McDonough v. Russell-Miller Milling Co.

• Decision Date: 14 December 1917
• Citation: 165 N.W. 504,38 N.D. 465
• Parties: McDONOUGH v. RUSSELL-MILLER MILLING CO.
• Court: North Dakota Supreme Court

38 N.D. 465

165 N.W. 504

McDONOUGH

v.RUSSELL-MILLER MILLING CO.

Supreme Court of North Dakota.

Oct. 2, 1917.

Rehearing Denied Dec. 14, 1917.

Syllabus by the Court.

The owner of land traversed by a natural stream may not prevent the natural flow of, or pollute, the stream, but he may rightfully use the water therein for any reasonable purpose as long as it remains on his land.

The right of a riparian owner to have a natural stream continue to flow through or by his premises in its natural quantity and quality is subject to the right of each riparian owner to make reasonable use of the waters in the stream as long as it remains on his land.

The right to make reasonable use of a stream extends not only to the use thereof for domestic purposes, but where the circumstances of the case make the use a reasonable one, it extends also to the use thereof for manufacturing, agricultural, and similar purposes.

The test of the rightfulness of the use which an owner is attempting to make of a stream is whether such use is reasonable.

What is a reasonable use by a riparian owner of the waters in a natural stream is primarily a question of fact to be determined in view of all the circumstances of the case.

To enable a riparian owner to maintain an action for damages for the pollution of a stream, he must show, not only that defendant has made an unreasonable use of the stream, but that the detriment of which he complains was the result of such unreasonable use.

To entitle a riparian owner to injunctive relief, he must show not only that the defendant makes or threatens to make unreasonable use of the waters in the stream, but must further establish facts which entitle him to such relief under the general equitable principles applicable to injunctions.

Evidence examined, and under the above-stated principles of law it is held that plaintiff has failed to establish a cause of action either for damages or for injunctive relief against the defendant, and that judgment was properly rendered for defendant.

Appeal from District Court, Stark County; Crawford, Judge.

Action by John McDonough against the Russell-Miller Milling Company, a corporation. Judgment for defendant allowing nominal damages to plaintiff, and plaintiff appeals. Affirmed.F. C. Heffron and Murtha & Sturgeon, all of Dickinson, for appellant. Watson, Young & Conmy, of Fargo, for respondent.

CHRISTIANSON, J.

This action was commenced by the plaintiff in June, 1914, to recover damages for the alleged pollution of the waters in the Heart river, and to enjoin further pollution thereof. The case was tried to the court without a jury, and resulted in findings and conclusions favorable to the defendant, with an allowance of nominal damages to plaintiff assessed at $100. The plaintiff appeals from the judgment, and demands a trial de novo in this court.

Both parties are riparian owners upon the Heart river within the limits of the city of Dickinson. The plaintiff owns a tract of land traversed by the Heart river. He has utilized this tract in part for raising vegetables, but principally as a pasture for horses and cattle. He also maintains an icehouse, which is situated on the bank of the river on this land. Immediately below plaintiff's land is a concrete dam constructed by the Northern Pacific Railroad Company some five or six years prior to the commencement of this action. This dam is situated about 2,060 feet below plaintiff's icehouse, and he cut ice from the pond formed above the dam.

Upstream from the plaintiff's premises is located a tract of land owned by the defendant. Some four years prior to the commencement of this action the defendant constructed a large flouring mill upon its land. It used the water of the Heart river in the mill to wash the wheat, taking the water for such purpose from a small dam that extended across the stream above the mill. The drainage from the mill led into the river at a point 6,350 feet above plaintiff's icehouse. The plaintiff claims that this drainage, consisting of the water so utilized in washing wheat and the discharge of a certain water-closet used by the employés of the mill, polluted the waters of the Heart river, and caused them to become “absolutely unfit for any use in connection with any human or animal food or drink, and rendered all ice cut on said pond unfit and dangerous for use to which ice is commonly used, and valueless and unsalable, thereby destroying utterly the value and profitableness of said ice business.”

Before discussing the questions of fact presented in this case, we deem it desirable to consider the rules of law which must be applied in determining those questions and in fixing the rights and liabilities of the parties to this litigation.

