(7.) Of running waters.

Important questions have arisen in respect to the use of running waters, between different proprietors of portions of the same stream; and such questions are daily growing in interest, as the value of water-power is more and more felt in manufacturing establishments.

Every proprietor of lands on the banks of a river, has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, (currere solebat,) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. (1) He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat, is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above, without a grant, or an uninterrupted enjoy

v. Miller, 3 Taunton, 138. But, in Massachusetts, the more reasonable rule is, that partition fences and ditches are to be placed on the land of both parties equally. Newell v. Hill, 2 Metcalf's R. 180.

But if a running stream be not a natural water-course, but created by the owner of the land, and it flows beneficially into a neighbour's land, as water raised from a mine by a steam-engine, or water from the spout of the eaves of a row of houses, thrown upon and used by the owner of adjoining ground, no presumption of a grant or a right to have that water continued in perpetuity exists, for that would unreasonably compel the owner of the mine to work it, or keep his engine in motion, or his row of houses unaltered. Arkwright v. Gell, Exch. E. T. 1839, cited in Gale & Whatley on Easements, 182.

if it be done negligently,) the owner cannot recover for his damage. The Tonawanda R. R. Co. v. Munger, 5 Denio's R. 255. In this case there was no obstacle to prevent the animals coming upon the track.

(1) In a case of diversion, the plaintiff, who owned only one side of the stream, was allowed to recover, without showing any perceptible actual damage. Branch v. Doane, 17 Conn. R. 402. Where the owner of a mill was injured by the unjust obstruction of the water below, it was held that he might enter and remove the obstruction. Heath v. Williams, 25 Maine Rep. 209.

ment of twenty years, which is evidence of it.a (1) This

is the clear and settled general doctrine on *the sub- *440 ject, and all the difficulty which arises consists in the ap

Dig. 39. 3, 4. 10. Code, lib. 3. t. 34. 1. 7. Pothier, Traité du Contrat de Société, second App. Nos. 236, 237. Toullier, tome iii. 88. n. 133. Luttrel's Case, 4

Co. 87. a. Shurry v. Pigott, 3 Bulst. R. 339. S. C. Popham, 166. Hays v. Hays, 19 Louis. R. 351. Brown v. Best, 1 Wils. Rep. 174. Bealey v. Shaw, 6 East's Rep. 208. Wright v. Howard, 1 Simon & Stewart, 190. Newman v. Anderson, 1 Barnw. & Ald. 258. Williams v. Morland, 2 Barnw. & Cress. 915. Mason v. Hill, 3 Barnw. & Adolph. 304. 5 Ibid. 1. S. C. Gardner v. Village of Newburgh, 2 Johns. Ch. Rep. 162. Belknap v. Belknap, ibid. 463. Merritt v. Parker, 1 Coxe's N. J. Rep. 460. Tyler v. Wilkinson, 4 Mason, 397. Coalter v. Hunter, 4 Randolph, 58. Hammond v. Fuller, 1 Paige, 197. Hutchinson v. Coleman, 5 Halsted, 74. King v. Tiffany, 9 Conn. Rep. 162. Blanchard v. Baker, 8 Greenleaf, 253. Omelvany v. Jaggers, 2 Hill's S. C. Rep. 634. 640. St. Louis v. St. Louis, Stuart's Lower Canada Rep. 575. Martin v. Jett, 12 Louisiana Rep. 501. Webb v. The Portland Manuf. Company, 3 Sumner's R. 190. Davis v. Fuller, 12 Vermont R. 178. Evans v. Merriweather, 3 Scammon's R. 492. Shreve v. Voorhees, 2 Green's R. 25. Parker v. Griswold, 17 Conn. R. 288. In the case of Barron & Craig v. Corporation of Baltimore, (American Jurist, No. 4. p. 203,) the corporation, in the exercise of their municipal powers, diverted certain streams from their natural channels to a point near the plaintiff's wharf, on navigable water, within the harbour and city of Baltimore, to which point a large deposit of sand and earth was carried down by the streams, and injured the value of the wharf. It was held that a private action lay for the damage arising from this corporate act. It is stated to have been a rule in the French law, that the owner of the higher land had a right to divert a stream to his own utility, and that the owner of the land below could not contest it in the absence of a grant. Merlin, Rep. Jurisp. tit. Cours d'Eau. But the civil code very equitably qualified this doctrine. Code Civil, art. 641. 643, 644.

