IV. That by reason thereof the plaintiff has been unable to grind more than ... ... barrels of flour per day, whereas, before the said diversion of water he was able to grind barrels per day; to his damage in [DEMAND OF JUDGMENT.] 194 .. dollars. § 2443. Rights of millowners. The grant of a mill carries with it raceways and conduits supplying the mill with water, and water rights essential to the enjoyment of the mill.195 So a reservation of a mill from a grant would reserve easements essential to it in the land granted. 19 2444. The same [TITLE.] - diverting water from saw mill. Form No. 578. The plaintiff complains, and alleges: I. That the plaintiff, before and at the time of the committing of the grievance hereinafter stated, was possessed of a certain water-mill, called the sawmill, with the appurteriver, in the county of nances, situated on or creek [or brook], at II. That the said plaintiff had a right to use and employ all the water of said [creek, or river, or brook], running in its natural channel to said mill, without its being unreasonably retarded, or in any way obstructed and diverted therefrom. III. That the said defendant did, on the ........ day of 18.., dig up and remove the bank of said stream, and did divert a great part of the water thereof, so naturally running in said stream, from the bed of said [creek], and from the said mill of the said plaintiff, and hath from thence hitherto, 194 For the sufficiency of this form, see Sands v. Trefuses, Cro. Car. 575; Anonymous, id. 500; also Haight v. Price, 21 N. Y. 245. 195 4 Kent's Com. 467; Hinchliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; 6 Scott, 650; Hall v. Lund, Hop. & C. 676; Whitney v. Olney, 3 Mason, 280; United States v. Appleton, 1 Sumn. 492; Leonard v. White, 7 Mass. 5; Johnson v. Jordan, 2 Met. 234; 37 Am. Dec. 85; Carbrey v. Willis, 7 Allen, 369; 83 Am. Dec. 688; Oakley v. Stanley,. 5 Wend. 523; Le Roy v. Platt, 4 Paige, 77; Farrar v. Stackpole, 6 Greenl. 154; 19 Am. Dec. 201; New Ipswich Fact. v. Bachelder, 8 N. H. 190; Pickering v. Stapler, 5 Serg. & R. 107; 9 Am. Dec. 336; Elliott v. Sallee, 14 Ohio St. 10; Warren v. Blake, 54 Me. 276; 89 Am. Dec. 748; Washb. on Easements, 42, 43. 196 Pettee v. Hawes, 13 Pick. 323. and up to the commencement of this suit, kept up and continued the diversion of said water from the bed of said creek, and from the said mill of this plaintiff. IV. That the said mill, before said diversion of the water of said creek, was able and used to saw .. thousand feet of lumber in every twenty-four hours; but by reason of said diversion of the water of said stream, now, and during the time aforesaid, the said mill is and was able to saw only .. thousand feet of lumber in every twenty-four hours. By means whereof the said plaintiff has been deprived during all that time of the usual profits of his said mill, and still continues deprived thereof, to the damages of the said plaintiff in the sum of dollars. [DEMAND OF JUDGMENT.]197 § 2445. For erecting a dam above plaintiff's dam. [TITLE.] Form No. 579. The plaintiff complains, and alleges: 18.., and ever I. That on the ..... day of since that day, the plaintiff has been in the actual possession of an ancient grist-mill, situated on [state what stream] in [etc.], called [etc.], together with an ancient dam, to raise a head of water as high as should be necessary for said mill, and of the right to have the whole water of said stream, without obstruction or impediment, flow into and upon the pond for the benefit of said mill, as ancient rights and privileges, appurtenant to said mill. II. That the defendant did, on the ...... day of ... .... 18.., erect a new dam across the said stream, above the plaintiff's dam aforesaid, within the limits of the plaintiff's pond, and ground, and thereby cut off part of his said pond, backed the 197 The above form is, in substance, from Nash's (Ohio) Pl. & Pr. 208. It is held, however, that in an action by a riparian proprietor of lands for damages for the diversion of water from a flowing stream, it is not necessary that the complaint allege that the plaintiff had the right to use the water of the creek, or any portion of it. Shotwell v. Dodge, 8 Wash. St. 337. The court say: "In view of the fact that this right to the uninterrupted flow of water is a part of the land itself, we see no necessity for an allegation that the owner and possessor of the land is also the possessor of this right, because the ownership and possession of the land implies the ownership and possession of the right as well." Id. 340. water above, and stopped its natural course as it anciently used to run; and that he still continues his new dam and obstruction, thereby frequently stopping the water from reaching the plaintiff's mill, and obliging the same to stand idle for want of water; and at other times letting out the water through said new dam so suddenly, and in such large quantities, as to tear away part of the plaintiff's said dam; whereby the plaintiff's mill aforesaid has become useless and of no value, to his damage in dollars. [DEMAND OF JUDGMENT.] § 2446. Action, when it lies. To authorize the abatement of a dam on the ground of its being a nuisance, it must at the time it is abated be considered as a nuisance. The fears of persons, however reasonable, that a thing will become a nuisance, public or private, do not constitute an actionable nuisance, or one which may be abated.198 The