
    City of Canton v. Shock et al.
    
      THparian rights — Municipality a riparian proprietor — May -use water needed from stream -flowing by — Lower proprietor on same stream no legal cause for complaint — When water insufficient for both, each entitled to reasonable use — Neither to exclude the other — Equitable division of use, question for jury.
    
    1. An incorporated municipality situated on a natural flowing stream, is, in its corporate capacity, a riparian proprietor, having the rights, and subject to the liabilities, of such proprietor.
    2. Such municipality so situated has the right to use out of such stream all the water it needs for its own proper purposes, returning to the stream the water not consumed in such use.
    3. Such municipality so situated, may supply water to its inhabitants for domestic use, returning to the stream the water not consumed; and a lower proprietor who uses the water of the same stream for power, has no legal cause for complaint against such upper proprietor for so using the water of the stream.
    
      i. Where there are upper and lower proprietors upon a natural running stream, both having manufactories propelled by the water of the stream, and the water is insufficient to fully supply the needs of both, each one has a right to the reasonable use of the water, considering all the circumstances.
    
      5. In such cases the water of the stream should he so divided and used that each proprietor shall hear his fair proportion of the loss caused by the shortage of water, considering all the circumstances of the case.
    6. Such municipality so situated, has no right to materially diminish the flow of water in such stream, to the injury of a lower proprietor, by supplying water from the stream to persons outside of such municipality, or to be transported away from such city, or by supplying to manufactories for power purposes more than a reasonable share of the water, considering all the circumstances.
    7. In case of difference between such proprietors as to the use of water for power purposes, the question should be left to a jury to say whether under all the circumstances the party complained against has used more than his fair proportion of the water of the stream.
    (Decided February 25, 1902.)
    Error to the Circuit Court of Stark county.
    The city of Canton is a municipal corporation and is situated between the east and west forks of Nimishiller creek, the forks meeting at or near the south line of the city and thus forming that creek. The entire natural drainage of the city is toward, and into these two forks of the creek, which is a natural watercourse.
    The city has established its system of water-works on the west branch of the creek, on a lot of land adjoining said branch, and it takes its water supply from said creek, and from certain wells near the same, and from Myers’ lake nearby. The city uses so much of the water supply thus passing through its waterworks, as it needs for its use as a city, and supplies its inhabitants with water for domestic, commercial and manufacturing- purposes, at a price fixed by the city, so as to produce an income about sufficient to pay the expenses of said water-works.
    
      The defendants in error own a water-power grist mill located on the creek a short distance down stream south of the city, and have used the water of the creek for many years — over fifty — as power to run their mill, and until about the year 1887 there was sufficient water to supply both the city and the mill, but as the city grew and extended its water-works, it used larger quantities of water, and thereby the supply to the mill became reduced to such an extent that in dry seasons of the year, there was not sufficient water to run the mill all the time, and it became necessary to shut down at nights.
    Thereupon in the year 1898, the defendants in error, plaintiffs below, commenced an action against the city in the court of common pleas, seeking to recover damages from the city for thus using the water, and thereby diminishing the supply to the mill. The city claimed to be a riparian owner and entitled to make such use of the water of the stream as it had made, and that the plaintiffs below had no greater right to the use of the water to run their mill, than the city and its inhabitants had to use the waters of the creek above the mill, for domestic, commercial and manufacturing purposes.
    Upon the trial of the case these questions were put in issue by the pleadings and evidence. Thereupon the court charged the jury as follows:
    “On the question of the right of the city to take this water for the purposes named, the defendant claims that substantially all the water diverted by it from the creek in question, and which was not returned to said creek, was used for the purpose of supplying the inhabitants of the city and a small portion of territory adjoining thereto, with water for domestic, sanitary, agricultural and manufacturing purposes. That said stream does now and for many years has passed in and through the corporate limits of said city. That it owns the premises upon which its pumping station is situated, and has lines of pipe proceeding from said creek and pumping station, and passing through the city to supply said persons, and that it is in a sense, a riparian owner, located on said stream, and it claims that the inhabitants of said city so supplied by it, have the rights of riparian owners in said stream; that is to say — the right to use the same for domestic, agricultural, sanitary and manufacturing purposes; and I am requested by defendant counsel to say to you as matter of law that if these facts are true, and if the water so drawn from said stream and not returned to it so as to be effective for plaintiffs’ water power, was substantially all consumed by the citizens of said city and territory adjoining thereto, for the purposes and uses aforesaid, and if their uses were reasonable in manner and extent; then the city would not be liable to the plaintiffs, although such use might so diminish the volume of said stream, that at certain times of the year it would cause a substantial diminution of plaintiffs’ water power.
    “I say, I am asked by defendant’s counsel to so instruct you, but I cannot so instruct you as matter of law. On the contrary, I say to you as a matter of law, that the undiminished flow of a natural private stream, such as the one in question, is conceded to be, is the right of every riparian owner, yet this right is limited to this extent; that each riparian owner may without subjecting himself to liability to another lower riparian owner, use of the stream whatever is needed for his own domestic purposes and the watering of stock. The defendant, the city, cannot be considered a riparian owner within the scope of this exception.”
    The city saved exceptions to this part of the charge and to the charge as a whole.
    A verdict was. returned in favor of plaintiffs below, motion for new trial overruled, judgment entered on the verdict against the city, and a bill of exceptions allowed, signed and made part of the record.
    The circuit court affirmed the judgment, and thereupon the city filed its petition in error here, seeking to reverse the judgments below.
    
