A Treatise on the Law of Watercourses

The following important case, decided by the Circuit Court of the United States (the first circuit), has not yet been reported, but a copy has been politely furnished the author by Mr. Justice STORY, from which the following abstract has been made.

JOSHUA WEBB V. THE PORTLAND MANUFACTURING COMPANY. May Term, 1838, at Portland.

Bill in Equity for an injunction by the plaintiff to prevent the defendant from diverting a Watercourse from plaintiff's mill, and for further relief. Upon the coming in of the answer, &c., a preliminary question was suggested by the Court at the hearing, and argued by counsel.

The facts in the above case were as follows: At the Saccarappe Falls, on the river Presumpscat, there are two successive falls, upon which are erected certain mills and mill-dams, the latter being called the upper and the lower mill-dams; and the distance between them is about forty or fifty rods, and the waters therein constitute the mill-pond of the lower dam. The plaintiff is the owner of certain mills and mill privileges (in severalty) upon the lower dam; and the defendants are entitled to certain other mills and mill privileges on the same dam, also in severalty. The defendants are the owners of a cotton factory mill near the left bank of the river, and have opened a canal for the supply of the water necessary to work that mill into the pond immediately below the upper dam; and the water thus withdrawn is returned again into the river immediately below the lower dam. The defendants insist upon their right so to divert and withdraw the water by means of their canal, upon the ground that it is a small part, only about one fourth of the water to which, as mill-owners on the lower dam, they are entitled, and that there is no damage whatsoever done to the plaintiff's mills by this diversion of the water.

Two distinct questions are presented. The first is, whether, to maintain the present suit, it is essential for the plaintiff to establish any actual damage. The second is, whether, in point of law, a mill-owner, having a right to a certain portion of the water of a stream for the use of his mill, at a particular dam, has a right to draw off the same portion or any less quantity of the water at a considerable distance above the dam, without the consent of the owners of other mills on the same dam. The point will also arise whether it makes any difference that the drawing off of the water

above can be shown to be no sensible injury to the other millowners on the lower dam.

Though it be true that no action lies in a case where there is dammun absque injuria, that is, where there is a damage done without any wrong or violation of any right of the plaintiff, it is not correct, in a legal sense, that an action will not lie even in case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact; in other words, that injuria sine damno is not actionable. It is an elementary principle of law, that wherever there is a wrong there is a remedy to redress it, and that every injury imports damage in the nature of it; and that if no other damage is established, the party injured is entitled to nominal damages. This principle applies more strongly where there is not only a violation of the plaintiff's right, but the defendant's act, if continued, may become the foundation, by lapse of time, of an adverse right. Actual, perceptible damage is not indispensable as the foundation of an action. The law tolerates no further inquiry than whether there has been the violation of a right. The party injured is entitled to nominal damages at least.

Such was the opinion of Lord Holt, in opposition to his brother judges, and which was confirmed by the House of Lords, in the great case of Ashby v. White.' The same principle is established in the cases of Hunt v. Dowman,2 Herring v. Finch, and many others. Some of the old cases inculcate a different doctrine, and there are some modern ones, which, at first view, seem to be opposed to it. But Lord Holt's opinion is to be preferred, if there be a conflict. The case of Williams v. Morland, seems to have proceeded upon the ground that there was neither any damage nor injury to the right of the plaintiff. Some of the dicta in this case have been subsequently impugned. The case of Jackson v. Pesked5 turned upon a supposed defect in the declaration. In Young v. Spencer, the Court admitted that if there were any injury to the reversionary right, the action would lie. The case of

1 2 Lord Raymond, 938. S. C. 6 Mod. 45. Holt's Rep. 524. The opinion of Lord Holt has also been recently published in England from his own MS. 2 Cro. Jac. 478.

3 2 Lev. 250.