The rights respecting running streams, between adjoining proprietors of lands, are regulated by very precise rules in Pennsylvania. Thus, in M'Calmont v. Whittaker, 3 Rawle, 84, the water-power belonging to a riparian owner was considered as consisting of the difference of level between the surface where the stream in its natural surface first touches his land, and the surface where it leaves it. The stream under that limitation of right might be occupied, in whole or in part, or not at all, without endangering the right or restricting the mode of its enjoyment, unless there has been an actual, prior, adverse occupancy protected by the statute of limitations. The riparian owner, by digging on his own land, cannot legally lower the surface of the water standing on a pool on the land above him, nor can he enter and lower the surface of the water as it leaves his land, by deepening the channel in the land below him. In Acton v. Blundell, 12 Meeson & Welsby, 324, a very important question on water rights arose, and was very learnedly considered. The

(1) Wood v. Waud, 3 Wels, H. & G. Rep. 748. In this case the general doctrine of artificial water-courses is elaborately discussed. Van Hoesen v. Coventry, 10 Barb. R. 518. The right to flow lands for one purpose is not defeated by the existence of a right in another person to flow the same lands for another purpose. Davis v. Brigham, 29 Maine R. 391.

plication. The owner must so use and apply the water as to work no material injury or annoyance to his neighbour below him, who has an equal right to the subsequent use of the same water; nor can he, by dams or any obstruction, cause the water injuriously to overflow the grounds and springs of his neighbour above him.a (1) Streams of water are intended for the use and comfort of man; and it would be unreasonable, and contrary to the universal sense of mankind, to debar every riparian proprietor from the application of the water to domestic, agricultural and manufacturing purposes, provided the use of it be made under the limitations which have been mentioned; and there will, no doubt, inevitably be, in the exercise of a perfect right to the use of the water, some evapo

judgment of the Court of Exchequer Chamber made a distinction between waters running on the surface of lands, and flowing below it in a subterraneous course. The former was open to observation, notorious usage, calculation and value, but not the latter; and it was held, that the owner of land through which water flows in a subterraneous course, has not such a right or interest in it as to be able to maintain an action against a land-owner who digs a well on his own land, or carries on mining operations in his own land, in the usual manner, and drains away the water from the land of the adjoining owner, and leaves his well dry. The civil law was examined, and was found to sustain the judgment of the court. Marcellus scribit: cum eo, qui in suo fodiens, vicini fontem avertit, nihil posse agi, nec de dolo actionem ; et sane non debet habere, si non animo nocendi, sed suum agrum meliorem faciendi id fecit. Dig. lib. 39. tit. 3. sec. 12. This question as to the rights of water running below the surface, seems not to have been raised and settled in the English law, and the decision does not affect the rights mentioned in this lecture respecting running waters over the surface of land. The court went upon the principle which gives to the owner of the soil all that lies beneath the surface, and he has a right to apply such property to his own purposes at pleasure; and if, in the exercise of that right, he intercepts or drains his neighbour's under-ground springs, it is damnum absque injuria.

• Neal v. Henry, 1 Meigs' Tenn. Rep. 17. If the owner of land, flowed by a mill-dam, sells the mill and dam and retains the land, the purchaser takes by the grant the right to overflow the land to the former extent. But if the owner sells the land flowed, and retains the mill and dam, without reserving the right to flow, he subjects himself to damage if he does it. Preble v. Reed, 17 Maine R. 169. The grant of a mill carries with it the use of the head of water necessary to its enjoyment, with all incidents and appurtenances, as far as the right to convey to this extent existed in the grantor. Rackley v. Sprague, 17 Maine R. 281.

(1) A riparian proprietor may use the whole face of the water on his own land; he may cause it to sit back to the line of the adjoining proprietor, and will not be liable for damage caused thereby, in cases of unusually high floods. But companies incorporated for improving the navigation of streams have not so extensive rights. Monongahela Navigation Co. v. Coon, 6 Barr's R. 379.

ration and decrease of it, and some variations in the weight and velocity of the current. But de minimis no curat lex, and a right of action by the proprietor below would not necessarily flow from such consequences, but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of the party, by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish, or affect the application of the water by the proprietors above or below on the stream. He must not shut the gates of his dams, and detain the water unreasonably, or let it off in unusual quantities, to the annoyance *of his neighbour. Po- *441 thier lays down the rule very strictly, that the owner