      Mr. Ed. L. Smith, city solicitor, and Messrs. Lynch, Day & Day, for plaintiff in error. ¡
    We believe the following propositions of law are indisputable: That in order to generate power or for other artificial purposes there is no ownership or property in the waters of a flowing stream in the sense that there is ownership of land or chattel property. As to running streams the interest or right for such purposes pertains only to its use. All riparian owners have a right to use and consume the waters of a stream for domestic, sanitary and agricultural purposes even though such use would debar a lower riparian owner of any use of such stream. The primary use of waters of a stream is to satisfy the natural wants of mankind and such use is paramount to the right of other riparian owners to use the same stream to supply their artificial wants; for example, the running of a mill. This proposition is supported by the following authorities. Washburn on Easements, 330-1; Angelí on Water Courses, Secs. 128-9.
    There may have been a time, when there were few villages or towns on the banks of the smaller streams, that the courts were inclined to protect these water rights for mill powers; for then such streams were supplying abundant water for such powers as well as for the domestic purposes of the inhabitants on the borders of the streams, but as the country became more densely populated and the flow of the smaller streams from natural causes gradually diminished, the use of the water for one or the other of such purposes was necessarily curtailed. There has been no time when the courts have held that the owners of mill powers on streams have superior, or, we submit, equal rights to the use of the water for power with the natural rights of such inhabitants to use it for domestic purposes. Now when the country has become more thickly settled and villages and towns are building up on the borders of the streams, and it is absolutely necessary for the inhabitants to be supplied with good and wholesome water for domestic purposes, they must be protected in their natural rights, as against mill owners who attempt, in this age of cheap steam power, to maintain old imaginary rights to the use of the Avater for power for their mills as against such natural rights, and surely when such inhabitants combine and pump the water for such use through pipes and reservoirs and charge themselves for the use of the water, only in a sufficient amount to pay the expenses of the pumping and of keeping their water-works and mains in proper working condition, they must not be classed as vendors and water companies doing business for commercial purposes. Jones on Easements, Sec. 747; Barre Water Co. v. Carnes, 65 Vt., 626.
    The theory of natural rights for which we contend is nowhere better stated than in Mayor v. Commissioners, 7 Pa. St., 348.
    
