LAW OF WATERCOURSES.

CHAPTER I.

RIGHT TO A WATERCOURSE AS A CORPOREAL HERE

DITAMENT.

Sec. I.-How Derived.

PROPERTY in a watercourse, is derived from the ownership of the land through which it passes; it being an established rule of law, that a grant of "land" conveys to the grantee, not only the "field," or the "meadow," but all running streams of water, (not tide water) whose natural course is over the surface of such field or meadow.' It makes no difference whether

1 1 Co. Litt. 4; 2 Brownl. 142; Bullen v. Runnels, 2 N. Hamp. Rep. 255; Canal Commissioners, &c. v. the People, 5 Wend. (N. Y.) Rep. 423. Land, in its legal signification, has an indefinite extent upwards as well as downwards. Cujus est solum, ejus est usque ad cœlum, is the maxim of the law upwards. 2 Bla. Com. 18. It would seem to result from this well settled rule, that by a sale, conveyance, and delivery of possession of land, the crop growing thereon, passes to the vendee; but the reverse was adjudged in Pennsylvania in the late case of Smith v. Johnson, 1 Penu. Rep. 471. There is a dictum, however, of Mr. J. Spencer, in the case of Foot v. Colvin, (3 Johns. (N. Y.) Rep. 222,) that a sale of land simply, by the owner of both land and crop, carries the crop to the purchaser; and in 1829, it was expressly adjudged, by the Court of Appeals of Virginia, that the vendee at a marshal's sale, is entitled to the then growing crop. Crews v. Pendleton, &c. 1 Leigh's (Virg.) Rep. 297.

the grant of land be made by an individual or by the government. A patent from any one State, in this country, conveying a tract of territory, carries with it a right of use in all the watercourses within the boundaries of the patent. Thus, it has been held in New York, that a patent conveying twenty-four miles in width of territory on the river Hudson above tide water, with the territory described as "lying and being in and upon the banks of the Hudson river," includes the soil under the river, and the islands therein, as far as the patent extends, up and down the river. The right to a watercourse is therefore, 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."

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But no action will lie to recover possession of a watercourse, by that name; either by estimating the capacity of the water, as for so many cubical yards; or by superficial measure, for "twenty acres of water;" or by a more general description, as for a river or stream of water. The action must be for the land at the bottom, calling it "twenty acres of land covered with water."'s It is impossible, indeed, to give execution of that which is naturally so wandering and fugitive as running water.*.

1 Canal Commissioners v. the People, 5 Wendell's (N. Y.) Rep. 423; and see Rogers v. Jones, 1 ibid. 255; and the People v. Canal Appraisers, 13 ibid. 355; Brown v. Kennedy, 5 Har. and Johns. Mary. Rep. 195. 2 Gardner v. Newburgh, 2 Johns. (N. Y.) Ch. Rep. 162.

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2 Bla. Com. 18; Runnington on Eject. 131.

4 In Challenor v. Thomas, (Yelverton's Rep. 143, Metcalf's ed.) error was brought on a judgment given in ejectment in Com. Carmarthen: -And Yelverton assigned the error, because the ejectment was brought de aquæ cursu, called Lochar in Llandeby, and declared on the lease of David Rees ap Thomas de quodam rivulo et aquæ cursu, ut supra. And, per totam curiam, the judgment was reversed; for rivulus seu aquæ cursus doth not

The only mode by which a right of using the water of a running stream, above tide water, can be withheld from a person who receives a grant of the land, is by a direct provision, or at least a clear implication, in the instrument of conveyance, to that effect. If it be the intention of the grantor not to convey any right to the water, or of any part of it, he can exclude it by the insertion of proper words for the purpose; but, in the absence of such words, the bed, and consequently the stream itself, passes by the conveyance.

lie in demand, neither doth a præcipe lie of it, nor can livery of seisin be made of it; for non moratur, but is ever flowing; nor can execution by habere fac. seisinam be made of it; for it is not constant to be put in possession of it: And it is like a protection quia moratur super mare, which is not allowable by 35 H. 6. for mare non moratur; but as 12 H. 7. 4. is, the action ought to be for so many acres of land aquæ cooperta ; and ejectment well lies of a gorce or pool, for a præcipe lies for them, and a wife shall be endowed of the third part of the gorce, as 11 E. 3. is. But if the land under the river or water does not belong to the Plaintiff, but the river only, then on a disturbance his remedy is only by action on the case on any diversion of it. In Godbolt, 157 pl. 213, it is said—“It was adjudged in this court (B. R.) that an ejectione firma doth lie de aquæ cursu." That probably is a wrong report of the case in the text, as it appears to have been of the same term-Mich. 6 Jac. Bacon, Espinasse and Selwyn state that ejectment will not lie for a watercourse or stream of water; on the authority of Yelverton and Brownlow's report of this case. So do Runnington and Adams in their respective treatises on the action of ejectment. 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. So an ejectment lies pro stagno, for in law the word stagnum comprehends both land and water. Co. Litt. 5.

