Nicodemus v. Nicodemus

• Decision Date: 05 March 1875
• Citation: 41 Md. 529
• Parties: JOHN L. NICODEMUS v. JACOB NICODEMUS.
• Court: Maryland Court of Appeals

41 Md. 529

JOHN L. NICODEMUS v. JACOB NICODEMUS.

Court of Appeals of Maryland

March 5, 1875

APPEAL from the Circuit Court for Washington County, in Equity.

This is an appeal from an order of the Court below, continuing an injunction previously granted upon the application of the appellee. The facts of the case are sufficiently stated in the opinion of the Court.

The cause was argued before STEWART, BRENT, GRASON, MILLER and ROBINSON, J.

H Keedy and W. T. Hamilton, for the appellant.

The appellee had no right to use the water as it flowed through the race. His cattle could not tread down its banks, nor his wagons be driven over it, and thus impede the flow of water from the wheel of the mill. The bed of the race was level and the flow gentle, and any possible use of it by the appellee would necessarily interfere with the use made of it by the appellant.

The appellee could not use the water whilst it passed through the race, for any ordinary purpose; when cleaned, it is so deep and its banks so high as to render its use impossible.

The appellee never did use or attempt to use the water in the race, where the proposed culvert was to be. He admits this.

The right of the owner of the mill to the race is paramount. It is true PARKE, B., says in Arkwright vs. Gell, 5 M. & W., 231, that a riparian proprietor of the water in an artificial water-course has "the right to use it for any purpose to which it was applicable," yet we insist that if it was applicable for no conceivable purpose or its application would interfere with the use and enjoyment of the mill owner he could not use it.

The law relating to natural water-courses, does not apply to artificial water-courses, such as this race. The right of riparian proprietors to the use of waters of natural water-courses exist ex jure natur . "The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed by operation of the law to the land itself." Like air and light, no one has the right to obstruct or pollute it. But the right to use the water of an artificial stream, is by grant or by user, such a user and for such a time as will afford a presumption of a grant. Wood vs Waud, 3 Ex. Rep., 777; Arkwright vs Gell, 5 M. & W., 203; Acton vs Blundell, 12 M. & W., 324; Lasala vs. Holbrook, 4 Paige, 169; First Parish of Medford vs. Pratt, 4 Pick., 222; Sargent vs. Ballard, 9 Pick., 251; Arnold vs. Stevens, 24 Pick., 106.

The right to have the race being granted, everything is granted essential to protect the enjoyment of that right. 2 Washb. on Real Prop., secs. 31, 41, 43; Washb. on Easements, 226; Prescott vs. Williams, 5 Metc., 429; Prescott vs. White, 21 Pick., 341; Peter vs. Daniel, 5 Com. Bench, 568.

"It has been held that, where one turned a second stream into one naturally flowing through his land, and thereby threw more water than naturally flowed in such stream into the current in another's land, the latter had a right to stop such extra flow, before reaching his land." Washb. on Easements, 292 (margin;) Merritt vs. Parker, Coxe, 460; Tillotson vs. Smith, 32 N. H., 90.

"Where the use of a thing is granted, everything is granted essential to such use. Such a right carries with it the implied authority to do all that is necessary to secure the enjoyment of such easement." Angell on Water-Courses, sec. 163; Prescott vs. White, 21 Pick., 341; McTavish vs. Carroll, 7 Md., 360.

The appellee presents no case for an injunction. "It must be a strong case of trespass, going to the destruction of the inheritance, or the mischief must be remediless to entitle the party to the interference by an injunction."

"An injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's estate, but is susceptible of perfect pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law." Jerome vs. Ross, 7 Johns. Ch. Rep., 315; Amelung, et al. vs. Seekamp, 9 G. & J., 472; Cherry vs. Stein, 1 Md., 27; Fort vs. Groves, 29 Md., 192.

The conscience of the Court must be satisfied, that the alleged wrong complained of would work great and irremediable damage, and not a loss or injury that would be trivial and susceptible of adequate compensation in damages at law. White vs. Flannigan, 1 Md., 525; Amelung, et al. vs. Seekamp, 9 G. & J., 468; 2 Story's Eq. Jurispr., sec. 925.

Attorney General Syester, for the appellee.

As to the rights of the appellee in the water passing through the tail-race: Water-courses are natural or artificial. Artificial water-courses are of two kinds. One where the waters are artificially collected and pass through artificial channels. The other is where natural waters are made to pass through artificial channels, and it is with these last that we are to deal in this case.

