construction of the grant, to admit that by it, all the people were deprived of a free fishery in the river above the dam, to which, until the grant, they were unquestionably. entitled." Again, says the learned judge, -"The right to build dams for the use of mills, is, under certain implied limitations, acknowledged; one of these limitations is to protect the enjoyment of a fishery. Every owner of a mill, therefore, holds it subject to the limitation, that a sufficient and reasonable passage-way shall be left for the fish; and, as this limitation is a public benefit, it is not extinguished by any inattention or neglect in compelling the owner to comply with it."

§ 89. But it was decided by the Supreme Court of New York, in the year 1819, that a patent granted to one Z. P., in 1784, of a tract of land bounded on the east by Lake Champlain, and extending west on both sides of the river Saranac, seven miles square, the whole river to that distance, passed to the patentee; and that, as there was no reservation of the river, nor any restriction in the use of it, the public had no right of fishing in it, within the bounds of the patent; and that, therefore, the erection of a dam by the patentee in 1786, near the mouth of the river, by which salmon were prevented from passing up the river from the lake, was not indictable, as a public nuisance, either at Common Law, nor under the statute, for the preservation of fish in certain waters. The statute, the Court

1 Passed in 1800, and enacts, that the owners of mill dams made across any river running into Lakes Ontario, Erie, or Champlain, so as to prevent the usual course of salmon from going up, shall within eighteen months from the passage of the act, so alter the dam, by making a slope thereto, that salmon may easily pass up over into the waters above the

held, ought to be construed with an implied exception of such rivers or streams, (not being navigable,) as had been fully and absolutely granted by the State, without any reservation; and that so far as it affected the rights of Z. P. and his assigns, it impaired the obligation of a contract, and was unconstitutional and void.1 In this case the above case of Stoughton v. Baker, in Massachusetts, was strongly urged in favor of the plaintiffs, which the Court treated, by SPENCER, C. J., as follows:-"In that case, the Supreme Court of Massachusetts held, that a legislative resolution appointing a committee, who were authorized to require the proprietors of certain dams on Neponset River, to alter them, in such a way as should be sufficient for the passage of shad and alewives, at the dams, was a legal proceeding, not repugnant to the constitution. The opinion is founded on the ancient and long-continued usage of the General Court of Massachusetts, to appoint commissioners to locate and describe the site and dimensions of passage-ways for fish; and, under the circumstances of the case, it was held, that the right of the proprietor of the dam was subject to the limitation that a reasonable and sufficient passage should be allowed for the fish. The Court, however, expressly say, that any prostration of the dam not within the limitation, would be an injury to the owner, for which he might appeal to his country, and have a remedy; and that if the government, in the grant of a mill privilege, expressly, or by necessary implication,

dam; or by removing the obstruction of such dam in any other manner; and in case such dam shall not be so altered, &c., it shall be deemed a public nuisance.

1 People v. Platt, 17 Johns. (N. Y.) R. 195.

waive this limitation, it would be bound. In the case then under consideration, the Court said, it would be an unreasonable construction of the grant to admit, that by it all the people were deprived of a free fishery in the river above the dam, to which, until the grant, they were unquestionably entitled. Whether, in that case, the Neponset River was navigable above the dam, is nowhere affirmed or denied ; but it is perfectly clear that the Court proceeded on local usages and customs, and not upon the general and received doctrines of the Common Law; for not a single case is referred to, nor is it even asserted, that the principles advanced are sanctioned by the English Common Law; whereas, it has been shown, that by the Common Law, the property in the river Saranac passed to Zephaniah Platt, and has been transmitted, through him, to the defendants, without any limitation or restriction, and that the fishery itself became vested in the proprietor of the river; it being a conceded fact, that the river is unnavigable for boats of any kind; for there is no weight in the circumstance that, for a few years past, and since 1810, rafts have occasionally been brought down this river, when connected with the fact that the defendant has received a consideration for that privilege. So far, then, from this being the exercise of a public right, it is a recognition of the defendant's property in the river, and fortifies and supports the defendant's claim to it, as private property. In a case thus circumstanced, the opinion of the Court in Stoughton v. Baker, would protect the defendant in the exclusive and undisturbed enjoyment of all the right acquired under the grant, for there is no reservation of the use, by the public, of the river, either for passage or fishing."

CHAPTER IV.

OF THE RIGHT OF USE OF THE WATER AS A CORPOREAL

HEREDITAMENT.

1. Of the General Right of Use.

2. Of the Injury by Diverting the Water.

3. Subterranean Diversion.

4. Of the Injury by Obstructing and Detaining the Water.

5. Of the Right of Irrigation.

6. Of the Effect of Prior Occupation, by a Riparian Proprietor.

7. Of the Injury by rendering the Water corrupt and unwholesome.

1. Of the General Right of Use.

§ 90. A WATERCOURSE may be either natural or artificial, and the right of the riparian proprietors to the water thereof, is, in the one case, a corporeal, and in the other, an incorporeal right. The right to the use of the flow of the water, in its natural course, and to the momentum of its fall on the land of the proprietor, is not what is called an easement, because it is inseparably connected with, and inherent in, the property in the land; it is a parcel of the inheritance, and passes with it. In general, where a mill site is granted, that is land on a watercourse on which mills are actually situated, or where it appears by the grant, that the object is to erect mills thereon, the soil is the principal subject of the grant; and the right to use it for any and for all mill purposes, at the pleasure of the purchaser, and to change those uses, at pleasure, follows as incident to the ownership. It is in accordance

1 See Ante, Ch. I. § 5, et seq.

2 Ashley v. Pease, 18 Pick. (Mass.) R. 268; Embrey v. Haven, 20 Law Journ. R. (N. S.) Exch. 212, 15 Jur. 633, & S. C. in 4 Eng. Law & Eq. R. 466.

both with common sense and legal interpretation, that, under a grant or a devise of a mill, the soil under it and adjacent thereto will pass by force of the word "mill;" and that the word should be deemed to include the site, dam, and other things annexed to the freehold, and necessary for its beneficial enjoyment.1

§ 91. The following case has been put by a learned Judge: "Suppose a man owning land on both sides. of a stream, (not navigable,) should grant to another the land on one side, bounded by the thread of the stream, and should, at the same time, grant a right to erect a mill on his own land, with a dam of sufficient height to raise the water to drive such mill. As such dam could not raise the water, without being extended across the river, and, of course, one half upon the grantor's own land, such a grant would, by necessary implication, carry the right to build on the grantor's own land, and to occupy it as far as necessary, to maintain the dam, so long as the dam should be kept up." The learned Judge considered it to be not a mere easement, but a freehold, determinable upon the cessation of the mills, or as a demise, for the time the mills should continue; and that it carried with it a right of possession, for the violation of which an action of trespass would lie.3

1 Whitney v. Olney, 3 Mason, (Cir. Co.) R. 280; Blaine's Lessee v. Chambers, 1 S. & Rawle, (Penn.) R. 169; New Ipswich Woollen Factory v. Batchelder, 3 N. Hamp. R. 190; Blake v. Clark, 6 Greenl. (Me.) R. 436. Grant of mill conveys the use of the water as a corporeal hereditament. Maddox v. Goddard, 3 Shep. (Me.) R. 218. It was not unusual in the early history of the country, to find mill privileges conveyed without any exact bounds, and such deeds have been held to convey so much land as was necessary and customarily used with the mill. Per Shepley, J., in the case just cited.

2 See Ante, § 8.

3 Dryden v. Jepherson, 18 Pick. (Mass.) R. 392, per Shaw, C. J.