Meng v. Coffee

• Court: Nebraska Supreme Court
• Writing for the Court: POUND, C.
• Citation: Meng v. Coffee, 67 Neb. 500, 93 N.W. 713 (Neb. 1903)
• Decision Date: 04 February 1903
• Docket Number: 9,837
• Parties: JENS C. MENG, APPELLANT, v. CHARLES F. COFFEE ET AL. APPELLEES

93 N.W. 713

67 Neb. 500

JENS C. MENG, APPELLANT, v. CHARLES F. COFFEE ET AL. APPELLEES

No. 9,837

Supreme Court of Nebraska

February 4, 1903

APPEAL from the district court for Sioux county. Petition for a perpetual injunction by an inferior riparian owner against his superior riparian owners. Heard below before WESTOVER, J Decision below adverse to the plaintiff. Attempted appeal dismissed. ^[*] Judgment entered below on original finding. Second appeal. Affirmed in part.

Decree of the district court affirmed as to the defendant Steele reversed as to the defendants Coffee, Brewster and Wilcox with directions.

Chambers Kellar and Nathan K. Griggs, for appellant.

Allen G. Fisher, contra.

POUND C. SEDGWICK, C. concurs. OLDHAM, C. did not sit.

OPINION

POUND, C.

This suit was brought in 1893 to enjoin the defendants, upper riparian owners upon Hat creek and its several tributaries, from diverting the waters of said streams for irrigation purposes to such extent as to deprive the plaintiff, a lower owner, of the use of the stream. Upon trial a decision was announced orally adverse to the plaintiff. On appeal to this court, it appeared that no final decree had been entered in accordance with such announcement, and the appeal failed. Thereafter a decree dismissing the cause and following the findings originally announced was duly entered, from which the present appeal is prosecuted. The defendants justify their diversions of the waters of said streams upon these grounds: (1) Prior appropriation; (2) that irrigation of meadow land to produce forage for their stock is a "domestic" use of the water, for which, if necessary, they may consume the whole; (3) that they have a right to divert the water, as against the plaintiff, by reason of section 2339, Revised Statutes of the United States; (4) that the character of the soil in the region in question and the nature of the beds of the streams are such that the waters diverted would be lost by evaporation and absorption in any event before reaching the plaintiff; and (5) that they have acquired rights to divert the water by prescription. The alleged appropriations were long prior to any legislation authorizing the same, and no questions under the present irrigation laws are before us in this case.

The first two positions are clearly untenable if this court is to adhere to its repeated pronouncements that the rules of the common law as to the rights and duties of riparian owners are in force in this state. Clark v. Cambridge & Arapahoe Irrigation & Improvement Co. 45 Neb. 798, 64 N.W. 239; Gill v. Lydick, 40 Neb. 508, 59 N.W. 104; Eidemiller Ice Co. v. Guthrie, 42 Neb. 238, 28 L. R. A. 581, 60 N.W. 717; Slattery v. Harley, 58 Neb. 575, 79 N.W. 151; Crawford Co. v. Hathaway, 60 Neb. 754, 61 Neb. 31, 84 N.W. 271. But in view of the general misconception of the scope and purpose of those rules and their effect upon irrigation, and the earnest and able arguments which have been presented in the endeavor to bring the court to a contrary conclusion, it has seemed proper to treat the question as res integra, and for that purpose the arguments in the several other cases now pending which involve the soundness of the prior decisions referred to have been considered in connection with those in the case at bar.

