Merrifield v. Canal Commissioners , 212 Ill. 456 ( 1904 )

Wilkin, Cartwright and Hand, JJ.,

dissenting:

The principal legal questions in dispute in this case are whether appellant Merrifield is entitled to draw from the feeder a certain proportion of all the water flowing in Fox river or only of the water flowing in the feeder, and whether he has a prescriptive right to draw from the feeder as much water as was drawn therefrom by himself and his predecessors in title for a period of years. Both these questions are decided against him. It is held that the rights of the parties were settled in the action at law, and that it became the duty of the canal commissioners to take such steps as may be found proper to control and restrict the use of water by him to the proportion to which he is entitled. So far we concur in the foregoing opinion, but we do not understand that the commissioners are restricted to the use of gates because they were in use when Merrifield and his predecessors were permitted to take as much water as they chose and took more than they were entitled to. In our opinion the commissioners may adopt and install any device that will accomplish the desired result. What Merrifield is entitled to is a definite share of the water power supplied by the feeder, and if he gets it in any way for practical use on his water wheels he has no cause for complaint. The evidence .shows that a proper distribution of the water power by means of gates operated by an individual is not practicable. The amount of water flowing through a given space under gates depends upon velocity as well as volume, and is governed largely by the head or pressure of the water above. The head is lowered by opening the gates and releasing a portion of the water, and it is constantly changing in some degree. To ■make and maintain a just apportionment would require the presence and personal attention of an expert. The hydraulic engineer employed by Merrifield testified for him that the theory or system adopted by the commissioners for an automatic distribution of the water according to the rights of the parties was sound and correct, but that the form of the weir should be different and present a vertical side to the flow instead of a sloping one. Perhaps the form was objectionable, but according to the evidence there never was a time when the water did not flow over it, nor when Merrifield did not get more water and water power than his just proportion. The crest of the weir was 3.56 feet below the crest of the dam, and the evidence did not show that there had been or would be a time when water would not flow over the weir. If there was some loss of head as compared with the use of gates it was fully compensated for by the increased amount of water, and the full share of water power was furnished. If there was a better form of weir it might properly be adopted, but Merrifield himself proved that a weir is the proper means of controlling the distribution of the power.