have acquired by these acts the right to build dams, etc., and the right to use such water as in fact and from time to time should flow down to their dam; but there is nothing in the language of the charters showing or implying that it was the intention of the State to grant to these parties the rights now claimed by them. It is difficult to believe that a legislature would ever grant to individuals or companies rights of that nature, even if it be assumed it had the power. It was proper and in accordance with a wise public policy to grant a privilege to these companies to build dams, etc., as stated in the charters, and to permit them, by virtue of the dams and sluices, to use the water that in fact and from time to time might come down the river; but it cannot be supposed that the legislature meant by any grant of this kind to warrant that for all future time no part of the water that might otherwise naturally flow down the river should ever be used under the authority of the State for any public purpose, without compensating the plaintiffs for that diversion."

The great and constantly increasing use of the waters of the rivers of this State for the production. of power makes the matter here in issue one of prime importance.

The basic question involved is an open one in this State, and we are at liberty to follow such rule as is supported by sound reason and what we conclude to be the weight of authority. In the light of the foregoing authorities, and in consonance with the humanitarian principles there announced, we have no difficulty in reaching the following conclusions:

(1) The Flint river is in fact and in law a public navigable stream flowing through the heart of the city of Flint.

(2) The city of Flint is a riparian owner situated upon the banks of said river, and as such, and as an incident to such ownership, it is entitled to take from said river so much water as is reasonably necessary for the personal use of its inhabitants and its ordi

nary municipal needs without compensation to complainant.

In Attorney General v. City of Grand Rapids, 175 Mich. 503 (141 N. W. 890, 50 L. R. A. [N. S.] 473), we lately held the city of Grand Rapids to be an upper riparian owner and liable as such owner for pollution of the Grand river affecting a lower riparian municipality.

(3) The question of the right of the city of Flint to compel complainant to maintain her dam for the purpose of providing a reservoir for the use of defendant city without charge to the city is not involved in this case.

(4) The rule announced as to small private streams (Hall v. City of Ionia, supra), or as to small inland lakes (Stock v. City of Hillsdale, supra), has no application to the case at bar, which involves a public navigable river passing through the heart of defendant city.

The decree of the court below is reversed, and the bill dismissed.

MCALVAY, KUHN, and STEERE, JJ., concurred with BROOKE, C. J.

MOORE, J. I cannot agree with the result reached in this case by the Chief Justice. Many of the cases he cites are clearly distinguishable from the instant

case.

In City of Philadelphia v. Collins, 68 Pa. 106, the question of the liability of the city for the diversion of water for domestic purposes was not involved. The city was sued for damages for impeding navigation by drawing down the water by using it for power purposes, and a judgment against it for damages was sustained.

In Auburn v. Water Power Co., 90 Me. 576 (38 Atl. 561, 38 L. R. A. 188), it was said:

"It is a settled rule of law in this State and Massachusetts that all great ponds (that is, ponds containing more than ten acres) are owned by the State. This is a rule of law peculiar to this State and Massachusetts. It is said to have been derived from the Colonial Ordinance of 1641-47. The rule, as stated by Chief Justice Morton, in a recent Massachusetts case, is as follows: 'Under the ordinance, the State owns the great ponds as public property, held in trust for public uses. It has not only the jus privatum, the ownership of the soil, but also the jus publicum, and the right to control and regulate the public uses, to which the ponds shall be applied. The littoral proprietors of land upon the ponds have no peculiar rights in the soil, or in the waters, unless it be by grant from the legislature.' Watuppa Reservoir Co. v. City of Fall River, 147 Mass. 548 [18 N. E. 465, 1 L. R. A. 466]."

The court is careful to say:

"And it is only of our great public ponds and lakes that we are now speaking. We are not declaring or attempting to define the rights appertaining to wells, springs, rivulets, or small ponds. It is only of great ponds and lakes, the titles to which are held by the State for the use of the public, that we are now speaking. And of these great public ponds and lakes we affirm that, by the rules of the common law of this State, the people are entitled to a reasonable portion of their waters for domestic purposes without being obliged to buy it of the owners of mill privileges."

This language will indicate the reason of the Maine and Massachusetts cases.

The language quoted from Elgin v. Hydraulic Co., 85 Ill. App. 182, was taken from Auburn v. Water Power Co., supra, and was obiter dictum, for the opinion had already stated the plaintiff had no cause of action because not a riparian proprietor, and for the further reason that the city which was a riparian proprietor had not diverted more of the water than its reasonable share as a riparian owner.