3 Claremont v. Carleton, 2 N. Hamp. Rep. 371; Hay's Exr. v. Bowman, 1 Rand. (Virginia) Rep. 420; Waterman v. Johnson, 3 Pick. (Mass.) Rep. 261. And see post, chap. II, sec. II, III and IV.

Sec. II.-Riparian Ownership.

Those persons who are the owners of the land bounded by a watercourse, are denominated by the civilians riparian proprietors, and the same appropriate and convenient term has been adopted by American courts of justice.'

When there are two riparian proprietors directly opposite each other, each proprietor owns that portion of the bed of the river adjoining his land usque ad filum aqua; or, in other words, to the thread of the river;2 unless, from prior grants on the opposite side, such construction is negatived. As long since as 1799, it was adjudged in Massachusetts, that if the owner of land bounded by a fresh water river, sell the land to the river, the mill site to the middle of the river is included. In several cases of importance in the State of New York, it has been declared, that the common law prevailed in that State, and that grants of land bounded on rivers and streams, above tide water, extend usque filum aquæ.5 The rule indeed is as well settled in this country, as it has been for centuries in England. And, the same rule holds, whether the

1 Tyler v. Wilkinson, 4 Mason's (Cir. Co.) Rep. 397; How v. Sterritt, 2 Watts' (Penn.) Rep. 327; Ball v. Slack, 2 Wharton's (Penn.) Rep. 508. 2 Ibid. Harg. Tracts, 5; Holt's Rep. 499. The word "thread" is in Johnson's Dict. "a small line," "any thing continued in a course," "uniform tenor."

3 Hatch v. Dwight, 17 Mass. Rep. 289.

4 Mayo v. Quimby, cited in 3 Dane's Dig. 4.

5 See Canal Commissioners v. People, 5 Wend. (N. Y.) Rep. 423.

Palmer v. Mulligan, 3 Caine's (N. Y.) Rep. 319; Adams v. Pease, 2 Conn. Rep. 481; Hooper v. Cummings, 20 Johns. (N. Y.) Rep. 91; Arnold v. Munday, 1 Halst. (N. J.) Rep. 1; Claremont v. Carleton, 2 N. Hamp. Rep. 369; Ingraham v. Wilkinson, 4 Pick. (Mass.) Rep. 468; People v. Seymour, 6 Cowen's (N. Y.) Rep. 579; Mead v. Haynes, 3 Randolph's

grant be made by the commonwealth, or by an individual.1 Thus, a grant of land by the State of New York, bounded on the margin of a river, above tide water, was regarded as vesting in the grantee the right of soil to the thread of the river.

The same rule holds Whenever they make

as between tenants in common. partition, by assigning the land on one side of a watercourse, to one tenant, and the land on the opposite side, to the other, the two tracts are separated by the thread of the watercourse.s

4.

A proprietor of an island in a watercourse, owns to the thread of each branch of the river which in its natural course divides it from the main land. And where a watercourse is thus divided by an island, and the smallest portion of the stream descends on one side of the island, and the residue on the other, the riparian proprietor by whose land the smallest quantity flows is entitled to no more of the water, than naturally runs between his bank and the island.5

If a lot be granted fronting on and bounded by a river, the side lines are to be continued to the main stream, though they thereby cross a point formed by the junction of one of its branches with the principal river."

(Virg.) Rep. 33; Tyler v. Wilkinson, ut sup.; Blanchard v. Baker, 8 Green. (Maine) Rep. 253; Bliss v. Rice, 17 Pick. (Mass.) Rep. 23; Waterman v. Johnson, 13 Pick. (Mass.) Rep. 261.

1 Hay's Exr. v. Bowman, Randolph's (Virg.) Rep. 417; Lunt v. Holland, 14 Mass. Rep. 149.

2 Ex parte Jennings, 6 Cowen's (N. Y.) Rep. 518; and see the note of the reporter in same volume, 536; Arthur v. Case, 1 Paige's (N. Y.) Chan. Rep. 447; People v. Canal Appraisers, 13 Wendell's (N. Y.) Rep. 355; and see 5 ibid. 423.

3 King v. King, 7 Mass. Rep. 496.

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People v. Canal Appraisers, 15 Wend. (N. Y.) Rep. 355.

'Crooker v. Bragg, 10 Wend. (N. Y.) Rep. 260.