Roberts v. Martin et al.

• Decision Date: 25 February 1913
• Citation: 72 W.Va. 92
• Parties: Roberts v. Martin et al.
• Court: West Virginia Supreme Court

72 W.Va. 92

Roberts

v.Martin et al.

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1911.

Decided February 25, 1913.

1.Waters and Water Courses Natural Water Course Diver-

sion.

A diversion of a natural watercourse, though without actual damage to a lower riparian owner, is an infringement of a legal right and imports damage.(p. 94).

2.Same Riparian RightsNature and Extent.

The right of a riparian proprietor to have the water of the stream pass his land in its natural flow is a right annexed to the soil and exists as parcel of the land.(p. 94).

3. Same.

The right of a riparian owner to the natural flow of the stream is not dependent upon its value to him or the use which he makes of it.(p. 95).

4. Same.

The right of a lower riparian owner to the natural flow of the stream is subject only to a reasonable use of the water by the upper riparian owners as it runs through their lands before reaching his.(p. 95).

5. Same.

No legal right exists in a riparian owner to divert water of the stream for use beyond his riparian land, and any such diversion and use is an infringement of the rights of lower riparian proprietors who are thereby deprived of the flow.(p. 96).

6. Same.

If the diversion of water from riparian land for use elsewhere is not so inconsiderable, when the amount diverted is viewed relatively with the stream at its lowest stage as to be excluded under the maxim de minimis non curat lex, a lower riparian owner may have redress against the diversion.(p. 98).

7.Same Natural Water Course Diversion.

A stream begins at its source, when it comes to the surface, and a diversion of it at the spring head is just as much a diversion as if the water had been taken lower down.(p. 99).

8. Same.

Equity has jurisdiction to vindicate the right of a riparian owner to the natural flow of the stream by restraining an unlawful diversion of the water from its natural course.(p. 99).

Appeal from Circuit Court, Mineral County.Suit in equity by A. P. Roberts against Joseph Martin and others.From a decree for defendants, plaintiff appeals.

Reversed and Decree Here.

W.II.Griffith, for appellant.Frank C. Reynolds, for appellees.

Robinson, Judge:

A small stream flows through the land, of plaintiff, power from which is utilized by him in the operation of an old style grist mill.The source of the stream is in certain springs on a tract of land owned by another, immediately above plaintiff's land.Defendants purchased from the owner of this upper tract the right to one of the springs.From this spring they have conducted water by a small pipe line, around the land of plaintiff, to the store and dwellings on their own premises below the mill.Here the water from the pipe line supplies certain domestic and other wants of defendants.It is then turned into a watering trough at the road side, from which it is allowed to find its way again to the stream below plaintiff's mill.

By this suit plaintiff sought to enjoin the diversion of the water from the stream.Upon a hearing of the cause on the bill, answers, and depositions, the relief prayed for was denied, though right to sue at law was reserved to plaintiff.

Only a small quantity of water is taken from the stream.But viewed relatively with the size and general character of the stream, the quantity diverted therefrom is perceptible and material.

That such a diversion is unlawful and will be enjoined by a court of equity is beyond doubt.It may be that plaintiff is not actually damaged in the operation of his mill by the diversion.He is damaged by the infringement of a right.That right a court of equity will preserve to plaintiff.In an early case, in which the learned opinion was Avritten by Mr. Justice Story, it was held: '"Actual perceptible damage is not indispensable as the foundation of an action.It is sufficient to shew a violation of a right.The law will presume some damage in such a case.A fortiori, where the act done is such, that, by its repetition or continuance, it may become the foundation or evidence of an adverse right, A party may recover at law nominal damages for a diversion of a watercourse, where no actual damage has occurred, as a means of establishing and. protecting his right.A fortiori, he may assert his right in Equity, by a writ of injunction."Webb v. Portland ManufacturingCo., 3 Sumn. 189.A recognized authority says: "That a diversion of a watercourse, without actual injury to a riparian owner lower clown the stream, legally imports damage (because it is an infringement of right), is a doctrine powerfully sustained by American authorities."Angell on 'Watercourses (7th ed,), sec. 135.

Plaintiff, whether he has a mill or not, and regardless of the fact that the mill has been operated on the stream for many years, is entitled as a riparian owner to have the stream which washes his land flow as it is wont by nature without diminution or alteration.He may insist that the stream shall flow to hi? land in the usual quantity, in its natural place and at its natural height, and that it shall flow of! the land to Ins neighbor below in its accustomed place and at its usual level.While he has no property in the water itself, yet his right to the natural flow of the water will be.regarded and protected as property.His right to have the water pass his land in its natural current is not an easement or appurtenance; but it is a right annexed to the soil which he owns.The right exists jure naturae as parcel of the land.Gould on Waters(3rd ed.), sec. 201; Pomeroy on Riparian Rights, sees.7-9.The flow of the water in its natural way and at its natural height is a part of plaintiff's landed estate.Interference with the flow is the infringement of a property right of plaintiff for which he may have redress as readily as for violation of his right to any other portion of the soil.

Defendants, by their act in taking the water, are clearly infringing the right of plaintiff as a riparian owner.They are disturbing" the natural flow of the stream to which he is entitled., by reducing the quantity of water that would naturally flow therein.Their act is an unlawful one.It does not matter whether plaintiff is actually damaged.Nor does it matter that plaintiff does not need the water for use.Their act interferes with plaintiff's right the full enjoyment of his property without molestation.And, using the language of a Pennsylvania case, relating to such a right, "the wrong must cease, no matter how trifling it may seem.The right of the plaintiff is absolute to be restored to the full enjoyment of his own property, and is not dependent in any manner upon its value either to himself or to his adversary."Wheatley v. Cfirisman, 21 Pa. 298.One may not disturb another's field simply because no actual damage is done thereby; the owner of the field is entitled to hold it free from disturbance by another regardless of the amount of damage.The same principle applies to a riparian owner's right, to have the undisturbed flow of the stream.

Of course the right of a lower riparian owner to the natural flow of the stream through his land is subject to reasonable uses of the water by upper riparian owners as it runs through their lands before reaching his.2 Farnham on Waters, sec. 464.

Each riparian proprietor has a right to a reasonable use of the waters flowing through or by his land, for the purpose of supplying his natural wants.Says Chancellor Kent: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows m the stream adjacent to his lands, as it was wont to run (currere solebat), without diminution or alteration.No proprietor has a right lo use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment.He has no property in the water itself, but a simple usufruct while it passes along..Aqua currit et debet currere ut currere solebat is the language of the law.Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate.Without the consent of the adjoining proprietors he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below.* * * This is the clear and settled general doctrine on the subject, and all the difficulty that arises consists in the application.The owner must so use and apply the water as to work no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water.* * * 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 every riparian proprietor from the application of the water to domestic, agricultural, and. manufacturing purposes, provided the use of it be made under the limitations which have been mentioned; and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evaporation and decrease of if. and some variations in the weight and velocity of the current.But de minimis non curat lex, and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the...