Tyler v. Wilkinson

United States Circuit Court for the District of Rhode Island · 1827 · Property

PropertyWater rightsRiparian rightsriparian rightsreasonable usenatural flowprescriptive water rightsgrant

Facts

The plaintiffs owned mills and land on the eastern bank of the Pawtucket River at the lower dam, while some defendants owned mills on the western bank and others owned mills on Sergeant's Trench, an artificial channel on the west side. The plaintiffs alleged that the trench owners had only a subordinate waste-water privilege and that they, together with owners of an upper dam, were wrongfully diverting more water than ancient usage allowed. The trench had long carried water to mills built upon it, and by 1796 the interested western-side owners entered an agreement recognizing the trench works' right to the quantity of water accustomed to pass the trench, though no final arbitral measurement was made. The dispute centered on whether the trench owners' right was merely to leftover water or instead to a fixed accustomed quantity, and whether they had exceeded that quantity.

Issue

Whether the owners of Sergeant's Trench possessed only a subordinate waste-water privilege subject to the plaintiffs' future demands as riparian proprietors and lower-dam mill owners, or instead had an established right to a fixed quantity of water measured by longstanding usage. Also, whether the trench owners could lawfully increase their appropriation beyond that historically accustomed quantity.

Rule

Each riparian proprietor owns to the middle thread of the stream and is entitled to the use of water in its natural current without diminution or obstruction to the injury of another, though every proprietor may make a reasonable use that is not positively and sensibly injurious to the common right. Mere priority of appropriation of running water creates no exclusive right; an exclusive or special right must rest on grant or on long exclusive uninterrupted enjoyment, and a subservient right proved by usage is limited by the quantity and conditions of the historical use.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Patel owns riparian land on a nonnavigable stream outside Columbus, Ohio, where she operates a small cider mill. Upstream, Owen Mercer installs a wheel that slightly slows the current during business hours, but the evidence shows no measurable reduction in the value or operation of Nina's mill.

If Nina sues to stop Owen's use solely because the current is no longer perfectly natural, who is most likely to prevail?

Explanation. The lead opinion states that each riparian proprietor is entitled to the natural flow of the stream, but not under an absolute no-diminution rule. Every proprietor may make a reasonable use, and slight diminution, retardation, or acceleration is permitted if it is not positively and sensibly injurious by diminishing the value of another's common right. Because Owen's use does not materially injure Nina's riparian right, he is likely to prevail.