test of reasonable use where it was conceded that the plaintiff had suffered damage. Wadsworth v. Tillotson, 15 Conn. 366. In this case the defendant had brought water by an aqueduct from the common stream to her house for domestic and culinary purposes; and instead of returning the surplus, above what was necessary for such use, to the stream, she allowed it to escape by flowing through small apertures in penstocks, in order to keep the water from freezing in winter and becoming impure in summer. Part of this water irrigated the land, and part went to waste. It was held that these facts gave the plaintiff no right of action. See also Chatfield v. Wilson, 31 Vt. 358.

It was for some time a doubtful question in England whether water could be diverted from streams for purposes of irrigation (Wood v. Waud, 3 Ex. 748, 781); but it is now settled that it may be so used in proper cases. Embrey v. Owen, 6 Ex. 353; Miner v. Gilmour, 12 Moore P. C. 131. And in the latter case (which involved rights of mill-owners) the test of damage or not was rejected, and that of reasonable use adopted. Lord Kingsdown, in delivering the judgment, said: "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream." See Nuttall v. Bracewell, Law R. 2 Ex. 1, 9.

In cases involving the privileges of mill-owners, the rule seems to be well

settled, in accordance with the doctrine of the principal case, Springfield v. Harris, that the true test of liability is whether, under all the circumstances, considering the size of the stream and that of the mill-works, there has been a greater use of the stream, in abstracting or detaining the water, than is reasonably necessary and usual in similar establishments for carrying on the mill. See Davis v. Getchell, 50 Maine, 602; Gould v. Boston Duck Co., 13 Gray, 442; Pitts v. Lancaster Mills, 13 Met. 156; Merrifield v. Worcester, 110 Mass. 216; Hayes v. Waldron, 44 N. H. 580; Snow v. Parsons, 28 Vt. 459; Pool v. Lewis, 41 Ga. 162; Timm v. Bear, 29 Wis. 254; Clinton v. Myers, 46 N. Y.

511.

There is no suggestion that these cases stand upon peculiar grounds, and it is difficult to see any distinction between the case of mill privileges and other privileges of using the water of streams, except in so far as a difference has been made by statute. See Gould v. Boston Duck Co., 13 Gray, 442, 450. It must frequently be impossible to know that a particular use of the water may not injure the lower proprietors. Suppe, for instance, in the case of a brook, that at a time when the lower proprietor is in great need of the water, the necessities of the upper proprietor are also greater than usual, and, without surpassing the bounds of what is reasonably necessary for a proper purpose, he exhausts the supply of the brook, and a drought follows: shall the upper proprietor be held liable in view of what he may not have known (the needs of his neighbor), and what he could not foresee (the drought), the act which he did being one which was usual among the riparian owners?

The French law does not give such

extensive water privileges, even to millowners. "Le propriétaire d'un moulin ne peut, sous prétexte que toute l'eau lui est nécessaire, empêcher les propriétaires supérieurs de s'en servir ou en priver ses voisins." 1 Fournel, Du Voisinage, 392 (4th ed.). And the reason given is, that mills, though useful to the public, are not to be preferred to the irrigation of the land.

In the Pacific States the rights of prior occupants are much greater. Thus, it is held in California that the person who first appropriates, for mining or other purposes, the waters of a stream running in the public lands is entitled to the same, to the exclusion of all subsequent appropriations by other persons for the same or for other purposes. Smith v. O'Hara, 43 Cal. 371. But, if the first occupant appropriate only part of the water, another may appropriate the rest; or, if he take all only upon certain days of the week, another may take all upon other days. Ib. The appropriation must, however, be for some "useful purpose," present or in contemplation, and is not permitted for speculation: Weaver v. Eureka Lake Co., 15 Cal. 271; or for drainage simply: McKinney v. Smith, 21 Cal. 374. See also McDonald v. Bear River Co., 13 Cal. 220; Wixon v. Water & Mining Co., 24 Cal. 367; Hill v. Smith, 27 Cal. 476.

The water of a stream, running wholly within a man's land, may be diverted, as for the purpose of irrigation, if it be returned to its channel before reaching the lower proprietor. Tolle v. Correth, 31 Tex. 362. And this is the French law. "Celui dont cette eau traverse l'héritage peut même en user dans l'intervalle qu'elle y parcourt; mais à la charge de la rendre à la sortie de ses fonds à son cours

ordinaire." Code Civil, art. 644. The Grand Cutumier de Normandie, art. 206, contained a similar provision, adding the qualification that no damage should be done to another.

