Mayor of Baltimore v. Appold

Robinson, J., delivered the opinion of the Court. At the time of the application for the writ of injunction in this case, the appellant had nearly' completed the works necessary for the introduction of an additional supply of water into its corporate limits, to be used as the exigencies of the season might require. The plan was to bring the water from Gunpowder-River through pipes to a point on “Roland’s Run,” at which point, it was to empty into the stream, and thence flow with the stream to Lake Roland, the main water reservoir of the appellant. The water was to be forced into the pipes by engines capable of furnishing a supply of ten millions of gallons in every twenty-four hours. ⁴⁵⁶ The appellee alleges, that he is the owner of the land on both sides of “ Roland’s Run,” below the point at which this additional supply of water was- to empty into the stream — that the banks of the stream are not more than sufficient to contain within them the waters of said stream, as they flow at certain portions of the year — that the introduction of this additional quantity of water will cause the stream to overflow its banks, prevent the drainage of the adjacent land, render it valueless, and cause great, continued and irreparable damage to the same.

The first question to be determined is, whether the appellant is entitled to the use of the stream for the introduction of this additional supply of water ? and secondly, if not, whether the appellee is entitled to the writ of injunction as prayed ? The right of every riparian owner to the enjoyment of a. stream of running water in its natural state, in flow, quantity and quality, is too well established to require the citation of authorities. It is a right incident and appurtenant to the ownership of the land itself, and being a common right, it follows that every proprietor is bound so to use the common right as not to interfere with an equally beneficial enjoyment of it by others. This is the necessary result of the equality of right among all the proprietors of that which is common to all.

As such owner, he has the right to insist that the stream shall continue to run uti currere solebat, that it shall continue to flow through his land in its usual quantity, at its natural place and at its usual height. Without a grant either express or implied, no proprietor has the right to obstruct, diminish or accelerate the impelling force of a stream of running water. Of course we are not to be understood as meaning there can be no diminution or increase of the flow whatever, for that would be to deny any valuable use of it. There may be, and there must be allowed to all of that which is common, a reasonable use, and such a use, although it may, to some ⁴⁵⁷ extent, diminish the quantity, or affect, in a measure, the flow of the stream, is perfectly consistent with the common right.

The limits which separate the lawful from the unlawful use of a stream, it may be difficult to define. It is, in fact, impossible to lay down a precise rule to cover all cases, and the question must be determined in each case, taking into consideration the size of the stream, the velocity of the current, the nature of the banks, the character of the soil and a variety of other facts. It is entirely a question of degree, the true test being whether the use is of such a character as to affect materially the equally beneficial use of the stream by others. In this case, the appellant proposes to empty into “Roland’s Run” an artificial stream of water, to the extent of ten millions of gallons in every twenty-four hours.

It can hardly be contended that such a user is consistent with the common enjoyment of the stream by all other riparian owners. If the appellant has the right to empty an artificial stream of water into “Roland’s Run,” every other riparian owner would be entitled to the same right, and the necessary consequence would be, not only to affect the quantity and increase the natural current of the stream, but in fact to change the character and nature of the stream itself. Such a use cannot be said to be incident to the reasonable