Wis. 219
• Parties: LAWSON v. MOWRY.
• Court: Wisconsin Supreme Court

52 Wis. 219

9 N.W. 280

LAWSON

v.MOWRY.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Error to county court, Winnebago county.

Moses Hooper, for Mr. Lawson.

C. W. Felker, for Mr. Mowry.

CASSODAY, J.

There is no dispute but what Mowry was the owner and in possession of lots 21 and 22, and also lots 25 and 26, at the time of making the leases in question. It is urged with much force in his behalf that as the south water line of the canal, as completed, was at or nearly coincident with the north line of his lots, as found by the court, he took title, by virtue of the lots, not only to the center of the river, but also to the center of the canal, and therefore had the legal right, as riparian owner, independent of the leases, to draw from the canal, through his lots, into the river, the amount of water mentioned in the leases for the purposes therein designated, and, hence, that his covenants and agreements therein to pay water rent were wholly without consideration. It is true, the court found that when Doty and Reed built the dam and dug the first race and made the plat, they intended to secure the location of the canal for navigation, specified in the existing acts of congress on the strip marked “reserved,” and also to secure a hydraulic power to be used on the lots along between the canal and the river; but it was also found that practically there was no fall in the canal or river on or against these lots, but that the hydraulic power was produced by the dam at the head of the canal, and that the level of the canal was about 10 feet above the level of the river at these lots. The lots themselves were disposed of by Doty for a mere trifling consideration. Doty and Reed had themselves expended about $30,000 in building the dam, raceway, and basin near the foot of the canal, and the improvement company several thousand more. It was only the surplus water not needed for navigation that could be taken from the canal, through bulk-heads and flumes, and used for hydraulic purposes, and then discharged into the river. It is obvious that it was the dam, canal, and lock at the mouth of it, altogether as a whole, which created the water-power and artificial channel for navigation. It was essential, also, that each and every part should be in good repair, in order to secure surplus water not needed for navigation anywhere along the line.

If Mowry, as riparian owner of the four lots in question and independent of the leases, could divert a portion of the water from the canal into the river by means of artifical channels cut through these lots, and use the power created by the fall while passing for propelling machinery, then it necesarily follows that the respective owners of each of the other 30 lots would have a similar right, to say nothing of the owners of lots lying between the canal and river north westerly of lot 34, or owners of lands abutting upon the northerly side of the canal. If such lot-owners each had such right, then what was the extent of it? Of course, the right would necessarily be limited to the surplus water not needed for navigation. But, even then, the exercise of it by some would to that extent impair the exercise of it by others. Of course, such surplus waters could be apportioned between such owners severally; but as water, like air, is a constantly-moving element, it would seem to require covenants or agreements to regulate the respective rights of parties. But if the right to turn the waters from the canal into the river by such artificial channels is derived solely from such riparian ownership, then upon what theory could one of such owners restrict any of the others in the exercise of a right which he claimed for himself?

It is conceded upon both sides that no one has any property in any of the particles of water, as such, and hence there could be no partition of it by reason merely of the ownership of lots. It is the use of water while passing that gives it value. If its passage at a given point is by a level plane, then is its use at that point to be confined to the purposes for which it is adapted while in that condition,--as, for instance, navigation,--or may a fall be created by an artificial channel? Were it conceded that the lots extend not only to the center of the river, but also to the center of the canal, and that Mowry had all the rights in the canal and its water of any riparian owner, then, undoubtedly, he would have the right to use the land in any way compatible with the use of the canal for navigation, provided he did not abridge corresponding rights of other riparian owners. Walker v. Shepardson, 4 Wis. 486;Greene v. Nunnemacher, 36 Wis. 50;Delaplaine v. Ry. 42 Wis. 214;Diedrich v. Ry. 42 Wis. 248. But would he, as such riparian owner, have the right, by means of an artificial channel through his own lot, to create a water-fall by turning the waters of the canal through the same into the river? Can a person owning land from one stream to another rightfully turn the waters of the one having the greatest altitude into the other by means of an artificial channel through his own land? In Sampson v. Hoddinott, 87 Eng. Com. L. 590, it was held that the detention of water in that case by one of several riparian owners, for irrigation, was such that an action would lie for the injury, and that every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream.

In Wilts & Berks Canal Nav. Co. v. Swindon Water-works Co. L. R. 9 Ch. Ap. Cas. 451, a canal company, having power to supply their canal with water from the neighboring streams, bought a mill, and turned the millstream into the canal. Many years after the water-works company diverted part of the mill-stream, and thereby supplied with water a neighboring town; and it was “ held that the canal company * * * were riparian proprietors, and had power to prevent the unlawful use of the water by other riparian proprietors, and that the supply of a neighboring town was such unlawful use.” It was also there held that the canal company might sell surplus water. The doctrine of that case was approved on appeal, although the decree was modified. L. R. 7 H. L. 697; S. C. 14 Moak, 86.

In Miner v. Gilmore, 12 Moore, P. C. C. 156, Lord Kingsdown stated the law thus: “Every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land.” He also has the “right to the use of it for any purpose, * * * provided that he does not thereby interfere with the rights of other proprietors, either...