      The question was again considered by the Supreme Court of Pennsylvania in Philadelphia v. Collins, 68 Pa. St., 106; City of Elgin v. Hydraulic Co., (85 Ill. App., 182) Engineering Record of November 18, 1899; Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34; Haupt’s Appeal, 125 Pa., 211.
    The distinction between public and private streams is more as to the mode of access than as to the use of the water thereof. Public streams are public highways open at all times to access to all persons, but to private streams access must be had at public highways or by lands adjacent to the stream; but as to the ownership of the water there is no distinction, for in neither case is there any private ownership of the water, but in both case's, access having been obtained, the right to use the water is the same. St. Anthony Co. v. Water Commrs., 168 U. S., 349; Lee v. Lee, 50 N. W. Rep., 33.
    The old notion of riparian rights was that the riparian owner was entitled to the flow of the stream undiminished in quantity and unimpaired in quality, but there are many recent decisions to the effect that what has heretofore been regarded as sacred rights must to a certain extent give way to the public welfare. '
    In support of this proposition are the following authorities: Pennsylvania Coal Co. v. Sanderson, 113 Pa., 126; Commonwealth v. Russell, 172 Pa., 506, Maryfield v. Worcester, 110 Mass., 216; Morse v. Worcester, 139 Mass., 389.
    These cases are in a measure departures from the ancient rule, but are based upon modern conditions and public necessity and show the direction the courts are moving in defining the right in the flowing stream, between municipal corporations, where the water is sought to be used to supply the natural wants of its inhabitants, and a lower riparian owner desiring to use the water for power purposes.
    Not only did the court fail to recognize the rule laid down by the authorities herein cited but went to the extent' of preventing the jury from considering the question as to whether the city, in the use it was making of the waters of the stream, was using it in a reasonable manner and to a reasonable extent.
    That this is a proper question to be submitted to the jury is sustained by the following authorities: Jones on Easements, Sec. 752; McElroy v. Goble, 6 Ohio St., 187; Wadsworth v. Tillotson, 15 Conn., 365; Hazeltine v. Case, 46 Wis., 391; 4 Ill., 494.
    
      Messrs. Webber é Turner and Mr. A. A. Thayer, for defendants in error.
    The question is: Is a municipal corporation, through which flows a natural, private stream, a riparian owner, in such sense that it may divert all the waters of the stream, for the use of its inhabitants, without compensating lower proprietors, who have been injured thereby?
    This question has been so often answered in the negative by the courts, and voluminously considered by text writers, that the simple citation of authorities should be sufficient to settle it. We select from a large number at hand, the following: Emporia v. Soden, 25 Kan., 588; Garwood v. Railroad Co., 83 N. Y., 400; Frobel v. New York, 164 N. Y., 522; Plumleigh v. Dawson, 1 Gilman, 544 (41 Am. Dec., 199); Elliott v. Railroad Co., 10 Cush., 191 (57 Am. Dec., 85); Tiedeman on Munic. Corps., Sec. 354; Dillon on Munic. Corps., Secs. 597, 607; Gould on Waters, Sec. 245; Mills on Eminent Domain, Sec. 79; Lewis on Eminent Domain, Sec. 62; Coal & Iron Co. v. Tucker, 48 Ohio St., 41.
   Bukket/J.

As this is an action against the city for damages, no question as to eminent domain, or appropriation of private property for public uses, is involved in the issue, the controlling issue being as to whether the city, as a municipal corporation, is a riparian proprietor having the right to use the waters of the creek for its own purposes, and to supply them to its inhabitants for the ordinary purposes of life, and as to whether the right to use water from a stream by one riparian proprietor for manufacturing purposes, such as running a grist mill, is inferior or equal to the right to use the water from the same stream by an upper proprietor for domestic purposes.

It is urged by counsel for defendants in error, that a municipality situated on a natural water course, is not in its corporate capacity, a riparian proprietor, and that only those inhabitants whose lots or lands border on the stream are such proprietors, and some cases are cited which seem to take that view of the law.

Other cases are decided upon the theory that such municipality is itself, in its corporate capacity, a riparian proprietor, and entitled as such to riparian rights in the stream upon which it is situated. Barre Water Co. v. Carnes, 65 Vt., 626; Mayor v. Commissioners, 7 Pa. St., 348; Philadelphia v. Collins, 68 Pa. St., 106; Jones on Easements, Sec. 747, and cases cited in a note to the section.

In this state the question remains undecided by this court, and therefore is an open one, and we are at liberty to follow such rule of decision as is supported by sound reason and the weight of authority.

It was held by this court at this term in City of Mansfield v. Balliett, 65 Ohio St., 451, that a city situate on a stream is liable in its corporate capacity to a lower proprietor for polluting the water of such stream by running the sewage of such city and its inhabitants into such stream. This case holds the city in its corporate capacity, and as an upper proprietor, liable to a lower proprietor for polluting the water of the stream; and if the city is liable, not only for its own acts, but also for the acts of its inhabitants, in flowing sewage into the stream, it must be upon the principle that as upper riparian proprietor, it has violated its duty toward a lower riparian proprietor on the same stream, and that therefore the city in its corporate capacity is a riparian proprietor on the stream, and must bear the burdens of.such position.

