Brief Fact Summary. 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.
The right of each riparian owner is to have the natural flow of the stream come to his land and to make a reasonable and just use of it as it flows through his land, subject, however, to the like right of each upper proprietor to make a reasonable and just use of the water on its course through his land and subject further to the obligation to lower proprietors to permit the water to pass away from his estate unaffected except by such consequences as follow from reasonable and just use by him.View Full Point of Law
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.