Page:Harris v. Brooks, 225 Ark. 436 (1955).pdf/2

Rh 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.
 * 1) 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.
 * 2) 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.

P W, Associate Justice. The issues presented by this appeal relate to the relative rights of riparian landowners to the use of a privately owned non-navigable lake and the water therein.

Appellant, Theo Mashburn, lessee of riparian 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 purposes. He and his lessors filed a complaint in chancery court on July 10, 1954, to enjoin appellees from 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