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and accumulated in large quantities, and became offensive, and corrupted the water, &c. It was held, that though the proof showed the injury to have resulted from the alternate rise and fall of the water in the pond, or from the action of the sun upon the vegetables growing on the margin, the substance of the issue was maintained; and this, notwithstanding the stream was not a public highway.1

§ 140. But to authorize the abatement of a dam, in these cases, on the ground of its being a nuisance, it must, at the time it is abated, be considered as a nuisance. That it had been a nuisance, and was likely to be so again, will not justify the proceeding. The fears of persons, however reasonable, that a thing will become a substantial annoyance, public or private, do not make a nuisance which is actionable, or which may be abated.2

§ 140 a. The defendant diverted a stream as it passed through his premises, but restored it undiminished, as to the quantity of water, to its former channel, before it reached the premises of the plaintiff. The defendant also employed the stream, while on his premises, in a way which rendered the water unfit for ordinary use, but he alleged that the water, by the time it reached the plaintiff's lands, was freed to the utmost possible extent from any noxious ingredients with which it had become impregnated; and it did not appear that any actual damage was sustained by the plaintiff. Under these circumstances, the Lord Chancellor, COTTENHAM, dissolved an injunction, which had been granted by the Vice-Chancellor, restraining the defendant from diverting or using the water.3

People v. Townsend, 3 Hill, (N. Y.) R. 479.

2 Gates v. Blincoe, 2 Dana, (Ken.) R. 158.

3 Elmhirst v. Spencer, 2 Macnaught. & Gord. Ch. R. 45. (1849.)

140 b. In Wood v. Sutcliffe, an injunction was asked for to restrain the defendant from pouring into the stream any dye-wares, or dye liquors, or madder, or indigo, or potash, or matters of that description, which tend to pollute the stream, to the damage of the plaintiff's works. And by the Vice-Chancellor,-"I conceive that if the plaintiffs have established such a legal right as that which I have mentioned, and, while they are in the enjoyment of that right, another person comes and erects machinery, or any manufacturing works, on that stream above the plaintiff's works, and by his manufacturing process so fouls the water as that, instead of coming, as before, pure and unsullied to the plaintiff's works, it arrives at the plaintiff's works in a less pure and serviceable state than before, so as seriously and continuously to obstruct the effective carrying on of the plaintiff's manufacture, if that be the case, and if the restraining of those acts by injunction will restore, or tend to restore, the plaintiffs to the position in which they have a right to stand, and in which they before stood; and if the injury which is occasioned by the works complained of, is of such a nature as that the recovery of pecuniary damages would not afford an adequate compensation - that is, such a compensation as would, though not in specie, in effect place the plaintiffs in the same position in which they stood before; and if, moreover, (for there were several conditions,) the plaintiffs do not sleep on their rights, and do not acquiesce, either actively or passively, in the acts which they complain of, but use diligence and vigilance to take such steps as are proper and necessary

1 Wood v. Sutcliffe, 16 Jur. 75, and S. C. 8 Eng. Law & Eq. R. 217.

for the vindication of their rights-if those conditions occur in such a case as that which is now presented here, the plaintiffs, the parties so injured, have, I conceive, as a general rule, a right to come to the Court of Equity, and say, 'Do not put us to bring action after action for the purpose of recovering damages, but interpose by a strong hand, and prevent the continuance of those acts altogether, in order that our legal rights may be protected and secured to us."

CHAPTER V.

OF THE RIGHT TO THE USE OF WATER, AS DERIVED FROM SPECIAL GRANTS AND RESERVATIONS.

1. Of Natural and Artificial Easements.

2. Extent of the Right Granted or Reserved.

3. Mill and Appurtenances.

4. Secondary Easements.

5. Lex Loci.

6. How Easements in Watercourses are Created.

7. Reservations and Exceptions of Water Rights in Grants of Land. 8. Unity of Possession and Ownership.

1. Of Natural and Artificial Easements.

§ 141. THE right to the use of a watercourse, ex jure naturæ, or as incident to the land, is subject, of course, to be abridged, enlarged, or modified by grant; and, besides the general rights to a natural watercourse, the law recognizes the existence of certain rights accessorial to these general rights.' If a miller, or manufacturer, purchases the land itself, over which the water runs, it is evident he would then have a corporeal tenement, and the right which he would possess, in respect of his watercourse, would be real; but if he should purchase a water privilege, or a portion of water power, without any part of the bed of the river, he, in that case, would gain an incorporeal hereditament, or easement. The right to a watercourse in its natural

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1 3 Kent, Comm. 441.
2 See Ante, § 90, et seq.

course, and derived from the ownership of the land over which it passes, may, it is true, in one sense, be called by that name, that is, a natural easement, but the term, as generally used, means an artificial easement, as, the right to interfere with the accustomed course of running water, by diverting it or keeping it back upon the land above, or of transmitting it altered in quality or quantity to the land below. Such artificial easements may be derived from a grant made by the riparian proprietors, whose interests are affected; and, in fact, they may parcel out the water, and combine the water power in any manner they may see fit.2 Bracton appears to consider the obligation to respect the natural course of a flowing stream, as a duty imposed by law; and that, unless justified by an easement, a man has no more right to divert the course of a stream, than to discharge water on his neighbor's land. An artificial easement is something superadded to the ordinary rights of property; and it may be said to wear a double aspect; first, it destroys pro tanto, the natural easement of the flow of water in its accustomed course; and, secondly, it confers a new right, the disturbance of which gives a good right of action. It may be specially granted, or it may be included in a more general grant, as, for instance, a grant of a privilege of using the water in derogation of the riparian right, would include the secondary easement of right of way, or of access to the water, ex necessitate.

4

§ 142. Easement is from the French word aise, and is

1 Gale & What. on Easem. 88.

2 Bardwell v. Ames, 22 Pick. (Mass.) R. 333.

3 Bract. 1. 4, fol. 221.

4 G. & What. on Easem. 89.

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