Commissioners v. Bradford ( 1902 )

This is an action to recover damages for the alleged diversion of a stream of water from the land of the plaintiff, who is here the appellee.

The original narr. contained but one count; subsequently a second was added; and during the trial on leave of the Court, an amended narr. was filed. As appears by the record the leave was asked and granted, not to amend by filing an additional count, but only to "file amended narr." In such case the original narr. must be held to be withdrawn. Mitchell v.Williamson, 9 Gill, 77; Poe's Practice, sec. 189.

The amended narr. alleges substantially that the appellee was seized and possessed of a certain farm, that the appellant was seized of another tract on which there were certain springs or "runs of water," which water had been used and accustomed to run, "in great plenty and abundance for the supply of a certain stream, which ran down and over the appellees tract; and that the appellant in the year 1897, wrongfully dug, built and made an intake well" on its property, and thereby diverted and turned the streams out of the water course through the appellee's land, and pumped the water from said well away from the appellee's property; and from that time diverted it away from the close of the appellee so that the said farm of the appellee was not sufficiently supplied with water, and the appellee could not conduct his said farm nor his canning house thereon situate with profit and advantage. This presented a good and sufficient cause of action. The appellee being a lower riparian proprietor had a right to the natural stream of water flowing through his lands in its ordinary natural state, both as to quantity and quality as incident to the right to the land on or through which the water runs; Balto. v. Warren Manufacturing Co., 59 Md. 103; and a diversion of the water by the upper proprietor from its natural channel whereby the lower proprietor was deprived of its use, is a legal injury for which an action may be maintained. Colrick v. Swinburne, 105 N.Y. 506. The demurrer of the appellant was therefore properly overruled.

The defendant then filed four pleas, the first, second and third of which set up in various forms the Statute of Limitations. Of these the third was properly stricken out on demurrer. The fourth plea alleged as a bar to the action, that the springs on the appellant's property which supplied the streams on the appellee's lands were "not surface streams or defined water-courses, but were underground streams percolating through the soil of the appellant's land, with no defined or regular course or channel." Issues having been joined, the trial was had, and the verdict and judgment being for the appellee this appeal was taken.

Four bills of exception were reserved by the appellant; three to the admission of evidence and one other to the action of the Court in granting the first and fifth of the appellee's prayers and in refusing the appellant's fifth, sixth, eighth, ninth, eleventh, twelfth, thirteenth and fourteenth prayers.

There seems to have been no serious objection as to the correctness of the proposition contained in the appellee's first prayer as a general rule. No attack upon it in that respect was made in the briefs or in the argument. And if there had been, it could not be successfully assailed upon that ground. There had been evidence offered tending to show that the appellant in the construction of the intake well had intercepted the underground channel that supplied the spring, which was the source of the stream flowing through the appellee's land, and had diverted the water to the well, from thence, by pumping, to the town; and that by these means the water was diverted from its natural channel. The only ground upon which the appellant objected to it was that under the facts of the case the plea of limitations interposed a bar to the appellees recovery, and that the prayer was defective in that the jury was not so instructed.

Whether that contention can be maintained or not depends upon the character of the damage and the time of the commission of the act that was the cause of the injury. The appellant insists that the origin of the injury to the appellee's land was the construction of the reservoir or the intake well, whereby the spring was totally destroyed; that all of the damage occurred at that time; and that the reservoir being of a permanent character the injury is not a continuing nuisance, but one of a permanent character, which created but a single cause of action in which all damages past, present and future, must be recovered. If this statement of the law be applicable, the appellant further contends that inasmuch as the creation of the reservoir was the cause of the nuisance the Statute of Limitations begins to run from the time of the completion of the works, and it has offered evidence tending to show that it was completed more than three years before the bringing of this suit.

Before discussing the legal theory upon which this contention is based, it must first be determined what the cause of the injury was and whether the construction of the intake well was the proximate cause of the injury. The mere fact of the diversion by the appellant of the water from the spring to the reservoir on its own land is obviously not sufficient unless it can be shown that the work itself caused the diversion of the water. It was said in Pa. R.R. Co. v. Miller, 112 Pa. 34, and it is well settled, that "the upper riparian proprietor has the right to the use of the stream on his land for any legal purpose, provided he returns it to its channel uncorrupted and without essential diminution." Rudolph v. Pa., Schuykill V.R.R. Co., 47 L.R.A. 786; s.c., 186 Pa. St. 541. But we do not think there was evidence from which the jury could draw the inference that the construction of the works per se was the cause of the injury. The plant of the defendant consisted of an intake well or reservoir into which the water was collected, and pumped therefrom to a standpipe and from thence was distributed to the town. The intake well is fifteen feet deep, lined with stone masonry. Its walls rise six or nine inches above the level of the ground. It has no outlets, other than an overflow pipe a few inches below the top of the wall, and a ten inch pipe three feet from the bottom, through which the water is pumped to the standpipe, thirty four feet distant. The water enters the well from the bottom. The spring that supplied the stream with the water which flowed through the appellees land, was a few feet distant from the well. The location of the spring and also of the well, is upon higher ground than the bed of the stream, so that the water from the plant runs down and joins the water that comes from the spring. This was conceded at the argument, and even if it had not been, it is apparent from the evidence. It was clearly shown that the waste water from the pump runs through a channel down to the bed of the stream and thence on through the appellees land, and one of the plats shows that water from the overflow pipe in the well, would take the same course. There is also proof that the water in the well, unless pumped out, would rise to the overflow pipe. Mr. Bradford testifies that "he had been up at the reservoir when there was water coming out of the overflow pipe." The spring itself, was not included in the works; it was some feet distant; but it was filled up a few feet deep in the grading thereabouts. It is clear that the immediate diversion of the water was to the reservoir upon the land of the appellees, and this as we have shown did not confer upon the appellees any right of action, unless the effect of it was to deprive the stream through the appellees land of its accustomed quantity of water.

