THE RIGHT TO TAKE WATER FROM STREAMS AND LAKES FOR PUBLIC WATER SUPPLY.
(Continued from last week.)
Subject to the state’s power of control for the uses of navigation, the riparian owner has the right to use the water of these streams naturally flowing past his riparian land for manufacturing and other purposes, and to go upon the bed of the stream and build structures necessary to make the use of the waters available. All facilities afforded by the natural condition of the stream or lake adjacent to the riparian land, whether for water power or other uses, and whether developed or undeveloped, are not mere temporary and uncertain privileges, but belong to the riparian land, and are the private property of the riparian owner. (a)
These rights of the riparian owner are not generally subject to any right of the. state to divert the waters from their natural channel for even the purpose of navigation ; but where any paramount right to adiversion for any purpose has been recognized (b), it has been strictly confined to the purpose of navigation, and to the extent actually necessary for that purpose alone, (c)
The property rights of the riparian owner to the use of the water being thus qualified only by a sovereign power of control, which from its nature excludes the idea of construction or diversion, the right which municipalities have, or can obtain to divert water for public supply to the damage of lower properties remains the same in the case of navigable streams as in the case of those which are private or unnavigable. The municipality or public water-works company has not., and cannot obtain any right to divert navigable fresh waters for public supply to the damage of the lower riparian owner without making compensation in duly authorized proceedings. This seems to be the universal rule wherever the question has been squarely presented, discussed, and decided, (d)
The only decision In the United States which squarely points to a different rule from that which 1 have stated is a recent decision by the Supreme Court of the State of Minnesota in which it was held that the rights of a riparian owner upon a navigable stream to use the waters for manufacturing purposes are subject to a control by the state for all public purposes, including the right to divert the waters for public water supply, and it was held that the state might authorize a municipality to extract waters from such stream to the damage of mill-owners below without providing for any compensation for such damages. This decision is entirely without precedent, and as the opinion in that case does not attempt to cite a single authority. It will have to stand simply as a curious exception to the authorities for a rule which is well established. That case Is now pending in the United States Supreme Court upon a writ of error issued to the Minnesota court, (e)
While I do not intend to discuss in detail all the varying phases of the question here presented, I should leave the subject too much in doubt and uncertainty if I omitted to speak of the peculiar rule prevalent as to certain navigable fresh waters In the states of Massachusetts, Pennsylnia, and New York.
In Pennsylvania the old rule of proprietary interest in a state to the bed and to the water itself in tidal waters has in effect been applied to navigable fresh waters, and the owner of such waters has never been recognized as having the riparian rights which have always been a rule of property In other states. This is exceptional, and arises from the peculiar colonial grants under which the state was settled. (f).
Again, in New York in certain cases upon the Mohawk and Hudson rivers, on account of the early grant by which the State of New York acquired jurisdiction over those rivers, a certain interest of a proprietary nature has been said to belong to the state in addition to its general rights as sovereign. And on these streams and for these particular reasons many of the early New York cases recognize a right as remaining in the state to divert and to authorize a diversion of the waters of these streams, without providing for compensation for damages to lowerproprietors. (g) If authority at all, these cases must be considered simply as decided under an exceptional state of facts. But they have l»cen repudiated by the highest court of New York, as shown by many recent decisions. In one of these decisions the New York Court of Appeals says that, since the time of these early decisions these questions of riparian rights and of the interest of the state in the control of navigable waters “havebeen elaborately examined, discussed, and settled in all courts,” and it is clearly shown that the courts of New York do not recognize these early cases as authority even as to the rights of riparian owners upon the Mohawk and Hudson rivers, to which streams those cases were confined. The general rule in New York, both as to the rights of riparian owners and as to the extent of the control which the state has in navigable waters,is the same as in other states, (h.)
Read at the Convention of the American Water Work* Association nt Atlanta, Ga.
