Southern Marble Co v. Darnell

• Decision Date: 30 July 1894
• Parties: SOUTHERN MARBLE CO. v. DARNELL.
• Court: Georgia Supreme Court

21 S.E. 531

94 Ga. 231

SOUTHERN MARBLE CO.

v.DARNELL.

Supreme Court of Georgia.

July 30, 1894.

Diversion of Water—Damages—Injunction-Estoppel.

1. The measure of damages for injury to a mill site occasioned by diverting therefrom at a point above the owner's land, by means of a permanent ditch, the water or a part of the water in a stream which would otherwise have reached the mill site, and might have been used as a part of the available water power, is either the difference in the value of the land without the diverted water and its value with that water, or the like difference as to the value of the mill site itself; the owner being entitled to recover one or the other of these differences at his election. No mill ever having been actually erected, nor anything done preparatory to its erection, the intention of the owner at the time the diversion of the water took place, or at a previous or subsequent time, to erect a mill on the site in question, would make no difference as to measuring his damages. The anticipated profits of a mill which never existed could not be recovered.

2. The like measure of damages would apply to an ocher or manganese mine or mines never opened or worked or put in a state of preparation for applying the water to them.

3. If the owner consented to the construction of the ditch or canal, knowing the purpose of the same, he could not afterwards complain of the result as an injury to him or his premises. His consent might be inferred from his aiding as an employe in surveying and locating the route of the ditch, and accepting compensation for his labor, unless he actually objected and made his objection known in due time.

4. If the owner stood by. while the ditch or canal was being constructed at a heavy expense, and made no objection, and took no steps to prevent the work or its consequences, until after completion, he would be estopped from afterwards obtaining an injunction against the use of the ditch or the continuous diversion of the water by means of the same.

(Syllabus by the Court.)

Error from superior court, Pickens county; George P. Gober, Judge.

Action by Manson Darnell against the Southern Marble Company for an injunction and other relief. There was a verdict for plaintiff, and from an order denying a new trial defendant brings error. Reversed.

The following is the official report:

