{
  "id": 6651981,
  "name": "Elmer STYERS and Thelma STYERS v. Joe JOHNSON and Gladys JOHNSON, et al.",
  "name_abbreviation": "Styers v. Johnson",
  "decision_date": "1986-12-10",
  "docket_number": "CA 86-239",
  "first_page": "312",
  "last_page": "316",
  "citations": [
    {
      "type": "official",
      "cite": "19 Ark. App. 312"
    },
    {
      "type": "parallel",
      "cite": "720 S.W.2d 334"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "272 Ark. 172",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1174942
      ],
      "weight": 2,
      "year": 1981,
      "opinion_index": 0,
      "case_paths": [
        "/ark/272/0172-01"
      ]
    },
    {
      "cite": "38 Ark.L.Rev. 221",
      "category": "journals:journal",
      "reporter": "Ark. L. Rev.",
      "year": 1984,
      "pin_cites": [
        {
          "page": "235"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "7 Ark. App. 110",
      "category": "reporters:state",
      "reporter": "Ark. App.",
      "case_ids": [
        6137967
      ],
      "weight": 2,
      "year": 1983,
      "opinion_index": 0,
      "case_paths": [
        "/ark-app/7/0110-01"
      ]
    },
    {
      "cite": "225 Ark. 436",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1642847
      ],
      "weight": 2,
      "year": 1955,
      "opinion_index": 0,
      "case_paths": [
        "/ark/225/0436-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 465,
    "char_count": 8408,
    "ocr_confidence": 0.9,
    "pagerank": {
      "raw": 5.061447019797991e-08,
      "percentile": 0.3188917577820174
    },
    "sha256": "ff285e63e22077a25caae245a59bd59ce5c2be39a0232df95e97b5df0fe92142",
    "simhash": "1:2ffc8024931d7de8",
    "word_count": 1387
  },
  "last_updated": "2023-07-14T22:48:59.358455+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Cracraft, C.J., and Corbin, J., agree."
    ],
    "parties": [
      "Elmer STYERS and Thelma STYERS v. Joe JOHNSON and Gladys JOHNSON, et al."
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Judge.\nThis case involves riparian rights. The parties\u2019 dispute focuses on a spring that originates on appellants\u2019 land and flows into Mill Creek which provides appellees with water for irrigation, drinking and other domestic purposes. In March 1984, appellants applied to the Arkansas Soil and Water Conservation Commission (Commission) for a dam permit which was issued the following May. In August 1984, appellees filed this suit against appellants, alleging appellants constructed a dam which wrongfully impounded waters on their land and obstructed the flow of water to Mill Creek. The appellants moved to dismiss appellees\u2019 complaint, urging the trial court had no jurisdiction because appellees failed to exhaust their administrative remedies before the Commission. Alternatively, appellants claimed by law they were exempt from applying to the Commission for any dam-building permit because the spring was located on their land and it did not impede the flow of water into a stream, so neither the trial court nor the Commission had any authority to limit appellants\u2019 use of the spring water.\nThe trial judge found appellants had complied with the Commission\u2019s regulations in obtaining the permit for a dam. He held that the dam could remain but that, if an insufficient amount of water overflowed it, appellants must make water available to appellees in an amount equal to the flow from the spring before it was dammed. Appellants raise the same issues on appeal as they did below.\nFirst, we agree with appellants and the trial court that appellants properly complied with the state law in obtaining the permit for a dam. The law that was pertinent and effective when appellants applied for their permit is set forth in Ark. Stat. Ann. \u00a7\u00a7 21-1306 and 21-1310 (Supp. 1983). Section 21-1306 establishes the procedures required to apply for a permit to construct a dam, and it delineates the notice and hearing requirements interested persons must be given. In sum, appellants claim they complied with those statutory requirements in all respects, and because the appellees failed to file an objection concerning the dam with the Commission, they lost their right to question the Commission\u2019s action in granting the permit to appellants. In other words, the appellants argue the Commission\u2019s findings that led to its issuance of the dam-building permit became res judicata, since appellees had an opportunity to litigate their dispute before the Commission, but did not.\nWhile we agree that the appellants and the Commission complied with the legal requirements necessary for the issuance of the permit for a dam and that the appellees did not object, appellants\u2019 argument ignores appellees\u2019 response that they had no objection to the dam \u2014 only to its obstruction of the flow of water from the spring located on appellants\u2019 land. In this respect, \u00a7 21-1306(A)(1) (Supp. 1983), in pertinent part, provides protection to appellees, as lower riparian owners, as follows:\nand that there shall be discharged each day from the water impounded by it (dam) a quantity of water as may be fixed by the Commission as that necessary to preserve, from time to time, below the dam, the flow of the stream involved at a rate designed to protect the rights of lower riparian owners. . .