We are considering here the case of riparian rights to a water-course, having a natural source, and flowing along an artificial channel, and the appellee will insist, that the fact that the water flows in an artificial water-course, does not affect his right to the use of the water, whilst it continues to flow there. That in such water-courses the riparian proprietor has the same rights, whilst the water-course continues, that he has in a natural water-course. Arkwright vs. Gell, 5 M. & W., 203; Wood vs. Waud, 3 Exch., 746; Washb. on Easements, 296, 297.

The sum of these authorities and references is simple, and of every day application. If my neighbor has a drain through my lot, for the water falling from the eaves of his house, I have a clear right as against him to appropriate that water to any convenient purpose I see fit, just as I would to the waters of a natural stream. No actual appropriation of the water is necessary to establish the right. Riparian owners have certain rights to the use of water, whether they exercise them or not; they may begin to exercise them when they will. Sampson vs. Hodinot, 1 C. B., N.

S., 590; Buddington vs. Bradley, 10 Conn., 213; Angell on Wat. Courses, secs. 90, 100.

It is against the destruction of this right that the Court interposed.

The water has been flowing here over thirty years. During all that time the appellee has been undisturbed in his right to use it at all times, and everywhere in its channel. The appellant proposes now to bury seventy yards of it forever, and deprive the appellee of all right to use the water the whole extent of the tunnel. This means that he may bury the entire race, so that, although it shall flow over the appellee's lands, and he may at all times enter to clear it of obstructions, yet the appellee is never to use, taste or see one drop of it.

Conceding that all this was competent to the appellant in the beginning, he has too long acquiesced in the appellee's right now to deny it to him. Such rights may be acquired in purely artificial streams. Major vs. Chadwick, 11 Ad. & Ell., 571, (39 E. C. L., 169;) Nutall vs. Bracewell, 2 Exch. L. R., 1.

As to the alterations at the mouth of the natural stream: This is in point of fact a diversion, and without anything more, sufficient to invoke the protection of the Court. That stream is now flowing precisely as natural causes have placed it, and the appellee has the right to insist that it shall continue to flow precisely where, and as it is now flowing, without let or disturbance from the appellant.

As to what constitutes a diversion, see Tillotson vs. Smith, 32 N. H., 94; Angell on Water-courses, sec. 99.

Nor is it any answer to all this to say, that changing the natural bed and banks of this stream from the point where it flows into the tail-race until it empties into the natural stream below, has not been shown to be injurious; because this act of the appellant, without interruption. would furnish evidence in derogation of the appellee's right to have the stream flow along its natural course, and for the invasion of such a right, an action will lie. Bomer vs. Hill, 1 Scott, 526.

As to the remedy: The unlawful acts in contemplation, involve the permanent destruction of a right; and where the thing about to be done, will produce permanent injury. or destroy a right, that is an appropriate case for a bill. Webb vs. Portland Manf. Co., 3 Sumner, 189.

Nor does the fact, that the appellee has never actually appropriated the water along the intended tunnel, or the fact, that he had, at the time he sued out his injunction, sustained no actual damage; or the further fact, that in the judgment of others, his damages would be small, furnish any answer to the relief sought. Lyon vs. McLaughlin, 32 Vermt., 423.

The jurisdiction in this class of cases is ancient and well established. As incident to the ownership, the riparian proprietor has an interest of a usufructuary nature in all the water flowing on his land, which equity always has protected. Gardner vs. Newburg, 2 John. Ch., 162; Lamborn vs. Covington Co., 2 Md. Ch., Dec., 409; Lewis vs. Stein, 16 Ala., 214.

The injury here is not only not susceptible of adequate pecuniary damages, but it is one, the continuance of which, would cause a constantly recurring grievance, and in such instances equity will enjoin. Mohawk & H. R. R. vs. Artcher, 6 Paige, 83; Dana vs. Valentine, 5 Metc., 8.

This is a trespass which equity will enjoin: The appellant proposes to erect permanent structures on the appellee's lands. They are to be continuous, and the injury will be continuous. Such an injury is in itself irreparable. Hopkins vs. Chaddick, 18 L. T., 236. If he wait until the works are done, it is too late for equity to relieve him. Kerr on Inj., 295, 296; High on Inj., 264, sec. 477.

But before the works are completed, in limine, equity...