* Beissel v. Stroll, 4 Dallas' Rep. 211. Palmer v. Mulligan, 3 Caines' Rep. 307. Weston v. Alden, 8 Mass. Rep. 136. Colburn v. Richards, 13 Mass. Rep. 420. Cook v. Hull, 3 Pick. Rep. 269. Runnels v. Bullen, 2 N. H. Rep. 532. Tyler v. Wilkinson, 4 Mason, 397. Merritt v. Brinckerhoff, 17 Johns. Rep. 306. Van Bergen v. Van Bergen, 3 Johns. Ch. Rep. 282. Williams v. Morland, 2 Barnw. & Cress. 910. Thompson v. Crocker, 9 Pick. 59. Johns v. Stephens, 3 Vermont Rep. 308. Pugh v. Wheeler, 2 Dev. & Battle, 50. Wadsworth v. Tillotson, 15 Conn. R. 366. In Howell v. McCoy, 3 Rawle, 256, the rule sic utere tuo ut alienum non lædas, in its application to the doctrine in the text, was laid down with precision and accuracy. It was held, that a person had a right to so much of the water of a stream running across his land as was needful and proper for supplying his tan-yard and bark-mill, and that he was bound to return the water so diverted, and not necessarily used and consumed in his business, without unnecessary diminution and waste, into the natural channel below, and that he was bouud to return it without polluting or poisoning it by admixture with unwholesome substances, to the injury of the owner below. This was in accordance with the sound doctrine of the common law, as declared in Aldred's Case, 9 Co. 57. b, prohibiting acts creating a nuisance to one's neighbour. (1)

So, again, in Arnold v. Foot, 12 Wendell, 330, where a spring of water rises in the land of A., and runs a stream to the land of B., it was held, that A. has no right to divert the stream from its natural channel, though it be not more than sufficient for his domestic uses, and for the irrigation of his land. He may use it for domestic uses, and for his cattle, but not to irrigate his land, if that would exhaust the running stream. Brown v. Best, 1 Wilson, 174. S. P. Smith v. Adams, 6 Paige, 435. S. P. The owner may dig a well on any part of his own land, though he thereby diminishes the water in his neighbour's well, in the absence of grant, or adverse user, or malice. Greenleaf v. Francis, 18 Pickering, 117.

(1) A legislative grant of a water-power is not a grant of the water itself as a chattel. Mayor v. Commissioners, 7 Barr's R. 349.

of the upper stream must not raise the water by dams, so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below. But this rule must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. It must be subjected to the qualifications which have been mentioned, otherwise rivers and streams of water would become utterly useless, either for manufacturing or agricultural purposes. The just and equitable principle is given in the Roman law: Sic enim debere quem meliorem agrum suum facere, ne vicini deteriorem faciat.b (1)

(8.) Easements acquired and lost by prescription.

1. This natural right to the use of waters, as an incident or particular easement to the land, may be abridged, or enlarged, or modified, by grant or prescription. Though a stream be diminished in quantity, or corrupted in quality, by means of the exercise of certain trades, yet if the occupation of the party so taking or using it has existed for so long a time as to raise the presumption of a grant, and which presumption is the foundation of title by prescription, the other party whose land is below must take the stream subject to such adverse right; and twenty years' exclusive enjoyment of the water in any particular manner, affords, according to the English law, and the law of New-York, Massachusetts and several other states, presumption of such a grant.d

Traité du Contrat de Société, second App. No. 236.

The Code Napoleon, Nos. 640, 641. 643, 644, and the Civil Code of Louisiana, art. 656, 657, establish the same just rules in the use of running waters. So, in North Carolina, Missouri, &c., the regulations of grist-mills and mill-dams is deemed a matter of public concern, and subject to statute prescriptions. Revised Statutes of Missouri, 1835. R. S. N. Carolina, c. 74.

• Prescription is a title acquired by possession had during the time, and in the manner fixed by law. Co. Litt. 113. b.

The time of limitation varies in particular states. Thus, in Connecticut and Vermont, the term of prescription is fifteen years, and in South Carolina five years. Manning v. Smith, 6 Conn. Rep. 289. Martin v. Bigelow, 2 Aikens, 184. Ander

(1) See Embrey v. Owen, 4 Eng. L. & E. R. 476. The preceding doctrine of the text is quoted and approved. A riparian proprietor has the right to irrigate his land from the stream, if he does not interfere with the rights of other proprietors; and whether his use be reasonable or not, depends on the circumstances of each case.