III. Of the injuries to, and by means of, a water course. And herein of public and private nuisances, &c. IV. Depriving of the water. And herein of 1. Diverting the water. 2. Detaining it for an unreasonable time. 4. Right acquired by prior occupancy. 7. Whether necessary to shew special da- V. Obstructing the passage of fish. VI. Poisoning and corrupting the water. VII. Causing the water to injure or disturb the property of another. And herein of 1. Flowing land. 2. Detaining the water so that it after wards flows in unusual quantities. 3. Back water, and herein of prior occu pancy. 4. Of the application of the doctrine of a presumed grant. VIII. Of the remedies for public and private nuisances to, and by means of, a water-course. IX. Of the parties, pleadings and evidence in an action on the case for private nuisances to, and by means of, a water-course. X. Of Islands arising in a water-course, and of alluvion, &c. A TREATISE. CHAPTER I. PROPERTY IN A WATER-COURSE How derived. In a legal sense a water-course is comprehended under the general name of "land;" so that a grant of land conveys to the grantee not only fields, meadows, &c. but also all the rivers and streams which, in their natural course, pass over the surface of such land. (a) Property in a water-course, is therefore derived from the ownership of the soil, and is held to be as sacred. It is indeed a part of the freehold of which no man can be disseized "but by lawful judgment of his peers, or by due process of law." (b) And no action will lie to recover possession of a water-course by the name of water-course, either by calculating the capacity of the water, as for so many cubical yards, or by superficial measure, for 20 acres of water, or by a general description, as for a river or stream of water; but the action must be for the land which lies at the bottom, calling it 20 acres of land covered with water. (c) The reason is, it is impossible to give execution of a thing which is (a) Co. Litt. 4. 2 Bla. Com. 18. 2 Brownl. 142. (b) Co. Litt. 161. 2 John. Chan. Rep. 166. (c) 2 Bla. Com. 18. Run. on Eject. 131. A so wandering and fugitive by nature, and which is always running. (d) In whom vested. It appears, then, that the proprietors of the land over which a water-course passes, are as such the proprietors of the water-course. In common presumption, therefore, the owner of land on both sides of a water-course, is the owner of the whole river. But if the water-course is a boundary line between the land of two persons, each person owns only that part of the river which is next to his land, usque filum aquæ, to the thread or central line of the river. (e) And by legal construction a grant of land which is bounded by a river extends to the thread thereof, unless from prior grants on the other side, such construction is negatived. (f) Thus when tenants in common make partition by assigning the land on one side of a water-course to one tenant, and the land on the opposite side to the other, the two tracts are separated by the thread or central line of (d) Challenor v. Thomas, App. 41. An ejectment has however, been sustained for a boilary of salt, i. e. where there is a well of salt water, and a man has no inheritance in the soil but only a grant of so many buckets of the water as will arise, which are called boilaries. Any one who withholds the buckets of water from the grantee is liable to an action of ejectment for the injury. Cro. Jac. 150. 1 Lev. 44. Reg. 227. But this is obviously different from a river which is always running; for here the water is fixed in a certain place, and within the bounds and compass of the well, and is considered as a part of the soil. ejectment lies pro stagno, for in law the word stagnum compre hends both land and water. Co. Litt, 5. (e) Harg. Tracts 5. Holt's Rep. 499. So an (f) Hatch v. Dwight, App. 74. |