Title: Harris v. Brooks - Supreme Court of Arkansas - Oct. 24, 1955
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Permanent Link: http://ufdc.ufl.edu/WL00004442/00001
 Material Information
Title: Harris v. Brooks - Supreme Court of Arkansas - Oct. 24, 1955
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Language: English
Publisher: 283 South Western Reporter, 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Harris v. Brooks Supreme Court of Arkansas - Oct. 24, 1955 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004442
Volume ID: VID00001
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Full Text

Ark. 129

Cite as 283 S.W.2d 129

Ed HARRIS et al., Appellants,
V. :
John BROOKS and John Brooks, Jr.,
No. 5-711.

Supreme Court of Arkansas.
Oct 24, 1955.

Action by riparian landowners and
their lessee to enjoin lessees of another
riparian landowner from pumping water
from non-navigable lake, thereby making
lake unsuitable for fishing, recreation, and
other lawful purposes. From a denial of
injunctive relief by the Chancery Court,
Woodruff County, A. L. Hutchins, Chan-
cellor, the plaintiffs appealed. The Su-
preme Court, Ward,.J., held that evidence
was sufficient to show that use by the de-
fendants of water in the lake for irrigation
purposes would bring the level below 189.67
feet above sea level which would unreason-
ably interfere with plaintiffs' use of the
lake and therefore plaintiffs were entitled to
injunctive relief.

Reversed with direction.

I. Evidence 5=13 '
It is common knowledge that fish quit
biting sometimes for no apparent good rea-

2. Waters and Water Courses l=>27, 131
Under appropriation doctrine regard-
ing rights to use water of a stream, which
is not recognized in Arkansas, some gov-
crninental agency, acting under constitu-
tional or legislative authority, apportions
water to contesting claimants, and under
this doctrine, use is not limited to riparian

3. Waters and Water Courses e=40
Under riparian doctrine regarding
right to use water, owners of land bordering
streams have the right to use water there-
from for certain purposes and such right
is an incident to ownership of land.
283 S.W.2d-9

4. Waters and Water Courses C=43, 51, 109
The riparian doctrine regarding right
to use water of a stream is divided into the
natural flow theory under which a riparian
owner can take water for domestic purposes
only, such as water for family, livestock
and gardening, and under which he is also
entitled to have water in stream or lake
upon which he borders kept at normal level,
and the reasonable use theory which does
not recognize the necessity of maintaining
lakes and streams at normal level but rather
proposes that each riparian owner is en-
titled to equality in use of the water as near
as may be possible with due regard to the
rights of others similarly situated.

5. Waters and Water Courses 0=42, 51
If the.natural flow theory and the rea-
sonable use theory clash and where there
is an inconsistency the reasonable use
theory should control where vested rights
may not prevent it.

6. Fish 0=8
The State Game and Fish Commission
has the power to propagate, preserve and
protect fish in streams and lakes and in the
exercise of this power the Commission will
be interested in some instances in the
amount of water that may be removed from
lakes or streams where injury to fish life
is involved. Const. Amend. No. 35.

7. Waters and Water Courses C=43
Right to use water of stream for
strictly domestic purposes is superior to
many other uses such as fishing, recreation
and irrigation and with that exception all
other lawful uses of water are equal.

8. Waters and Water Courses =42
Lawful uses of water of a stream rec-
ognized in Arkansas are fishing, swim-
ming, recreation and irrigation.

9. Waters and Water Courses 042, 49
When one lawful use of water of
stream is destroyed by another lawful use
the latter must yield if it is unreasonable
or it may be enjoined or equitable adjust-
ment might be made.


10. Waters and Water Courses 342
S'In determining whether an artificial
use of water of a stream is reasonable or
hot, it is necessary to consider what the use
is for, its extent, duration, necessity, and
application, the nature and size of the
stream, and -the "several uses to which it
is put, the extent of injury to one proprietor
and the benefit to the other, and all other
facts which may bear upon the reasonable-
ness of the use.

