This peculiarity of the common law is, perhaps, nowhere more fully exemplified than in its application to public watercourses. As human society advanced from its primeval state, navigable rivers and public streams came to be the arteries of commerce, permeating parts otherwise inaccessible, developing occult mineral resources, and bearing upon their bosom immense wealth to the more genial abodes of man. The history of our legislature, no less than the decisions of our courts, attest the solicitude of the community to make these great highways both the means of developing the resources of the country and of transporting their products to more remote regions. The various mill acts, for the encouragement of milling, and the vigilance of courts to preserve a free transit for the various raw material and manufactures of lumber to a market, are so many proofs of this truth. "God," says Domat, "has given us the use of the seas and rivers, which opens the communication with all the world, to use, and makes us acquainted with our fellow-men in distant countries."

The essential characteristic of highways is, that every person has an equal right with every other person to their enjoyment, and yet this enjoyment of them by one, of necessity, to a certain extent, interferes with its use by another. Water, air, and light are the gifts of Providence, designed for the common benefit of man, and every person is entitled to a reasonable use of each. A man cannot occupy a dwelling, or consume fuel for domestic purposes, at least in our large cities, without, in some degree, impairing the natural purity of the air; nor can he erect a building, or plant a tree near the house of another, without also, in some respect, diminishing the quantity of light he enjoys. Ordinarily, these, being the necessary incidents to the common enjoyment, furnish no ground of action. The use of water, from its greater specific gravity, and the countless variety of purposes for which it is appropriated, gives rise to a large number of perplexing questions. The detention of water by a dam, for the benefit of a mill, oftentimes results in an injury to the owners of the privilege below. does not, however, follow that for every such injury there is a remedy. If the detention is indispensable to the owner's reasonable enjoyment of his rights in the common highway, and is continued no longer than is necessary for that purpose, the proprietor below is without a remedy for any injury he may have suffered thereby; otherwise, the right of common use is nugatory, and the party requiring such use is himself ob

structed in its exercise: Webb v. Portland Mfg. Co., 3 Sum. 189; Embrey v. Owen, 4 Eng. L. & Eq. 466.

The social duty, therefore, inculcated in the maxim, Sic utere tuo ut alienum non lædas, must be understood, and applied with qualification. In Inhabitants of Shrewsbury v. Smith, 12 Cush. 181, which was an action by a town against the owners of a dam which had broken away and injured plaintiffs' bridge, the court defined this maxim to mean, that each proprietor, in exercising his own rights on his own territory, should act with reasonable skill and care to avoid injury to others, and as an approximate rule for measuring that degree, it should be that degree of ordinary skill, care, and diligence, which men of common and ordinary prudence in relation to similar subjects would exercise in the conduct of their com• mon affairs.

Where the legal effect of an act is the subject of judicial investigation, it is not unfrequently necessary to inquire into the subject-matter, occasion, object, extent, and necessity of the act, together with the manner and purpose of its performance. Was the subject-matter appropriate, the object lawful, the occasion suitable, the extent reasonable, the necessity imminent, or the manner prudent? As these questions shall be answered by the facts and circumstances of the particular case, so will be the judicial determination of the legal consequences resulting from the act in question.

Reasonable use is the touchstone to which cases of this description must be subjected, and it becomes important, therefore, to examine the decisions of courts upon this question.

1. Of the use of water by riparian proprietors.

In Pennsylvania, the question arose with regard to the respective rights of the upper and lower riparian proprietors to the use of water for milling purposes. The presiding judge instructed the jury as follows: "The defendant had a right to use the water as it passed through his land; if he detained it no longer than was necessary for his proper enjoyment of it, the plaintiff cannot recover; whether, if you believe from the evidence in the case that he did detain the water three days at times, at other times five days, at one time thirteen days, in his own dam, to the injury of the plaintiff's mill, this was longer than was necessary for the defendant's proper enjoyment of the water at his mill as it passed through his land, is left for your determination. If you believe it was, you will find for the plaintiff; if you believe it was not, you will find

for the defendant, unless you find that the defendant did maliciously or wantonly detain the water, or that there was some degree of malevolence in the time or quantity of water discharged, to the injury of the plaintiff's mill; for if you believe this, your verdict should be for the plaintiff." The verdict was for the defendant, and exceptions were taken to this ruling, on the ground that the time the water was detained was so long and unreasonable that the plaintiff was entitled to recover; but the upper court overruled the exceptions, and sustained the ruling, alleging as the ground of their determination "the impossibility of making even a general rule for such cases, and that the matter was fairly submitted to the jury": Hetrich v. Deachler, 6 Pa. St. 32. Thurber v. Martin, 2 Gray, 394 [61 Am. Dec. 468], also, was an action of tort for obstructing the natural flow of the water, and diverting it from the plaintiff's mill. In delivering the opinion of the court, Chief Justice Shaw stated the law of the case. "Every man has the right to the reasonable use and enjoyment of a current of running water, as it flows through or along his own land, for mill purposes, having a due regard to the like reasonable use of the stream by all the proprietors above and below him. In determining what is such reasonable use, a just regard must be had to the force and magnitude of the current, its height and velocity, the state of improvement in the country in regard to mills and machinery, and the use of water as a propelling power, the general usage of the country in similar cases, and all other circumstances bearing upon the questions of fitness and propriety in the use of the water in the particular case."

