Plumleigh v. Dawson

• Court: Illinois Supreme Court
• Writing for the Court: SCATES
• Citation: Plumleigh v. Dawson, 1 Gilman 544, 6 Ill. 544, 1844 WL 4105, 41 Am.Dec. 199 (Ill. 1844)
• Decision Date: 31 December 1844
• Parties: THOMAS PLUMLEIGHv.ALEXANDER DAWSON.

1 Gilman 544

6 Ill. 544

1844 WL 4105 (Ill.)

41 Am.Dec. 199

THOMAS PLUMLEIGH

v.ALEXANDER DAWSON.

Supreme Court of Illinois.

December Term, 1844.

CASE, for diverting a watercourse, in the McHenry circuit court, brought by the plaintiff in error against the defendant in error. The cause was tried at the September term, 1844, before the Hon. RICHARD M. YOUNG and a jury, when a verdict and judgment were rendered for the defendant. The case is sufficiently stated in the opinion of the court.

I. N. ARNOLD, for the plaintiff in error: An action on the case lies for any diversion or obstruction of a watercourse, to the use of which the party complaining has a right. 1 Leigh's Nisi Prius, p. 564.

Every proprietor has an equal right to use the water that flows in the stream, and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor; and can not, without the consent of the other proprietors, diminish the quantity of water which would otherwise descend to the proprietors below. Ibid. 564; Evans v. Merriweather, 3 Scam. 494.

Every proprietor claiming the right to diminish, must prove an actual grant or license, etc. 1 Leigh's N. P. 564.

A plaintiff is entitled to recover for a partial diversion. Ibid. 564, 565; Hill v. Mason, 5 Barn. & Adolph. 26; S. C. 27 Eng. Com. Law R. 22. “And it appears to us, that there is no authority in our law, nor as far as we know, in the Roman law (which however is no authority in ours), that the first occupant (though he may be the proprietor of the land above), has any right by diverting the stream, to deprive the owner of the land below, of the special benefit and advantage of the natural flow of water therein.” 1 Leigh's N. P. 565; Lord Denman, in Hill v. Mason.

It must not, therefore, be considered as clear, that an occupier of land may not recover for the loss of the general benefit of the water, without a special use or special damage shown. Lord Denman, ubi supra; 1 Leigh's N. P. 566, 568.

In case for the diversion of water, the plea of “not guilty” puts in issue the fact of diversion only, and not the right to divert. I Leigh's N. P. 600; Frankum v. Lord Falmouth, 4 N. & M. 330; 1 H. & W. 1; 6 C. & P. 529; S. C. 25 Eng. Com. Law R. 526; 2 Adolph. & Ellis 452; S. C. 29 Eng. Com Law R. 140.

The right to use the water of a stream for domestic purposes, watering cattle, and irrigation, is to be so exercised, as not essentially to diminish or unreasonably to detain the water, and the right of using it for this latter purpose, will not justify the taking of water for other purposes, to the injury of other proprietors. Blanchard v. Baker, 8 Greenl. 253.

In an action on the case for diverting a watercourse, if the unlawful diversion be proved, the plaintiff is entitled to recover, without proof of actual damage. Ibid.

O. PETERS and E. E. HARVEY, for the defendant in error.

1. The first instruction given by the court, at the request of defendant, was correct. The evidence to prove the rents and value of defendant's mill, was properly excluded from the jury; because the plaintiff is to recover, not the benefits obtained by the defendant, for the diversion of the water, but for the injury or damage the plaintiff has suffered thereby. The profits or advantages which the defendant has derived from the supposed tortious act, can furnish no rule by which to measure the damages which the plaintiff has sustained.

2. The third instruction, directing the jury to find only such damages as had been sustained by the plaintiff up to the commencement of the suit, was also correct; and this instruction is in conformity to the general and well settled rule of law, that cases are to be determined according to the rights of parties, as they existed at the time of action brought.

The continuance of the dam, and consequent diversion of the water, is, of itself a tort, for which an action will lie. Angell on Watercourses 141, 144, and authorities there cited.

If proof were given of future and prospective damages, and the plaintiff could recover therefor in the present action, it would operate most unjustly. It must be entirely uncertain what those damages will be from the fact, that the future condition of the dam, and the length of time it will continue, are uncertain; if prospective, or future damages can be recovered in this action, the defendant may be twice charged, and the plaintiff twice compensated for the same injury.

