Harrell v. City of Conway , 224 Ark. 100 ( 1954 )

J. Seaborn Holt, J.

This appeal involves the rights of the City of Conway and the Conway Corporation (appellees) and the rights of the other riparian owners (appellants) within the watershed of Cadron Creek.

Material facts appear to be undisputed. The City of Conway owns its Municipal Water System and appellee, Conway Corporation, operates it under lease from the City. Since about 1912, the City has been getting its water supply from Cadron Creek, a non-navigable stream, about five miles away. Cadron Creek empties into the Arkansas River, and the City’s point of intake and its water facilities and equipment are about two miles upstream from the river. In 1930, the City constructed small earthen dams of various types just below its point of intake to hold the flow of Cadron Creek. Conway had previously acquired, at or near this point of intake, 20 acres of land bordering on both sides of Cadron Creek. In June, 1952, the City completed, at a cost of some $50,000, a permanent concrete dam below this point of intake, which has been put in use by the City. When the waters of Cadron Creek reach the top of this dam, approximately 8 ft. high, they are held within the natural banks of the Creek and a pool of water is formed for about 10 miles upstream.

Appellants own farms of various sizes bordering on Cadron Creek upstream from Conway’s dam — on its 20-acre tract and its point of intake — and during the drought of 1953 began taking large amounts of water for irrigation purposes (for row and rice crops) out of this creek and pool. It appears that perhaps about 90% of the time, the water in Cadron Creek flows over the top of the dam, some 4 or 5 feet, and on occasions at a much higher level.

Upon a hearing, the trial court made the following findings of fact and conclusions of law: “ (1) The court finds that the parties of this action occupy the legal status as riparian owners bordering on Cadron' Creek, a non-navigable stream; that the rights of the parties are governed by the doctrine of law of Riparian Rights, (citing cases), and as such riparian owners, parties to this action are entitled to the rights and privileges vested therein by law.

“(2) The court finds from the evidence adduced that a reasonable use of the water of Cadron Creek, by the upper proprietors, the defendants (appellants) herein, as owners and lessees are to be permitted to pump and use the water from said creek when the water on the gauge of plaintiffs at the dam site, as the same is now located and constructed, shows a depth of 6 feet or more. When such depth measures less than 6 feet at such gauge the defendants should be enjoined from pumping or using said water.

“A permanent..injunction will issue enjoining the defendants herein from pumping or using the waters of Cadron Creek at all times that said depth of the water at the dam site as revealed by the gauge of the plaintiffs is less than 6 feet.”

As indicated, the City of Conway and appellants are riparian landowners'(Conway to the extent of its 20-acre tract only) bordering on Cadron Creek. Cadron Creek being non-navigable, each riparian owner owns to the center of the bordering creek bed. The law of riparian rights applies and prevails in Arkansas and the rights of each riparian ownéi* have been clearly defined and announced by this court many times.

Although our law follows the riparian theory of water rights rather than the theory of prior appropriation, the adherents to the riparian theory are themselves divided into two schools of thought. As is pointed out in the Restatement of Torts, in the Introductory Note preceding § 850, the riparian theory may be subdivided into the doctrine of natural flow and the doctrine of reasonable use, the two being inconsistent with each other. According to the natural flow theory, each riparian owner is entitled to have the watercourse maintained in its natural state, not sensibly diminished in quantity or impaired in quality. Under this theory a riparian owner may withdraw water for domestic uses but not for such artificial uses as the irrigation of crops or the operation of a factory.

Under the reasonable use theory each landowner is entitled to make any reasonable use of the water, provided that such use does not unreasonably interfere with the beneficial use of the stream by others. Under this theory a riparian owner may use the water for irrigation or for any other purpose, the reasonableness of the use being the only measure of riparian rights.

In our prior cases we have not had occasion to make a choice between the two riparian theories. Upon two occasions we have recognized the existence of both theories, in this language: “The general rule as to the rights of riparian owners may be thus stated: Every such proprietor is entitled to the usual flow of a stream in its natural channel over his land, undiminished in quantity and unimpaired in quality, subject to the reasonable use by upper proprietors, and with the right to make any reasonable use of the water necessary for his convenience or pleasure.” Meriwether Sand & Gravel Co. v. State, 181 Ark. 216, 26 S. W. 2d 57.

In one of our most recent cases, Thomas v. LaCotts, 222 Ark. 171, 257 S. W. 2d 936, we held: “A riparian owner is entitled to the unimpaired natural flow of a stream over his land, but this right is subject to reasonable use by upper proprietors. 2. The right of a riparian owner to take water inheres in the soil and it is vested. Our decisions go to the point that under the riparian doctrine no proprietor has priority in the use of water in derogation of another’s rights. 3. The riparian doctrine in Arkansas is of common law origin and is distinct from the law of appropriation, common to many of the western states,” (Headnotes 1, 2, 3), and in the opinion, we said: “The riparian right does not depend upon use and is not lost by nonuse.”