II. Waters and Water Courses 0-49
In applying the reasonable use theory
of stream waters the determination arrived
at is largely a matter for discretion of the
court reached after an evaluating of the
conflicting interests of each of the con-
testants before the court in accordance
with the standards that only when a ripa-
rian proprietor's use of the water is unrea-
sonable can another who is harmed by it
complain even though harm is intentional
and also substantial intentional harm to an-
other cannot be justified as reasonable un-
less the legal merit or utility of the activity
Which produces it outweighs the legal seri-
ousness or gravity of the harm.

.12. Waters and Water Courses =P,114
'' In -action by riparian landowners and
their lessee. to enjoin lessees of another
riparian -owner -from pumping water from
non-navigable lake thereby making lake un-
suitable for fishing,' recreation and other
lawful purposes, evidence was sufficient to
show that pumping water out of lake when
Water reaches level of 189.67 feet abov6
sea-level would unreasonably interfere with
ripariaii owner's use of the lake, and there-
fore riparian owner was entitled to injunc-

13. Estoppel e=90(4)
Fact that defendants had used water
in lake for irrigation purposes on several
occasions in previous years, dating back
for more than sever years, did not 'estop
plaintiffs from initiating subsequent action
to' enjoin use of water in the lake for irri-
gation where use by the defendants iri the

previous years had not been adverse to the
rights of' any one and first became adverse
in the year the action was initiated.

William H. Donham, Little Rock, for
John D. Eldridge, Jr., Augusta, for ap-

'WARD, Justice. "'
. The issues presented by this appeal relate
to the relative rights of riparian landown-
ers to the use of a privately owned non-
navigable lake and the water therein.

Apellant, Theo Mashburn, lessee of ri-
parian landowners conducts a commercial
boating and fishing enterprise. In this
business he rents cabins, sells fishing bait
and equipment, and rents boats to members
of the general public who desire to use the
lake'for fishing and other recreational pur-
p oses. He ard his lessors filed a complaint
in chancery court on July 10, 1954 to enoi
appellees 'fi'rom pumping water' from the
lake to irrigate a rice crop, alleging that,
as of that date, appellees had reduced the
water level of the lake to such an extent
as to make the lake unsuitable "for- fishing,
recreation, or other lawful purposes." Af-
ter a lengthy hearing, the chancellor de-
nied 'injunctive-relief, and this appeal is
prosecuted to reverse the chancellor's "de-

.Factual Background. Horseshoe. Lake,
located about 3 miles south of Augusta, is
approximately 3 miles long and .300 feet
wide, and, as the name implies, resembles
a horseshoe in shape. Appellees, :John
Brooks and John Brooks, Jr., are, lessees
of Ector Johnson who owns a large tract
of land adjacent to the lake, including three-
fourths of the lake bed.

For a number of years aprllees' h2ave
intermittently raised rice n Tlnhin n's
land and have each yeari including 1954 ir-
rieated the rice with water numbed from
the lake They pumped no ignore water in

'130 Ari

1954 than they did in 1951 and 1952, 'no
4ce being raised in 1953.. Approximately
190 acres were cultivated in rice in 1954. ,
The rest of the lake bed and the adjoin-
,- land is divided into four parts, each
part owned by a different person or group
oi persons. One such part is owned by
E1 Harris, Jesse Harris, Alice Lynch and
Dora Balkin who are also appellants. Inf
March 1954 Mashburn leased from the
above named appellants a relatively small
camp site on the bank of the lake and in-
:allecd the business above mentioned at a
<,st of approximately $8,000, including
c-ats, cabins, and fishing equipment. Mash-
I.:rn began operating his business about the
irst of April, 1954, and fishing and boat
:ntals were satisfactory from that time
untill about July 1st or 4th when, he says,
the fish quit biting and his income from
that source and boat rentals was reduced
to practically nothing.
Appellees began pumping water with an
; .ch intake on May 25, 1954 and contin-
:-l pumping until this suit was .filed on
.:: 10, and then until about August 20th.
;:ey quit pumping at this time because it
dis discovered fish life was being endarin
:red. The trial was had September 28,
;"4, and the decree was rendered Decem-
.-r 29, 1954.

