Opinion
No. 4316.
Argued June 2, 1954.
Decided July 1, 1954.
The findings of the Trial Court that the deposits of fill into a river by the defendant, a riparian landowner, was a reasonable use of his property and that such deposits did not materially change the flow of the river nor result in any substantial damage to the downstream riparian owner of adjacent property were supported by the evidence.
BILL IN EQUITY, brought by George A. and Helen M. Poire asking that the defendants Sopia and Frank Serra be permanently enjoined from filling in the Winnipesaukee River adjacent to their property and that they be ordered to remove a portion of a wall constructed upon the bed of said river and such rocks and fill already placed therein by them.
The plaintiffs own land along the southerly shore of this river at a point just above where it empties into Lake Winnisquam. They operate a boat and bait business on its banks and depend on it for their livelihood.
The defendants' property is upstream adjacent to that of the plaintiffs. Frank is a stone mason by trade. In April, 1952, he started to fill in a portion of the river directly adjacent to plaintiffs' main boat dock. He planned to fill in about 27 feet to be used to store materials and equipment employed in his trade. He had dumped about 18 loads of fill into the river and had extended his land therein about 18 feet when the plaintiffs obtained a temporary injunction.
The matter was heard by the Court (Sullivan, J.) after a view. The Court made the following findings: "all river waters carry materials of various types, the most common being fine sand, and if there is a slowing down of the velocity [of the current in the river] there would be some sedimentation at the point where the slowing down occurs . . . The fill which has been put in the River the Petitionees does not, in its present state, constitute an obstruction in the River that changes the flow of the water in an appreciable degree . . . [It does not] cause any appreciable amount of sedimentation at the Petitioners' main dock and therefore does not result in substantial damages to the Petitioners . . . The present use of Petition[ees'] land is reasonable but the proposed or planned use of their land, or the further filling in of material at the locus, is unreasonable because it would cause the velocity of the current to slow down to such an extent as would result in eddying and substantial sedimentation at the Petitioners' main dock, thereby lowering the depth of the River at the dock . . . [which] will probably result in substantial damage to them due to probable loss of income from their boat business."
The Court ruled as follows:
"1. That the Petitioners are entitled to a permanent injunction restraining the Petitionees or their agents from continuing with the work of filling in the River easterly of the Petitioners' main dock.
"2. That the proposed or planned use of Petitionees' land or the further filling in of material at the locus is unreasonable.
"3. That the present use of Petitionees' land is reasonable."
The temporary injunction previously issued was made permanent and the defendants were enjoined from continuing work in the proposed or planned use of their land or from the further filling in of material easterly of plaintiffs' main dock.
The plaintiffs excepted to the Court's findings that the fill put in the river does not in its present state constitute an obstruction in the river that changes the flow of the water in an appreciable degree and does not cause any appreciable amount of sedimentation at the plaintiffs' main dock and therefore does not result in substantial damage to them. They excepted also to the finding and ruling that the present use of defendants' land is reasonable.
Plaintiffs' exceptions were reserved and transferred.
Nighswander, Lord Bownes (Mr. Bownes orally), for the plaintiffs.
William W. Keller (by brief and orally), for the defendants.
"The rights of riparian owners at common law to a beneficial use of the water of the river or stream, passing through or adjacent to their lands, are not open to serious doubt." Swain v. Company, 76 N.H. 498, 499; Roberts v. Company, 74 N.H. 217, 220. Such owner may also use the bed of the river adjacent to his land for a purpose which is not unlawful and which in view of his own interest and that of all persons affected by it is a reasonable use. Norway Plains Co. v. Bradley, 52 N.H. 86. "For the consequences to others of such a use; he is not responsible." Franklin v. Durgee, 71 N.H. 186, 187.
"What is a reasonable use . . . must depend upon a variety of conditions, such as the size and character of the stream, and the uses to which it can be or is applied; and, from the nature of the case, it is incapable of being defined to suit the vast variety of circumstances that exist; but the rule is flexible, and suited to the growing and changing wants of communities.
"Whether the diversion or interference with the stream is rightful in a particular case must depend upon the question whether, under all the circumstances of the case, it is or is not a reasonable use of the stream; and, in determining that question, the extent of the benefit to [one] . . . and of inconvenience or injury to others, may, very properly, be considered." Norway Plains Co. v. Bradley, supra, 110; Rindge v. Sargent, 64 N.H. 294; Gillis v. Chase, 67 N.H. 161.
The defendants are using, by filling it in, part of the bed of the Winnipesaukee River adjacent to their land in order to erect thereon a shop 40 feet by 24 feet to be used as a work shop and to store materials and equipment.
The plaintiffs use the river as their means of livelihood by conducting a boat and bait business. They contend that defendants' action has caused and will continue to cause a change in the flow of the river and will result in some sedimentation being deposited near their main dock which would not otherwise be so deposited. This they say will lessen the depth of the water near this dock and will seriously interfere with their business.
There was a conflict in the evidence. Plaintiffs presented the testimony of an expert that: "Well, I don't think there is any question but what the velocity of the water that normally would flow in this area will be cut down appreciably; and when you cut the velocity of water carrying any material, sediment . . . there is a settlement of that material in the water . . . There is no question but what this obstruction has greatly aggravated that situation there of sedimentation, that it will be increased way beyond what you had before that fill was placed there."
The defendants' evidence was that: "In this particular area now, it doesn't show any sand deposit from the current of the water coming down the river. There is no sand there." "Well I made a very simple test down there the other day. I took a shovel full of common dirt and I dumped it in the water and noticed which way the current was carrying it; and it didn't carry it over 30 inches at the most." Frank Serra testified that he has been living there for 40 years and there has never been any current out in front of his property.
The findings of the Trial Court that the fill placed in the river by the defendants does not materially change the flow of the river nor cause any appreciable amount of sedimentation at plaintiffs' main dock nor result in substantial damage to them are supported by the evidence and must be sustained.
The Court's finding and ruling that this was a reasonable use of defendants' land is also supported by the evidence and must be sustained. We cannot say that it was error as a matter of law.
Exceptions overruled.
All concurred.