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Portage Circuit Court.



[Portage Circuit Court, November Term, 1889.]

Woodbury, Laubie and Frazier, JJ.



Where full, adequate and final damages for a nuisance and injury, causing material and substantial damages, as for unlawfully taking water from a water-power stream, cannot be recovered in a single action at law, and plaintiff would be obliged to maintain actions periodically to recover for such injuries, and to commence an action every twenty-one years to prevent the operation of adverse user against his rights, equity will take jurisdiction and grant the necessary relief without requiring plaintiff to first exhaust his remedy at law.


The owners of a manufacturing plant on the banks of a stream of water, for the operation of which dams have been erected to supply water power to operate extensive machinery, are entitled to an injunction to restrain a water-works company, organized for profit and selling water to citizens, railroads and manufacturing companies, from taking water from a contributory stream in such quantities as to reduce the supply at the manufacturing plant below the amount required to operate the machinery.


The rule that a city would be justified in taking water from a stream for domestic purposes under the law of paramount necessity, does not apply where a foreign corporation takes such water, makes merchandise of and sells it to citizens, manufacturers and railroad companies, especially where there are other sources from which the necessary supply could be had.

4. Order Should be Subject to ModifiCATION AND Extension.

Where plaintiffs, in the action above referred to, have a right to all of the water in such tributary stream, but for their present necessity use only a portion thereof, the order giving the defendants the excess over that amount should not be a final order but one which may, upon thirty days notice to defendants and motion by plaintiffs, be modified or extended as future conditions may require.


Where both parties appeal from a judgment of the court of common pleas, and the circuit court makes substantially the same order as was made in the court below, each party should pay his own costs in the circuit court; and the plaintiff, judgment having been in his favor in the court of common pleas, should recover his costs in that court



This is a case which has been tried upon evidence and submitted. We have given this case considerable consideration and have examined and read through the authorities that have been presented; those that were here and some that were not here, a few that we had to send for.

I shall not undertake to review the evidence in the case, nor will I undertake to review all the authorities which have been cited. Our time is limited, and, therefore, it is necessary that I should be brief in what I have to say in regard to the case.

The proof shows that the plaintiffs in the case are the owners of the several properties described in their petition, upon Cuyahoga river;

This case never went beyond the circuit court.

Manufacturing Co. v. Manufacturing Co.

that they have upon the stream the several mills, furnaces and tile works, which they describe in their petition, situated upon Cuyahoga river; that they have dams across the river, thereby creating water-power for the running of their several mills; and I may say we find the same in regard to the Milbank property set up in the petition of Joseph Milbank, co-plaintiff, and also in regard to the property of the plaintiffs owned at Munroe Falls: that they have those mills and the machinery consisting of a large amount in the different mills; and that the same are run by this water-power. That at the ordinary stage of water it requires all the water of Cuyahoga river to carry their machinery; and that at that it is not quite sufficient; so that at such times - I mean at the ordinary stage of water in the river-there is no more than, nor is it quite sufficient, to run all of their machinery.

We also find that Plum creek is a tributary of Cuyahoga river, situated above, all coming into these mills, and that its waters, united with the other waters of Cuyahoga river, constitute that water-power of these different mills.

We also find, as charged in plaintiff's petition, that the defendants have constructed waterworks upon Plum creek, near where it empties into Cuyahoga river, and have commenced taking water from Plum creek. That they have entered into a contract with the incorporated village of Kent, by which they have bound themselves to put in waterworks of sufficient capacity to furnish 1,500,000 gallons in a day of 24 hours; and that in pursuance of that contract the defendants have erected the waterworks with a capacity at least of a 1,000,000 gallons a day and that they have been taking from Plum creek from 245,000 to 260,000 gallons a day. At the commencement or start it was somewhere in the neighborhood of 60,000 gallons in 24 hours. That the capacity of Plum creek at its ordinary stage is one hundred and twenty-five and seventenths cubic feet a minute; and we find that the water which is thus taken by the defendants from Plum creek is a material injury and a substantial damage to the plaintiffs.

It is claimed, and perhaps this I should pay a little attention to in the short time that we have, that the water which is thus taken by the defedants from Plum creek, this is claimed by defendants, -is substantially all restored, either to Plum creek or Cuyahoga river; and much testimony has been introduced upon this subject.

When we come to look at the evidence in the case, it shows, as I have already said, that the ordinary flow of Plum creek is 125.7 cubic feet in a minute. Since the defendants have been taking water from Plum creek, the tests which have been made show that the water running over the weir prepared for testing, was cut down to from 40 to 55 or 57 cubic feet in a minute. This, the evidence shows, was the condition of things in September, and also in October.