The Testimony. Because of the dis-
:,it ion we hereafter make of this case,
Should serve no useful purpose to set out
:.< voluminous testimony in detail or at-
;--p: to evaluate all the .conflicting por-
:-.s thereof. The burden of appellants'
-:imony, given by residents who had
cervcd the lake over a period of years
:-! by those familiar with fish life and sea
-tl calculations, was directed at estab-
S':ing the normal or medium water level
the lake. The years 1952, 1953 and 1954
tr unusually dry and the water levels in
-'ar lakes in the same general area
"= unusually low in August and Sep-
*-' r of 1954. During .August 1954
i-scshoe Lake was below "normal", but
not entirely clear from the testimony
"'- this was true on July 10 when the
t was filed. It also appears that-during

Cite as 283 3

BROOKS,; -:, 3 Ark. 131
S.W.2d 129

the stated period the water had receded
from the bank where Mashburn's boats
were usually docked, making it impossible
for him to rent them to the public. There
is strong testimony, disputed by appellees,
that the normal level of the lake is 189.67
feet above sea level and that the water was
below this level on July 10. Unquestion-
ably the water was below normal when this
suit was tried the latter part of Septem-
ber, 1954,

On the part of appellees it was attempted
to show that; they had used the water for
irrigation several years dating back to 1931
and Mashburn knew this when he rented
the camp site; although they had been
pumping regularly since May 25, 1954 the.
water did not begin to fall in the lake
until July 1st or 4th; an agent of the
Arkansas Game and Fish Commission
examined the lake and the water about
July 2nd and found no condition endanger-
ing fish life, and similar examinations after
suit was filed showed the, same condition,
and; they stopped pumping about August
20th when they first learned that fish life
was being endangered.

[1] Issues Clarified. In refusing to is-
sue the injunction, the chancellor made no
finding of facts, and did not state the
ground upon which his decision rested.
Appellants strongly insist that the chan-
cellor was forced by the testimony to con-
clude first that the normal level of the lake
was 189.67 feet above sea level and second
that the water in the lake was at or below
this level when the suit was filed on July
10th. This being true, appellants say, it
was error for the chancellor to refuse to
enjoin appellees from pumping water out
of the lake. If it be conceded that the
testimony does show and the chancellor
should have found that the water in Horse-
shoe Lake was at or below the normal level
when this suit was filed on July 10th, then
appellants would have been entitled to an
injunction provided this case, was decided
strictly under the uniform flow theory
mentioned hereafter. However as ex-
plained later we ,are not bound by this
theory in this state. It appears to us there


might have been some confusion as to the
ground upon which appellants based their
contention for relief. Under the pleadings
it appears that they may be asking for re-
lief on two separate grounds:: (a) The
right to fish and (b) The right to conduct
a commercial boating enterprise. It was
incumbent upon appellants to show that
one or both rights were unreasonably in-
terfered with when the water level sank
below "normal". It is difficult to tell
whether the testimony establishes this
fact in either instance. (a) The only testi-
mony in the first instance is that fish quit
biting somewhere about the 4th of July but
there was no conclusive evidence that this
was caused by the lake being below "nor-
mal" level. It is common knowledge that
fish quit biting some time for no apparent
good reason. There was no testimony
that fish life was endangered before July
10th but on the other hand there was posi-
tive testimony to the contrary. (b) Like-
wise there was no conclusive testimony
showing that it was impractical to dock
or run boats on the lake prior to July 10th.
Moreover it would be pure conjecture to
say that the same water level, whether
normal or otherwise, controlled both fish-
ing and boating. Certainly appellants made
no attempt to make any distinction either
in the pleadings or by the testimony be-
tween the two causes of action.
In view of the above situation it is urged
by appellees that the case should therefore
be affirmed, but we have concluded that
the best interest of the parties hereto and
the public in general will be served by con-
cluding this case in the light of the an-
nouncements hereafter made and the con-
clusions hereafter reached. Before
attempting such conclusion it appears prop-
er to make some general observations
relative to the law regulating the use of
water in lakes and streams.

