Ulbricht v. Eufaula Water Co.

• Citation: 86 Ala. 587,6 So. 78
• Parties: ULBRICHT v. EUFAULA WATER CO.
• Decision Date: 07 May 1889
• Court: Supreme Court of Alabama

6 So. 78

86 Ala. 587

ULBRICHT v. EUFAULA WATER CO.

Supreme Court of Alabama

May 7, 1889

Appeal from chancery court, Barbour county; JOHN A. FOSTER, Judge.

A H. Merrill, for appellant.

G L. Comper and Roquemore, White & Long, for appellee.

SOMERVILLE J.

The purpose of the bill, which was filed by the complainant Ulbricht, is to enjoin the appropriation of the water from a running stream, diverted by the defendant corporation for the use of it water-works, constructed to supply the inhabitants of the town of Eufaula. The complainant owns land on both sides of this water-course, and so does the defendant, each being a riparian proprietor. The grievance complained of is that the defendant, an upper riparian owner, by the construction of a dam and a reservoir, and the diversion of so large a quantity of the running stream, is guilty of an unlawful act prejudicial to the rights of the complainant, as a lower riparian owner on the same stream. The testimony fully establishes the diversion of the water for the purpose mentioned, resulting in a sensible diminution in the flow of the stream, at least in the dry season or summer months. It further shows, however, that the complainant was making no particular use of the stream, having no mill or other industry on it, and therefore that he suffered no special damage by the act of defendant. The chancellor was of opinion "that the owner below ought not to be permitted by injunction to hinder the owner above from the consumption of water which the former cannot and does not use." An injunction was nevertheless granted, "perpetually restraining the defendant from the consumption of the whole or any part of said stream for the use of said water-works in supplying the city, to the sensible injury or damage of the complainant, for any purpose for which he may now or in the future have use for said water." The defendant was also enjoined from backing any portion of the water of the stream on the lands of the complainant to an extent damaging to him. The chancellor admitted the right of the complainant also to prevent the defendant from so using the water as to acquire an easement by an adverse user of any or all the water of the stream for supplying said water-works, and the complainant is declared to be entitled to the reasonable use of the flowing waters of said stream, as against the defendant, whenever he shall need it. It is our opinion that there is no error in this decree, and that it secures to the complainant all that to which he is equitably entitled in this suit.

1. To divert or unreasonably obstruct a water-course is a private nuisance, actionable at law. The jurisdiction of equity to interfere in such cases by injunctive relief, to prevent irreparable damage and avoid a multiplicity of suits at law, is clear and well established, the remedy at law being deemed inadequate. Burden v. Stein, 27 Ala. 104; 3 Pom. Eq. Jur. § 1351; Gardner v. Newburgh, 7 Amer. Dec. 526; Lawson v. Wooden-Ware Co., 18 N.W. 440; Gould, Waters, § 215.

2. The complainant is shown to have sold to the defendant the acre of land upon which the reservoir and dam were constructed for this specific purpose, reserving to himself all easements and riparian rights in the other lands owned by him, including the water-rights and privileges. This reservation retained in the grantor nothing which he would not have retained without it, as the right of water in the other land was appurtenant to the land itself as a part of the realty, and could not have been affected by the conveyance to defendant. Cary v. Daniels, 41 Amer. Dec. 532, 538.

3. There is no principle of law better recognized than that every riparian owner of lands, through which streams of water flow, has a right to the reasonable use of the running water, which is a private right of property. The right is one an annexed and incident to the freehold, being a real or corporeal hereditament, in the nature of an easement, and must be enjoyed with reference to the similar rights of other riparian proprietors. It is therefore a qualified, and not an absolute, right of property. Gardner v. Newburgh, 2 John Ch. 161, 7 Amer. Dec. 526, and note, 531-534; Ang. Water-Courses, § 5; Tied. Real Prop. § 614; Wadsworth v. Tillotson, 15 Conn. 366; Boone, Real Prop. § 141.

4. The general rule is often stated to be that every riparian proprietor has an equal right to have the stream flow through his lands in its natural state, without material diminution in quantity or alteration in quality. But this rule is qualified by the limitation, now well recognized, that each of such proprietors is entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes; or, to state the rule in the words of SHAW, C.J., in Carry v. Daniels, 8 Metc. 477: "Each proprietor is entitled to such use of the stream, so far as it is reasonable, conformable to the usages and wants of the community, and having regard to the progress of improvement in hydraulic works, and not inconsistent with a like reasonable use by the other proprietors of land on the same stream above and below." We will not enter into a general discussion of this phase of the case, as it is not necessary to a decision of the question before us. It is exhaustively discussed in the following authorities, which we cite merely, without review: Stein v. Burden, 29 Ala. 127; Burden v. Stein, 27 Ala. 104; Stein v. Burden, 24 Ala. 130; Davis v. Getchell, 50 Me. 602, 79 Amer. Dec. 636, and note, 638-645; Dumont v. Kellogg, 29 Mich. 420; Elliot v. Railroad Co., 10 Cush. 191; Crooker v. Bragg, 10 Wend. 260; Gould, Waters, §§ 213-215.

5. In this case the defendant has diverted the water from the stream, and consumes it for the purpose of supplying the wants of a neighboring town. The diversion is rendered unlawful by the fact that it is for an extraordinary or artificial use, and is not restored to its natural channel where it is accustomed to flow. The authorities speak with one voice in sustaining the proposition that no person has a right to cause such diversion, and that it is a wrongful act, for which an action will lie by the lower riparian proprietor without proof of any special damage. The injury done the complainant in such a case is an invasion of his general right to have the water-course flow in its natural channel, through his lands, operating to interrupt a possible water-power, or to suspend an agency capable of imparting fertility to the soil through which it passes, or other damage of a general character. Parker v. Griswold, 17 Conn. 288. In all such cases, however, the plaintiff can recover nothing more than nominal damages, unless he shows affirmatively that he has suffered some special damage. The case of Stein v. Burden, 29 Ala. 127, may be...