Mumpower v. City Of Bristol

• Decision Date: 13 July 1893
• Citation: 17 S.E. 853,90 Va. 151
• Parties: MUMPOWER. v. CITY OF BRISTOL.
• Court: Virginia Supreme Court

17 S.E. 853

90 Va. 151

MUMPOWER.

v.CITY OF BRISTOL.

Supreme Court of Appeals of Virginia.

July 13, 1893.

Water Courses —Owner of Milldam —Use of Water—Extent of Right—Injunction.Where the owner of a dam across a stream does not pen back the water to a greater extent than is necessary for the operations of his mill, nor pollute or divert the water, it is error, in an action against him by a junior proprietor of the dam below his, to perpetually enjoin him from entirely cutting off or diminishing the natural flow of the stream so that plaintiff shall not, at all times, have a reasonable supply of water therefrom.

Appeal from circuit court, Washington county; John A. Kelley, Judge.

Action by the city of Bristol against W. H. Mumpower to enjoin defendant from damming back the water of a stream so as to cut off plaintiff's supply of water therefrom.From a decree for plaintiff, defendant appeals, Reversed.

Fulkerson, Page & Hurt and Blanehard & Ashworth, for appellant.

Hamilton, Rhea & Peters, for appellee.

LACY, J.This is an appeal from a decree of the circuit court of Washington county, rendered on the 9th day of May, 1892.The bill was filed by the appellee, alleging that it was the owner of a waterworks dam erected across Mumpower creek for the purpose of raising a pond of water sufficient to supply the said appellee, the city of Bristol, with water; that some 17 years before the erection of its dam, the appellant was the owner of a milldam several hundred yards above, across the said creek, erected and used from that time to the present time for the purpose of raising a pond of water for the purpose of supplying his mill with water to operate the machinery of his water gristmill; that the dam of the said appellant holds back the water so as to deprive it of water at times; and that its rights are thus invaded, —and praying an injunction against the said appellant, to preventhim from damming back the water of the said stream so as to cut off its supply of water.The appellant demurred and answered, and denied that the waterworks dam of the appellee was sufficient to supply it with water; and denied that he had diverted the water of the stream from its natural channel; stated that his parents had used and operated this mill continuously since 1875; and insisted that he had the right to use the water in such way as was necessary to operate his mill; and denied that he had used the water in any improper manner, either to divert it or pollute it.The cause came on to be heard upon depositions taken in the cause, and upon the foregoing.The court, upon the hearing, —the court being of opinion that the defendant had threatened to pollute the water, and had unreasonably detained the water, conceding the right to use the water for his mil!, —decreed that the defendant be perpetually enjoined from entirely cutting off, or so far diminishing, the natural flow of the stream in controversy, as that by reason thereof the plaintiff shall not at all times have a reasonable supply of water from the said stream, and that the defendant pay the costs.From this decree the defendant applied tor, and obtained, an appeal to this court.

The stream in question is a natural stream of water, and both parties have a natural right to the use of the water of the said stream.The appellant, W. H. Mumpower, has no right, by prescription, to obstruct the water of this stream.As his use has not extended to 20 years, uninterruptedly, in any particular manner adverse and injurious in its nature, no such presumptive right can arise from an adverse one for a less period.Cornett v. Rhudy, 80 Va. 714, and authorities cited.We have to deal here with the natural right of two riparian owners to the use of the water of a stream.The right of any riparian owner to the use of the water of a running stream is a right inherent in the land, as a right publici juris; and the right to the use of the water, as a general rule, is limited to such use as is not inconsistent with a like reasonable use by the other riparian owners on the same stream, above and below.But, in a controversy between the owners of two dams over the same stream, the proprietor who first erects his dam for a...