Lonsdale Co. v. City of Woonsocket

• Decision Date: 30 October 1903
• Citation: 25 R.I. 428,56 A. 448
• Parties: LONSDALE CO. et al. v. CITY OF WOONSOCKET et al.
• Court: Rhode Island Supreme Court

56 A. 448

25 R.I. 428

LONSDALE CO. et al.

v. CITY OF WOONSOCKET et al.

Supreme Court of Rhode Island.

Oct. 30, 1903.

Suit by the Lonsdale Company and others against the city of Woonsocket and others. Decree for complainants.

See 44 Atl. 929.

Argued before STINESS, C. J., and DOUGLAS, and BLODGETT, JJ.

James M. Ripley and Henry W. Hayes, for

complainants.

Stephen A. Cooke and Erwin J. France, for respondents.

BLODGETT, J. This is a bill for an injunction and an accounting, and avers, in substance, that the complainants are riparian proprietors upon the banks of the Blackstone river, and as such entitled to the unobstructed flow of Crook Fall brook and of its tributaries north of the river; and that the city of Woonsocket, by means of certain dams and reservoirs, has diverted a considerable portion of the natural flow of Crook Fall brook for the purpose of a water supply for its inhabitants. The answer avers, in substance, that the city has a right to so divert the waters of this brook by reason of its riparian ownership above the complainants, although the brook is not within the city limits. The case was sent to a master, who finds adversely to the respondents' claim of right to divert by reason of riparian ownership, and awards damages to the complainants in the sum of $187,795.97, and is now before the court on exceptions to his report.

The questions raised by the first three exceptions of the respondents are these: "(1) For that the master has decided, and so reports, that the complainants have the right to the natural flow of the Blackstone river undiminished. (2) For that the master has decided, and so reports, that the complainants have the right to the uninterrupted and natural flow of the Blackstone river. (3) For that the master has decided, and so reports, that the unobstructed flow of the Crook Fall brook into the Blackstone river is a right belonging to the owners named as complainants." These exceptions present at the very threshold of the inquiry certain questions as to the correlative rights of upper and lower riparian proprietors, and in view of the importance of the questions raised we have thought it desirable to set forth at some length the decisions of other courts upon them. It is conceded that the city of Woonsocket has purchased a tract of land upon the banks of Crook Fall brook, and has erected dams and reservoirs thereon, although neither land nor brook is included within the corporate limits of the city; and the city claims the right to divert so much of the water of the brook as shall be necessary for a water supply for domestic, sanitary, fire, and other purposes, without accountability to the complainants, by virtue of such riparian ownership. In support of that contention counsel for the respondents cite the following cases upon their brief:

"In Ferrea v. Knipe (1865) 28 Cal. 343 , the court says that every owner on a water course has a right to a reasonable use of the water in the same. * * * He may use it for watering his cattle and such kind of indispensable purposes, though by so doing he has occasion to use so much as to prevent the lower owner from enjoying it at all, since his rights are subordinate to the reasonable use by the upper owner." Upon this citation the only observation we have to make is that the words quoted are not found in the opinion of the court. On the contrary, the court says (page 343, 28 Cal., 87 Am. Dec. 128): "Every proprietor of lands through or adjoining which a water course passes has a right to a reasonable use of the water; but he has no right to so appropriate it as to unnecessarily diminish the quantity in its natural flow." And see Lux v. Haggin (1886) 69 Cal. 255, 10 Pac. 674; Heilbron v. Canal Co. (1888) 75 Cal. 432, 17 Pac. 535, 7 Am. St. Rep. 183.

The respondents aver that in Tolle v. Correth, 31 Tex. 302, 98 Am. Dec. 540, the court decides: "That if we apply all the water of a stream to supply the thirst of people or cattle, or for household purposes, those below them upon the same stream can make no complaint for its loss." Upon this we remark that the exact words used by the court are as follows: "The question for adjudication is whether a proprietor of a tract of land in which originates a spring forming a stream running in a channel through his land and into the land of another person has a right to divert the stream from the natural channel, and cause it to overflow and irrigate the land, provided the stream resumes its original channel before it enters the land of the adjacent proprietor? * * * In the case of Rhodes v. Whitehead, 27 Tex. 310 , Chief Justice Moore, in delivering the opinion of the court, said: 'It may be admitted that the purpose of irrigation is one of the natural uses, such as a thirst of people and cattle and household purposes, which must absolutely be supplied. The appropriation of the water for this purpose would therefore afford no ground of complaint by the lower proprietors if it were entirely consumed.'" And then the court adds these significant words: "We would not be understood as deciding to what extent a stream can be used for irrigating purposes. The relative rights or exclusive rights are not before us."

