Phœnix Water Co. v. Fletcher

California Supreme Court Jul 1, 1863Published

Before: Crocker

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Holding. The court held that a prior appropriator of water is entitled to protection against upstream users who unreasonably detain water or pollute it with refuse, and that special verdict questions must be distinct and not group multiple facts.

Issues

Whether an upstream mill owner may unreasonably detain water or deposit refuse to the detriment of a prior appropriator.
Whether the trial court erred in submitting compound special verdict questions to the jury.
Whether the trial court erred in dismissing the action on the grounds that the injuries were damnum absque injuria.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The rule of law is well established, that the owner of hydraulic works on the stream above, has no right to detain the water unreasonably.”

“The prior appropriator is clearly entitled to protection against acts which materially diminish the quantity of water to which he is entitled, or deteriorate its quality, for the uses to which he wishes to apply it.”

“Each question submitted to a jury as a basis for a special verdict, should relate only to one fact; and grouping together several facts, as was done in these two questions, was very objectionable.”

Synopsis

The prior appropriator of a stream of water for mining purposes, has a right to have the water flow down above the point of Ms appropriation without interruption or diminution in quantity.

One who enters upon a stream of water above the prior appropriator and erects hydraulic works, must so construct them as not to impede the regularity of the flow of the water, if its irregular flow would injure the first appropriator.

A mere temporary or trivial irregularity in the flow of the water, such as docs not cause actual injury to the prior appropriator below, will not be actionable; but if a sensible or positive injury be caused, such as would dimmish the value of the water right, an action will lie, not only to recover damages, but to enjoin the future commission of the wrong.

Where special issues are submitted to a jury, they should include all questions of fact raised by the pleadings and necessary to determine the case, and should be separately and distinctly stated, so that each question should relate to only one fact.

Crocker, J. delivered the opinion of the Court—Horton, J. concurring.

This is an action to recover damages, and for an injunction to restrain the defendants, who are the owners of a sawmill on a stream, the waters of which the plaintiffs claim by prior appropriation for -mining purposes, from interfering with the regular flow of water to plaintiffs’ ditch, and from throwing sawdust and other refuse into the water, to the plaintiffs’ injury. Special issues were [485]submitted to a jury, who returned the following special verdict: “ First. At what time did the plaintiffs’ grantors appropriate the waters of Sugar Pine Creek for mining purposes ? Answer : March, 1852. Second. At what time were the waters of Sugar Pine Creek appropriated by defendants’ grantors for mill purposes ? Answer : July, 1852. Third. Is the injury inevitable, and can the defendants have and enjoy the mill in the place they do, without creating the injury ? Answer: Yes. Fourth. Do defendants use the water in running their mill in a reasonable way, and if any injury is had to plaintiffs, is it nominal, merely ? Answer: Yes.” The plaintiffs moved for perpetual injunction, to restrain the defendants from doing the acts complained of; which the Court denied, and ordered that the restraining order, issued at the commencement of the action, be dissolved, and that the bill be dismissed with costs; from which judgment the plaintiffs appeal.

The injuries complained of are: first, that the defendants’ dam, which is above the plaintiffs’ ditch, causes the water to flow irregularly, at times holding it back, and suffering but a small quantity to flow to the plaintiffs’ ditch, and at others letting it down in greatly increased quantity; second, that the sawdust and refuse bark of the sawmill is thrown into the stream by the defendants, clogging and filling the plaintiffs’ ditches and reservoirs, and thereby diminishing their capacity to flow and hold water. The evidence shows that these are serious injuries to the plaintiffs, causing them considerable loss and damage; but after the evidence was closed, the plaintiffs’ counsel stated to the Court and jury that they did not care about the amount of damages, and would consent that they should be considered as merely nominal, as the suit was brought for the purpose of protecting plaintiffs’ rights, and not for the amount of damages. This may have induced the jury to find that the damages were merely nominal. The Court refused the injunction and dismissed the action, “ on the ground that the dam was necessary for the defendants’ mill, that the water was flowed into plaintiffs’ ditch after its use by the mill, and that the injury was damnum absque injuriato which the plaintiffs excepted.

Phœnix Water Co. v. Fletcher

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