the Court stated were terms of exclusion, unless by necessary implication, they are manifestly used in a different sense. They admitted the law to be, that where land is bounded on a river or stream, where the tide does not ebb and flow, the owner's title extends to the centre or thread of the stream; but said, that no case had been cited, nor had they found any, where that rule of construction, had been extended to a pond or lake.1

Sec. III. Of the Use of Water by each Riparian Proprietor.

3

In the language of one of the ancient cases in England, “A watercourse begins ex jure naturæ, and having taken a certain course naturally, cannot be diverted. The language of the old cases also is, "Aqua currit et debet currere ;" that is, water flows in its na;' tural course, and should be permitted thus to flow; so, that all through whose land it naturally flows, may enjoy the privilege of using it. The property in the water therefore, by virtue of the riparian ownership, is in its nature usu-fructuary, and consists not so much of the fluid itself, as of the advantage of its impetus.* A riparian proprietor therefore, though he has an undoubted right to use the water for hydraulic purposes, yet he must so use it, as to do no injury to any other riparian proprietor. This general doctrine, which is as old at least as the Year Books," has been laid down

2

1 Bradley v. Rice, 1 Shepley's (Maine) Rep. 198.

Shury v. Piggot, Bulstrode's Rep. 339.

3 See Merritt v. Parker, 1 Coxe's (N. J.) Rep. 460.

4 See Williams v. Moreland, 2 B. & Cress. 910.

5 2 Hen. IV. 11 B ; 22 Hen. VI; 14 Rol. Abr. 107; 9 E. 4.

by the court within a few years in this country in a case of much more than ordinary importance,' as follows: "Prima facie, every proprietor on each bank of a river is entitled to the land covered with water, to the middle thread of the stream, or, as is commonly expressed, usque ad filum aquæ. In virtue of this ownership, he has a right to the use of the water flowing over it, in its natural current, without diminution or obstruction. But, strictly speaking, he has no property in the water itself;-but a simple use of it, while it passes along. The consequence of this principle is, that no proprietor has a right to use the water to the prejudice of another." "This," adds the same high authority, "is the necessary result of the perfect equality of right among all the proprietors of that which is common to all." The general right of the riparian proprietors to the use of the water has been defined with ability and clearness by another of our learned Judges. "The water power," says he, " to which the riparian owner is entitled, consists in the fall in the stream, when in its natural state, as it passes through his land, or along the boundary of it; or, in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it."2

1 By Mr. J. Story, in Tyler v. Wilkinson, 4 Mason's (Cir. Co.) Rep. 400. 'Chief Justice Gibson, of Pennsylvania, in M'Calmont v. Whitaker, 3 Rawle's (Penn.) Rep. 84.

It is laid down, as the law of Scotland, that although a proprietor may use the water while within his own premises, yet he must allow it to pass on to the inferior heritors; and that he cannot alter its level, either where it enters, or where it leaves his property. (Bell's Law of Scot. 691.) No form of words could express with more exactness the law of England and of the United States upon the same subject, unless it be the one employed by Lord Ellenborough, viz. “Every man is entitled to a stream of water

One riparian proprietor may, in the eye of the law, do a prejudice to the watercourse, either by diverting, detaining, or corrupting the water, and so rendering it noxious.

1. Diverting the water. It is a consequence of the general doctrine just laid down, that it is illegal to divert a watercourse, without returning the water to its natural channel, before it passes by the land of a riparian proprietor below. It is also a consequence that

flowing through his land, without diminution or alteration. (Bealy v. Shaw, 6 East, 206.) We believe we may with safety state, that nearly all the cases concur in supporting the general proposition of Lord Ellenborough, just mentioned. It is very fully sustained by the late case of Wright v. Howard, (Sim. and Stuart, 203,) and the still later case of Mason v. Hill, in Great Britain. (3 Barn. and Adol. 304 and 23 Eng. Law Rep. 76.)

A case in this country, more than thirty years ago, recognized the same general principles. In Beissell v. Scholl, (4 Dallas's Rep. 211,) the action was a case for diverting a watercourse. The Court left the facts to the jury under this general statement of the law:-"That every man in this country has an unquestionable right to erect a mill upon his own land; and to use the water, passing through the land, as he pleases; subject only to this limitation, that his mill must not be so constructed and employed as to injure his neighbor's mill; and that, after using the water, he returns the stream to its ancient channel."

In the case of Ingraham v. Hutchinson, in Connecticut, (2 Conn. Rep. 584,) the late Chief Justice Swift, laid down the law as follows:-" By the common law, every person owning land on the banks of rivers, has a right to the use of the water in its natural stream, without diminution or alteration; that is, he has a right that it should flow ubi currere solebat ; and if any person on the river above him, interrupts, or diverts, the course of the water to his prejudice, action will lie. This will give to every one all the advantage he can derive from the water, which does not injure the proprietor of lands on the river below him." See also, Warring v. Martin, Wright's Con. (Ohio) Rep. 380; Arnold v. Foot, 12 Wend. (N. Y.) Rep. 330; Frankum v. Earle of Falmouth, 6 Car. and Payne, 529, 25 Eng. Com. Law Rep. 526; King v. Tiffany, 9 Conn. Rep. 162; Buddington v. Bradley, 10 Conn. Rep. 213; M'Almont v. Whitaker, 3 Rawle's (Penn.) Rep. 84.

