Story Case

The right of way of the Burlington railway ran over Fox Creek in northern Illinois. At the time the railway was constructed, the company engineers were of the opinion that no bridge was necessary, and constructed a large culvert to convey the water of Fox Creek under the right of way. The protests of the farmers that this culvert was insufficient, were not heeded. When the spring freshets came, sticks, brush, and logs clogged the culvert and the water thus effectually obstructed, flooded the surrounding farms for miles. A half mile below, the mill of Mr. Hammond was compelled to be idle for thirty days before enough water was released to run the mill. The farmers and the miller sue the railroad company. Can both recover?

Ruling Court Case. Pitts Vs. Lancaster Mills, Volume 13, Metcalf Reports, Massachusetts, Page 156

Pitts was the owner of land upon the north branch of Nashua River. On this land, he owned a mill which was operated by water power taken from the river. At a later period, the Lancaster Mills erected a mill upon the same river at a point up the river from Pitts' mill. After maintaining its first dam for some years, the Lancaster Mills raised it some feet higher. The waters of the river were restrained for a period of two or three days, sufficiently long to fill up the new mill pond. Because of this delay in the waters, Pitts' mill for several days was idle. For this he now sues for damages.

The Lancaster Mills contended that no action could be maintained, because they did not unreasonably interfere with Pitts' right to the flow of the river.

Mr. Chief Justice Shaw said: "Every proprietor of land, through which a current of water flows, has a right to the use of it on his own land; among other things, for mill purposes, making such reasonable use of it, and of the mill power furnished by it, as he can make consistently with a like reasonable use by other proprietors above and below through whose land it passes. What is a reasonable use must depend on circumstances: such as the width and depth of the bed, the volume of the water, the fall, previous usage, and the state of improvements in manufactories and the useful acts."

It was held that the use, under the circumstances, by the Lancaster Mills was not unreasonable. Judgment was given for the Lancaster Mills.

Ruling Law. Story Case Answer

The flowing water in running streams is regarded as a natural right, and each riparian owner of land is entitled to have the water of the stream come down to him substantially undiminished in flow and reasonably free from all pollutions.

An exception to the foregoing rule is this, that in a case where a person uses the stream for purely domestic purposes, he may use all he needs for that purpose, even though it exhausts the stream, and a lower riparian owner has no legal cause for complaint. But when the water from the stream is being used for non-domestic purposes, each land owner on the stream may make only a reasonable use of the stream, or, in other words, each lower riparian owner is entitled to the flow of the stream substantially undiminished. What constitutes a reasonable use of the streams depends upon the circumstances of each case.

Neither can water courses be obstructed to the injury of the upper or lower owners. Such unreasonable obstruction was authorized by the railroad company in the Story Case. For the damage caused thereby they are responsible to both upper and lower riparian owners.

Appropriation Rights

In the western states where irrigation is necessary, the law of riparian rights does not exist as it does in the eastern states. The basic idea of the appropriation system is briefly stated as follows: One who begins a beneficial use of the whole or part of the supply of water from a stream or other source, thereby becomes entitled as against later users to the amount of water he has taken, provided the amount of flow taken is reasonably necessary for the prosecution of his business. First come, first served is the fundamental principle.