thing complained of can not be abated until it actually becomes a nuisance. Yet an erection may be a nuisance at a time when it is causing no actual damage.199 § 2447. Allegations. The union, in one count of a complaint, of an allegation that defendants "have wrongfully built dams and flumes across said Mormon creek * * * * so as to turn the water of said creek out of its natural channel," etc., and thus divert it from plaintiff, with an allegation that defendants" have constructed gates, etc., in their said dams and flumes, which they hoist for the purpose of clearing out said dams and flumes of slum, stone, and gravel," the accumulation of which renders the water useless to plaintiff, does not make the complaint demurrable on the ground that it unites several distinct causes of action in one count.200 The gravamen of the action is the diversion of the water, and the fact that the diversion is accomplished by different means is not important enough to require several counts.2 201 § 2448. Right to build. The common law allows the owner of the soil over which a floatable but unnavigable stream flows, 198 Gates v. Blincoe, 2 Dana, 158; 26 Am. Dec. 440. 199 Amoskeag Mfg. Co. v. Goodale, 46 N. H. 56, see Ang. on Water-courses, 580. 200 Gale v. Tuolumne Water Co., 14 Cal. 25. 201 Id. to build a dam across it, and to erect a mill thereon, provided he makes a convenient and suitable passageway for the public, by or through the dam.2 202 [DEMAND OF JUDGMENT.] § 2449. For backing up water on plaintiff's quartzmill. Form No. 580. [TITLE.] The plaintiff complains, and alleges: I. That before and at the time of the committing of the injuries hereinafter mentioned, he was possessed of a certain quartzmill, situate on Butte creek, in Butte county, in this state, and above the premises of the defendant hereinafter mentioned, and had the right to have the water flow from his said mill, and in the natural channel of said creek, without any obstruction whatever. ........ II. That on the day of 18.., the defendant erected a dam to a great height across the bed of said creek, and below the plaintiff's said mill, and ever since has kept the same up, and has thereby obstructed and stopped. during all that time, the natural flow of the water of said creek, and raised it in the bed of said creek, and backed it upon the said mill and premises of the plaintiff, and upon the wheels and works of said mill, to-wit, to the height of .... feet, thereby impeding and checking the natural flow of the water therefrom, and preventing the said water from carrying off the tailings from said mill, and otherwise impeding and preventing the operation of said mill, and diminishing the value thereof, to the damage of the plaintiff dollars. [DEMAND OF JUDGMENT.] 2450. Action - when it lies. An action to abate a nuisance in a highway, by water obstructing the free use of plaintiff's property, will lie the same as to abate a nuisance in a highway by land.203 If a nuisance in a highway only affect the plaintiff in common with the public at large, in the use of the highway, he can not have his private action; but if the free use of his private property is interfered with by such nuisance, he may 202 Lancey v. Clifford, 54 Me. 487; 92 Am. Dec. 561. 203 Blanc v. Klumpke, 29 Cal. 156. have his private action to abate the same.204 Injury to the naked right to have the water flow as it would naturally do, is sufficient to maintain the action.205 But where plaintiffs owned certain mining claims and quartz-lodes, on the banks of a stream, above the mill and dam of defendant, defendant commenced raising his dam two feet higher; plaintiffs brought suit against defendant, alleging that the addition of two feet to defendant's dam was a nuisance, and would back the water upon plaintiffs' claims, and thus prevent them from working them, and would also destroy their water privilege for a quartzmill which they intended to construct. It was held that the action was premature, and that the demurrer to the complaint, on the ground that the complaint did not state facts sufficient to constitute a cause of action, was properly sustained.20 2451. Covenant in deed. If the purchaser of a mill scat and water-power accepts from the vendor a deed, without any covenant for his protection as to the height of the dam, or extent of flow to which he is entitled, and the purchaser is subject to an action of damage by reason of the improper height of the dam, he is without remedy either at law or in equity.207 2452. Duty of owner. The owner of the dam is bound to so govern and control it that injury may not result to his neighbors.208 § 2453. Injunction. A perpetual injunction to restrain the defendants from raising their dam higher than the point desig 204 Id.; and see Lawton v. Steele, 119 N. Y. 226; 16 Am. St. Rep. 813. 205 Boliver Mfg. Co. v. Neponset Mfg. Co., 16 Pick. 241; Butman v. Hussey, 12 Me. 407; 28 Am. Dec. 159; Whipple v. Cumberland Mfg. Co., 2 Story, 661; Woodman v. Tufts, 9 N. H. 88; Parker v. Griswold, 17 Conn. 288; 42 Am. Dec. 739; Williams v. Esling, 4 Penn. St. 486; 45 Am. Dec. 710; Heath v. Williams, 25 Me. 209; 43 Am. Dec. 265; see Ang. on Water-courses, 142; Webb. v. Moler, 8 Ohio, 548. 206 Harrey v. Chilton, 11 Cal. 120. 207 Ang. on Water-courses, 557; Hopper v. Lutkins, 3 Green Ch. 149. 208 Fraler v. Sears Union Water Co., 12 Cal. 555; 73 Am. Dec. 562; see Nevada Water Co. v. Powell, 34 Cal. 109; 91 Am. Dec. 685. |