The citation from Stein v. Burden, 29 Ala. 132, 65 Am. Dec. 394, appearing on the respondents' brief, contains, indeed, language to be found in the opinion of the court, but it does not support the respondents' contention, and omits all reference to the following language of the opinion, viz, (page 134): "A right to the use of a stream being a part of the freehold interest, that right is co-existent with the right to the land over which it flows. Diversion of the water of the stream is an act continuous in its character, and each effluence of the water resulting from the unauthorized act of another is a wrong done to a proprietor below, if thereby the flow of the stream to him is materially diminished. * * * it is a continuing nuisance, and an action lies for the damages, toties quoties. * * * The maxim of the law is, 'Aqua currit, et debet currere ut solebat.' Each successive flow being a new wrong, a nuisance continued imposes a corresponding cotemporaneous obligation to return such water to the channel of the stream. The argument, then, that a party who diverts water and provides the means for its return may then rest—that he may then continue to abstract large quantities of water, which water is not in fact restored to its accustomed channel—cannot be supported. It is no answer that the water would have continued to flow back into the stream had not a stranger, by his unauthorized interference, rendered the means provided powerless to accomplish the object. He abstracts the water at his peril. His right to do so is not an absolute, but a qualified, right. It only becomes a right when, by restoration, it ceases to work an injury to another. The diversion is prima facie a nuisance, and each continuance places the party under obligations to abate it. It is no defense in such a case that the author of the act was willing to apply the corrective, but was prevented. This rule, under the circumstances, is not a severe one. It only enjoins that the assumed right to abstract shall be abandoned whenever the water cannot be returned. The argument against these views rests on the fallacy, which places the diversion of water among the absolute rights of parties. It is contingent; made absolute only so long as the diverted water flows back."

Barre Water Co. v. Carnes et al., 65 Vt. 629, 27 Atl. 609, 21 L. R. A. 769, 36 Am. St Rep. 891, is a case more in point upon the respondents' contention. It rests in the main upon Phila. v. Collins (1871) 68 Pa., where, at page 115, as it is stated on the respondents' brief, the Supreme Court of that state declares that "every individual residing upon the banks of a stream has a right to the use of the water to drink and for the ordinary uses of domestic life; and where large bodies of people live upon the banks of a stream, as they do in large cities, the collective body of the citizens has the same right, but, of course, in a greatly exaggerated degree." But an examination of Phila. v. Collins shows that the language quoted was not the language of the opinion of the court, but was the language used by the trial judge in the district court in charging the jury, and that the findings in that case were sustained by a court composed of Thompson, C. J., and Agnew, Reed, and Sharswood, JJ., Williams, J., at nisi prius, and that Reed and Sharswood, JJ., dissented. This last case is claimed to be supported by Mayor of Phila. v. Commissioners of Spring Garden (1847) 7 Pa. 348, but further examination discloses that the court was speaking of navigable rivers, as appears in Haupt's Appeal (1889) 125 Pa. 224, 17 Atl. 438, 3 L. R. A. 536, where Chief Justice Paxson used the following language in referring to these two cases: "In each of these instances the learned justice was speaking of a stream of water which is a public highway. To some extent the same principle may be applied to what may be called a private stream. In the case of a river or public highway all the people of the state have access to it; may ride over it, and use the water. Not so with a private stream. In such case no one can use it or take the water except at a public crossing. There the traveler may stop, refresh himself, and water his horse. The water has no owner, and he impairs no man's right. But, except at public crossings, such as a road or a street, no one but a riparian owner can use the water; not because the latter has any ownership in it, but because the stranger has no right of access to it. It follows from what has been said that dwellers in towns and villages watered by a stream may use the water as well as the riparian owner, provided they have access to the stream by means of a public highway. The borough of Frackville, as before observed, is not a party to this proceeding; nor...