Wholey v. Caldwell

Henshaw, J. Appeal from the judgment. Plaintiff is a lower, defendants are upper, riparian proprietors. Parks creek for many years had flowed over the land of defendants to a point on that land known as Batterton crossing, where it divided into two branches called the North Channel and the South Channel. About one-third of the waters of the creek passed onto the plaintiff’s land through the North Channel, while the remaining two-thirds flowed down the South Channel. A third waterway, seemingly an ancient course of Parks creek, left the main stream, about one-half a mile above Batter-ton crossing, and entered upon and extended over the land of plaintiff in a direction parallel with that of the North Channel. This last waterway was known as the Spring Branch Channel. There wras no direct surface flow from Parks creek into it, the point of separation being dammed by gravel, bowlders, and debris, but its bed was lower than the bed of the North Channel, and from North Channel, by percolation and by small but defined surface streams, water rose in this Spring Branch Channel and flowed over plaintiff’s lands. The amount of water so rising bore direct relation to the amount of water flowing through the North Channel. Plaintiff relied upon the waters of the Spring Branch and North Channels for all beneficial purposes.

Such were the conditions until the winter of 1890-91, when an extraordinary freshet deposited a bar of bowlders, gravel, and debris at the head of the North Channel, and thus prevented the waters from flowing into it as had been their wont. At the same time the waters cut a new bed for themselves. This New Channel (so named) left the original stream from the south about a mile above Batterton crossing, extended in a general course parallel with it, and joined the South Channel, still on the lands of defendants, above the point where South Channel entered plaintiff’s property, and thence flowed on by the accustomed South Channel. During the first year after this change some of the water passed down the old way to Batterton crossing. The rains of [98]the following year deposited a bar in the main stream at the point where the New Channel had been cut, and thereafter all the waters of the creek flowed down this New Channel into the South Channel, and so onto defendants’ lands, leaving dry the original watercourse down to Batterton crossing, and, consequently, also the North Channel and the Spring Branch Channel.

Plaintiff then commenced this action, averring that these changes were occasioned wholly by natural causes, and asserting the right to enter upon defendants’ land and to take such necessary and proper steps as might he required to return the water to the channels wherein it flowed prior to the year 1889, and asking that defendants be enjoined from preventing him from entering upon their land and doing such proper and necessary acts. He also pleaded a grant to himself from defendants’ predecessor of his land and of “ the waters accustomed to flow in the Spring Branch Channel.” Defendants denied the asserted rights, and by cross-complaint pleaded the construction and maintenance for thirty years last past of a dam across the head of the North Channel sufficient to divert all the water thereof, during ordinary low stages, from the North to the South Channel, and also their prescriptive right to divert two-thirds of the water of the creek by ditches. They pleaded defendants’ interference with these rights, and asked damages accordingly.