The doctrine of Thurber v. Martin, 2 Gray, 394 [61 Am. Dec. 468], was expressly affirmed in Chandler v. Howland, 7 Id. 350 [66 Am. Dec. 487], where the court say that the right of riparian proprietors to the natural flow of water over their lands is "subject to such interruption as is necessary and unavoidable by the reasonable and proper use of the mill privilege above."

In Pitts v. Lancaster Mills, 13 Met. 157, the defendants, owners of a mill and dam above an ancient mill-dam of the plaintiffs, rebuilt and raised that dam above its former height, whereby the water was wholly cut off from plaintiff's mill for a period of six days, greatly to his detriment. The case was submitted to the court upon an agreed statement of facts, and a nonsuit was ordered, the court assigning as a reason therefor

AM. DEC. VOL. LXXXI-37

that "this was not an unreasonable use of the watercourse by the defendants, and that any loss which the plaintiffs temporarily sustained by it was damnum absque injuria.” "What

is a reasonable use," the court say, "must depend upon circumstances, such as the width and depth of the bed, the volume of water, the fall, previous usage, and the state of improvements in manufactures and the mechanic arts."

2. Of the use of highways upon land and water.

In the several cases, Veazie v. Dwinel and Dwinel v. Veazie, 50 Me. 479, this court held: 1. That it was not lawful for a mill-owner to obstruct, with the waste from his mill, a channel made by another mill-owner, as a passage-way for rafts, logs, and lumber, from the former's mill on the Penobscot River to and through the sluice in the latter's mill-dam; and 2. That the latter had no right to permanently obstruct this channel by a boom across it, designed to guide his logs into a new channel made by the former, though he might lawfully use this new channel as a passage-way for his logs and erect temporary guide-booms for that purpose. These cases were submitted to the court, who gave this construction to the rights of the respective parties, as a reasonable use of the Penobscot River as a public highway for running logs.

In Gerrish v. Brown, 51 Me. 256 [ante, p. 569], it was held that if a person obstruct a stream which is by law a public highway, by casting therein waste materials, filth, or trash, or by depositing materials of any description, except as connected with the reasonable use of said stream or highway, or by direct authority of law, he does it at his peril, and is guilty of causing a public nuisance. In that case, the court say: "The plaintiff, like any other citizen, may use the river as a highway for the purposes of navigation; and as incident to the right of navigation, the temporary obstruction of portions of the river while preparing these materials for transportation, or in securing them at the termination of their transit, would not constitute a violation of law. In this respect, public streams are governed by the same general rule as highways upon land."

A temporary occupation of a street or a highway by persons engaged in building, or in receiving or delivering goods from stores or warehouses, is lawful from the necessities of the case, while a persistent and continuous obstruction of a street beyond what is required for a reasonable use of it, even for such purposes, is unjustifiable: People v. Cunningham, 1 Denio, 526 [43 Am. Dec. 709]; Commonwealth v. Passmore, 1 Serg. & R. 219.

In Graves v. Shattuck, 35 N. H. 268 [69 Am. Dec. 536], the plaintiff was obstructed by the defendants, while in the act of removing a building through one of the public streets of Nashua, and brought his action to recover damages occasioned by this act of the defendants. The right of the plaintiff to encumber the street for such purpose was put in issue, and the jury returned a verdict for the plaintiff, the presiding judge according to the plaintiff that right in his instructions to the jury. Exceptions were taken to this ruling, but the court above sustained the instructions, and say: "The doctrine of all the cases on this subject that we have examined seems to be in accordance with the instructions below, that the law justifies obstructions of a partial and temporary character from the necessity. of the case, and for the convenience of workmen, when these obstructions occur in the customary or contemplated use of the highway, and that the question of their necessity, and of the customary or contemplated use, is one for the consideration and determination of the jury, under all the circumstances of each particular case."

3. Of the test of reasonable use.

A person is required so to conduct in the exercise of his own rights and in the use of his own property as not to do an injury by his misconduct, or by the want of ordinary care to the rights or property of another. What is reasonable care or due care depends, in every case, on the subject-matter to which the care is to be applied, and the circumstance attending the subject-matter at the time when care is to be applied. Negligence consists in the omitting to do something that a reasonable man would do, or in doing something that a reasonable man would not do, causing, unintentionally, mischief to another. A party who takes reasonable care to guard against accidents arising from ordinary causes is not liable for accidents arising from extraordinary causes.

The test of exemption from liability for injuries arising from the use of one's own property is the legitimate use or appropriation of the property in a reasonable, usual, and proper manner, without any negligence, unskillfulness, or malice: Noyes v. Shepherd, 30 Me. 178 [50 Am. Dec. 625]; Sullivan v. Scripture, 3 Allen, 566; Hilliard on Torts, 131, sec. 38.

4. Of the essential elements of a nuisance.

If one for his own benefit violates the rights of another, it is a nuisance; and if this consists in the violation of a public right, indictment is the appropriate remedy for its vindication