It also appears that after the construction was completed there remained two outlets for the water from the earth; one through the spring, the other through the outlet pipe in the well. If the latter were lower than the spring, the water from the well would flow out of the overflow pipe, back again into its accustomed channel, unless prevented from doing so by the action of the pump. On the other hand, if the spring were lower than the overflow pipe, unless interfered with by pumping, the water would always flow out of the spring, that being under the assumption the lowest exit. In either of these hypotheses, unless the pump took it from the well, the water would flow through the appellees property without loss in quantity or quality. For these reasons it seems to be clear the water was diverted from the appellees premises not by the mere construction of the well, but by the daily pumping, whereby it was taken out of the well and distributed through the standpipe to the town. And if this be so, the plant itself was not the proximate cause of the injury to the appellant, but it was the use to which the water was put by the appellant, after it came into the well. In such case the nuisance is continuing, for which no damage can be recovered until it has actually arisen, because the injury itself depends upon the use to which the work is applied and therefore until the injury has happened it is yet contingent. This principle is firmly established. It was well stated in the case of The Town of Troy v. Cheshire Railroad Co., 23 N.H. 102, as follows: "A person erects a dam upon his own land which throws back water upon his neighbors land; he will be answerable for all damage which he has caused before the date of the writ, and ordinarily for no more, because it is as yet contingent and uncertain whether any further damage will be occasioned or not; because such a dam is not, of its own nature and necessarily, injurious to the lands above, since that depends more upon the manner, in which the dam is used, than upon its form. But if such a dam, is in its nature of a permanent character, and from its nature must continue permanently to affect the value of the land flowed, then the entire injury is at once occasioned by the wrongful act, and may be at once recovered in damages." All the cases cited by the appellant rest upon the same principles. They hold that if the nuisance is a permanent structure of such a character that its continuance is necessarily an injury then the damage is original and may at once be fully estimated and compensated, but if the injury be not of this nature the continuance of the nuisance is a continuance, for which a recovery may be had and damages recovered. Stoghill v. C.B. Q.R. Co., 53 Iowa 343;Powers v. Council Bluffs, 45 Iowa 655; Staple v. Spring,10 Mass. 72; C. A.R.R. Co. v. Maher, 91 Ill. 317; Fowle v. New Haven and Northampton Co., 107 Mass. 354; Darley MainColliery Co. v. Mitchell, 11 App. Cas. 127.

It follows from what we have said that there are no facts in the case by which the plea of limitations can be made to apply. There was no error therefore in granting the plaintiff's first prayer and rejecting the eighth, ninth, tenth, eleventh, twelfth, thirteenth and fourteenth prayers of the defendants.

The plaintiff's fifth prayer was properly granted. The appellees were entitled to recover all the damages that directly resulted by reason of the diversion of the water. There was evidence tending to show permanent injury to the land and the appellee was also entitled to recover her loss in that respect.City, c. v. Merryman, 86 Md. 594. LORD HALSBURY in DarleyMain Colliery v. Mitchell, 11 App. cases 127, said: "That for one cause of action you must recover all damages incident to it by law once and forever."

The defendants fifth prayer directs the jury that in estimating "any damages they may believe she has sustained, by the defendant's use of the water," they can only consider what amount of water, but for the defendant's act would have flowed into the stream "from a surface spring or defined water course," and "if they find the defendant returns to the plaintiff's stream in the use it makes of such water and if they believe it returns to the plaintiff a flow of water in equal respects to what she would receive if the defendant would not use any of said water," then they may find nominal damages for the diversion of the water. This prayer seems rather difficult to be understood. If it means to submit a case where the jury found that the appellants returned as much water to the appellee's stream as would have flowed there, but for the act of the appellant, then there would be no diversion, and the conclusion ought to have been to direct a verdict for the appellants. If, however, it was intended to direct that if notwithstanding the diversion from the spring, the appellants opened up new sources of supply whereby the appellee received as much water as she did before, then the rules of damage laid down would be incorrect. The appellee's right is to receive the water that was accustomed to flow through her property, and the appellants have none to deprive her of that, though they brought other water from a new source to supply its place. Ware v. Allen, 140 Mass. 513. The prayer was therefore properly rejected.

The exceptions first, second and third being to the admission of evidence were not pressed at the argument. The questions applicable to them, are already disposed of by what has been said. All the evidence tended to show what the permanent injury to the land was, and was properly admitted.

The judgment must be affirmed.

Judgment affirmed, with costs to the appellees.

(Decided March 6th, 1902.)