While the inhabitants own their lots individually, the city owns the streets, the fire department and all other public property and public works, and in its corporate capacity, provides for the convenience and welfare of its inhabitants, as to streets, flue protection, lighting and supplying water, and in such, and other like matters, the city overshadows the individuals, and stands in its corporate capacity as a single proprietor extending throughout its entire limits, and entitled as such to all the rights and subject to all the liabilities of a riparian proprietor on the stream upon which it is situated.

Sound reason, the weight of authority, and the present advanced state of municipal government, rights and liabilities, require that a municipality should be held and regarded, in its entirety, as an individual entity, having in its corporate capacity the rights, and subject to the liabilities, of a riparian proprietor, and we so hold in this case.

The bringing of the action against the city for damages is of itself an implied admission that the city in its corporate capacity, is an upper proprietor, liable for the wrongful diversion or use of the water of the stream upon which it is situated. Being-charged with the liability of such upper proprietor, as conceded by bringing the action and as was rightly held in the Mansfield case, it must also be accorded the rights and benefits of such proprietor.

As such proprietor, the city uses the water of the stream, through its water-works, in extinguishing fires, sprinkling streets, and other public purposes, and supplies water to its inhabitants for domestic use, and manufacturing purposes.

Being an upper riparian proprietor, it follows as a matter of law that it has the right to use out of the stream all the water it needs for its own purposes, returning to the stream all that is not consumed in such use; not however, transporting the water, as was done in Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, nor diverting the water as was done in Wheatley v. Chrisman, 24 Pa. St., 298.

The right of an upper proprietor to use the water of a stream for manufacturing purposes, is at least equal to the right of a lower proprietor on the same stream to use the water for a like purpose, and so long as the upper proprietor uses the waters reasonably and returns all the water not consumed in the use, back into the stream, the legal rights of the lower proprietor are not invaded.

There being no right of property in the water of a natural flowing stream, the only right being to the use of the water as it flows by the lands adjoining the stream, it follows that as the water comes first to the upper proprietor, he may use it reasonably for power purposes, returning to the stream all that is not consumed in the use, .and that the right of the lower proprietor attaches only to the use of the water that comes to his premises after passing and so serving the purposes of the upper proprietor.

As the right of the city to supply water to manufactories within its bounds for power purposes is only equal to the right of a lower proprietor to use water for the same purpose, jlie question arises in this case as to the rights of the parties to use the water of the stream for such purposes. The question is a difficult one both in theory and application, as the different sizes of streams, and different circumstances, have caused courts to make different holdings, but the combined result of the cases, seems to be that where there is not sufficient water in a stream to supply fully the needs of all the proprietors on the stream for power purposes, no one has the right to use all the water and thereby deprive those below him from the use of any; nor can those below rightly insist that those above shall use no water for power and thereby save it all for those below. Each should use the water reasonably, and so as to do as little injury to the others as circumstances will permit. As a loss must fall upon one or the other of such^proprietors, neither should be compelled to bear the whole loss, but the water should be so divided and used that each one may bear his reasonable proportion of the loss, and that in case of difference between upper and lower proprietors in such cases the question should be left to the sound judgment of a jury, under proper instructions, to say whether the party complained against has used for power purposes, under all the circumstances, more than his just proportion of the water of the stream. Evans v. Merriweather, 3 Scam. (Ill.), 492.

This being so, the city of Canton, in supplying water to its inhabitants for power purposes, had the right to use the water of the stream to a reasonable extent only, and so as to do as little injury as might be, under all the circumstances, to the lower proprietor, each party bearing an equitable share of the loss caused by the shortage of water. Dry seasons are not caused by either party, but are the act of God, and each party must bear the losses resulting to him therefrom.

From the earliest dawn of history to the present time, the primary use of water has been for domestic purposes, and its secondary use for the purposes of power. People on the upper stream have the right tb quench their thirst, and the thirst of their flocks and herds, even though by so doing the wheels of every mill on the lower stream should stand still. Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, 41. And the same right in the use of water as to quenching thirst, extends to all uses for domestic purposes; and the rights of a lower proprietor to the use of the waters of a stream for power purposes, is subject to the superior right of all upper proprietors for domestic purposes, and must yield thereto.

