Stratton v. Mt. Hermon Boys' School

• Decision Date: 29 October 1913
• Citation: 103 N.E. 87,216 Mass. 83
• Parties: STRATTON v. MT. HERMON BOYS' SCHOOL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 83

103 N.E. 87

STRATTON v. MT. HERMON BOYS' SCHOOL.

Supreme Judicial Court of Massachusetts, Franklin.

October 29, 1913

COUNSEL

Wm A. Davenport and Harry A. Weymouth, both of Greenfield, for plaintiff.

Dana Malone and Chas. N. Stoddard, both of Greenfield, and Geo. S Fuller, of Boston, for defendant.

OPINION

RUGG C.J.

The plaintiff, the owner of a mill upon a small stream, sues the defendant, an upper riparian proprietor upon the same stream, for wrongful diversion of water therefrom to his injury. The material facts are that the defendant owns a tract of land through which the stream flows and upon which also is a spring confluent to the stream. Upon this land it has established pumping apparatus whereby it diverts about 60,000 gallons of water each day from the spring and stream to another estate belonging to it and not contiguous to its land adjacent to this stream, but located about a mile away in a different watershed, for the domestic and other uses of a boys' school with dormitories, gymnasium and other buildings and a farm. The number of students increased from 363 in 1908 to 525 in 1911, while the number of teachers employés and other persons on the estate was over 100. During the latter year there were kept on the farm 103 cattle, 28 horses and 90 swine. There was a swimming pool, laundry, canning factory and electric power plant, for the needs of all of which water was supplied from this source. There was evidence tending to show that this diversion caused a substantial diminution in the volume of water which otherwise in the natural flow of the stream would have come to the plaintiff's land and in the power which otherwise might have been developed upon his wheel by the force of the current.

The defendant requested the court to rule in effect that diversion of water to another nonriparian estate owned by it was not conclusive evidence that the defendant was liable, but that the only question was whether it had taken an unreasonable quantity of water under all the circumstances. This request was denied and the instruction given that the defendant's right was confined to a reasonable use of the water for the benefit of its land adjoining the water course, and of persons properly using such land, and did not extend to taking it for use upon other premises, and that if there was such use the plaintiff was entitled to recover at least nominal damages even though he had sustained no actual loss. The exceptions raise the question as to the soundness of the request and of the instruction given.

The common-law rights and obligations of riparian owners upon streams are not open to doubt. Although the right to flowing water is incident to the title to land, there is no right of property in such water in the sense that it can be the subject of exclusive appropriation and dominion. The only property interest in it is usufructuary. The right of each riparian owner is to have the natural flow of the stream come to his land and to make a reasonable and just use of it as it flows through his land, subject, however, to the like right of each upper proprietor to make a reasonable and just use of the water on its course through his land and subject further to the obligation to lower proprietors to permit the water to pass away from his estate unaffected except by such consequences as follow from reasonable and just use by him. This general principle, simple in statement, often gives rise to difficulties in its application. What is a reasonable and just use of flowing water is dependent upon the state of civilization, the development of the mechanical and engineering art, climatic conditions, the customs of the neighborhood and the other varying circumstances of each case. To some extent often the amount and character of the flow may be modified by such use, for which, even though injurious to other proprietors, no action lies. A stream may be so small that its entire flow may be abstracted by the ordinary domestic uses of a farmer. Its bed may be so steep that its reasonable utilization for the generation of power requires its impounding in numerous reservoirs. But whatever the condition, each riparian owner must conduct his operations reasonably in view of like rights and obligations in the owners above and below him. The right of no one is absolute but is qualified by the existence of the same right in all others similarly situated. The use of the water flowing in a stream is common to all riparian owners and each must exercise this common right so as not essentially to interfere with an equally beneficial enjoyment of the common right by his fellow riparian owners. Such use may result in some diminution, obstruction or change in the natural flow of the stream, but such interference cannot exceed that which arises from reasonable conduct in the light of all circumstances, having due regard to the exercise of the common right by other riparian owners. Newhall v. Ireson, 8 Cush. 595, 54 Am. Dec. 790; Thurber v. Martin, 2 Gray, 394, 61 Am. Dec. 468; Tourtellott v. Phelps, 4 Gray, 370; Cary v. Daniels, 8 Metc. 466, 476, 41 Am. Dec. 532; Mason v. Whitney, 193 Mass. 152, 78 N.E. 881, 7 L. R. A. (N. S.) 289, 118 Am. St. Rep. 488; Pitts v. Lancaster Mills, 13 Metc. 156; Corse v. Dexter, 202 Mass. 31, 88 N.E. 332; Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N.E. 774, 7 L. R. A. 613; Strobel v. Kerr Salt Co., 164 N.Y. 303, 320, 58 N.E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643; Nuttall v. Bracewell, L. R. 2 Ex. 1; Mentone Irrigation Co. v. Redlands Electric Light & Power Co., 155 Cal. 323, 100 P. 1082, 22 L. R. A. (N. S.) 382, 17 Ann. Cas. 1222. In the main, the use by a riparian owner by virtue of his right as such must be within the watershed of the stream, or at least that the current of the stream shall be returned to its original bed before leaving the land of the user. This is implied in the term 'riparian.' It arises from the natural incidents of running water. A brook or river, so far as concerns surface indications, is inseparably connected with its watershed and owes the volume of current to its area. A definite and fixed channel is a part of the conception of a water course. To divert a substantial portion of its flow is the creation of a new and different channel, which to that extent defeats the reasonable and natural expectations of the owners lower down on the old channel. Abstraction for use elsewhere not only diminishes the flow of the parent stream but also increases that which drains the watershed into which the diversion is made, and may injure thereby riparian rights upon it. Damage thus may be occasioned in a double aspect. The precise point whether riparian rights include diversion in reasonable quantities for a proper use on property outside the watershed has never been decided in this commonwealth. There are numerous decisions in other jurisdictions to the effect that the rights of a riparian proprietor do not extend to uses on land outside the watershed. These were made in cases where actual perceptible damages were wrought by the diversion. Bathgate v. Irvine, 126 Cal. 135, 143, 58 P. 442, 77 Am. St. Rep. 158; Williams v. Wadsworth, 51 Conn. 277, 304; Crawford Co. v. Hathaway, 67 Neb. 325, 353, 93 N.W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647; Watkins Land Co. v. Clements, 98 Tex. 578, 585, 86 S.W. 733, 70 L. R. A. 964, 107 Am. St. Rep. 653; Miller v. Baker, 68 Wash. 19, 21, 122 P. 604; Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 330, 88 P. 978, 11 L. R. A. (N. S.) 1062; McCarter v. Hudson County Water Co., 70 N. J. Eq. 525, 61 A. 710; s. c., 70 N. J. Eq. 695, 65 A. 489, 14 L. R. A. (N. S.) 197, 118 Am. St. Rep. 754, 10 Ann. Cas. 116; Paterson v. East Jersey Water Co., 74 N. J. Eq. 49-85, 70 A. 472, affirmed in 77 N. J. Eq. 588, 78 A. 1134. See, however, Jones v. Conn, 39 Or. 30, 44, 45, 64 P. 855, 65 P. 1068, 54 L. R. A. 630, 87 Am. St. Rep. 634.

There are numerous expressions to the effect that the rights of riparian ownership extend only to use upon and in connection with an estate which adjoins the stream and cannot be stretched to include uses reasonable in themselves, but upon and in connection with nonriparian estates. See, for example Lord Cairns in Swindon Water Works Co. v. Wilts & Berks Canal...