White v. Whitney Mfg. Co.

• Decision Date: 09 April 1901
• Citation: 38 S.E. 456,60 S.C. 254
• Parties: WHITE et al. v. WHITNEY MFG. CO.
• Court: South Carolina Supreme Court

38 S.E. 456

60 S.C. 254

WHITE et al. v. WHITNEY MFG. CO.

Supreme Court of South Carolina

April 9, 1901

Appeal from common pleas circuit court of Spartanburg county; O. W Buchanan, Judge.

Action by Thomas J. White and others against Whitney Manufacturing Company for the wrongful detention of water by defendant as upper riparian owner on the same stream with plaintiffs. From a judgment in favor of the defendant, plaintiffs appeal. Affirmed.

Following is the court's charge and appellants' exceptions:

"Mr. Foreman and Gentlemen of the Jury: This is an action brought by Thomas J. White and R. P. White and A. L White against the Whitney Manufacturing Company, and they complain that the defendant, the Whitney Manufacturing Company, has deprived them of the reasonable use of the water along the stream called 'Lawson's Branch.'. They say that the Whitney Manufacturing Company has unreasonably used and detained and kept from the plaintiffs the water that they were entitled to receive according to the business in which both were concerned, and that as a result of this wrong on the part of the Whitney Manufacturing Company certain damages have occurred to them, the plaintiffs here, Messrs White; and as a result of it they ask for so much damages and that there be an injunction issued against the further damage, in the respects complained of, in favor of the plaintiffs and against the defendant here. The defendant comes here, and denies this,--you have heard the pleadings read,--and they say that, if any damage has resulted at all it is the result of the reasonable use they have a right to make, because, forsooth, one man, one riparian owner (riparian owner meaning the owner of a bank along the stream), has a right to use the stream as much as he chooses consistent with the right of somebody else,--the right of the person above and below. Therefore they say: 'We haven't injured you at all, because we have only taken such an amount of water and at such times as we ought to have done, and consistent with your right to take under circumstances at your mill below. Therefore we have not injured you at all. We deny that we are responsible to you at all for anything. You have heard the specific allegations of the answer, and you take the answer and the complaint as you heard them read, and not as I give them to you.'. I merely recite these facts to show the issues here.

I am requested to make the following charges to you, and I do so:

'(1) Every proprietor of lands on the banks of a stream has a right to use of the water in the stream as it was wont to flow, without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him.'. I charge you that.

'(2) Each proprietor is entitled to enjoy the natural current and fall of the stream, but one cannot lawfully appropriate additional power to the injury of a lower proprietor. It is not lawful for one proprietor to impede or diminish the ordinary flow of the water so as to materially interfere with the enjoyment of other proprietors.' I charge you that.

'(3) A mill owner has no right to erect machinery requiring for its operation more water than the stream supplies in its ordinary state, and to operate machinery by a full pond, discharging the water upon those in unusual quantities, so that they are unable to use it.' Well, so far as that refers to matters of fact, it is in your province. The court will not undertake to say that the machinery put there required for its operation more water than the stream supplied at all, or that it was necessary to operate from a full pond. The court don't undertake to say that at all, because that would be taking from your province; but, if the facts recited there be true, then the legal conclusion would be true, and I so charge you.

'(4) What is a reasonable use of the stream is not to be determined by the requirements of the defendant's business.' Not by the requirements of the defendant's business alone, but in its relation to other business, by the standard of what is a reasonable use, and I charge you that with that qualification. 'But is to be determined by considering whether its use of the stream is reasonable and

appropriate to the size of the stream and the quantity of water usually flowing therein.' I charge you that.

'(5) One who wrongfully diverts water from another's mill cannot excuse himself by showing that the plaintiff has altered his wheels so as to require more water than formerly used.' I do not mean to say to you that there has been any diversion at all here. I don't think the complaint charges any diversion at all. It charges a continuation of the same stream. It does not charge that the current was changed at all, but the damage is claimed to be from the improper use of the water flowing along. I charge you that as law, if you find those facts to be so.

'(6) Plaintiff entitled to recover, though no actual present damage be shown, if the use of the water is shown to be extraordinary and unreasonable, where the act complained of, if continued, would bar the plaintiff's right.' I charge you that.

'(7) A reasonable use of water is its use in a reasonable and proper manner in propelling machinery and operating a mill suited and adapted in its magnitude to the size and capacity of the stream and the quantity of water flowing thereon.' I so charge you that.

What are you to try here? Whether or not the plaintiffs have been injured at all by the defendant here; whether or not the defendant has properly and reasonably exercised his right, having in mind the right of other owners upon that same stream,--the use that he had to make of the water that flowed in the stream; whether he made a proper use of it, a reasonable use of it,--such use as, according to the business,--and you can take into consideration what is the usage and customs in that respect,--he ought to have made. A man has a right to use the water of a stream so that he does not affect or injure any one else, and the injury must be an injury; it must not be a mere immaterial injury. The diminution in the quantity of water must not be a mere immaterial diminution at all. It must be an amount sufficient to call it material, because, in the very nature of things, some water will be lost in the operation of these enterprises one way and another. It is whether or not there has been a reasonable use of the right that one had in connection with that stream and the water and the use of it. Every man has a right to the reasonable use and enjoyment of a current of running water when it flows through or on his own land for mill purposes, having a due regard for the like reasonable use of the stream by all other proprietors above and below him. He must so exercise his right as to do no harm to any one else or to impair any one else's rights, exercising a right according to the custom,--the usage of the business; no unreasonable exercise of the right at all; no unreasonable use or appropriation of the water. In determining what is such reasonable use, a just regard must be had to the force and magnitude of the current; its height and velocity; the state of improvement in the country in regard to mills and machinery, and the use of water as a propelling power; the general usage of the country in similar cases; and all other circumstances bearing upon the question of fitness and propriety in the use of water in the particular case. You may take into consideration the size of the structure, how they were made, the capacity and size of the stream, and everything in connection with it, and find out whether or not there was reasonable use. If any party claims a special right to the use of the water more beneficial to himself and more burdensome upon some other owner above or below, he must pay for it, because he is entitled only to a reasonable use of that water. The man above is entitled to the water. He must use it reasonably. It is passed on, flows on, down to the person below him, and so on and so on, each of whom has a reasonable use of that water.

Now, Mr. Foreman, what is reasonable use? The owner of land along a stream has a right to use the water so he does not interfere, or unreasonably interfere, with an equally satisfactory enjoyment of this common right by all proprietors. He must make such a reasonable use of the waters of the stream as is consistent with the reasonable use of it by others. What is a reasonable use must depend upon circumstances, such as the width and depth of the stream, the capacity of the stream, and the volume of water; the fall of it; the previous usage and the state of improvement in manufacturing and the useful arts; and one must not take more than he should consistent with the rights of others. The necessity of one's business cannot be the standard of another's right in a thing which belongs to both. It is not what is necessary to one man's business or another man's business, although you have the right to take into consideration what business men were engaged in,--for instance, on that stream, the extent of the business, how that business was operated,--so as to show whether or not the defendant took more than was reasonable, or detained water in an unreasonable manner, or took more in quantity than should have been taken. 'Reasonable' implies the right to use the water of the stream without material or substantial diminution. That is to say, one has the right to take the stream as it is accustomed to come, without any material increase or diminution of the stream, not but what possibly it will become greater at times than other times, but he has a right to the reasonable use, whatever you may find to be the reasonable use. Each man has the reasonable use, and he must exercise his right, or should

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