Page:Harris v. Brooks, 225 Ark. 436 (1955).pdf/5

440 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 Horseshoe 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 explained 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 relief on two separate grounds: (a) Tbe 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 interfered 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 testimony 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 "normal" level. It is common knowledge that fish quit biting sometime for no apparent good reason. There was no testimony that fish life was endangered before July 10th but on the other hand there was positive testimony to the contrary. (b) Likewise 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 fishing and boating. Certainly appellants made no attempt to make any distinction either in the pleadings or by the testimony between 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