1. Wells A. Hutchins, U. S. Department of
Agriculture in a paper presented before
the Midwestern States Flood Control
Conference, East Lansing, Michigan, on
June 15, 1954, among other things, said:
"The effect of the repudiation of a
common law system and its complete re-
placement by an appropriative system is

Two Basic Theories.' Generally speak.
ing two separate and distinct theories or
doctrines regarding the right to use water
are recognized. One is commonly called
the "Appropiiation Doctrine" and the other
is the "Riparian Doctrine".

,[2] Appropriation Doctrine. Since it is
unnecessary to do so we make no attempt
to discuss the varied implications of this
doctrine. Generally speaking, under this
doctrine, some governmental agency, acting
under constitutional or legislative authority,
apportions water to contesting claimants.
It has never been adopted in this state,
but has been in about 17 western states.
This doctrine is inconsistent with the com-
mon law relative to water rights in force
in this and many other states. One prin-
cipal distinction between this doctrine and
the riparian doctrine is that under the
former the use is not limited to riparian

[3] Riparian Doctrine. This doctrine,
long in force in this and many other states,
is based on the old common law which gave
to the owners of land bordering on streams
the right to use the water therefrom for
certain purposes, and this right was con-
sidered an incident to the ownership of
land. Originally it apparently accorded the
landowner the right to have the water
maintained at its -normal level, subject to
use for strictly domestic purposes. Later
it became evident that this strict limitation
placed on the use of water was unreasona-
ble and unutilitarian. Consequently it was
not long before the demand for a greater
use of water caused a relaxation of the
strict limitations placed on its use and this
doctrine came to be divided into (a) the
natural flow theory and (b) the reasonable
use theory.

to deny the right of an owner of land
bordering a stream to divert
and make use of the water solely by rea-
son of his ownership of the land; to de-
clare all such water, to be the property
of the state, and; to make all waters
open to appropriation for bene-
ficial use *." '


132 Ark.

Ark. 133

Cite as 283 S.W.2d 129

[4] (a) Natural Flow Theory. Gener-
a!ly speaking again, under the natural flow
thcory, a riparian owner can take water
f,,r domestic purposes only, such as water
for the family, live stock, and gardening,
i::d he is entitled to have the water in the
Vrcam or lake upon which he borders kept
at the normal level. There are some ex-
?rcssions in the opinions of this court in-
.icating that we have recognized this the-
cry, at least to a certain extent.2

reasonable Use Theory. This theory,
:;,pcars to be based on the necessity and
liabilityity of deriving greater benefits
;':n1 the use of our abundant supply of
e.r-'r. It recognizes that there is no sound
:-..son for maintaining our lakes and
Sc.inams at a normal level when the water
c.:n lie beneficially used without causing un-
r.asonlable damage to other riparian own-
r.s. The progress of civilization, particu-
ar"ly in regard to manufacturing, irriga-
;on, and recreation, has forced the realiza-
tion that a strict adherence to the uninter-
r-ptcd flow doctrine placed an unwarranted
limitation on the use of water, and conse-
;:cntly the court developed what we now
call the reasonable use theory. This theory
Os of course subject to different interpre-
uttons and limitations. In 56 Am.Jur.,
page 728, it is stated that "The rights of
r-parian proprietors on both navigable and
e.:avigable streams are to a great extent
r:tual, common, or correlative. The use
Vo the stream or water by each proprietor
', therefore limited to what is reasonable,
h-ving due regard for the rights of others
'bovc, below, or on the opposite shore. In
rcncral, the special rights of a riparian

2- In St. Louis Southwestern R. Co. v.
M!:koy, 95 Ark. 297, at page 299, 129
'.W. 7S, at page 79, it was said: "It is
t(.. right of each proprietor along a nat-
rall drain or water course to insist that
th': water shall continue to flow as it
has been used and accustomed to do;
In Taylor v. Rudy, 99 Ark. 128, at page
1.2, 137 S.W. 574, at page 575, this lan-
.'nage was used: "'Every owner of land
through which a stream of water flows is
entitled to the use and enjoyment of the
ater, and to have the same flow in its
:4tural and accustomed course without
obstruction. diversion, or corruption.'"

