Opinion
Argued April 5, 1904
Decided April 26, 1904
Charles J. Fay and Darius E. Peck for appellant.
Smith Lent for respondents.
This action was brought to enjoin the defendant from intercepting the flow of water in a natural stream through his premises, or in any manner interfering with the same so as to diminish the natural flow of water therein through the plaintiffs' premises.
The defendant was the upper riparian owner and the plaintiffs the lower owners of the stream in question. The plaintiffs had constructed a dam and reservoir by which they impounded the waters of the stream for the purpose of supplying water daily to the growing of roses, a business in which they were engaged. In the summer of 1899 the defendant constructed a dam across the stream upon his own premises, thereby creating a reservoir about one and a half acres in extent and impounded the water therein for both ornamental and domestic purposes. The trial court found as a fact that by reason of the construction of the dam and reservoir by the defendant "a much larger surface of water is exposed to sun and air than otherwise would be exposed, and the increased evaporation and absorption caused the water to cease flowing to and over the plaintiffs' land and deprived them of the use of water to which they were entitled." There was no finding of fact that the defendant's use of the water was unreasonable. The decision was in what is commonly designated the "long form," containing specific findings of fact and conclusions of law. Upon these findings a judgment was entered, in which the defendant "is enjoined and restrained from continuing or permitting to continue the dam erected by him herein described in said complaint," etc.
We think the judgment entered in this case was not authorized by the findings of fact made by the trial court. It is not pretended that the defendant made any unreasonable use of the water flowing through the stream upon his premises, that he diverted or polluted it, or that he decreased the amount of the flow other than by that which was caused from evaporation and absorption.
A riparian owner is entitled to a reasonable use of the water flowing in a natural stream over his premises. He may use it for domestic purposes both in his house and his barn, and may consume it for the support of his horses, his cattle and his poultry. He may temporarily detain it by dams, in order to furnish power to run machinery and for the purpose of irrigation of his lands when the amount used is reasonable and is not out of proportion to the size of the stream. He may also construct ornamental ponds and store them with fish, or use them for his geese, his ducks or his swans, so long as the size of the ponds are not so large as to materially diminish, by evaporation and absorption, the quantity of water usually flowing in the stream.
The rights of riparian owners have been the subject of recent consideration in this court in the case of Strobel v. Kerr Salt Co. ( 164 N.Y. 303-320) in which the authorities and text writers upon the subject have been collected and cited. In that case Judge VANN states the general rule as follows:
"A riparian owner is entitled to a reasonable use of the water flowing by his premises in a natural stream, as an incident to his ownership of the soil, and to have it transmitted to him without sensible alteration in quality or unreasonable diminution in quantity. While he does not own the running water, he has the right to a reasonable use of it as it passes by his land. As all other owners upon the same stream have the same right, the right of no one is absolute, but is qualified by the right of the others to have the stream substantially preserved in its natural size, flow and purity, and to protection against material diversion or pollution. This is the common right of all, which must not be interfered with by any. The use of each must, therefore, be consistent with the rights of the others, and the maxim of sic utere tuo observed by all. The rule of the ancient common law is still in force; aqua currit et debet currere, ut currere solebat. Consumption by watering cattle, temporary detention by dams in order to run machinery, irrigation when not out of proportion to the size of the stream, and some other familiar uses, although in fact a diversion of the water involving some loss, are not regarded as an unlawful diversion, but are allowed as a necessary incident to the use in order to effect the highest average benefit to all the riparian owners. As the enjoyment of each must be according to his opportunity, and the upper owner has the first chance, the lower owners must submit to such loss as is caused by reasonable use."
(See, also, Broom's Legal Maxims, page *373; Pomeroy on Water Rights, sections 7 and 8; Cummings v. Barrett, 10 Cush. 186.)
The defendant in this case, as we have seen, was the upper riparian owner. By reason thereof he had the right to the first reasonable use of the water flowing through the stream, taking into consideration the size and velocity thereof; and, in the absence of a finding that the use made by him of the water under the circumstances was unreasonable, there was no basis for the judgment that was entered herein. It follows that the judgment should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., O'BRIEN, BARTLETT, VANN, CULLEN and WERNER, JJ., concur.
Judgment reversed, etc.