Harris v. Norfolk & Western Railway Company
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Plaintiff Harris owned a mill at the confluence of the North and South Forks of the Flat River. Defendant railroad had a bridge and a water tank upstream from the mill. The railroad pumped water from the stream, stored it in the tank, and used it to fill the tanks in its steam locomotives. The court was not troubled by the use of the water away from the stream. It allowed the case to be decided purely on the evidence of the extent to which the railroad had actually reduced the flow to the downstream owner.
if the water can be taken for such purpose without interfering with other rights on the stream it maybe done.” 2 Waters & Water Rights, p. 1583. In England it is held that a railroad company, which crosses ariver, may take a reasonable quantity of water for the supply of its engines from the river and “the quantity willnot be held unreasonable if it does no injury in wet weather and never shortens the working hours of mills lowerdown the stream more than a few minutes a day at any time.”Sandwich v. Great Northern R. R. Co., L. R. 10 Ch.Div. 27. The English courts also held also held that equity will not restrain the taking of water from a stream by a railroad company for its locomotives when the quantity taken deprives the lower riparian owner of but eleven-twelfths of one horse power. Graham v. Northern R. Co., 10 Grant Ch. 259. In this country it seems well settled that a railroad
company crossing a stream may take water for its locomotives provided the quantity taken does not materially, appreciably, perceptibly, or sensibly (some authorities use one word and some the other) reduce the volume of water flowing down the stream. If it materially lowers the stream, it is liable to a lower proprietor who suffers a substantial injury thereby. 2 Elliott on R. R. § 977, and notes; Elliot v. Fitchburg R. R., 10 Cush. (Mass.) 191,
57 Am. Dec. 86, a case in which Chief Justice Shaw discusses the subject with his usual thoroughness. Fay v. Salem R. R., 111 Mass. 27;Penn. R. R. v. Miller, 112 Pa. 34, 3 Atl. 780.
- ↑ Harris v. Norfolk & Western Railway COmpany, 153 N.C. 542, (1910).