Citation. 22 Ill.216 Mass. 83, 103 N.E. 87 (1913)
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Defendant owns land on a stream, which runs through Plaintiff’s mill. The Defendant operated a pump, which diverted 60,000 gallons of water each day from the stream to another of Defendant’s properties, the Mt. Hermon Boys’ School.
Synopsis of Rule of Law.
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 leaves the current of the stream diminished by no more than is reasonable, having regard for the rights of other riparian owners.
Facts.
The Mt. Hermon Boys’ School is not connected with Defendant’s land, but is about a mile away and in a different watershed. There were 525 students at the school along with over 100 staff, 103 cattle, 28 horses, and 90 swine. The evidence adduced at the trial tended to show that the diversion caused a substantial drop in the flow of the stream. Thus, the Plaintiff had less water with which to power his mill than he would have had but for the Defendant’s diversion. Defendant requested that the fact that the water was being diverted to the school over a mile away from the stream not be considered. Instead it requested that the only consideration be whether the Defendant had diverted an unreasonable quantity of water under all the circumstances. The lower court denied Defendant’s request, and gave an instruction, which limited the Defendant’s right to water to that land immediately adjoining the stream and did not extend to other, non-connected properties. The lower court also ins
tructed the jury that if the Defendant did divert the water for use on another non-connected property, then the Plaintiff was entitled to recover nominal damages even though Plaintiff may not have suffered an actual loss.
Issue.
Was the lower court’s instructions correct?
Held.
No. Defendant’s exceptions are overruled.
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 of the stream diminished by no more than is reasonable, having regard for the rights of other riparian owners.
If the riparian owner upstream diverts water from the stream 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 damages, does not warrant the imposition of even nominal damages.
The charge of the lower court was wrong, because it would have permitted recovery regardless of damages. However, the evidence showed that the damages to the Plaintiff’s estate were substantial.
Discussion.
This case is illustrative of an unreasonable use of the water by the upstream estate and is also illustrative of the concept of use within the watershed. The main provision of the law in these cases is that the use must be reasonable. If the Defendant used less water, the use might have been reasonable, although the boys’ school was outside the watershed. This is true because the Plaintiff, or lower estate, must suffer an actual injury in order to recover.
