A riparian proprietor, though he has an undoubted right to use the water for hydraulic or manufacturing purposes, must so use it as to do no injury to any other riparian proprietor.
Plaintiff owned a mill that is downstream from Defendant’s mill. The stream, which powered both mills, was usually of sufficient flow to not cause any problems, but in 1837, a drought caused the stream to lose a considerable amount of flow. Defendant diverted the stream, by using a dam, into Defendant’s well. Plaintiff’s mill became non-operational due to the stream being dry. Plaintiff brought suit and obtained a verdict of $150. The parties had stipulated to a statement of facts which include that Defendant hauled in extra water for his boilers and that the water was placed into Defendant’s well along with the stream water. Defendant appealed the judgment of the trial court. The judgment was affirmed.
Are riparian proprietors are bound to make use of running water to avoid injury to those riparian proprietors downstream?
A riparian proprietor, though he has an undoubted right to use the water for hydraulic or manufacturing purposes, has to use it so as to do no injury to any other riparian proprietor. Each riparian proprietor was bound to make such a use of running water as to do as little injury to those below him as was consistent with a valuable benefit to himself. The use had to be a reasonable one. The question was whether it was a reasonable use of running water by the upper proprietor to entirely consume the fluid itself. The facts showed that defendant obstructed the water by a dam and diverted the whole of it into his well. This diversion was clearly illegal. However, it was contended that defendant forbade the construction of the dam by his servant. After having availed himself of the illegal act of his servant, however, the law presumed that defendant had authorized it. Thus, plaintiff did have an action against defendant for obstructing and diverting the water course.