While there is really no controversy in the evidence as to the amount of water which was passing through Plum creek before the taking of the water by the defendants, as I have said, there was much evidence introduced upon both sides bearing upon the question whether this was returned to Plum creek or to Cuyahoga river.

It has been shown that some portion of it is used by families for domestic purposes, some portion of it used in motors-I think there being five motors, and another portion of it used by the railroad companies, and still another portion of it used in watering lawns, sprinkling streets and the washing of pavements. These, of course, are all elements which

Portage Circuit Court.

are to be considered, the amount, if any, which returns back either to Plum creek or to Cuyahoga river.

Judging from the evidence in the case, we are inclined to the opinion that the larger portion of the water taken from Plum creek by the defendants is used by the railroad companies, in fact, the witness who seems to know most about it and has done most of the pumping of the water for the defendants, testifies that up to the time when they commenced furnishing water to the railroad companies, that they furnished or pumped about 65,000 gallons in a day; but that when the railroad companies commenced taking water they pumped from 245,000 to 250,000 gallons in a day, thus showing, according to his evidence, that a large portion of the water that is being taken by the defendants from this stream is used by the railroad companies, and we think it is quite evident that a large portion of the water could not and does not go back either to Plum creek or Cuyahoga river.

In regard to the water which is used for domestic purposes, while there is conflict in the proof upon this subject, the witnesses on part of defendants testifying that it all, in some way or other, would go back, excepting what would be taken up by evaporation, yet the witnesses on the part of the plaintiffs testified that a large portion of the water which would be used for domestic purposes would be taken up and carried away by evaporation and by steam; so that but a small portion of the water used for domestic purposes would be returned to the river. And another idea might be suggested in this connection, that prior to the time when the water was being taken by the defendants from this river or this stream, Plum creek, it is quite evident that all of the water used for domestic purposes in Kent was procured from other sources, perhaps largely from wells, and if this water, whether it was used in that city or village, for domestic purposes returned to the river, when drawn from the earth, from wells and from other sources, then the taking of the water from the river would tend, unless it will return, to diminish the flow of the river.

The water which is used in the motors, probably a considerable portion of it, returns to the river or to Plum creek, excepting what might be gone or lost by evaporation. But at all events, we are satis'fied from the evidence that a large portion of the water that is taken by the defendants is not returned either to Plum creek or to Cuyahoga river.

It is claimed also, on the part of the defendants, that they have increased the amount of water in Plum creek by the excavation of the pond or reservoir in which they store their water, and also by the sinking of wells, artesian wells, or flowing wells, or driven wells. The proof in regard to the wells is, that while they were excavating for the reservoir they drove four or five of these wells; two of them only furnished or procured water. As to two of them the proof is, that the water rose in the pipes two feet above the surface, or perhaps a little more, and flowed over: that one of those pipes yet remains in that reservoir, but the top of the pipe is still under water, perhaps a foot; and that also, in the excavation, some springs were found, after running down into the gravel, that run into this reservoir; and we now have the question whether any additional water of any amount is thus furnished by the opening or excavating from the reservoir and by this driven well. We are satisfied that at least while the water stands a foot above the top of that pipe that there is no reasonable ground to suppose that there is any

Manufacturing Co. v. Manufacturing Co.

While it might be when the

reasonable flow of water from that source. water reduced down even with the level of the top of the pipe that there would be a flow of water, yet when the water stands in the pond or reservoir to the height of the source of the water going through the pipe that then it would not flow, and so with the water which is claimed on the part of the defendants to have been opened up by the excavating of the reservoir; so long as the water stands in the pond level with the height or source of that coming in, that is through the gravel, there would naturally be no flowage, but with these taken out and reduced so there would be no head then the water might flow. But we are satisfied there is no substantial amount of water furnished to the company through that source in the present state things. And I may say to another item that I should have spoken of before, that the plaintiffs have been in the enjoyment and use of their water power for in the neighborhood of fifty years, and all of them for more than twenty-one years next prior to the commencement of this action.

This brings us to the questions of law which are raised by counsel as to the relief, if any, which may be granted in this action.

