SANDERS v. BLUEFIELD WATERWORKS & IMPROVEMENT CO., 106 F. 587

BBAWLEY, District Judge, after stating the case, delivered the opinion of the court. It is clear, from the pleadings and the proofs, that the sole object of the defendant company in the purchase- of the spring and the erection of its plant was to divert the water to the town of Bluefield, and the capacity of its plant was sufficient to absorb more than 1,250,000-gallons in 24 hours, which was more than the outflow of Beaver Pond spring, except during a very wet season.

The plaintiff’s case was founded upon the principle that every riparian proprietor has an equal right to the use of the water which flows in the stream, and to have the full benefit thereof in the state in which it exists naturally as it was wont to run, uncontaminated and substantially undiminished, save for the necessary uses of life, by the acts of landowners above him; that such landowner may usé the water while it runs over his land, but cannot unreasonably detain it or give it another direction, and must return it to the ordinary channel when it leaves his premises. “Aqua currit et debet currere” is the maxim upon which his case rested; and as it was plain that the defendant company had no use for the water for domestic, agricultural, or manufacturing purposes, and that it was intended to divert and diminish the quantity of. water which would descend to the proprietors below, an injunction was asked to restrain such diversion.

The defendant’s case rested upon four separate defenses:

(1) That the defendant company was an internal improvement company, duly authorized by its charter, the ordinances of the council of the city of Bluefield, and the general laws of the state of West Yirginia to acquire and use the waters of Beaver Pond spring for the purpose of supplying the city of Bluefield and the public therein with water, which was a public use; (2) that the plaintiff was estopped by his conduct, because of his acquiescence in the work of the defendant and its expenditure of a large sum of money in the erection of its plant; (3) that the plaintiff would not be injured by the use of the water from the spring in the manner proposed by the defendant; (4) that-the plaintiff’s damages would not be irreparable, and the court of equity had no jurisdiction to grant relief by injunction.

The main issue was clear, and that was whether the defendant com--pany had the right to divert any of the water from its natural flow.

The scope of the bill appears in the prayer for injunction, which was’ that the defendant be “enjoined perpetually from taking any water from Beaver Pond spying, or from the stream that flows from said spring, or from in any manner diverting or depleting the flow of said spring or the creek.” The temporary injunction granted November 15,1894, was fully responsive to this prayer; but on January 16,1895, this injunction was so modified as to allow the defendant company to remove from the said spring a quantity of water not exceeding 100,000 gallons of water during each period of 24 hours.

The cause was then referred to the master, for the purpose of reporting (1) the present and future effect upon the plaintiff’s land if the defendant was allowed to remove all of the water provided, for in the deed to .defendant from Carmac Bailey and wife; (2) the supply of water for plaintiff’s land, exclusive of the water which flowed from Beaver Pond spring; (8) the effect upon plaintiff’s lands if defendant was allowed to remove and carry away from the spring all the water which it could pump with its then-existing pumps and plant; (4) all the sources of water supply upon plaintiff's laud, and the capacity of such source, and the location of any such streams or springs; (5) the population of the city of Blue field, and the amount of water necessary to supply such city, its citizens, and all persons therein for all proper and useful purposes; ((>) the general topographical features of the surrounding country.

It thus appears that from January 10, 1895, the court war, preparing to reject the theory upon which the plaintiffs case rested and upon which its temporary injunction was founded, and the decree of February 2-i, 1897, finally rejected «hat theory altogether.

The plaintiff did not ask in his bill Wait defendant be restrained from the diversion of so much of the water as might be needful or useful to him, leaving it to the uncertain, varying, and shifting determinations of the future to fix the measure of his needs or rights; but, basing his rights upon what he claimed to be sound and immutable principles founded upon the law of nature itself, lie asked that (he defendant be restrained from diverting any of the water whatsoever from the Beaver Pond spring. The decree of February 24, 1897, was final and conclusive as to such contention.

It refused ¡he injunction prayed for, it rejected the plaintiffs theory as to his rights, it deckled that the defendant company had the right: to divert: and consume and to diminish the quantity of water which would descend to the riparian owners below'.