In Massachusetts there is an exceptional line of decisions, which are based also upon peculiar grants by which the state acquired jurisdiction over the territory and the waters in question. The right of the state in the “ great ponds ” of Massachusetts has been a fruitful source of discussion and litigation. By virtue of a colonial ordinance of 1047 and the early grants referred to, in Massachusetts the state is held to have a proprietary title and interest in the great ponds of the state which is similar to the interest obtained by an individual grantee—like that, for instance, of the grantees of Humphreys pond situated in Lymfield and Danvers, (i) This leaves a peculiar jurisdiction and power over these great ponds in the state. It is something entirely different and of much broader scope than the sovereign interest or power of control which is reserved to other states in their navigable waters for the purpose of navigation, and has arisen in an entirely different way. Every riparian owner upon a great pond or upon a stream issuing from a great pond in the State of Massachusetts takes, and uses the water for power or other purposes, subject to this extraordinary power and title which has been retained in the state. The state, then, may authorize a diversion of the water from such a pond for the purposes of public water supply, and may use its discretion as to whether it will require the pay. ment of compensation for damages to lower proprietors or not. 8o, in a decision rendered in 1883, it was held that the act of the state legislature of 1871 authorized the city of Fall River to take water from a pond for public water supply ; but, as the act provided that compensation should be made for damages to the lower mill-owners, it was held that such compensation must be made, (j) Under this act the city of Fall River paid for the right to take one and one-half million gallons a day ; but to supply an increased demand, the city obtained the passage of another act in 1886, which authorized it to make further abstraction or diversion of the waters of this pond, and in this act it was expressly provided that the city should not be compelled to pay compensation for damages to the lower proprietors. The Supreme Court of Massachusetts, held by a majority decision, that, on account of this extraordinary proprietary right which had been , , , , , reserved to the state, It had the power, through its legislature, to authorize a diversion without providing for compensation. (k) This latter decision is in many places , – ,, . .. , . spoken of as an overruling of the decision made five years before ; but a careful consideration of it shows that the difference in the result was due solely to the fact that in one act of the legislature the state had made compensation as a condition for the taking, and in the later.act it had expressly provided that compensation need not be made. The only reason why the court claimed for the state the power to use its discretion in the matter of requiring compensation was the fact that by virtue of the early colouial grants and the ordinance of 1647 it had a proprietary interest in the waters of great ponds, which other states, except in those instances which I have named, do not have; and this is the only ground on which any such discretion could be based. It cannot be based on” a distinction between riparian rights on lakes and ponds and those on running streams. (1) The general rule, then, in the Uuited States, so far as any rule has been established upon legal principles, and in so far as the facts and circumstances of location have not caused au exceptional rule of proprietary interest of the state in navigable waters, is, that a diversion or abstraction of water from its natural channel, whether from navigable or unnavigable waters, is an interference with the right which belongs to the lower riparian owner and which a part and parcel of his riparian land and with it a property right, the right to use the entire natural flow of water for manufacturing or other purposes, and to have the water in its natural state and quantity flow past and upon his land undiminished and unchanged; and that the water cannot be diverted from above him for any private purposes either with or without the authority of the state; and that it cannot be diverted for the public purpose of a water supply to municipalities without the proper authority of the state and upon the condition that the right to take the water be obtained by purchase or by condemnation proceedings, and upon the payment of full compensation to the lower proprietor for damages.
This rule of law is based upon the principle which controls all personal and property rights, the principle that property cannot be taken for public use except upon the pajment of compensation. It is a rule which is fundamental and which cannot be brushed away or disregarded by any statutory enactment. All statutes must be made and construed with proper regard for this rule. The right of the riparian owner to the undiminished flow of the stream is a well established property right, which cannot be diminished nor subjected to new burdens; and any attempt to add any new qualification to his property right on the ground that public use or policy demands that some right of the public which has not been a paramount right shonld be declared paramount, is in effect the subjecting of his property to a new burden, and, in so far. is a taking of the property itself. Many attempts have been made to disregard,and by subtle distinctions to circumvent the constitutional principle requiring compensation, which applies to the rights of riparian owners only because it applies to every personal and property right. And the fact that the courts enforce the rule for compensation in favor of riparian owners, and refuse to take from them, even for the benefit of the public at large, is itself a guaranty of the permanency of all those personal and property rights which our government has been established to protect. As was said by the late Justice Bradley of the United States Supreme Court, in speaking of the importance of adhering to the exact limitation on the power of the government to take private property for public uses: “Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. Tbis can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficiency and leads to gradual diminution of the right, as if it consisted more in sound than substance. It is the duty of the courts to be watchful for the constitutional rights of the citizens and against any stealthy encroachment thereon. Their motto should be, “Obsta principiis.” (m)
- Falls Mf~~ Co. vs. O~ento Irn. Co. (Wis.) 58 N. W. 257. Green Bay Canal Co. vs. Kaukauna W. P. Co. (Wis.) 6i N. W. Rep. S 12!.
- Cooley Coast. Llin.p. 6o,; Gould on Waters Sec. 204; Angell Water Courses Chap. Xl; Smith vs. Rochester a N. V. 484~ Sweet vs. Syracuse 129 N. 1. 316; Myers vs. St. Louis 8 Mo. App. s66; Vallcer vs. Board Public Works i6 Ohio o; Saunders vs. R. R. Co. 14.4 N. V.
- Minneapolis MiS Co. vs. Board. 6 Mtrni. 485.
- Rundell vs. Canal Co. 14 How. Bo; i Wall. Jr. 2~: Monongahela Nay. Co. vs. Coombs 6W. & S. tor Shunlt vs. Schoykill Nay. Co. i~ S. & R. s; Canal Co. vs. White: 4W. & S. ; McKean vs. Canal Co. 4q Pa. St. 424; Philadelphia vs. Collins 68 Pa. St. io6; Philadelphia vs. Gilmartin 71 Pa. St. `40; I~uluier VS. Wtlltams, 122 Pa. St. t~z; Williams vs. Fulmer i~i Pa. St. 405: –
- Gould vs. R. R. Co. 6 N. V. 521; People vs. Canal Apptaisers i~ N.Y. 46,;Crill vs. City of Rome, How. Rp. 398: People vs. Tibbets i~ N.Y. 2i.
- Smith vs. Rochester. qa N. V. 463; Rumsey vs. R. R. Co. 533 U.S. 149.
- See N. V. cases cited under general rule above.
- Watuppa Reservoir Co. vs. Fall River 147 Mass. 8.
- Watuppa Reservoir Co. vs. Fall River 134 Mass. 267.
- Watuppa Reservoir Co. vs. Fall River s~ Mass. .
- 3 Harvard Law Review I; Lamprey vs. State a Mrna. ,8i.
- Boyd vs. U. S. et6 U.S. 616; quoted in Mon. Nay. Co. vs. U. $14 1