Willis v. City of Perry

• Decision Date: 22 October 1894
• Parties: WILLIS v. CITY OF PERRY.
• Court: Iowa Supreme Court

92 Iowa 297

60 N.W. 727

WILLIS

v.CITY OF PERRY.

Supreme Court of Iowa.

Oct. 22, 1894.

Appeal from district court, Dallas county; J. H. Henderson, Judge.

Action for damages caused by diverting water from a flowing well. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.Shortley & Harpel, for appellant.

White & Clark, for appellee.

KINNE, J.

The undisputed facts in this case are that in 1888 plaintiff sunk a well on her lot in the city of Perry, Iowa, and secured a flow of water therefrom, which rose to a height of several feet above the surface of the ground. She erected a bath house, and piped the water from the well into said house and the bath tubs therein, and built up a large and profitable business. In 1890 one Blank sunk a well on his ground, near to plaintiff's well; and, very soon after, one Burrington sunk a well on his land near plaintiff's well. Both the Blank and Burrington wells were situated on ground considerably lower than was plaintiff's. Prior to the sinking of these last two wells, plaintiff had put a “goose neck” on her well, about 3 feet or 3 1/2 feet high, and the water was discharged therefrom with great force and constantly. After the Blank and Burrington wells were sunk and had commenced to flow, the stream from plaintiff's well was lighter, and it would only raise three feet high. Plaintiff then lowered the goose neck so that it was about two feet high. In 1891 defendant city, for the purpose of supplying water to its citizens, sunk three wells on its grounds about a block from plaintiff's well. They were all four inches in diameter, and a flow of water was secured from each of them. In the fall of 1891 the city erected works and pumping machinery, and attached the same to said wells, and pumped from them such quantities of water as were needed for the city supply. After the city wells began flowing, and when they were left open, the water in plaintiff's well ceased to flow, and the water seems to have stood therein at about the level of the ground. When caps were put on the city wells, plaintiff's well would flow. The city wells were on lower ground than plaintiff's well. After the city attached its pumping machinery to its wells, and when it was pumping, there would be no flow at all from plaintiff's well, and this condition of affairs continued to exist for some length of time after the city ceased pumping. Sometimes, after the city had been pumping, it would be two or three hours, and at other times five or six hours, before the flow of water from plaintiff's well would begin. At times, when the city was not pumping, the caps would be removed from its wells, which would release the water, and permit it to flow and waste, and during these periods there was no flow from plaintiff's well. The Blank and Burrington wells appear to have been flowing most of the time, whether in use or not. Plaintiff's well was permitted to flow when it would, and the water wasted into the creek. Prior to the sinking of the city wells, plaintiff had used the water from her well for domestic purposes, and for giving baths in her bath house, and had sold some of the water. She had also used it in washing for her bath house. At first the water was carried in buckets to the bath house, but afterwards it was forced by steam and mechanical appliances from the well into tanks in the bath house. These appliances are thus described by a witness: “The first siphon was used to raise the water to the tanks for heating. The siphon was attached to the pipe about two feet above the surface of the ground, and then there was a horizontal pipe about ten feet long running from it to the well, and which was lowered about a foot or a foot and a half after the city wells were put in. Steam was conducted from the boiler through a pipe into the siphon, and then the water was forced out into the tank and distributed.” There is a conflict in the testimony as to what efforts plaintiff made to secure water from her well after the city wells were sunk and being operated; but we think it fairly appears that she put in a larger boiler, and made certain other changes in the machinery, and she claims that she could not draw the water when the city was pumping, and that by reason of the sinking of the wells by the city, and its permitting them to flow, and by pumping water from them, she was deprived of water, for all purposes, for over half of the time. The defendant claims that plaintiff, with her machinery and appliances, if properly operated, could at all times have supplied herself from her well with an abundance of water for all purposes. Plaintiff claims special damages in the sum of $116.55, expended in order to save herself from damages by reason of defendant's acts. Defendant denies that it diverted the water from plaintiff's well, and avers that in all respects it, in sinking its wells and in using them, exercised prudent care and caution to the end that the water should not be wasted, and that it used only so much of said water as was necessary to supply the demands and needs of said city; denies that its use of the water interfered with plaintiff's use of her bath house, or, if it did so, it was only for one or two hours each day, and while the defendant was pumping water from its wells into its stand pipe; that there is at all times in the subterranean stream ample and sufficient water to supply all the wants of plaintiff. A jury trial was had, and a verdict rendered for plaintiff for $475, and judgment was entered thereon, from which defendant appeals.