Darnell brought his petition against the Southern Marble Company to recover damages alleged to have resulted to him from the diversion of water by defendant, and for injunction to prevent any further diversion. The petition was demurred to, and the overruling of the demurrer is one ground of exception. The jury found for the plaintiff $100 as damages, and that defendant be perpetually enjoined as prayed. Defendant moved for a new trial, and the overruling of the motion is the other ground of exception. The petition alleges: Upon plaintiff's land flow two streams of water, known as "Barnett Creek" and "Dock Creek." On one of them is a valuable water power, of the height of about 25 feet, over which the creek flows, and to utilize which plaintiff intended to erect a mill for grinding grain for profit; said water power being sufficient, with the natural and ordinary flow of water in the creek, to propel the machinery of the mill or other ordinary machinery usually propelled by water. Plaintiff's home and farm are on this land, and he conducts farming operations thereon, and said streams are very valuable in furnishing to the farm and its uses, at all times when undisturbed and in their natural flow, an adequate supply of water. The land contains valuable mineral deposits, and the streams are indispensably necessary to the development and mining of said minerals; and, in the event plaintiff should at any time desire to enter upon such development and mining, it would be necessary to divert said streams or some portion thereof for that purpose, and the volume of the same in their natural flow would be entirely sufficient for such operations. Defendant, a corporation of this state, doing the business of quarrying marble in the immediate neighborhood of said land, has diverted said streams from their natural and usual channels, and has conveyed the waters of the same off and away from plaintiff'sland, by means of aqueducts, pipes, ditches, dams, and other means, thereby absolutely depriving plaintiff of the uses and benefits of the waters of said streams; has disregarded defendant's notice to desist from such unlawful diversion; and has continued the same for the past two years. If defendant be permitted further to continue such diversion, the land of plaintiff will necessarily be irreparably depreciated in value, his farm will be seriously damaged, bis water power on which he intended to erect the mill will be totally destroyed and made worthless, and the various uses and benefits accruing to him by the free and undisturbed possession and enjoyment of said streams will be largely impaired. Defendant is using said waters on its property in quarrying and cutting marble for profit, without the permission of or the slightest compensation to plaintiff, who, by these means, had been damaged $5,000. He prays that defendant be commanded by injunction to desist absolutely from the diversion of the streams from their natural and usual channels, and from interfering in any way with their course or condition. The grounds of demurrer to the petition are: (1) The allegations show no cause of action in plaintiff against defendant, and (2) do not entitle him to the relief prayed, nor to any relief. (3) He fails to allege that defendant is insolvent. He fails to allege that the damages claimed to have been done him are irreparable; but, on the contrary, sets forth that he has been damaged a certain sum, which allegation, while it destroys a necessary ingredient in the petition for injunction, affords no basis otherwise for the action, there being no prayer for money judgment. (4) He fails to allege where the alleged diversion of water was made. He fails to allege how much he has been damaged as to his cattle or stock, how much as to farming uses of water, how much as to mineral or quarrying purposes, or how much as to the contemplated mill; nor does the petition furnish any data upon these matters, but is utterly vague and insufficient. And he fails to allege that he could profitably have erected and operated a mill upon his property, using the water power mentioned, with an ordinary and natural flow of the water, or that a profitable development of the mineral interest upon the land could be obtained by the use of such water in its ordinary and natural flow. By amendment, plaintiff alleged that, while he has claimed damages in a sum mentioned, such damages are irreparable if defendant be permitted to continue the acts complained of; that his farm as such, and with reference solely to the use of the same for agricultural purposes, has been damaged $1,000 by the acts complained of; that by the diversion of the water from his land, and the diminution of the supply to which he is justly entitled, he has been damaged $500 as to his cattle, horses, and other stock; that his contemplat ed mill property has been damaged $1,000, that, with the ordinary and natural flow of water in the stream on which said water power is situated, the contemplated mill could have been profitably erected and operated, and other machinery usually propelled by water, for threshing grain, ginning cotton, etc., could have been successfully and profitably utilized on and by said water power, but for the unlawful acts of defendant in the diversion and diminution of the water supply; that by said acts the mineral interest, consisting of valuable deposits of manganese and ocher, has been damaged $2,000; that, by being denied the free and undisturbed use of the supply of water naturally belonging to and running in said stream, complainant has been unable to complete negotiations for the leasing of these mineral deposits to solvent and responsible parties, and such negotiations were actually in progress, and were terminated by such parties because of the diversion and diminution of the water supply by defendant; and that in the use of water from said streams, of which plaintiff has been deprived by the acts of defendant, for culinary and other household purposes, he has been damaged $500, —for all of which several sums he prays judgment. He further alleges that, at the time of the diversion of the streams flowing over his land, he was the owner and in actual possession of the same; that one of the streams runs within less than 50 feet of his residence; that these streams flow in a southerly direction, their source being in a northerly direction from his land and residence; that, at a point on said streams about 400 yards from his land, the ditch by means of which the water is diverted has been cut for a distance of nearly five miles, running in a westerly direction, taking up and diverting all the streams flowing in a southerly direction and which the ditch crosses, the purpose being to discharge the water of said streams into a reservoir at the western turning of the ditch, and thence to the mill and quarries of defendant, in the operation of which mill and quarries the water is used, etc. The grounds of demurrer to the amendment are: (1) It is too vague and general as to the elements of damage. (2) As to the claim of damages to the alleged mill site or "contemplated mill property, " and as to the alleged mineral interest, (a) the elements of such damage are not specifically alleged; (b) plaintiff cannot recover for future or prospective damages; (c) nor can he recover conjectural, speculative, or remote damages, such as he sets forth as to the mill site and mineral interest. (3) Those portions of the petition and amendment asking for damages for diversion of agricultural or household supply of water, or supply of water to cattle or stock, do not...