All water powers on a stream are established subject to the superior right of all upperproprietorstouse water out of the stream for domestic purposes, and if the upper proprietors have grown so large, or become so numerous as to consume most, or all of the water, the lower proprietors have no cause of complaint, •because it is only what they should have reasonably expected in t-he growth and development of the country, and subject to which contingency they established their water powers.

In addition to taking water from the stream for its own uses, and supplying the same to its inhabitants for domestic and manufacturing purposes, the amended petition avers that the city supplied water to its inhabitants for commercial purposes. If this means only that the city received pay for the water, so supplied, and thereby made the water an article of commerce, the averment is of no force. The city having the right to supply water to its inhabitants for domestic and manufacturing purposes,. it can make no difference in that right, that the supply is for pay, rather than for nothing. The injury, if any, to the lower proprietor arises from the taking of the water, and not from the pay received therefor.

It is also averred in the amended petition that the city supplies water to people outside of the city, for domestic, commercial and manufacturing purposes. If such supply to outsiders, or to be transported away from the city for commercial purposes, is sufficient in quantity to materially injure defendants in error, taking into consideration the size of the stream and water supply, the city to that extent is exceeding its right as a riparian proprietor.

The general rule is well stated by Paxson, J., in Pennsylvania Rd. Co. v. Miller, 112 Pa. St., 34, 41, as follows: “The principle established by a long line of decisions is that the upper riparian owner has the right to the use of the stream on his land for any legal purpose, provided .he returns it to its channel uncorrupted and without any essential diminution; that in all such cases the size and capacity of the stream is to be considered, and that any interruption of, or interference with, the rights of the lower riparian owner is an injury for which an action will lie, unless too trifling for the law to notice.”

The obligation to return the water to the stream without “any essential diminution” means that the water not consumed in the use, or “legal purpose,” must be returned to the stream, or an opportunity given for it to flow back into the stream by the ordinary channels. It cannot be' lawfully diverted, or transported, so as to prevent it from flowing back into the stream.

The city having no right to materially diminish the flow of the water in the stream to the injury of defend-, ants in error, by supplying water to outsiders, or for commercial purposes to be transported to other parts, or to supply to its inhabitants for power purposes an unreasonable quantity as above pointed out, it follows that if the city has materially diminished thé flow of the water in the stream, by so supplying water to outsiders, or for transportation, or unreasonably for purposes of power, that it is liable to respond in damages to the party injured thereby; but for the water consumed by the city for its own purposes, or so supplied to its inhabitants for domestic use, even though it received pay therefor, it is not liable.

The water taken by the city from the stream for its own use, and so supplied to its inhabitants, is taken by virtue of its rights as a riparian proprietor, and not by virtue of the right of eminent domain, and therefore no compensation need be made therefor.

The general rule that a lower proprietor is entitled to the natural flow of a stream undiminished in quantity, subject to the lawful use of the water by upper proprietors, has been referred to with approval by this court in several cases: Columbus & H. Coal & Iron Co. v. Tucker, 48 Ohio St., 41; City of Mansfield v. Balliett, 65 Ohio St., 451. In the Mansfield case there was no question involved as to the volume or quantity of water, the only question being as to the liability of the city for polluting the waters of the stream, and the right of the lower proprietor to recover damages for such pollution. The case of Columbus & H. Coal & Iron Co. v. Tucker, supra, was also by a lower proprietor against an upper one, for damages for polluting the waters of a stream.

' The question as to the pollution of the waters of a stream in this state seems to be fairly well settled by these two Ohio cases, but they do not determine the relative rights of upper and lower riparian proprietors, as to the use of the waters of a stream, as was' so strongly urged by counsel for defendants in error.

The court'of common pleas erred in its charge to the jury as to the city being an upper riparian proprietor, and as to its right to use water out of the stream for its own purposes, and as to its right to supply water from the stream to its inhabitants for domestic and manufacturing purposes. The real and only question upon which a liability could be founded, viz., whether the flow of the water in the stream was materially diminished, to "the injury of the lower proprietors, by the supplying of water by the city to people outside of its limits, or to be transported away from the city for commercial purposes, or by an unreasonable supply of water for power purposes, seems to Lave been overlooked, and no charge requested or given on that subject.

The circuit court erred in affirming the judgment of the common pleas. Both judgments will be reversed, and the cause remanded for further proceedings.

Judgments reversed.

Spear, Davis and Shauck, JJ., concur.  