owner are such as are necessary for the use
and enjoyment of his abutting property and
the business lawfully conducted theieon,
qualified only by the' correlative rights of
othei riparian owners, and by certain rights
of the public, and they ar .to be so exer-
cised as not to injure others in the en-f
joyment of their rights." It has been stat-
ed that each riparian dwner has an equal
right to make a reasonable"use of waters
subject to the equal rights of other owners
to make the reasonable use, United States
v. Willow River Power Co., 324 U.S. 499,
65 S.Ct. 761, 89 L.Ed. 1101. The purpose
of the law is to secure to each riparian
owner equality in the use of water as near
as may be by requiring each to exercise his
right reasonably and with due regard to the
rights of others similarly situated. Meng
v. Coffey, 67 Neb. 500, 93 N.W. 713, 60
L.R.A. 910.

[5] This court has to some extent rec-
ognized the reasonable use theory, Thom-
as v. La Cotts, 222 Ark. 171, 257 S.W.2d
936; Harrell v. City of Conway, Ark., 271
S.W.2d 924, but we have also said in the
City of Conway case that the uniform flow
theory and the reasonable use theory are
inconsistent and, further that we had not
yet made a choice between them. It is
not clear that we made a choice in that
case. The nucleus of this opinion is, there-
fore, a definite acceptance of the reasonable
use theory. We do not understand that the
two theories will necessarily clash in every
case, but where there is an inconsistency,
and where vested rights may not prevent,
it is our conclusion that the reasonable use
theory should control.

In Meriwether Sand & Gravel Co. v.
State ex rel Attorney General, 181 Ark.
216, at page 220, 26 S.W.2d 57, at page
61, it was said: "Every such proprietor
is entitled to the usual flow of a stream
in its natural channel over his land, un-
diminished in quantity and unimpaired in
quality, subject to the reasonable use by
upper proprietors and with the right to
make any reasonable use of the water
necessary for his convenience or pleas-
ure, including, in nonnavigable waters, the
exclusive privilege of taking fish from
the stream."


-In embracing the reasonable use theory
we caution, however, that we are not neces-
sarily adopting all the interpretations given
it by the decisions of other states, and that
our own interpretation will be developed in,
the future as,occasions arise. Nor is it in-,
tended hereby that we will not in the future,
under certain circumstances, possibly ad-:
here to some phases of the uniform flow.
system. It is recognized that in some in-
stances vested rights. may .have-accrued to
riparian landowners and we could not of
course constitutionally negate those rights.3

[6] It 'should also be made clear that
nothing in this opinion is intended to or
can infringe upon the powers of the Arkan-
sas State Game and Fish Commission as in-
vested by Amendment No. 33 to the Con-
stitution of this State. 'It is recognized that
said Commission has the power to propa-
gate, preserve, and protect fish in streams
and lakes. Inr exercising this power the
Commission will undoubtedly be interested
in some instances in the amount of water'
that may be'removed from lakes or streams
where injury to fish life is involved.

The result 'of our examination of the de-
cisions of this court and other authorities
relative to the use by riparian proprietors'"
of water in norn-navigable lakes and streams
justifies the enunciation of the following
general rules and principles:

3. In the case of Meriwether Sand & Gravel
Co. v. State ex rel. Attorney General,
.supra, 181 Ark, at page 226, 26 S.W.2d
at. page 61, this court said: "Riparian:
rights inhere in the owner of the soil, and
are part and parcel of the land itself, and
are vested and valuable rights which no
more may be destroyed or impaired than
any' other part of a freehold." This
right was also recognized in the La
Cotta case, supra.
4. The use of water for domestic pur-
poses is usually accorded a preference
over the demands of irrigation and man-
ufacturing. : 56 ,Am.Jur. 784, 343.
Humphreys-Mexia Co. v. Arseneaux, 116
Tex. 603, 297 S.W. 225, 53 A.L.R. 1147.
5. In the case of Taylor v. Tampa Coal
Co, Fla., 46 So.2d 392, at page 394 it