A great deal of what has been urged upon us as demonstrating the inapplicability of the rules of the common law upon this head to conditions in Nebraska proceeds upon an erroneous impression of the nature and purpose of such rules. Thus, in a brief in which the subject is most elaborately and exhaustively discussed, counsel say: "No riparian proprietor in Nebraska today is entitled to the full flow of the stream through his premises just for the pleasure it may give him to see the stream filling its banks. * * * The use of the water belongs to the people." And throughout that brief, and in all the arguments we have examined, it is assumed that at common law taking of water from a stream is an injury to the riparian proprietor, and that the latter may insist that no water whatever shall go out. The common law does not hold to so unreasonable a rule. On the contrary, it considers running water publici juris, and while it will not permit any one man to monopolize all the water of a running stream when there are other riparian owners who need and may use it also, neither does it grant to any riparian owner an absolute right to insist that every drop of the water flow past his land exactly as it would in a state of nature. "No one," said Nelson, J. in Howard v. Ingersoll, 54 U.S. 381, 13 HOW 381, 426, 14 L.Ed. 189, "can set up a claim to an exclusive right to the flow of all the water in its natural state; and that what he may not wish to use himself shall flow on till lost in the ocean. Streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar a riparian proprietor from the application of the water to domestic, agricultural, and manufacturing purposes, provided the use works no substantial injury to others." In Embrey v. Owen, ^[*] 6 Ex. [Eng.], *353, a case involving the right to use water for irrigation, Parke, B. said (p. 368): "This right to the benefit and advantage of the water flowing past his land, is not an absolute and exclusive right to the flow of all the water in its natural state; * * * but it is a right only to the flow of the water, and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence." In the leading case of Elliot v. Fitchburg R. Co. ^[+] 10 Cush. 191, 57 Am. Dec. 85, Shaw, C. J. said: "The right to the use of flowing water is publici juris, and common to all the riparian proprietors; * * * it is a right to the flow and enjoyment of the water, subject to a similar right in all the proprietors." The common law seeks to secure equality in use of the water among all those who are so situated that they may use it. It does not give any riparian owner property in the corpus of the water, either so as to be able to take all of it, or so as to insist that every drop of it flow in its natural channel. Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 P. 762.

When, therefore, counsel tell us that their clients have a natural right to irrigate, and that reasonable use of the water is necessary in the exercise of that right, they urge nothing against the rules of the common law, since the latter merely insist that others along the streams in question have the same natural right, and permit every reasonable use by each consistent with like use by all. The apparent modifications of the common-law rules in the semiarid or arid states, in that courts of such states are more liberal in their construction of what is a reasonable use, are no departure from the principles on which the rules are founded. On the contrary, they carry them to their logical conclusion in view of the special conditions of such regions.

Understanding what is meant by the general common-law rule as to riparian rights, and bearing in mind that it does not give to a riparian owner an absolute and exclusive right to the flow of all the water of the stream in its natural state, but only a right to the benefit and advantage of the water flowing past his land so far as consistent with a like right in all other riparian owners, we come next to the question, is such rule in force in this state? Much of what has been urged to show that the rule is inapplicable to our conditions, and hence not in force under chapter 15a, Compiled Statutes (Annotated Statutes, sec. 6950), is deprived of its effect by proper statement and limitation of the rule itself and apprehension of the principle on which it proceeds. It is further to be noted that the rule has long been in operation without complaint or objection in the eastern portion of the state, and that the difficulties now asserted arise quite as much from the necessity of application of the principles of the common law to the different circumstances of the semiarid portions of the state so as to reach detailed rules applicable to those sections, as from any inherent deficiency in the principles themselves. It is obvious that whatever rule is adopted must be of general effect throughout the state, or, at the least, if there are to be two rules, the areas within which they are to prevail respectively must be capable of judicial recognition. The territory of each rule must be known to the courts as something of which they take judicial notice. But this is not an arid state. Only a portion of it may be so described with propriety, and there is no arbitrary line by which the arid portions are bounded so as to be judicially recognizable. In the Pacific states, where one rule is applied with reference to the public domain and another in cases of private ownership, the limits are not subject to dispute. But, in this state, whether a particular locality is or is not arid is a question of fact in each case (Slattery v. Harley, 58 Neb. 575, 577, 79 N.W. 151), and it would be an anomaly to have the rules of law by which a cause is to be governed depend upon such an issue, and be triable to a jury. Moreover, if a rule of the common law is to be rejected as inapplicable to our state, it must be because its inapplicability is general throughout the state. If it were conceded that the extreme western portion of the state presents conditions to which the common-law rule is not applicable, how are we in a state like Nebraska, in which the diversity of extreme conditions is great, and yet the transitions are gradual and imperceptible, to draw any line at which we may say one...