Page:Harris v. Brooks, 225 Ark. 436 (1955).pdf/12

Rh  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 of 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 evidence shows this level, happens to be the level below which appellants would be unreasonably interfered with. This holding is, we think, in harmony with the holding in the Tampa Coal Company case, supra. That case involved a shallow privately owned lake similar to the one under consideration. Taylor was enjoined from pumping the water from the lake to irrigate, his citrus grove on the ground that to do so destroyed the use of the lake by the employees of the Coal Company for recreational purposes. The court held that Taylor could not pump water from the lake after it reached the normal level. A careful 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 conclusion 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 evidence in the record it is plain that when the water of the lake here involved is at a normal level the lake is too small in area and content to allow water to be pumped therefrom for irrigation purposes without consequent damage to other riparian owners." The court then justified its conclusion "when conditions are such that the lake is either at or below normal water level and the use thereof for irrigation purposes will operate to the injury of other riparian owners. "