3. The second and fourth instructions present the question, whether the plaintiff was not entitled to recover nominal damages on the proof of the diversion of the water, without proof of any actual damage.

The authorities cited fall far short of showing, that the plaintiff was entitled to nominal damages. There is a difference in this respect between an action of trespass, and a special action on the case, for a tort.

Water flowing in a stream is publici juris, and the owner of the land through which it flows, can have no action for diverting or obstructing it, until he has converted it to a beneficial purpose, or prepared himself to do so. Leigh's N. P. 565, 566.

To give a right of action the obstruction or diversion of the water, must injure or prejudice the owner of the land below. Angell on Watercourses 12, note 2; Ib. 16; and in Williams v. Morland, 9 Eng. Com. Law R. 271, this point is settled on full consideration.

Nor was it necessary for the defendant to prove title to his land by exhibiting his title deeds. Possession is title enough for him. He may have had title by seven years' possession, which would estop all the world from denying his title; or he may have purchased and held by parol contract, which would be good till avoided, in which he could show no title by deed.

But it does not lie with the plaintiff to dispute the defendant's title. He is to show his right to recover damages; and though the defendant may have no title to the land above, and though he may be a mere trespasser, it makes no difference with the rights of the plaintiff.

4. But if the ruling of the court were wrong, and if the verdict were wrong, it does not necessarily follow, that the case should be sent back for another trial.

From the whole evidence it is manifest that the plaintiff was entitled, at most, to nominal damages. If there was no actual damage (and the jury have found this to be the fact), then no rule of right and justice has been violated, but merely a technical rule of law. This subject is fully discussed in Graham on New Trials 341 to 350.

The only exception to this rule is, where an important principle is involved, and the verdict is to be followed by serious consequences. Turner v. Lewis, 18 Eng. Com. Law R. 75, in note to that case. But this case does not come within the exception.

And in the case of Levi v. Milne, 13 Eng. Com. Law R. 396, the verdict was set aside, clearly by reason of the misconduct of the jury, not because they found for the defendant when the plaintiff was entitled to nominal damages.

SCATES, J.

Case, for diverting a stream, called “Crystal Lake Outlet,” from plaintiff's land. Defendant, Dawson, pleaded the general issue, to which there was a replication to the country; also a special plea that he was owner of a tract of land above the land of the plaintiff, embracing the said stream, upon which he erected a dam, and upon it cut a race, through which he turned the waters of the stream to his mill below, on his own land, leaving enough water passing along the natural channel for all reasonable uses and useful purposes of the plaintiff, and so doing no injury to the plaintiff.

The plaintiff traversed the ownership of the land above him on the stream being in the defendant, and also the averment of his receiving no injury by the diversion, and issue to the country.

Upon the trial, the plaintiff showed title to his premises as alleged. It also appeared that the stream was about one rod wide, and about one foot in depth; that its fall, from where it entered to where it left plaintiff's land, was about four feet, four inches, and runs quick. Dawson built a dam above plaintiff's land, and cut a race to his mill, and then returned the water to its former channel, below plaintiff's land. About three fourths of the water runs through the race. There is enough still passing the natural channel for agricultural and domestic uses.

The plaintiff's witnesses set an average damage done to the plaintiff by diverting the stream at five hundred dollars, partly in the beauty of the stream, partly in the salability of the property, and partly in the loss of the water power. The last item is fixed at one hundred and fifty dollars in making up the estimate; and if only half of the stream belonged to plaintiff, then at half that sum, though they state that half the water would be useless as a power, and that item should then be stricken out of the estimate.

The defendant's witnesses, and of equal number, do not think plaintiff at all injured by diverting the water; and a part of them, who were mill-wrights, state that it would cost the plaintiff more to make the water available as a power than it would be worth in its use, and so conclude, as their opinion, that he is not injured.

The plaintiff asked questions, and proposed to show the cost of constructing the mill and race of defendant, and the yearly value of the mill, for the purpose of showing at what cost and of what value he might make the power available to him. The court excluded this evidence by an instruction to the jury, and plaintiff excepted; and also to the second, third and fourth instructions.

The second instruction was, that if the jury believe, from the evidence, that the diversion of the watercourse by the defendant did not damage the plaintiff, up to the time of commencing this suit, they ought to find for the defendant.

Thirdly, that plaintiff can only recover such damages as he sustained up to the time of commencing this suit,...