Summary
In American Sand and Gravel Co. v. Rushing, (Ala.) 184 So. 60, it has been held that an upper riparian owner, to improve and reclaim his upper lands, may straighten the water course by an artificial channel, along the course of the natural water course, as a substitute therefor, and of such width and depth as to prevent overflow on the upper lands, although the result of the improvement is to increase the volume and speed of the flow of the stream over abutting owner's land.
Summary of this case from Edason v. DenisonOpinion
No. 33321.
October 31, 1938. Suggestion of Error Overruled November 28, 1938.
1. MINES AND MINERALS.
The extraction of minerals from the earth is a "reasonable use" of the property on which the mineral is located.
2. NUISANCE.
An owner may not use his land for an unjust or unreasonable purpose or in an unreasonable manner to the damage of another.
3. WATERS AND WATERCOURSES.
No cause of action exists against owner of property along stream for acceleration of natural flow of waters along natural watercourse as incidental result of creation of artificial lakes or ponds in gravel mining operations along stream where no foreign waters are added and none are diverted or polluted, since the formation of artificial lakes or ponds and consequent acceleration of flow of stream is inevitable result of gravel mining operations and hence constitutes "reasonable use" of property.
4. MINES AND MINERALS.
Generally, persons operating mines are governed by the same rules with respect to injuries to adjoining property as are applicable to other uses of real estate.
5. WATERS AND WATERCOURSES.
An upper or a lower riparian owner, to improve and reclaim his upper lands, may straighten the watercourse by an artificial channel, along the course of the natural watercourse, as a substitute therefor, and of such width and depth as to prevent overflow on the upper lands, although the result of the improvement is to increase the volume and speed of the flow of the stream over abutting lands.
6. WATERS AND WATERCOURSES.
An upper riparian owner has no right to pollute water or make any other use of it or of the stream itself distinctly unreasonable.
7. WATERS AND WATERCOURSES.
Damage to upper riparian owner along crooked stream resulting from acceleration of flow of stream during overflow period because of lower owner's gravel mining operations along stream as result of which lake or pond along course of stream was formed on lower owner's land was damnum absque injuria in view of lower owner's right to straighten stream by artificial channel along the original watercourse in such manner as to carry water, including all overflow waters, unimpeded through entire distance of lower owner's land.
APPEAL from the circuit court of Forrest county; HON.W.J. PACK, Judge.
Hannah Simrall, of Hattiesburg, for appellant.
We very earnestly and sincerely submit that all of the testimony offered on behalf of the appellee in this case was wholly insufficient to have supported a verdict and, therefore, the motion for a peremptory instruction at the close of the plaintiff's case should have been sustained.
The positive testimony given by the appellee establishes unequivocally that it was the overflows and the freshets which caused this washing; but, even aside from this testimony, the very most that can be said of all of the testimony given on behalf of the appellee is that it created the possibility that the operations of this appellant may have influenced to some extent or degree the acceleration of the flow of the water through appellee's land. This court has, over and over, held that "verdicts must rest on probabilities, not on bare possibilities."
Teche Line v. Bounds, 179 So. 747; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Shell Petroleum v. Eagle Lbr. Supply Co., 171 Miss. 467, 158 So. 333; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; N.O. N.E.R.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Y. M.V.R.R. Co. v. Lamensdorf, 178 So. 80.
The only issue made by the appellee and tendered to the court or the jury was that the flow of water through his premises had been accelerated by the appellant and that he had been injured thereby. Such a showing does not make liability; such a showing is not the test of the right of appellee, nor is it the test of duty of the appellant.
Seneca Consolidated Gold Mines Co. v. Great Western Power Co., 70 A.L.R. 211; Ulbright v. Eufaula Water Co., 6 So. 78; Davis v. Getchell, 50 Maine 602, 79 Am. Dec. 636; Dumont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 102.
The general rule is well settled that, independent of limitation by grant, licenses, prescription, or otherwise, every riparian proprietor has the right to have the stream flow in its natural channel without diminution or alteration.
Davis v. Getchell, 50 Maine 602, 79 Am. Dec. 636.
The appellee rests his case wholly on the supposition that this appellant was, and is, liable to the appellee if this appellant had in any manner accelerated the flow of water through the land of the appellee, to the damage of said appellee; but, as shown by the authorities, even if it be conceded that the appellant is responsible for the accelerated flow of the water through the premises of appellee, and this acceleration has caused loss, still, it does not follow that this appellant is liable, unless and until the appellee proved by a preponderance of the credible evidence that the use made by this appellant was an unreasonable use.
Haskins v. Haskins, 9 Gray 390.
Every riparian owner is entitled to have the stream continue to flow through or along his land in its accustomed channel and natural form without any obstruction of the channel or detention of the waters by other owners, injurious to him, except as may be occasioned by the reasonable use of the stream by other like proprietors.
