Platt v. Johnson & Root, 15 Johns. 213 (1818).
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Platt v. Johnson & Root, 15 Johns. 213 (1818). Book View Copy Cite
Platt against Johnson and Root
May 15, 1818.
15 Johns. 213
Sill, for the plaintiff., Talcot, contra., Sill, in reply,
Thompson.
<p>THIS was an action on the case for obstructing the waters of the Cincinnatus Creek, in their ancient course across the defendant’s land, to the plaintiff’s grist and saw mills, erected on his land lower down the stream, whereby the waters of the creek were withheld from the plaintifi’s mills, and the plaintiff deprived of the profits of his mills. The cause was tried before Mr. Ch. J. Thompson, at the Oneida circuit, in June, 1817.</p> <p>The plaintiff, being possessed of land lying on both sides of the creek, in 1797 erected a saw mill and dam on the creek; in 1805 and 1806 he erected a grist mill near the other, the dam answering for both mills ; and in 1810 he built a new grist mill at a short distance below the first mills ; all which mills had been in use from the time of their first erection. In 1809, the proprietors, of the farm, afterwards held by the defendants, built a dam across the creek, about sixty rods above the plaintiffs dam, with a fulling mill, and in 1812 erected a carding machine near to it. The defendants purchased their mills, and entered into possession about two years before the trial. By means of their dam, the water of the creek was detained while the pond of the defendants was filling, and in very dry seasons, especially in 1816, the plaintiff had, occasionally, to wait for the water, until the defendants had raised a pond sufficient to turn their mills ; and in one instance, when the water was uncommonly low, the gate of the defendants was kept' shut for nearly three days, during which time the plaintiff’s mill was stopped; on other occasions it was stopped for a less time, and the plaintiff’s customers had been obliged to carry their grain to other mills. The water, after having been used by the defendants, was turned immediately into the natural channel, about sixty rods above the plaintiff’s mills; and the defendants had in no instance shut down their gates, except for the purpose of raising a pond for the use of their works, which required a greater quantity of water than the plaintiff’s, at whose mills the fall of water was so great, that the usual quantity in the stream, at ordinary seasons, would carry his mills at good speed, and in dry seasons, the gristmill would grind from ten to twenty bushels in a day. It appeared that the plaintiff had taken some measures to turn away the waste water from the defendants’ dam into a channel for the use of his mills. It also appeared in evidence, on the part of the defendants, that there had been little or no complaint on the part of the plaintiff, until 1816, which was a dryer season than had ever been known before ; that the plaintiff might so alter his dam as to save all the waste water, that the plaintiff’s mills were turned with much more force and speed, when the defendants raised their gates, by reason of the increased quantity of water, and that when his grist mill had a full head of water it would grind sixty or seventy bushels a day.</p> <p>A verdict was found for the plaintiff, for 25 dollars, which, by consent, was made subject to the opinion of the court, on a case containing the facts above stated.</p>
Thompson, Ch. J.

delivered the opinion of the court.

The question involved in the decision of this case may, perhaps, be considered as one of the first impression. I cannot persuade myself, however, that the claim set up by the plaintiff can be sustained upon any principles of lary recognized in our courts. The principle sought to be established is, that a previous occupancy of land upon a stream of water, [*218] and an appropriation of fhe water to the purposes of a mill, gives such a right to the stream, in its . whole extent above, as to control the use of the water, so as to prevent any subsequent occupant from using or detaining the water, to the least injury or prejudice of the first occupant. Unless the principle thus broadly stated can be supported,' the plaintiff must fail in the present action; for there is no colour for charging „the defendants with having diverted the natural course of the stream, or unnecessarily wasting the water, or wantonly detaining it longer than was reasonable and necessary for their own machinery and water works • nor is there any pretence that the plaintiff had been so long in the previous use and enjoyment of this stream of water, as to afford the presumption of a grant of the same beyond the bounds of his own land. • The plaintiff’s right, therefore, if any legal right exists, must grow out of the mere fact of his having first erected his mill. To give such an extension to the doctrine of occupancy would be dangerous and pernicious in its consequences. The elements being for general, and public use, and the benefit of them appropriated to individuals, by occupancy only, this occupancy must be regulated and guarded, with a view to the individual rights of all who may have an interest in their enjoyment; and the maxim sic utere tua, ut alienum non Icedas, must be taken and construed with an eye to the natural rights of all. Although some conflict may be produced in the use and enjoyment of such rights, it cannot be considered, in judgment of law, an infringement of the right. If it becomes less useful to one, in consequence of the enjoyment by another, it is by accident, and because it is dependent on the exercise of the equal rights of others. Many general and public considerations might be resorted to, to enforce and establish this doctrine. But I think this question falls within the principles fully recognized by this court in the case of Palmer v. Mulligan. (3 Caines, 313.) Though there was a difference of opinion on the bench, as to the result of the motion in that case, yet this difference did not, in any measure, turn on the question presented by this case. Spencer, J. said, the act of erecting a dam by the defendant was a lawful act; and though, inits consequences, slightly injurious to the plaintiffs, [*219] they were remediless : it was damnum absque injuria erection of dams on all rivers is injurious, in some degree, to those who have mills on the same streams below, in withholding the water; yet this had never been supposed to afford a ground of action. Livingston, J. said, each one had an equal right to build his mill, and the enjoyment of it ought not to be restrained, because of some trifling inconveniencfe to the other; and he utterly rejected the doctrine, that the person erecting the first mill thereby acquired any superior rights. Were the law, he observes, to regard little inconveniences of this nature, he who could first build a dam or mill on any public river would acquire an exclusive right, at least for some distance; for a second dam could not be built, unless at a considerable distance, without producing some mischief or detriment to the owner of the first. Here the principle on which the plaintiff rests is directly met, and treated as leading to extravagant consequences, altogether inadmissible. The

Although I differed from the opinion of the court in that case, it was upon the ground that the plaintiff had acquired a superior right by a prior enjoyment of the water, in a particular manner, for forty years, which was sufficient to raise the presumption of a grant; and the chief justice, who also dissented from the majority of the court, rejected the doctrine set up by the plaintiff in this case. Many cases, said he, may be supposed, which would be damnum absque injuria : such as the insensible evaporation and decrease of the water by dams, or the occasional increase or decrease of the velocity of the current, and the quantum of water below. Many such circumstances may be inevitable from the establishment of one dam above another upon the same stream. I have been thus particular in noticing the several opinions in this case, because, if the principles which seem there to be taken for granted by the whole court, are well founded, they are in direct hostility to the plaintiff’s right of action. There is no ground, in point of fact, if that could make any difference in the principle, for alleging that there was no natural mill seat or fall, where the defendants’ works are erected. There is enough for every purpose for which the defendants have, and bad, a [*220] right to . use the water. The court are, accordingly, of optnj0Dj the defendants are entitled to judgment. .

Judgment for the defendants.