If the water passes between the lands of riparian owners, this diversion of course cannot be allowed, as each proprietor owns to the middle of the stream, if not navigable. In the French law, however, the courts, in the interest of agriculture, are allowed to modify this rule in certain cases. Where the supply of the water is not sufficient for all the proprietors, it is allowed them to take all of it in succession, one after another, during a time proportioned to their needs. 1 Fournel, Du Voisinage, p. 391 (4th ed.). This is somewhat like the law of California, supra.

(c.) Grant and Prescription. — A person by grant or prescription can, of course, acquire greater rights to the water of streams than those indicated by the terms "usufruct" and "reasonable use" (as applied to define the ordinary rights of upper and lower proprietors); but quære as to a right arising merely from the enjoyment, in its own natural bed, of a stream which rises in the land of the defendant. We have not found any direct authorities upon this question in the English law. By the French law no such right can be thus acquired. Fournel says distinctly that the right of disposing of a man's

spring or rain water cannot be weakened "by the possession" of the neighboring land-owners. 1 Du Voisinage, § 95, pl. 1. And he refers to a curious case, with which he says that all the authorities are in accord. The case was this: One Miss Antoinette Brossette was owner of land in which were two springs, which for more than fifty years had flowed down upon the neighboring estates. Having built a mill at some distance, she diverted the water of these springs towards a river which supplied the mill. This act disturbed Claude Faure, a lower land-owner, who had made use of the water of the springs for irrigating his meadow and running his mill. He therefore brought an action against Miss Brossette; alleging that for upwards of fifty years, by himself and others, he had been in possession of this watercourse, whereby he had acquired the use of it by prescription. Miss Brossette answered that the enjoyment of the water which proceeds from upper lands cannot be the basis of a prescription in favor of the lower estates, because that possession was more the result of the locality than of the consent of the upper owner; that in law it was true that a person could acquire a servitude without grant, but that by act of man in the particular case (mais, ex facto hominis, que dans l'espèce) there had been nothing done or consented to from which it could be presumed that the owner of the spring had given up her rights. The lower court gave judgment for Faure, and ordered the destruction of the new canal which Miss Brossette had made, and the return of the water to its ancient course. Upon appeal, M. de Chamillard, counsel for Miss Brossette, confined himself to this proposition, that the possession of Faure was wholly the effect of the natural sit

uation of the place, without any concurrence or intervention of the will of the upper owners. Judgment du parliment de Paris, July 10, 1619, permitting Miss Brossette to conduct the water of her springs wherever she pleased.

This, of course, proceeds upon the ground that a man owns absolutely all the water which springs up out of his own land; and that he cannot be dispossessed of it by mere lapse of time. There must either be a grant or some other act or omission which indicates a surrender of the exclusive right. But twenty years' diversion of the stream by the lower proprietor, or the use of it to supply an ancient mill, would probably raise a prescriptive right in our law, whether a mere enjoyment of the stream in its natural state would do so

or not.

If, by our law, a right to the use of water flowing from a spring may be acquired in the manner claimed by the plaintiff in the above case, against the owner of the land in which the spring rises, may it also be acquired by mere occupancy and ownership of the lower land, without regard to length of time, and without grant? In other words, has the owner of the soil an absolute ownership of the water flowing down from all the springs in it? It would seem that he has. Certainly, when the water of a spring first emerges from the soil, the owner of the land cannot be prevented from using all of the water, or consuming all of it, at his pleasure; and it follows that no one else can acquire a right to the use of it, except by grant or prescription.

The French case, it will be observed, did not decide that a right by prescription to the use of the water could not be acquired; on the contrary, counsel for the defence admitted that it could

be so acquired. The decision simply was, that a prescriptive right could not be acquired in the manner contended for by the plaintiff.

On the following page from that above referred to, M. Fournel explains what is meant in the French law by prescription. It only arises, he says, in cases where there is something from which the consent of the upper owner may be inferred. He refers to art. 642 of the Code Civil, where prescriptions of this kind are declared to arise only by an uninterrupted enjoyment for thirty years, beginning from the moment when the owner of the lower land has made and finished visible works designed to facilitate the descent and course of the water in his land.