\nIn fact, the Commission in the instant case conditioned, as it was required to do, its issuance of appellants\u2019 dam permit upon the requirement that the dam discharge water below it at a rate approximating the flow the stream would maintain if the dam had not been constructed. The Commission, under Ark. Stat. Ann. \u00a7 21-1308 (Repl. 1968), is empowered to allocate available water whenever a shortage exists. This statutory scheme provides the Commission with authority to issue dam-building permits and, at the same time, recognizes and encompasses Arkansas\u2019s case-law authority dealing with the rights of riparian owners. See Harris v. Brooks, 225 Ark. 436, 283 S.W.2d 129 (1955); Boyd v. Greene County, Arkansas, 7 Ark. App. 110, 644 S.W.2d 615 (1983); see also 38 Ark.L.Rev. 221,235 (1984). Under these same statutory provisions, the Commission may duly modify or cancel any dam permit issued by it if the person holding the permit fails to maintain the dam adequately or to comply substantially with any condition of the permit with respect to the operation of the dam. See \u00a7 21-1306(D). Consistent with our foregoing analyses of the law and the facts of this case, we hold that the appellees should have sought their remedy before the Commission rather than to have filed this original action in Chancery. See Ark. Stat. Ann. \u00a7 21-1304 (Supp. 1983) and -1304 (Supp. 1985). Because we conclude the Commission has jurisdiction of this cause, it is an elementary principle of administrative law that an issue must be raised at the lower level to be pursued on appeal. Arkansas Cemetery Board v. North Hills Memorial Gardens, 272 Ark. 172, 616 S.W.2d 713 (1981).\nSince we disagree with appellants\u2019 contention that appellees\u2019 failure to appear before the Commission was res judicata, we consider their alternative contention that neither the Commission nor chancery court had the jurisdiction to limit appellants\u2019 use of their water. Of course, we discussed how the Commission acquired jurisdiction in this matter, and now we turn to our reasoning why appellants are not exempt from that jurisdiction.\nAppellants contend the Commission had no authority to limit their spring water because they were exempt from applying to the Commission for a dam-building permit pursuant to Ark. Stat. Ann. \u00a7 21-1310(b) (Supp. 1983), which provides:\nAny person owning land, or having a right to occupy land, shall have the right to impound, and use for any lawful purpose, water flowing from a spring on that land, so long as he does not thereby obstruct the flow of water in a stream, and the Commission shall have no authority or jurisdiction with respect thereto.\nRelying upon the above statutory language, appellants claim that, independent from the Commission, they had a right to impound their own water and use it for any lawful purpose because it was water flowing from a spring on their own land and the dam did not obstruct the flow of water in a stream. Appellants offer this contention even though they voluntarily submitted themselves to the jurisdiction of the Commission by applying for a dam permit. But more importantly, appellants are wrong in their assertion that their dam did not obstruct the flow of water in a stream. The record is replete with evidence to the contrary. Appellants\u2019 own witness, a water resources engineer for the Commission, testified that there was a natural flow of water out of appellants\u2019 spring that made its way to Mill Creek through a channel he described as a water course or stream. He further stated that appellants\u2019 dam \u201cis affecting\u201d the flow of water into Mill Creek. The appellees offered similar testimony, summarily concluding that appellants\u2019 spring flows into Mill Creek and that the creek never had run dry until after appellants built the dam impounding the water from their spring. Because the record reflects appellants\u2019 dam does obstruct the flow of water in a stream, we conclude the appellants are not exempt under \u00a7 21-1310(b) (Supp. 1983).\nConsistent with the foregoing opinion, we reverse and dismiss this cause, leaving the appellees to seek their remedy before the Commission.\nCracraft, C.J., and Corbin, J., agree.\nAppellees respond to appellants\u2019 arguments, claiming the trial court found the parties entered an express agreement that appellants would pump water out of their impoundment Into Mill Creek and that the trial court merely was enforcing that agreement by its decree. The trial court\u2019s order reflects no such finding nor can we find any such agreement in the abstract of record.\nBoth of these provisions have been amended by Act 475 of 1985. Act 475 deleted all of the former subsections (a) through (d) of \u00a7 21 -1310, so that it now provides no permit is required for any dam which impounds less than fifty (50) acre-feet of water or is of a height less than fifteen (15) feet.",
        "type": "majority",
        "author": "Tom Glaze, Judge."
      }
    ],
    "attorneys": [
      "Boswell, Tucker & Smith, by: David E. Smith, for appellants.",
      "Curtis E. Rickard, for appellees."
    ],
    "corrections": "",
    "head_matter": "Elmer STYERS and Thelma STYERS v. Joe JOHNSON and Gladys JOHNSON, et al.\nCA 86-239\n720 S.W.2d 334\nCourt of Appeals of Arkansas Division II\nOpinion delivered December 10, 1986\nBoswell, Tucker & Smith, by: David E. Smith, for appellants.\nCurtis E. Rickard, for appellees."
  },
  "file_name": "0312-01",
  "first_page_order": 346,
  "last_page_order": 350
}