.[7-10] .(a) The right to use water for
strictly domestic purposes-such 'as for
household use-is superior to many other
uses of water-such as for fishing, recre-
ation and irrigation.4 .,
(b) Other than the use mentioned above,
all other lawful uses of water are equal.5
Some of the' lawful uses of water- recog-
nized by this state are: fishing, swimming,
recreation, and irrigation.6

(c) When one lawful use of water is de-
stroyed by another lawful use the latter
must yield, or it may be enjoined.-

(d) When one lawful use of water.in-
terferes with or detracts from another-
lawful use, then a question arises as to-
whether, under all the facts and circum-
stances of that particular case, the inter-i
fering use shall be declared unreasonable;
and as Such enjoined, or whether a reason-?
able and equitable adjustment should be:
made, having due regard to the reasonable:
rights of each.' .

Application To This Case. Some of the-
questions, therefore, which must be consid-
ered are these: .

(a) Had appellees on'July 10, 1954;, b
the continued use of water 'from Horseshoe
Lake, destroyed appellants' right to fish"
and conduct the boating enterprise? If so,'
the injunction should -be granted.

is stated: 'It is the rule that the rights
Sof riparian proprietors to the use of wa-
ters in a non-navigable lake such as the,_
one here involved are equal." -
6. See Meriwether Sand & Gravel Co. v. -2
State ex rel. Attorney General, supra,
and Barboro v. Boyle, 119 Ar.- 377,
at pages 382, 383, 178 S.W,. 37.. ..
7. In 56 Am.Jur. page 783 it is stated:
"In determining whether an artificial use
of the water of a stream is reasonable
or not, it is necessary to consider what
the use is for, its extent, duration, neces-,
sity, and application, the nature and size
of the stream, and'the several uses to
which it is put, the extent of the injury,
to one proprietor and the benefit to the
other, and all other facts which may bear,
upon the reasonableness of the use."

134 Ark.



' .
. -

Cite as 283 S.\.2d 129

(b) If it is found however that appel-
i.1:s' rights had only been impaired at the
acted d time, then it must be judged, under
.!l the facts and circumstances. as before
*::rctioned, whether such impairnient is unJ
r.-aonable. If it is so found then the:in-
,,:nction should issue. If it is found that
.apc!!.nts' rights have not been unreason-
,!v impaired, having due regard to all the
,ac:s and circumstances and the' injury
thich may be caused appellees as weighed
.icafint the benefits accruing to appellants,
'hc.i the injunction should be denied.

[11] We do not minimize the difficulties
,:'end:rLnt upon an application of the rea-
-;::ablc use rule to any given set of facts
and circumstances and particularly those
;-pcsrnt in this instance. It is obvious that
hecre are no definite guide posts provided
a.d that necessarily much must be left to
j::.!gment and discretion. The breadth and
.=undaries of this area of discretion are
well stated in Restatement of the Law,
Torts, 852c in these words: "The deter-
rnination in a particular case of the unrea-
,anableness of a particular use is'not and
shouldd not be an unreasoned, intuitive con-
c:::son on the part of the court or jury.
i: is rather an evaluating of the conflict-
.: interests of each of the' contestants be-
i ,r the court in accordance with the stand-
ards of society, and a weighing of those,
,':c against the other. The law accords
i::'!, protection to the interests of all the
r:;.ari;n proprietors in the use of water,
t1 seeks to promote the greatest benefi-
: ;:se of the water, and seeks to proniote
:z:* rcratest beneficial use by each with a
-n: :ui:.um of harm to others. But when
Sr.c riparian proprietor's use of the water
-:. n.y invades another's interest in its
:-'., t'.re is an incompatibility of interest
:-'vccn the two parties to a greater or less-
Srexent depending on the extent of the
-.:.:ion, and there is immediately a ques-
'-:: whether such a use is legally permis-
':.:c. It is axiomatic in the law that in-
iuals in society must put up with a rea-
-:ile amount of annoyance and incon-
vr- icnce resulting from the otherwise law-

ful activities of their neighbors in the use
of their land. Hence it is only when one
riparian proprietor's use of the water is
unreasonable that another who is harmed
by it can complain, even though the harm
is intentional. Substantial intentional harm
to .another .cannot be justified as reason-
able unless the legal merit or utility of the
activity which produces it outweighs the
legal seriousness or gravity of the harm."

