Harris v. Brooks

by the Arkansas Supreme Court

Supreme Court of Arkansas

225 Ark. 436

Harris  v.  Brooks

Appeal from Woodruff Chancery Court

No. 5-711. --- Delivered: Oct. 24, 1955. 

1. WATERS AND WATER COURSES—RIPARIAN RIGHTS, REASONABLE USE THEORY ADOPTED.—There is no sound reason for maintaining our lakes and streams at a normal level when the water can be beneficially used without causing unreasonable damage to other riparian owners.
2. WATERS AND WATER COURSES—RIPARIAN RIGHTS, LIMITATION ON REASONABLE USE, THEORY.—In exercising the power invested in the Arkansas Game and Fish Commission under Amendment No. 35 to the Constitution of Arkansas, the Commission will undoubtedly be interested in some instances in the amount of water that may be removed from lakes and streams by riparian owners where injury to fish life is involved.
3. WATERS AND WATER COURSES—PRIORITY BETWEEN RIPARIAN RIGHTS.—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, recreation and irrigation.
4. WATERS AND WATER COURSES—PRIORITY BETWEEN RIPARIAN RIGHTS.—Other than for strictly domestic purposes, all other lawful uses of water are equal.
5. WATERS AND WATER COURSES—RIPARIAN RIGHTS, A LAWFUL USE MUST YIELD WHEN?—When one lawful use of water is destroyed by another lawful use, the latter must yield, or it may be enjoined.
6. WATERS AND WATER COURSES—CONFLICTS BETWEEN RIPARIAN OWNERS.—When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each.
7. WATERS AND WATER COURSES—CONFLICTING RIPARIAN USES BETWEEN RICE FARMER AND OWNER OF COMMERCIAL BOATING AND FISHING ENTERPRISE.—The evidence showed that after the water level in Horseshoe Lake reached below 189.67 feet above sea level the water receded from the bank where appellant usually docked his boats, making it impossible for him to rent them to the public. Held: Since the evidence shows that 189.67 feet is the level below which appellant is unreasonably interfered with, the chancellor should have enjoined the rice farmer from pumping water out of the lake when it reaches 189.67 feet above sea level for as long as the material facts and circumstances are substantially the same as they appeared in the record.
8. WATERS AND WATER COURSES—APPROPRIATION AND PRESCRIPTION, WEIGHT AND SUFFICIENCY OF EVIDENCE.—Appellees, rice farmers, held not to have acquired a prescriptive right to the unlimited use of the water in Horseshoe Lake, even though they had used the water therefrom for irrigation purposes for more than seven years, since appellants had not been disturbed in the exercise of their riparian rights previous to the year of filing suit.

Appeal from Woodruff Chancery Court; A. L. Hutchins, Chancellor; reversed.

William H. Donham, for appellant.

John D. Eldridge, Jr., for appellee.

[Opinion of the court by Justice PAUL WARD. Justice MCFADDIN concurs without opinion.]