Mississippi Mills Co. v. Smith

• Decision Date: 07 March 1892
• Citation: 69 Miss. 299,11 So. 26
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI MILLS COMPANY v. E. C. SMITH ET AL

11 So. 26

69 Miss. 299

MISSISSIPPI MILLS COMPANY v. E. C. SMITH ET AL

Supreme Court of Mississippi

March 7, 1892

FROM the circuit court of Copiah county, HON. J. B. CHRISMAN Judge.

Action by appellee against appellant for damages. Plaintiff recovered judgment for $ 250. Motion for new trial overruled and defendant appeals. The facts are stated in the opinion.

Judgment affirmed.

J. S Sexton, for appellant.

1. This action is brought for damages for polluting the water flowing through plaintiffs' land. There is no complaint that defendant increased the amount of water flowing in the stream, and thus caused the lands to overflow. The issue being thus confined to the damage caused by pollution, it is manifest the evidence did not entitle plaintiffs to recover. While water from other sources has been diverted into the stream, and the quantity increased, it is conclusively shown that the proportion of deleterious matter has been diminished. It is admitted that the prescriptive right to pollute is proven. Plaintiffs must therefore show that defendant not only uses materials different from those formerly employed, but must show a greater amount of pollution and injury from the use of new material. Gould on Waters, § 346.

As to appellant's right to change the use acquired by prescription, see Angell on Water-courses, §§ 400, 401.

2. It was error to admit evidence of the special damages not claimed in the declaration, such as the destruction of a valuable spring, the effect that the water had upon the meat of a hog killed, and such other circumstances. No damage had been claimed because of such injuries. Gould on Waters, § 486; 1 Chitty on Pleadings, 411; 1 Suth. on Dam., 763; 11 Gray, 358; 64 Me. 360; 47 Cal. 165. For the same reason, it was error to admit evidence of injury to health of persons along the stream. No damages had been claimed because of this.

3. The instructions given for plaintiffs were erroneous. In fact, they ignored the right of defendant to divert the water of the stream without license of the lower proprietors (Gould on Waters, § 213; 39 Am. Dec., 220; 23 Ib., 504); to increase the volume of water by draining into it (86 Am. Dec., 521); and to straighten the channel of the stream upon its own land, and thus improve its property. Since plaintiff had the prescriptive right to befoul the stream, it had the right to straighten the stream, and thus cause the water to flow more rapidly.

4. Every riparian owner may use the water of a stream for the purpose of manufacturing in a reasonable way, and what is reasonable is a question for the jury. 67 Am. Dec., 727; 79 Ib., 745; 28 Vt. 459.

5. It is of public importance that the proprietors of useful manufactories shall be held responsible only for appreciable injury caused by their works, and not for slight inconveniences or occasional annoyances. Sanderson v. Coal Co., 86 Pa. 411.

6. It was error to permit evidence of the diminished value of the farm. If damages are recoverable, the true criterion is the diminution of the fair rental value of the property. 3 Suth. on Dam., 372.

R. N. Miller,, for appellees.

There is only one case in American jurisprudence holding that an upper riparian owner may materially impair the use of the water to a lower riparian owner, and that the rights of the latter must yield to the necessity of the community in maintaining useful enterprises; that is Sanderson v. The Penn. Coal Co., 86 Pa. 401, and the same case 113 Pa. 126. That case, decided by a divided court, is opposed to all the authority on this subject. The water rights of a private citizen cannot be interfered with without compensation. Lead. Cas. Am. L. Real Prop., 318; Cooley on Torts, 587; 44 Am. Rep., 194; 39 Ib., 785; 3 Am. St. Rep., 788; Gould on Waters, 204, 220, 401-407.

There being no question in this case that the use to appellees was absolutely destroyed, the only remaining matter was the amount of damages. The difference in rental value of the land is not the measure of damages. Land might not have any rental value, or it may never have been rented, but the owner cannot be suffered to go without compensation if the value of the land is destroyed.

Every increase of pollution is a new cause of action. Moak's Underhill on Torts, 693. In view of the increase in the pollution of the stream within the few years preceding the suit, the defendant cannot claim a prescriptive right.

As to the measure of damages, see 23 N. E. Rep., 621; Ferris v. Wellborn, 64 Miss. 29; M. & T. R. R. Co. v. Archibald, 67 Miss. 38; 50 Ill. 24.

The verdict of the jury shows that not even the damage resulting from the decrease in the rental value was awarded. If, therefore, there was error in admitting evidence of the diminished value of the farm, it was not prejudicial.

OPINION

COOPER, J.

The appellees brought this suit to recover from the appellant damages for polluting the waters of a small stream which runs across their lands. A map showing the location of the stream, and its several branches before it reaches the land of the appellees, seems to have been introduced in evidence in the court below, and several witnesses were examined in reference thereto; but this map is not in the record, and, if it were, we would be unable to apply the testimony of the witnesses to it, because of the indefinite manner in which the locations are spoken of. It is manifest that this court can form no opinion of the meaning of a witness, when the bill of exceptions states only that, "the witness explained the map to the jury," or testified that the stream entered the land of the plaintiff "here" and runs "here," and that a ditch was cut "there" or might be cut "here," etc., etc. While it may be true that the bill of exceptions contains all the evidence given in the court below (except the map), if the word evidence be taken as referring only to spoken words, it is evident that it does not put this court in possession of all the facts upon which the jury acted. We have adverted to the defective character of the bill of exceptions here, not because it is material in this case, but because we have almost invariably found the same character of defect in cases where maps and plats are introduced in evidence, since the introduction of the stenographic report instead of the ordinary bill of exceptions. If the practice is persisted in, some appellant will some day have an affirmance in this court, on the ground that it is impossible to say what facts were developed in the court below.

The evidence in this case discloses that the plaintiffs are the owners of a tract of land through which a small stream of clear and pure water originally ran; that on one of the branches of this stream, above them, the defendant company erected a cotton and woolen mill more than twenty years ago, which mill is located at or near some springs from which this branch of the stream takes its origin. The defendant dug a pond about the springs, and dammed up the water they supplied, and with a large pump forced the water from the pond into its dye-house and through the closets in its mills. The water, having been used in flushing the Closets and in dying the cloths manufactured and washing the wool used by the company, is returned to the stream, below the pond, and from thence flows into the stream on the plaintiffs' land. This use of the water commenced moro than twenty years ago, and has been continuous from that time to the present.

The plaintiffs, however, contended and introduced evidence tending to prove, that until less than five years before the institution of this suit the stream below the pond was small and feeble, and its bed crooked and filled with large holes in which the water would, to a great degree, stagnate, and deposit much of its impurity before reaching their lands; and also that the banks of the stream were not well defined, and in some parts of the defendant's land it spread out over a flat, on which much of the polluting matter was deposited; that the defendant, within that period, had, for the purpose of accelerating the flow of the water and preventing the deposits in the bed of the stream, on its land, or on the flat, dug a ditch, by which the channel of the stream on its land was straightened, the result of which was that the befouled water was hastened to the stream on the land of plaintiff; that before this ditch was cut, the stream and flat on defendant's land was much polluted and obnoxious to sight and smell, which was...