It was a decision upon the merits, end not a mere interlocutory decree directing an inquiry necessary to the elucidation thereof; nor was it a decree directing proceedings for the purpose of enabling the court thereafter to apply (he details, and suspending the action of (lie court for further investigation, but a final decision, fixing the principles and dividing the costs. The merits of the controversy between plaintiff and defendant were disposed of, and could not again be reopened, except on appeal from that decree. Any ulterior jn-oeeedifigs are but a mode of executing such decree.

The plaintiff sided upon it as a final decree; for within a few months lie took orders looking to its being carried into execution. If it had been appesiled from, and there had been an affirmance here, the court below would have ha.d nothing to do but to execute the decree it had already entered.

As to all matters determined by the decree of February 21. 1897. it must be regarded as a final decree, and it closes any further consideration of them; there having been no appeal until after (lie expiration of two years. , The essence of the controversy was the right to pump water from Beaver Bond spring and deliver it to the town of Bluefield.

This was decided adversely to the plaintiff. “The rule is well settled and of long standing that a judgment or decree, to be final, within the meaning of that term as used in the acts of congress giving jurisdiction to this court on appeals and writs of error, must terminate the litigation between the i>arties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it. had already entered.” Waite, O. J., in Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. Ed. 73.

The cases on this subject are reviewed in McGourkey v. Railroad Co., 146 U. S. 544, 13 Sup. Ct. 170, 36 L. Ed. 1079. A decision upon the merits does not lose its character as a final decree because it may itself become the source of future litigation between the parties. When the court below, after a full hearing, refused the injunction prayed for, such refusal was appealable, and an appeal in proper time would have brought to this court for final determination whether the defendant company could lawfully divert any of the water from the Beaver Pond spring.

Acquiescence' in that decree gives to it the character of finality as to the point decided, and precludes further consideration of it. That decree decides that the defendant company may divert a part of the water.

Thenceforth the plaintiff’s rights no longer rest upon the principle upon which his case, as stated in his bill, was grounded, but upon an altogether different principle, to wit, that the defendant company, by reason of its ownership in fee of the land, was entitled “to such use and supply of the water as is necessary for its enjoyment of its land”; the only limitation upon such abstraction and diversion from the natural flow of the spring being the inhibition to divert so much as would injure the plaintiff, whose rights in the stream were limited to so much of the water as was “reasonably necessary and adequate for the use and enjoyment of the land through which the stream flows.” The only question not finally decided related to the amount of water that might be thus' taken.

As to this the decree provided that, if there was any violation of.the order by either party, then, upon application to the court, an investigation would be had, not for the purpose of correcting, modifying, or adding to the decree, but evidently to punish any disobedience of it. The appeal from the decree of June 21, 1899, brings to us simply a question of fact. The plaintiff alleged -that the defendant was violating the decree of February 24, 1897. Upon this allegation testimony was taken by the master, and all of it was reported to the court.

The master found as a matter of fact “that the defendant company had not violated the order hereinbefore made in this cause in its use of the supply of water to such an extent as to prevent'the plaintiff from having a reasonable supply for the use of his farming lands as provided in the former decree of this court.” In that finding the court concurred. The concurrence of the court with the master in a finding of fact is very persuasive in this court.

It is to be taken as presumptively correct, and will not be disturbed on appeal, “unless some obvious error has intervened in the application of the law, or some serious and important mistake has been made in the consideration of the evidence.” Furrer v. Ferris, 145 U. S. 132, 12 Sup. Ct. 821, 36 L. Ed. 649. A fortiori, when the question of fact is whether an order of the court has been disobeyed, and both the master and court concur in the conclusion that it has not been disobeyed.

This last decree settles only the question that upon the facts then presented the court did not consider that the defendant was violating its injunction. How much water may be taken by the defendant without violating the terms and spirit of the decree of February 24,1897, must depend upon conditions that may vary from day to day; and the defendant would be liable in an action for damages for any injury which plaintiff suffers, if he can establish by proof that the defendant company is taking more water than is allowed by such decree. The appeals are dismissed.