2. While, in the issues as made, the question as to these wells being all supplied from the same subterranean stream is in controversy, still the cause was tried upon the theory that all of these flowing wells were in fact supplied from one and the same subterranean stream, and, indeed, so far as appears from the record, it would seem that the indications all tend to sustain that theory. In deciding the questions presented, we must determine by what rule of law the rights of the parties to this unseen stream of water are to be measured. Subterranean water courses are of two classes: First, those whose channels are known or defined; and, second, those whose channels are unknown and undefined,--and the principles of law governing the former are not applicable to the latter. Kin. Irr. § 48. If, in fact, or by reasonable inference, it is known that a subterranean stream of water flows in a well-defined channel, capable of being distinctly traced, it is said to be governed by the rules of law applicable to streams flowing upon the surface of the earth. Such is the general rule, to which, however, we think there are some exceptions, which will hereafter be considered. Burroughs v. Saterlee, 67 Iowa, 400, 25 N. W. 808; Kin. Irr. § 48; Black's Pom. Water Rights, § 67; Gould, Waters, § 281; Washb. Easem. p. 516; Ang. Water Courses, § 112; Dickinson v. Canal Co., 7 Exch. 282; Chasemore v. Richards, 2 Hurl. & N. 186; Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. 470, Fed. Cas. No. 2,989; Smith v. Adams, 6 Paige, 435;Mason v. Cotton, 4 Fed. 792;Trustees, etc., v. Youmans, 50 Barb. 320; Wheatley v. Baugh, 25 Pa. St. 531; Dudden v. Guardians, etc., 1 Hurl. & N. 627; Frazier v. Brown, 12 Ohio St. 300;Hanson v. McCue, 42 Cal. 303;Strait v. Brown, 16 Nev. 321; Whetstone v. Bowser, 29 Pa. St. 59; Saddler v. Lee, 66 Ga. 45; Acton v. Blundell, 12 Mees. & W. 324; Haldeman v. Bruckhart, 45 Pa. St. 514; Hale v. McLea, 53 Cal. 578. The general rule governing surface streams is that “prima facie every proprietor on each bank of a river is entitled to the land covered with the water to the middle of the thread of the stream, or, as is commonly expressed, ‘usque ad filum aquae.’ In virtue of this ownership, he has a right to the use of the water flowing over it, in its natural current, without diminution or abstraction; but, strictly speaking, he has no property in the water itself, but a simple use of it as it passes along.” Tyler v. Wilkinson, 4 Mason, 400, Fed. Cas. No. 14,312; Kin. Irr. § 59, and cases cited. In other words, every riparian owner has a right to use the water in the stream as it passes along, and an equal right with those above and below him to the natural flow of the water in its accustomed channel, without unreasonable detention, or substantial diminution, either in quality or quantity, and none of such owners have the right to use the water to the prejudice of the others, unless such a right has been acquired by license, grant, or prescription. Kin. Irr. § 60; Gould, Waters, §§ 213, 214; Ang. Water Courses, § 93; Heath v. Williams, 25 Me. 209; 43 Am. Dec. 275, and notes; Garwood v. Railroad Co., 83 N. Y. 405;Ware v. Allen, 140 Mass. 513, 5 N. E. 629, and notes; Railroad Co. v. Miller, 112 Pa. St. 34, 3 Atl. 780, and note; Gould, Waters, § 204; 3 Kent, Comm. 439; Blanchard v. Baker, 8 Greenl. 266; Bealey v. Shaw, 6 East, 208, 214; Pope v. Kinman, 54 Cal. 3;Plumleigh v. Dawson, 1 Gilman, 544; Wheatley v. Chrisman, 24 Pa. St. 302; Weiss v. Steel Co., 13 Or. 496, 11 Pac. 255.

Now, each riparian owner has a right to use the water of a surface stream for ordinary or natural uses, and, under certain circumstances, for artificial uses, such as for irrigation and the like; and the better law seems to be that he may use the water for his natural and ordinary wants, regardless of the effect upon other proprietors on the stream; that is, as we understand the rule, one riparian proprietor may, for his natural wants, if necessary, use all of the water in a surface stream, to the exclusion of every other such proprietor, certainly so as against the other proprietor using the water for artificial purposes. Pom. Rip. Rights, § 125; Spence v. McDonough, 77 Iowa, 462, 42 N. W. 371; Kin. Irr. §§ 65, 66; Gould, Waters, § 205; Ang. Water Courses, § 93; Stanford v. Felt, 71 Cal. 249, 16 Pac. 900. In case, however, such a proprietor puts the water...