67 C.J. 698, sec. 21; Dumont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 102.
Dale Koonce, of Hattiesburg, for appellee.
Appellant had the right to use the water in the creek and the creek itself in a reasonable way, that is, in a way consistent with reason. Certainly he had not the right to destroy three quarters of a mile of the creek immediately south of appellee's property and to substitute in its place a lake from 20 to 40 or 50 feet deep and more than a quarter of a mile long from north to south and from 200 feet to 400 feet wide and several feet below the level of the creek where the creek emptied into same. Had appellee used the word "unreasonable" repeatedly in both his pleadings and his proof, it would have availed him nothing without the showing of facts from which he drew the conclusion which justified his repeated use of such word. It was his duty to allege and to show facts from which the court and jury could draw the conclusion of an unreasonable use of the creek and to let the court and the jury so conclude and to name it, and that was what he did.
Whatever may be the general rule, our court seems definitely to have decided, as a matter of law, that certain uses made of streams by adjacent owners are unreasonable.
Miss. Mills Co. v. Smith, 69 Miss. 299, 11 So. 26; Liles v. Cawthorn, 78 Miss. 599, 29 So. 834; Ferris v. Welborn, 64 Miss. 29, 8 So. 165.
The lower court was justified in holding as a matter of law that the use as made by appellant here of the creek, that is, a destruction of the creek by appellant almost up to appellee's land, was an unreasonable use of the creek.
The owner of land carrying on mining operations and depriving an adjoining owner of lateral support is liable for injuries to the land, thereby occasioned. The right to lateral support exists and extends to one's property even though there are intervening parcels owned by others, and an excavator is an adjoining owner if his excavation results in the taking away of the lateral support of another's property.
40 C.J., page 1193, sec. 920; 1 Am. Jur. 521, sec. 25; 22 R.C.L. 126; 1 C.J., page 1212, sec. 29, and page 1214, sections 36 and 37.
Argued orally by T.C. Hannah, for appellant, and by T. Price Dale, for appellee.
Bay Creek, in Forrest county, is a small and extremely crooked stream of the character generally designated in that part of the country as a "slash branch." It is about five or six miles in length, running in a general direction from north to south, and empties into Bowie River at or near Hattiesburg. In its natural state it had what may be called its valley of about thirty to one hundred feet in width, and this valley was thick with undergrowth of bushes and saplings, in addition to some larger trees. In dry weather there is little or no running water in the stream, but after heavy rains the volume of water was generally such as to overflow into its valley. In such overflows the progress of the water downward was formerly somewhat slow or sluggish, owing to the gradual slope and the many crooks or bends in the channel, and the underbrush and other natural growth and obstructions in the valley.
About 1924, appellee purchased a tract of twelve acres of land about, or a little more than, a half mile above the mouth of Bay Creek, the creek or branch running through said tract. Appellee improved his land by building thereon and by removing the undergrowth, saplings and some of the trees, but did not straighten the crooked channel of the stream. Thereafter, about 1929, appellant, on its land situated next below the land of appellee, began its operations of mining gravel in the bed, and along the banks of the stream and next adjacent thereto, commencing at the mouth thereof and proceeding northward along the branch, finally arriving, at the time of this suit, at a point about 160 yards below or south of appellee's land. This resulted in a lake or pond along what had been the course of the stream, this lake or pond being from 20 to 40 feet deep and from 200 to 400 feet wide, and extending from the mouth of the branch to within 160 yards of appellee's land as aforesaid.
These operations by appellant caused a considerable acceleration in the stream as it passed through appellee's upper land, during overflow periods, with the further result, the soil in that location being sandy, that the stream cut across the bends and crooks theretofore existing, making new, but irregular channels, which new channels were of such depth and the cavings thereinto were of such width and of such location as to constitute a substantial damage to appellee's land, — certainly, to a measurable extent. Appellee sued appellant for said damage and recovered judgment on the theory, submitted to the jury on instructions procured by appellee to that effect, that if the operations by appellant on its lower lands caused the flow in the stream on appellee's upper land to be accelerated and that this acceleration resulted in damage to appellee's land, appellant would be liable for such damage.
The extraction of mineral from the earth is a reasonable use of the property upon which the mineral is located. 3 Farnham on Waters, p. 2721. The strongest statement of a rule under modern authorities that may be laid down in behalf of an adjoining landowner is that the other or actor owner shall not use his land for an unjust or unreasonable purpose or in an unreasonable manner to the damage of another. To mine gravel, it is necessary to go down below the surface sometimes to the depth of many feet, and the inevitable result of such operations, if the land be comparatively level, is in most cases to create artificial lakes or ponds as the work progresses. Since this result is inevitable in the nature of things, it must be deemed a reasonable result, a reasonable operation or use, else we would be driven to say that such mining operations cannot rightfully be conducted at all, without obtaining by purchase from abutting land owners the right so to do. It would seem, therefore, on principle of necessity that, on account of such mining operations, there ought to be no cause of action for an incidental acceleration of a natural flow of waters along a natural watercourse, no foreign waters being added, and none being diverted or polluted, else the right of mining would no longer be a real right of a landowner, but would depend upon so many burdensome factors arising above and beyond the mine owner's land as to make the business intolerably hazardous, to the detriment of the development of the natural resources of the country.