1 M. & Selwyn, 234.

42 B. & Creswell, 910

10 B. & Creswell, 145.

Marzetti v. Williams,' on the other hand, goes the whole length of Lord Holt's doctrine. See also the cases of Hodson v. Todd,2 Pindar v. Wadsworth,3 and Bowen v. Hill. The case of Blanchard v. Baker recognises the same doctrine in the most full and satisfactory manner.

Upon the whole, it may be established as a legal principle, that wherever there is a clear violation of a right, it is not necessary in an action of this sort, to show actual damage; that such violation imports damage, and if no other are proved, the plaintiff is entitled to a verdict for nominal damages. And a fortiori this doctrine applies, whenever the act done is of such a nature as that, by its repetition or continuance, it may become the foundation or evidence of an adverse right.

But if the doctrine were otherwise, and no action were maintainable at law, without proof of actual damage, that would furnish no ground why a Court of Equity should not interfere and protect the right from violation or invasion.

Let us now come to the only remaining question; and that is, whether any right of the plaintiff, as mill-owner on the lower dam, is or will be violated by the diversion of the water by the canal of the defendant. Upon this point there can be no controversy. The law, as established in England and America, that the proprietor of each bank of a stream is proprietor of half the land covered by the stream, but that there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream, and no proprietor can use it to the prejudice of any other. No proprietor can diminish the water which descends to a proprietor below, or throw back the water upon one below, without consent or implied grant. Running water is not susceptible of an appropriation which will justify the diversion or unreasonable detention of it. The proprietor of the watercourse has a right to avail himself of it momentum, as a power which may be turned to beneficial purposes. See Wright v. Howard, Tyler v. Wilkinson, Blanchard v. Baker, 3 Kent's Commentaries, p. 439, 3d ed., 2 Story on Equity Jurisprudence, § 926, 927, 928, and cases there cited.

1 1 B. & Adolphus, 415. 32 East, 162.

58 Greenleaf, 253, 268. 7 4 Mason, 397.

2 4 T. R. 71.

4 1 Bingham's New Cases, 549.

6 1 Sim. & Stu. 190.

88 Greenleaf, 253.

The same principles apply to the owners of mills on a millstream. They have an undoubted right to the flow of the water as it has been accustomed of right and naturally to flow to their respective mills. No proprietor has a right to divert or unnecessarily to retard this natural flow to the mills below, and no proprietor below has a right to retard or turn it back upon the mills above, to the prejudice of the right of the proprietors thereof.

This being the law, upon what ground can the defendants insist upon a diversion of the natural stream from the plaintiff's mills, as it has been of right accustomed to flow thereto. First, it is said that there is no perceptible damage done. That suggestion has been already answered. Where a right is impaired, actual damage need not be proved. But in this case it can hardly be possible that there is not actual damage done to the plaintiff, and the effect of the defendant's diversion must be to diminish the value of his mill privileges.

Again, it is said that the defendants are mill-owners on the lower dam, and, as such, are entitled to their proportion of the water of the stream in its natural flow. So they are; but they must take it at the lower dam. They have no right to arrest or divert it above. The privilege attached to the mills of the plaintiff is not the privilege of using half or any other proportion merely of the water in the stream, but of having the whole stream, undiminished, in its natural flow, come to the lower dam with its full power, and there to use his full share of the water-power.

It has been suggested that the defendants have fully indemnified the plaintiffs from any injury, and have even conferred a benefit on them by securing the water by means of a raised dam higher up the stream, at Sebago pond, in a reservoir, so as to be capable of affording a full supply in the stream in the dryest seasons. To this it may be replied, that the plaintiff is no party to the contract for raising the dam; and, in the next place; he is not compellable to exchange one right for another.

These are my views upon the points raised in the argument. The subject, at least as it is at present open for the consideration of the Court, appears to be exhausted. Whether, consistently with this opinion, the defendants can establish any substantial defence to the bill, it is for them to consider.

Decree accordingly.

INDEX.

ABATEMENT, of nuisance.

See NUISANCE.

Nuisances to, or by means of a watercourse, may be