It will be observed that both these quotations first state the natural flow theory and immediately follow it up with an expression of the reasonable use theory.

On the question of riparian rights of a borough which had acquired a 10-acre tract of land on a stream some distance from the borough, on which it constructed a reservoir for a supply of water to its inhabitants, the court, in Eaupt’s Appeal (1889), 125 Pa. 211, 17 A. 436, 3 L. R. A., 536, said: “If the authority of the plaintiff (the borough) were measured by its rights as riparian owner, it would be slender enough. It might indeed use the water for the domestic purposes incident to the said ten acres of land. If there were a tenant thereon, he could use it for watering his stock and for household purposes — for any useful, necessary and proper purpose incident to the land itself, and essential to its enjoyment. But that the rights of a riparian owner would justify the plaintiff in carrying the water for miles out of its channel to supply the Borough of Ashland with water is a proposition so palpably erroneous that it would be a waste of time to discuss it,” and in Wallace v. City of Winfield (1915), 96 Kan. 35, 149 P. 693, the court held: (Headnote 3): “A city which purchases land abutting on a stream acquires the right of a riparian owner, which is the reasonable use of water for domestic and other ordinary purposes incident to the land, but it does not thereby acquire the right to divert or take water from the stream for the purpose of selling it to the inhabitants of the city without making compensation to those who are thereby deprived of water rights.”

The City of Conway, as plaintiff, is not asserting what would be regarded as riparian rights under either theory. It seeks to take the water beyond the limits of the watershed and sell it commercially. Since that particular use of the water would not be permitted under either theory, the City is not in a position to assert any cause of action against the appellants.

We hold, therefore, that the trial court erred in holding, in effect, that the City of Conway had'the right to seize and use for its own use all the water impounded by its dam in Cadron Greek when the water level measured by the gauge on the dam falls to or below 6 feet. Conway’s riparian rights are the same as any other riparian owner and no greater. Until there is insufficient water to serve the needs of each and all of the riparian owners, on the creek, their relative rights are not in question, for while the supply is plentiful (as it appears for more than 90% of the time) no need arises to apportion the water. When, however, a shortage is present, then the law, as indicated, of riparian rights comes into play and must apply.

Appellees’ claim of rights superior to appellants, by adverse possession or prescription is, we hold, untenable. We are unable to find any act or acts on the part of Conway of an adverse claim or nature, or such as would put appellants on notice of any adverse claim. The dam was completed in 1952 and it is unquestioned that during the high water level or stage of Cadron Creek, the water flows over it. In fact, it appears that at no time has the water, impounded by the dam, flooded appellants’ lands or been out of the Cadron Creek banks, and, as indicated, nothing has happened to put appellants on notice of any adverse claim by Conway.

“A lower riparian owner cannot acquire by prescription the right to the full flow of the stream, as against an upper owner’s right to make proper use of the water.” 56 Am. Jur., § 330, p. 769.

“No right to the waters of a stream can be acquired by prescription where the lower irrigator takes the water out of the stream at a point on his own land and uses such water only as the upper riparian proprietor permits it to pass down through his land; nor can the nonuser of the water by the upper riparian owner of land be invoked to strengthen the claim of appropriation or prescription by the lower riparian owner under like circumstances. Hence, an upper proprietor’s knowledge that lower proprietors are using water taken out of a stream below him, and claim the right to use it, is not evidence of acquiescence on the part of the upper owner; nor does it, as against him, establish adverse use or constitute matter of estoppel.” . 30 Am. Jur., § 5, p. 600.

“The riparian owner receives the water as it flows to him by natural right, and in so doing he does not interfere with the rights of any other owner on the stream; and he can gain no prescriptive right to have the flow continue by the fact that he has received it without interruption by the upper 'owner for the prescriptive period. It may be that the upper owner has had no use for the water, but the mere fact that he had none, and did not attempt to make any use of it, cannot deprive him of any of. his rights or entitle the lower owner to insist that the flow shall continue uninterrupted, in case the upper owner finds use for the water.” Farnham on Water, Vol. 2, § 536, p. 1745.

Finally, appellees argue that under the authority of- § 19-4202 and §§ 35-401-2-3, Ark. Stats., 1947, there is “authority in this State for a City to divert and take the waters from a stream'for public use as a municipal Avater supply. ”

. This might be true only .in cases where the City had proceeded by eminent domain to acquire lands for waterworks ’ purposes. No such procedure was f olloAved in this case.

It folloAvs that the decree must, be and is reversed and the cause remanded.