Stratton v. Mt. Hermon Boys' Sch. - 216 Mass. 83, 103 N.E. 87 (1913)

Rule:

A proprietor may make any reasonable use of the water of the stream in connection with his riparian estate and for lawful purposes within the watershed, provided he leave the current diminished by no more than is reasonable, having regard for the like right to enjoy the common property by other riparian owners. If he diverts out of the watershed or upon a disconnected estate the only question is whether there is actual injury to the lower estate for any present or future reasonable use. The diversion alone without evidence of such damage does not warrant a recovery even of nominal damages. 

Facts:

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, employees 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.

Issue:

Was the denial of the request proper?

Answer:

Yes.

Conclusion:

The court held that the governing principle of law in a case like the present is this:  A proprietor may make any reasonable use of the water of the stream in connection with his riparian estate and for lawful purposes within the watershed, provided he leave the current diminished by no more than is reasonable, having regard for the like right to enjoy the common property by other riparian owners. If he diverts out of the watershed or upon a disconnected estate the only question is whether there is actual injury to the lower estate for any present or future reasonable use. The diversion alone without evidence of such damage does not warrant a recovery even of nominal damages. The court found that the instruction was proper, and although it would have permitted the recovery of nominal damages in any event, defendant suffered no harm by the error.