In all our consideration of the reasona-
ble use theory as we have attempted to ex-
plain it we-have accepted the view that
the benefits accruing to society in general
from a maximum utilization of our water
resources should not be denied merely be-
cause of the difficulties that may arise in
its application. In the absence of legisla-
tive directives, it appears that this rule or
theory is the best that the courts can de-

[12] Our Conclusion. After careful
consideration, an application of the rules
above announced :to the complicated fact
situation set forth in this record leads us
to conclude that the Chancellor should have
issued an order enjoining appellees from
pumping water 'out o'f'Horseshoe Lake
when the water level reaches 189.67 feet
-above sea level for as long as the material
facts and circumstances are. substantially
the same as they appear in this record. We
make it clear that this conclusion is.not
based on the fact that 189.67 is the normal
'level and that appellees would have no
right to reduce such level. Our conclusion
is based on the fact that we think the evi-
dence shows this level happens to be the
level below which appellants would be un-
reasonably interfered with. This holding
is, we think, in harmony with the holding
in the Tampa Coal Co. case, supra. That
case involved a shallow privately owned
lake similar to the one under considera-
tion. Taylor was enjoined from pumping
the water from the lake to irrigate his cit-
rus grove on the ground that to do so de-
stroyed the use of the lake by the em-
ployees of the Coal Company for recrea-

Ark. 13,


tional purposes. The court held that Tay-
lor could not pump water from the lake
after it reached the normal level. A care-
ful reading of the case however shows that
the decision was not based on the normal
level or natural flow theory but rather on
the fact that that level happened to be the
one below which it would be unreasonable
to reduce the water. In reaching its con-
clusion the court, among other things, said:
" each riparian owner has the right
to use the water in the lake for all lawful
purposes, so long as his use of the water
is not detrimental to the rights of other
riparian owners. From the evi-
dence in the record it is plain that when
the water of the lake here involved is at
normal level the lake is too small in area
and content to allow water to be pumped
therefrom for irrigating purposes without
consequent damage to other riparian own-
ers." The court then justified its conclu-
sion "when conditions are such that the
lake is either at or below normal water-
level and the use thereof for irrigation pur-
poses will operate to injury of other ripa-
rian owners *."

We think the conclusion we have reached
is not only logical but practical. Although
appellees had quit using water from the
lake when this case was tried yet they tes-
tified that they intended to use water there-
from in 1955. We might assume that they
would want to also use water in subsequent
years, so it would seem to be to the best in-
terest of all parties concerned to have a
definite level fixed at which pumping for

irrigation must cease in order to avoid use-
less litigation.

[13] Appellees make the point that the
Chancellor should be sustained because
they have acquired a prescriptive right to
the unlimited use of the water in Horse-
shoe Lake, and, to the same effect, that ap-
pellants are stopped from asserting any
rights to the contrary. We cannot sustain
this contention. Although appellees, ac-
cording to the record, have used this wa-
ter for irrigation purposes on several oc-
casions in previous years, dating back for
more than seven years, yet it appears that
appellants had not been disturbed in the
exercise of their riparian rights previous
to 1954. Prior to that year appellees had
merey been exercising their lawful rights
as riparian owners and their exercise of
those rights was in no way adverse to the
rights of any one. (56 Am.Jur. p. 730,
343) In the City of Conway case, supra,
where the same contention was made that
appellees here make the contention was de-
nied, the court saying [271 S.W.2d 927]:
"We are unable to find any act or acts on
the part of Conway of an adverse claim
or nature, or such as would put appellants
on notice of any adverse claim." The court
then followed with citations which are ap-
plicable here.

Reversed with direction to the trial court
to enter a decree in conformity with this

McFADDIN, J., concurs.

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