[1][2][3][4] The owner of land traversed by a natural stream may use the water therein so long as it remains on his land, but he may not prevent the natural flow of the stream, nor pollute it. Section 5341, C. L. 1913. The right to the use of the water in its natural flow is not a mere easement or appurtenance, but is a natural right inseparably annexed to the soil itself, which arises immediately with every new division or severance of ownership. Gould on Waters, § 204. The right of a riparian owner to have a natural stream continue to flow through or by his premises in its natural quantity and purity is necessarily subject to the right of each riparian proprietor to make a reasonable use thereof. 40 Cyc. 592, 594; 30 A. & E. Enc. L. 358; Gould on Waters, § 208. In every case the test “of the rightfulness of the use which one owner is attempting to make of the stream is whether or not such use is reasonable under all the circumstances of the case.” 30 A. & E. Enc. L. 358; Farnham on Waters, § 516.

It cannot be contended that every use of a stream which either decreases the amount or purity of its waters is unreasonable. If this was true, the right of riparian owners to use the waters of the stream would largely be a right without value or benefit. For clearly many, if not most, of the uses to which streams are ordinarily put tend to decrease in some degree at least either the quality or quantity of the flow.

The question whether a reasonable or unreasonable use of the water is being made, having regard to the common rights of others, is to be determined by the circumstances of each particular case, due consideration being given to the character and size of the water course, its location, and the uses to which it may be applied, as well as the general usage of the country in similar cases. 30 A. & E. Ency. L. 357. Upon the question of the reasonableness of the use by the upper proprietor, the character and extent of his business, as well as the use to which the lower proprietor is putting the water. may be taken into consideration. Farnham on Waters, § 516.

A riparian owner has right to make a reasonable use of a stream for the operation of a mill or factory, and may even cast sewage or waste material therein, if he does not thereby cause material injury to public or private rights. 40 Cyc. 597; Gould on Waters, § 220.

[5] As already stated, the question in such case is whether the use is, under all the circumstances, a reasonable one. If it is reasonable, then the lower owner cannot complain, even though the quality or quantity of the flow of water may be impaired by the use of the upper owner. What is a reasonable use is, under all the authorities, primarily a question of fact, to be determined in view of all the circumstances of the case. Farnham on Waters, § 466; 30 A. & E. Ency. L. 357.

Manifestly running streams cannot be used for commercial, manufacturing, or agricultural purposes and retain their pristine clearness and purity. And as every riparian owner has the right to use the waters while on his land, it necessarily follows that the right of a riparian owner to have the water unimpaired as to quantity and quality is subject to the rights of other and upper riparian owners to make a reasonable use of the stream, and if such use is reasonable, the fact that it incidentally impairs the purity of the water gives no cause of action. 30 A. & E. Ency. L. 382.

A riparian owner whose rights have been invaded is entitled to apply to and receive from the courts such relief as the facts in the particular case show him to be entitled to. He may maintain an action for damages against the wrongdoer for the detriment sustained. And in certain cases, where the legal remedies are inadequate, he may also be awarded injunctive relief.

The plaintiff, of course, has the burden of proof, regardless of the form of the action, and must establish the facts entitling him to relief by a preponderance of the evidence.

The liability of one charged with pollution of a stream is coextensive with the injury directly resulting from the acts causing such pollution. Hence the wrongdoer cannot escape liability by showing that others have contributed to the pollution. Neither is he liable for any injury sustained by reason of pollution by others, unless he was acting in concert with them. Where the individual and separate acts of several riparian owners result in pollution of a stream, one of the number is not liable for all the injury suffered by another because of such pollution; each is liable to the extent only of the wrong committed by him. Chipman v. Palmer, 77 N. Y. 51, 33 Am. Rep. 566; Watson v. Colusa-Parrot, etc., Co., 31 Mont. 513, 79 Pac. 15;City of Mansfield v. Bristor, 76 Ohio St. 270, 81 N. E. 631, 10 L. R. A. (N. S.) 806, 118 Am. St. Rep. 852, 10 Ann. Cas. 767;Standard Phosphate Co. et al. v. Lunn, 66 Fla. 220, 63 South. 430;Mayor, etc., of Newark v. Chestnut, etc., Co., 77 N. J. Eq. 23, 75 Atl. 645.

[6] “To enable a riparian owner to maintain an action for damages for the pollution of the stream, he must show not only that defendant has done some act which tends to injure the stream, and which he has no legal right to do, or which is in excess of his legal...