It is insisted on the part of the defendants in the case that a court of equity will not entertain jurisdiction until the rights of the plaintiffs have been determined at law. Many authorities have been cited upon this question; and we have examined many. Perhaps the exact question has ever been definitely settled by the Supreme Court of the state of Ohio and yet we have several decisions in this state in which the rule substantially as is announced in the elementary books and in many of the other states is announced. The first case that I will call attention to bearing upon this question is Goodall v. Crofton, 33 Ohio St., 271 [31 Am. Rep., 535], in which is mentioned the case cited by counsel, in McCord v. Iker, 12 Ohio, 388, that is the first case in the state announcing the principle as cited, and the court say in the opinion on page 275:

"In this state, however, we understand the rule to be, that a court of equity will only interfere to restrain an alleged nuisance, when the mischief to the plaintiff's property, or rights in his property, are irreparable, and there is no adequate remedy at law to make reparation. Although the restraint of an established nuisance is an admitted ground of equity jurisdiction,' that branch of the law 'will carefully abstain from interference where the injury will support an action at law, unless the party seeking such aid brings himself within the clearest principles of equitable reliet.' McCord v. Iker, 12 Ohio, 388. To the end that right may be done and injury prevented, courts having jurisdiction in equity will determine each case, as it arises, upon its own facts and circumstances. When, from the nature of the case, and the right claimed to be infringed, no adequate remedy can be had in the courts of law, equity will entertain the action, where the things ought to be prohibited is not a nuisance per se, but may, under some circumstances, prove so, the court will not interfere without a previous trial at law." Now, Crawford v. Rambo, 44 Ohio St., 279 [7 N. E. Rep. 429], on page 287, give the rule: "As to whether the plaintiff is entitled to relief upon his second cause of action, it is sufficient to say, that in a proper case, on a final hearing, a decree may be entered for the abatement of a nuisance. But it necessarily depends upon a variety of circumstances, whether such a decree will be entered. In the first place equity requires that the plaintiff shall have acted with promptness in

Portage Circuit Court.

objecting, and in taking steps to enforce his objection, upon receiving notice of the defe lant's structures and erections which are sought to be abated, if the circumstances are such that the defendant would be unnecessarily prejudiced by the plaintiff's delay; and the injury must be of a substantial and permanent nature," and "it is sufficient, however, in this regard, that the damages are of such constant and frequent recurrence, that no adequate compensation can be made thereby. Wood on Nuis., Sec. 778."

These two cases substantially settle the rule in Ohio when the court of equity may intervene for the purpose of abating a nuisance. I may say that this question which we are now discussing, was before us recently in the circuit court in Columbiana county. That was a case where the waterworks company at Salem had appropriated a large spring, adjoining the plaintiff's land, and the spring ran down across over the plaintiff's premises: I said that the waterworks company had appropriated; in this I mis-spoke, as the company had purchased of the owner of the spring the spring with a small piece of land surrounding it and then went forward and laid their pipes from the spring down across the lands of plaintiff. By the laying of the pipe from the spring it took all the water from the spring away from the plainti's premises down to the city of Salem. The company had appropriated, under the statutes, the right to lay the pipe across the plaintiff's premises. The plaintiff brought an action to enjoin them from taking water from the spring and not permitting it to run and flow across his farm; and upon a full hearing and examination of the case, of the authorities in that case, we held that it was a case where a court of equity would intervene and would enjoin the company from thus diverting the water and stopping it from running across his premises as it had before. That was a case in some of its incidents something like this. There, as in this case, the defendants had entered into a contract to supply water to the city of Salem; they had contracted to furnish spring water and at the time of the commencement of the action they had laid their pipes, having, by a proceeding in the probate court, attempted to appropriate the right to lay the pipe, but, as we held, not the right to take the water from the land of the plaintiff and convey it to Salem, there to be used by the citizens of that place.

The question is raised here, and a case is cited that was decided by the Supreme Court of Pennsylvania. That case we did not then have before us. The doctrine laid down in that case by that court was this: This was a case where an action was brought against the city of Philadelphia about taking water out of the Schuylkill river so much that it destroyed nav ation. This action was brought to recover damages. A question seems to have incidentally come up in the case, but which the court did not fully consider. In that they say this, that it was conceded on trial that upon taking water for the citizens for domestic purposes no restriction could be placed by legislation or grant, and none was placed. If it could have been shown that it was this supply for domestic purposes only, which occasioned the insufficiency for navigation, then the law of a paramount necessity would have existed, and have brought into play the doctrine of riparian rights, and justified the taking. But this did not appear and was not the fact. Nor was it denied that if the drought had been so severe as to have been incapable of mitigation by the use of any means to keep the navigation open, the deferdant would not have been liable. That is all said in this case

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