But aside from the foregoing observations, it is an established doctrine that, generally speaking, persons operating mines are governed by the same rules in respect to injuries to adjoining property as are applicable to other uses of real estate. 40 C.J., p. 1188. We may look, therefore, to the analogies of other uses, and, particularly, may we look with confidence to that with which we are familiar in this predominately agricultural state. So doing, we may refer to the rules of law respecting the use and improvement of agricultural lands and as concerns small natural watercourses flowing through them over the land of adjoining owners.
The great weight of authority in this country is that an upper riparian owner, to improve and reclaim his upper lands, may straighten the watercourse on his said upper lands by an artificial channel, along the course of said natural watercourse, as a substitute therefor, and of such width and depth as to prevent overflow on said upper lands, although the result of the improvement would be to increase the volume and speed of the flow in the stream at the line of the abutting owner below. The authorities on the subject are reviewed at length in San Gabriel Valley Country Club v. Los Angeles County, 182 Cal. 392, 188 P. 554, 9 A.L.R. 1200. See, also, the cases cited in Smurr on Farm Drainage, pp. 2 to 12, and compare Board of Drainage Com'rs v. Board of Drainage Com'rs, 130 Miss. 764, 95 So. 75, 28 A.L.R. 1250.
The upper landowner has no right to pollute the water as was the case in Mississippi Mills Co. v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546, nor to make any other use of it or of the stream itself distinctly unreasonable; but the use first aforesaid is not unreasonable, unless made so by exceptional circumstances. On the contrary, it is, generally speaking, a proper use for the improvement and reclamation of the upper land, — a right which has been asserted and availed of in this state for generations.
Since then, as is the law according to the great weight of authority, the upper landowner may so improve and reclaim, it would follow, upon equal reason, that the owner below the complaining landowner may do the like, when there are no exceptional circumstances, — may straighten the watercourse on the lands below the complaining landowner by an artificial channel along the course of the said natural watercourse of such width and depth as to prevent overflow on said lower lands, even though it increase the velocity of the flow on the upper lands. If this were not true, the practical result would be that no person other than the owner at the extreme head of the watercourse would have any such right of improvement and reclamation, and a vast acreage of land in this state would have to remain in a state of nature so far as the proprietary rights of the owners therein were concerned.
While the cases are numerous which establish the right, under ordinary circumstances, of improvement and reclamation in behalf of the upper landowner and against an owner below him, there seems to be few cases in respect to the similar right of the lower proprietor as against the upper owner. The nearest case in point which we have been able presently to find is Pohlman v. Chicago, M. St. P. Ry. Co., 131 Iowa 89, 107 N.W. 1025, 6 L.R.A. (N.S.), 146; and while the opinion contains much discussion in regard to surface waters, the facts were such as to be equally applicable to a natural watercourse, particularly as regards such a watercourse as is involved in the case now before us. There the lower landowner in making improvements, such as above mentioned, was held not liable to the upper landowner for any injury to the latter by the acceleration of the flow on the land of the upper owner. And in that case it was held also that the rule in regard to lateral support has no application. We mention this because the argument of appellee in the case at bar rests largely on that doctrine.
As has been indicated in what has been said, we do not hold that either the upper or lower owner has the unqualified right, under all circumstances and for any and every purpose whatsoever, to straighten the watercourse and to widen and deepen it as aforementioned on his own land, regardless of all consequences to an upper or lower owner; but we do say that there is no occasion to enter upon a present discussion of those exceptional circumstances which might qualify the right, for the reason that the circumstances of the situation in the case in hand furnish no factual basis for any such qualification here.
So it is then that appellant would have had the right in the situation here before us to straighten the watercourse on its land by an artificial channel along the original watercourse from or near the line of appellee's upper land, thence southward throughout appellant's lower land, and this channel of such width and depth as to carry the waters, including all overflow waters, unimpeded through the entire distance of appellant's land; and having that right, it could be no legal concern of the upper landowner that the lower proprietor thereupon entered upon its gravel operations along the said lower channel, since said operations would add nothing to the acceleration in or by the artificial channel which already would have been sufficient in itself to furnish an unimpeded flow at all stages of water. It is thus seen that appellant actually did here less than it had the legal right to do — both in fact and as to effect; wherefore the case presented is damnum absque injuria. Appellant was entitled to the peremptory charge requested by it.
Reversed and judgment here for appellant.