Two of the cases cited by the Chief Justice are in

harmony with his opinion. Canton v. Shock, 66 Ohio St. 19 (63 N. E. 600, 58 L. R. A. 637, 90 Am. St. Rep. 557), and Minneapolis Milling Co. v. Water Works, 56 Minn. 485 (58 N. W. 33). The last-named case was affirmed on appeal in 168 U. S. 349, 18 Sup. Ct. 157. The learned justice who wrote the affirming opinion stated therein that the property rights of the riparian owners are to be measured by the rules and decisions of the State courts of Minnesota. We think it must be said as to these two cases that they are not in harmony with the great weight of authority.

In 37 L. R. A. (N. S.) at page 312, it is said:

"There is some conflict among the authorities as to whether or not nontidal waters may be diverted for the purpose of furnishing a municipality and its inhabitants with water for domestic use without compensating injured riparian owners, but the great weight of authority denies such a right even where the municipality is located on the banks of the stream. The following cases adhere to the general rule that the waters of a stream cannot be diverted for municipal purposes to the injury of a riparian proprietor without compensating him for the resulting damage: Pine v. New York [C. C.] 103 Fed. 337, affirmed in 50 C. C. A. 145, 112 Fed. 98, and reversed on other grounds in 185 U. S. 93, 22 Sup. Ct. 592; United States v. Great Falls Manfg. Co., 112 U. S. 645, 5 Sup. Ct. 306; Ulbricht v. Eufaula Water Co., 86 Ala. 587 (6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72); Beckerle v. Danbury, 80 Conn. 124 (67 Atl. 371); Oelschleger v. City of Boston, 200 Mass. 425 (86 N. E. 883); Acquackanonk Water Co. v. Watson, 29 N. J. Eq. 366; Higgins v. Flemington Water Co., 36 N. J. Eq. 538; Gilzinger v. Saugerties Water Co., 66 Hun (N. Y.), 173 (21 N. Y. Supp. 121), affirmed without opinion in 142 N. Y. 633 (37 N. E. 566), (nonnavigable stream); Standen V. New Rochelle Water Co., 91 Hun (N. Y.), 272 (36 N. Y. Supp. 92) (nonnavigable stream); Sumner v. Gloversville, 35 Misc. Rep. 523 (71 N. Y. Supp. 1088) (holding, however, that the amount must be ma

terial); Fischer v. Clifton Springs [Sup.] 121 N. Y. Supp. 163, affirmed without opinion in 140 App. Div. 918 (125 N. Y. Supp. 1119); Gallagher v. Kingston Water Co., 25 App. Div. 82 (49 N. Y. Supp. 250); Gray v. Ft. Plain, 105 App. Div. 215 (94 N. Y. Supp. 698); Gardner v. Newburgh, 2 Johns. Ch. [N. Ÿ.] 162 (7 Am. Dec. 526); Ehrgood v. Moscow Water Co., 4 Lack. Legal News (Pa.) 151; Heckscher & Co. v. Shenandoah Citizens' Water & Gas Co., 2 Legal Chron. 273, affirmed in Shenandoah Co.'s Appeal, 2 Wkly. Notes Cas. (Pa.) 46 (nonnavigable stream); Reading v. Althouse, 93 Pa. 400; Lycoming Gas & Water Co. v. Moyer, 99 Pa. 615; Haupt's Appeal, 125 Pa. 211, 17 Atl. 436 (3 L. R. A. 536); Leonard v. City of Rutland, 66 Vt. 105 (28 Atl. 885); Rigney v. Tacoma Light & Water Co., 9 Wash. 576 (38 Pac. 147, 26 L. R. A. 425); Swindon Waterworks Co. v. Wiltz & B. Canal Nav. Co., L. R. 7 H. L. 697; 45 L. J. Ch. (N. S.) 638, 33 L. T. (N. S.) 513; 24 Week. Rep. 284, 22 Eng. Rul. Cas. 226. And in Smith v. Rochester, 92 N. Y. 463 (44 Am. Rep. 393), referred to in Fulton Light, Heat & P. Co. v. State, the court, adhering to the rule that the title to the beds of fresh water streams is in the owners of the adjacent lands, held that, although actually navigable, such public easement gives the State no right to divert the water of such a stream or its source, or to authorize their diversion for any use other than navigation, except by virtue of the right of eminent domain and upon making just compensation; and that therefore a city cannot divert waters which would naturally flow through a nontidal stream for the purpose of furnishing a municipal water supply, without compensating the riparian owners injured by the diversion."

The question of riparian rights has been before this court in several cases. See Thunder Bay, etc., Booming Co. v. Speechly, 31 Mich. 336 (18 Am. Rep. 184), and Hall v. City of Ionia, 38 Mich. 493.

In Stock v. Township of Jefferson, 114 Mich. 357 (72 N. W. 132, 38 L. R. A. 355), and People v. Hulbert, 131 Mich. 156 (91 N. W. 211, 64 L. R. A. 265, 100 Am. St. Rep. 588), there are many authorities