Wheatley v. Chrisman

• Decision Date: 21 May 1855
• Citation: 24 Pa. 298
• Parties: Wheatley <I>versus</I> Chrisman.
• Court: Pennsylvania Supreme Court

24 Pa. 298

Wheatley versus Chrisman.

Supreme Court of Pennsylvania.

May 21, 1855.

ERROR to the Common Pleas of Chester county.

COPYRIGHT MATERIAL OMITTED

Lewis, for plaintiff in error.—The purposes for which the water in the ditch was to be used were expressly limited to watering the meadows, and, the terms thus appearing, there was no ground for presuming a grant for other purposes: 20 Pick. 291; 2 Metcalf, 457; 6 Ser. & R. 185; 7 Watts 382; 8 Cranch 229; 9 Dana, 301. The use of the water for watering cattle in the barnyard, through which the water passed from one meadow to another, was not such a use as the defendant was bound to notice or prevent. Having the right to the water for irrigation, his waste or use of it for other purposes was not material to those who claimed under the grantor, and therefore could furnish no ground for the presumption of a second grant.

As to the third and fourth points. There was no evidence that the upper proprietor ever was aware of the water of the ditch being used for watering cattle. Such knowledge, if possessed, should have been shown, as such knowledge and acquiescence is the only evidence on which a presumption of a grant could be founded: 9 Ser. & R. 26-33, Cooper v. Smith. Besides, such use was not injurious to the owner of the land above, and he could not sue therefor: 5 M. & Welsby 220.

As to the second point, the question is, whether the use of the water is to the injury of the other proprietors, or not: 4 Mason 401; 3 Kent 440. The use should be reasonable, so as not to render it useless to others interested, or materially diminish it, or affect its application by proprietors below: 3 Caine 307; 15 Conn. 366; 17 Johns. 306; and the extent of the use was for the jury: 6 Barr 32.

Hickman and Pennypacker, for defendants in error.—It was a part of the plaintiff's case, that he had used the water in the ditch for various purposes, for more than twenty-one years; and having omitted to show it at first, was permitted afterwards to prove its use for above twenty-one years. The admission of the evidence was discretionary with the Court: 4 Harris 305. The right to the water was claimed by user for twenty-one years and more. The terms of the deed, "for the use and purpose of watering the meadows, &c., only showed the inducement to the grant, and were not words of restriction. But the grantee was entitled to the entire beneficial use of the water. The use for twenty-one years manifested the construction by the parties.

But, independent of any right under the deed, the user for twenty-one years and more, for watering stock, gave a title by prescription to use the water for that purpose in its natural state and ordinary purity. It amounts to a conclusive presumption of a right: 10 Ser. & R. 69, Strickler v. Todd. It is not necessary to show a knowledge, by the defendant, of the use of the water in any particular way: 8 Harris 331, Garrett v. Jackson. (See also same book, p. 458-463, Reimer v. Stuber.)

The answer to the second point, in connexion with the whole charge, was in accordance with the decision in Miller v. Miller, 9 Barr.

The opinion of the Court was delivered May 21, 1855, by BLACK, J.

There was no trouble in the Court below, and there can be none here, about determining what are the main and principal rights of the parties in regard to the subject-matter of the controversy. A small stream of water runs through the land of both. The defendant is the upper and the plaintiff the lower proprietor. It is asserted that the defendant, who is working a lead-mine, has corrupted the water and sensibly diminished the volume of the stream. If either of these allegations be true, the plaintiff has a right to recover in this action; and if one verdict be not enough to make the defendant discontinue the nuisance, a second jury will be instructed to give such damages as will cause him to wish that he had taken the warning of the first. 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 his adversary.

We are quite content with the exposition which the judge of the Common Pleas gave of the law which governs the owners of lands through which a stream of water passes. His definitions of their rights and obligations is accurate as well as clear. There is indeed no complaint of anything he said on this branch of the case, except his refusal to affirm without qualification one of the defendant's points; and if there be a part of the charge better entitled to our approbation than any other, it is the answer to that point. The proposition of the defendant was, that he had a legal right to use a reasonable quantity of the water for the purposes of his business. The Court replied that his business might reasonably require more than he could take consistently with the rights of the plaintiff. We cannot see how or on what principle the correctness of this can be impugned. The necessities of one man's business cannot be the standard of another's rights in a thing which belongs to both. The true rule was given to the jury. The defendant had a right to such use as he could make of the water without materially diminishing it in quantity or corrupting it in quality. If he needed more, he was bound to buy it. However laudable his enterprise may be, he cannot carry it on at the expense of his neighbor. One who desires to work a lead-mine may require land and money as well as water, but he cannot have either unless he first makes it his own.

For upwards of twenty-five years the plaintiff, and those under whom he claims, have maintained a dam across the stream above his own line and on the land occupied by the defendant. By means of this dam a portion of the water is diverted into a ditch, and is led along a higher part of the plaintiff's farm than that through which it flows in...