Davis v. Munro

Sherwood, J.

(dissenting). This is an action on the case for obstructing a natural water-course. It comes before us, on a case made, upon written findings.

The cause originated in justice’s court, and on appeal to the circuit the defendants had judgment, and the proceedings therein we are asked to Teview.

The record contains only the pleadings, and the findings of the circuit judge.

From these it appears that the plaintiff, on the twenty-ninth day of June, 1886, had a shingle-mill on a small stream in the town of Algoma, in the county of Kent. The defendant Munro had a grist-mill a short distance above him, and a saw-mill about the same distance below, on the same creek; and the three mills were operated by the water in the creek. These waters, when unobstructed, were barely sufficient for the purpose of running the defendant’s mill. The plaintiff’s mill was so constructed that the refuse from the shingles fell into the stream, and was carried below to the defendant’s mill-pond, lessening the supply of water, and filling up the flood-gates of defendant’s dam, so as to render the operation of the mill impossible without clearing it out. Defendant Munro requested the plaintiff to desist from allowing the refuse of his shingle-mill to pass down the stream, and he failed to comply with the request. On the twenty-ninth of June thereafter, the defendant Munro directed defendant Neenan to go upon the premises of the former, bordering upon said stream, and at a point 12 rods below the plaintiff’s dam, and at another point a few rods below that, and cut and put into the stream a,quantity of brush and trees in such manner as to cause the water to flow back in the stream, and submerge a portion of the plaintiff’s wheel, to such an extent as to seriously interfere with the running of the plaintiff’s mill, and the amount of damage to plaintiff, occasioned thereby previous to the commencement of this suit, was $13.20.

- It is also further found by the circuit judge that the purpose of putting the brush and trees into the stream was to-. prevent the refuse from'the plaintiffs mill from coming down the stream into the defendant’s mill-pond.

Upon these facts the learned circuit judge found, as matter of law, that the plaintiff was not entitled to recover.

I am not able to concur in the conclusions reached by Judge Montgomery. Each of the parties had an equal right to make use of the running waters in the stream, and neither could so use it as to injure the other. The right to use the same as a motive power for operating mills and machinery is as old as is the existence of such mills, and one person has no right to make such use of the stream, for the purpose of floatage or motive power, as to injure the rights of another. These rights have always been carefully guarded and protected by the law; and it is now well settled that the riparian rights of an individual, in either of the instances we have mentioned, cannot be infringed without creating liability to the party injured.

In this case the finding shows that the defendants interfered with the natural flow of the water in such manner as to cause it to be thrown back upon the plaintiff’s premises, and" impair the usefulness of his mill privilege. This was a wrong for which the law furnishes a remedy. The plaintiff resorted to it, and made his case beyond question, and the court should have given him a. judgment. It is no excuse for the wrong for the defendants to urge that the plaintiff has been guilty of similar acts upon the same stream, to the injury of the defendants.

If it be claimed, as was done in this case, by the defendants, that what they did was in defense of their rights impaired by the plaintiff, that what was done by plaintiff created a private nuisance, and that they did no more than was necessary to abate it, it is a sufficient answer to say that one trespass cannot be urged as a defense to the commission of another; neither can an individual abate a private nuisance by the creation of another producing the same or a similar injury to another person offending. The law in such cases furnishes adequate remedies to parties injured, and resort should not be had to such unusual proceedings as were taken by the defendants in this case.

The judgment should be reversed, and a new judgment entered in this Court for $13.20 in favor of the plaintiff.

I am not entirely satisfied with the course pursued by the plaintiff towards tne defendants in this matter before bringing suit, and therefore no costs should be allowed.