In Rawstron v. Taylor, 11 Ex. 369, there had been a spot on the defendant's land, as long as any one could recollect, where water had ever, but inconstantly, risen to the surface. There had generally been a drinking-place for cattle there; and the overflow of water had run down in a ditch, and thence into a watercourse to the plaintiff's reservoir. It was held that the defendant was not liable for diverting this water to the use of his own land.. Had the spring in this case been a constant one, so as to have produced a true watercourse, the case would have been like that decided by the French court. But as the decision went upon the ground that the water had no defined course, and was inconstant, the point above considered is left in doubt. See also Broadbent v. Ramsbotham, 11 Ex. 602, a similar case.

and French law. M. Fournel says that the owner of land may cut the veins of springs, to the injury of the lower estates. 1 Du Voisinage, § 95, pl. 1. This principle is founded upon the rule of the Digest. "Si in meo fundo aqua erumpat, quæ ex tuo venas habeat, si eas venas incideris, et ob id desierit aqua ad me pervenire, tu non videris vi fecisse, si nulla servitus mihi eo nomine debita sit." Lib. 39, tit. 3, 21.

We shall see that in our law no servitude, at least by prescription, can be acquired in sub-surface water which percolates through the ground; but it is considered to be otherwise of underground water running in definite currents, which, perhaps, is what the Digest means by the word "venæ."

As to this right to cut off underground water, there was formerly some conflict among the English authorities. In Balston v. Bensted, 1 Camp. 463, an action was brought against the defendant for cutting a drain in his close, whereby the supply of water in a certain spring upon the close of the plaintiff was injuriously diminished. It appeared that the plaintiff had had uninterrupted enjoyment of the spring for upwards of twenty years; and Lord Ellenborough held that an exclusive enjoyment of water for a period of twenty years afforded a conclusive presumption of right in the party so enjoying it.

Acton v. Blundell, 12 Mees. & W. 324, was a similar case, except that the plaintiff had not been in possession for twenty years. The plaintiff was possessed of a well which the defendants, in carrying on mining operations in their land, had drained. It was held in the Exchequer Chamber that the defendants were not liable. This case underwent great consideration; the English authorities, ancient and mod

ern, and the doctrines of the Roman law, being exhaustively reviewed. But the court expressed no opinion as to what would have been the decision had the plaintiff shown an uninterrupted user for twenty years.

66

In Dickinson v. Grand Junction Canal Co., 7 Ex. 282, the defendants had sunk a well (after there had been disputes and compromises between the parties concerning the abstraction of water from the plaintiffs' ancient mills) on their own land, and erected over it a pump and steam-engine, by which they pumped up a quantity of underground water which would otherwise have flowed through the ground into certain streams and supplied the mills of the plaintiff's with water. It was held that the defendants were liable for the damage. But, though the mills of the plaintiffs were ancient, the court thought that that fact was not important. We consider it as settled law," it was said, "that the right to have a stream running in its natural course is, not by a presumed grant from long acquiescence on the part of the riparian proprietors above and below, but is ex jure naturæ,' ... and an incident of property, as much as the right to have the soil itself in its natural state, unaltered by the acts of a neighboring proprietor, who cannot dig so as to deprive it of the support of his land." This was said, apparently, with reference to underground water as well as to surface streams; for the court proceed to say, "But in the much-considered case of Acton v. Blundell, in the Court of Exchequer Chamber, a distinction is made

for the first time between underground waters and those which flow on the surface; and it was held that the owner of a piece of land, who has made a well in it, and thereby enjoyed the benefit of underground water, but for less than twenty years, has no right of action against a neighboring proprietor, who, in sinking for and getting coals from his soil in the usual and proper manner, causes the well to become dry. The decision goes no further." And the case was thus explained: "In such a case the existence and state of underground water is generally unknown before the well is made; and after it is made there is a difficulty in knowing certainly how much, if indeed any, of the water of the well, when the ground was in its natural state, belonged to the owner in right of his property in the soil, and how much belonged to that of his neighbor, who, in digging a mine or another well, may possibly be only taking back his own. . . . If the course of a subterranean stream were well known, as is the case with many which sink under ground, pursue for a short space a subterraneous course, and then emerge again, it never could be contended that the owner of the soil under which the stream flowed could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover if the stream had been wholly above ground." These, and other remarks as to abstracting the water of surface streams, appear to have been applied, by way of illustration, to certain water which the defendants had taken after it

the stream.