1 Countess of Rutland v. Bowler, Palmer's Rep. 290; Palmes v. Heblethwaite, Skinner's Rep. 65, 175; Shury v. Piggot, Bulstrode's Rep. 339;

where a river divides two estates, the riparian owner of neither can carry off any part of the water, without the consent of the opposite riparian owner.1 The property in the water is indivisible. The opposite

proprietors must use it as an entire stream, in its natural channel, and there can be no severance.2 In a case where A granted to B one half of a mill-dam, with the privilege of taking the water from any part of the half granted; it was held that the deed passed the right to the use of one half of the water only, and that an action might be maintained against the grantee for taking more than one half of the water, or allowing it to leak out.3

Neither riparian owner can, of course, build a dam which extends beyond the thread of the river, without committing a trespass; and therefore, if in removing the encroachment, the water is diverted, the law affords no redress.1

Cottel v. Luttrel, 4 Coke's Rep. 86; Jebb v. Povey, 1 Esp. Rep. 679; Stone v. Bromwick, Yelv. Rep. 162; Cro. Jac. 231; Bealy v. Shaw, 6 East, 208; Sands v. Trefusis, Cro. Car. 575; Platt v. Johnson, 15 Johns. (N. Y.) Rep. 213; Merritt v. Parker, Coxe's (N. J.) Rep. 460; Colburn v. Richards, 13 Mass. Rep. 420; Beissell v. Scholl, 4 Dallas's (Penn.) Rep. 211; Brown v. Best, 1 Wils. Rep. 174; Heblethwaite v. Palmes, 3 Mod. Rep. 48.

1 Curtis v. Jackson, 13 Mass. Rep. 517; Wetmore v. White, 2 Caine's (N. Y.) Cases in Error, 87; Arthur, &c. v. Case, &c., 1 Paige's (N. Y.) Chan. Rep. 448; and see Boynton v. Rees, 9 Pick. (Mass.) Rep. 528. 2 Vandenburgh v. Van Bergen, 13 Johns. (N. Y.) Rep. 212.

3 Runnels v. Bullen, 2 N. Hamp. Rep. 532.

4 Wigford v. Gill, Cro. Eliz. 269. The action was trespass, and the case was, J. S. erected a mill-dam, partly upon his own land and partly upon the land adjoining; the owner of the land pulled down the dam upon his own land, by which all the dam fell down, and the water did The whole court held it justifiable. So, it was said, if one erects a wall upon his own land, and the land of his neighbor, and the neighbor pulls down the wall upon his land, and thereupon the wall falleth down, this is lawful. See also, Blanchard v. Baker, 8 Green. (Maine) Rep. 253.

run out.

An action for the diversion

2. Detaining the water. of a watercourse, is grounded on the deprivation of the water; and hence, if the party complaining is deprived of the water by any other means, the law will interpose. It is as illegal to detain the water unreasonably, as it is to divert it; for though all persons have an equal right to erect hydraulic works on their own land, yet they must so construct them, and so use the water, that all persons below may participate, without interruption, in the enjoyment of the same water. A mill owner, for instance, who shuts down his gate, and detains the water for an unreasonable time, and thus deprives others of a fair participation of the benefits of the stream, is answerable in damages.2

Many cases may be supposed where there may be a trivial and temporary diminution of the water, by detention, without amounting to an actionable injury. Property in a watercourse, as we have shewn, consists in a right to its use; and as it cannot be used in the most beneficial manner, (and not at all for hydraulic works,) without raising a head of water, there must be incident to the privilege of use, a right to erect a dam, and detain the water long enough to use it to advan

'If a body of water runs out of my pond, into another's, I have no right to reclaim it. (2 Bla. Com. 18.) See also, Arnold v. Foot, 12 Wend. (N. Y.) Rep. 330; Howell v. McCoy, 3 Rawle's (Penn.) Rep. 256; Hoy v. Sterrett, 2 Watt's (Penn.) Rep. 327; Twiss v. Baldwin, 9 Conn. Rep. 291. In Sackrider v. Beers, (10 Johns. Rep. 241) the opinion of the Court was as follows:-"There is no just objection to the recovery of the plaintiffs below. The defendants were answerable in damages for the injury to the plaintiffs in the enjoyment of their mill, by diverting the natural course of the water. The defendants had, no doubt, a right to build a mill on their land; but they must so construct the dam, and so use the water, as not to injure their neighbors below in the enjoyment of the same water, according to its natural course."

2 Merritt et al. v. Brinkerhoff et al. 17 Johns. Rep. 306; Williams v. Morland, 2 B. & Cress. 910.