which a stream of water had, from time immemorial, run; that it supplied water to his brick-yard, distillery, and churning-mill, and to a mill-seat where he was about erecting a mill for grinding plaster of paris; that the trustees of the village of Newburgh (the defendants) obtained an act of the legislature to enable them to supply the inhabitants of the village with water; that the trustees threatened to divert the stream from the plaintiff's farm; and the plaintiff, therefore, prayed an injunction to prevent the defendants from diverting the water. The injunction was granted,-Chancellor Kent, observing-"In the application of the general doctrines of the Court to this case, it appears to me to be proper and necessary that the preventive remedy be applied. There is no need, from what at present appears, of sending the plaintiff at law to have his title first established. His right to the use of the stream is one which has been immemorially enjoyed, and of which he is now in the actual possession. The trustees set up no other right to the stream, than what is derived from the authority of the statute; and if they are suffered to proceed and divert the stream, or the most essential part of it, the plaintiff would receive immediate and great injury, by the suspension of all those works upon his land which are set in operation by the water. In addition to this, he will lose the comfort and use of the stream, for farming and domestic purposes; and besides, it must be painful, to any one, to be deprived, at once, of the enjoyment of a stream which he has been accustomed always to see flowing by the door of his dwelling."

In a subsequent case in the Court of Chancery of

1 Gardner v. Trustees of Newburgh, 2 Johns. Ch. Rep. 162.

the State of New York, it appears that the plaintiffs had been for a long time seised in fee, and were in the undisputed possession of land, with a watercourse running through the same, upon which they had mills; and the defendants, by an artificial channel, diverted the water from its natural course, A temporary injunction was granted; but upon an explanatory answer, positively denying the injury, the injunction was dissolved. The Court, in this case, expressly recognized the principle, that relief in equity is only to be afforded in favor of a right which has long been peaceably enjoyed.1

In a case before the Court of Errors of the State of New York, where there was an unlawful diversion of a stream of water from the mills of a party, it was held to be a proper case for the allowance of a preliminary injunction; as the injury, if persisted in, might be irreparable. This decision affirmed the injunction that had been granted in the Court below.3

An injunction was refused in the following case in the Circuit Court of the United States, in New Jersey: The defendants having had the adverse possession, for twenty years, of certain water which had previously flowed into the plaintiff's mill-pond, which they had used, during that period, by means of an aqueduct for supplying water to a certain town, suffered it to go into disuse, in consequence of a decay of the logs of the aqueduct, for three years; during which time the water again flowed into the plaintiff's pond. The defendants commenced the reconstruction of the aque

duct, and thereupon the plaintiff applied for an injunction; and the same was refused, on the ground that twenty years' possession vested a complete title to the water in the defendants; which title was not impaired by the three years' reflow of the water into the plaintiff's pond. Acquiescence, the Court held, by the plaintiff, or by those under whom he claimed, for a shorter period than twenty years, would be sufficient to induce a refusal of the injunction. The Court also doubted whether the case was the case of irreparable mischief, in which the extraordinary power prayed for would he exercised.'

It has been held, by the Court of Appeals of Virginia, that when a corporation claims a right, under the authority of the State, to abate a mill-dam, as a nuisance, because it obstructs the navigation of a stream; and such abatement would produce great loss to the mill-owner, and great inconvenience to the public; a Court of Equity has jurisdiction to prevent such abatement, and to preserve to the mill-owner his establishment, until the question whether the mill-owner has or has not a right to keep up his dam, be decided. The inadequacy of the damages, which any jury could give to the mill-owner for the removal of his dam, it was also held, was a good ground for the interposition of equity.2

1 Haight v. Proprietors of Morris Aqueduct, 4 Wash. C. C. Rep. 601. ? Crenshaw v. Slate River Company, 6 Rand. Rep. 245.

CHAPTER VII.

RIGHT OF FISHERY IN A WATERCOURSE.

Sec. I.-Right of Fishery incident to the Riparian Ownership.

We have reserved for a separate chapter the subject of fishery, with the view, in treating of it, to keep it distinct from the mere usufructuary right to the water. It will be seen, by referring to the first chapter, that where a person owns the whole of the soil over which a watercourse runs, in its natural course, he alone is entitled to the use and profits of the water; and that where a person owns only the land upon one side of a watercourse, his interest in the soil, and his right to the water extends to the middle of the stream. Concomitant with this interest in the soil of the beds of watercourses, is an exclusive right of fishery; so that the riparian proprietor, and he alone, is authorized to take fish from any part of the stream included within his territorial limits.1

The opinion, pervading the minds of many people, that, in this country, the public may fish any where, is refuted by a case in the United States Circuit Court in Rhode Island, at the November term, 1828. The

1 2 Bla. Com. 39. Harg. Tract, de jure maris, &c. Hale, in the latter work, cites Baker v. Hercy, temp. Ed. I.; Owen v. Dunch, 2 Jac. B. R. ; 3 Kent's Com. (last ed.) 411. And see the opinion of the Court in Gould v. James, 6 Cowen's Rep. 369. Hart v. Hill, 1 Whar. (Penn.) Rep. 124.

action was trespass, for entering the plaintiff's close, partly covered with water, and taking fish from his pond. The principal question was, whether the plaintiff had any property in the fish. The title of the plaintiff was under a lease of five hundred years, of a certain factory lot, and dam lot, "together with all the land which may be flowed by raising a dam seven feet high from the bed or bottom of the river." The Court said, that the lease having conveyed all the land under the pond, it passed the water and the fish therein to the plaintiff, as incidents to the principal grant.1

In a case in Massachusetts, the defendant undertook to give evidence of a custom for all the inhabitants in the vicinity to take fish in the plaintiff's mill-pond; and that the pond was merely an enlargement of a natural stream. But the Court asserted, that there was no such general right as was suggested; and as to the custom, it might be sufficient to say, that, if it were legal and could be proved to exist, it would not be a defence under the general issue. But the custom proposed to be proved, was not one that could be sustained in law, even if specially pleaded; for a custom to take any thing from another's land, or for a profit a prendre, is not a lawful custom; and if such a right be available at all, it must be set up by prescription, as belonging to some estate, and should be pleaded with a que estate. The Supreme Court of the same State,

2

1 Smith v. Miller, 5 Mason's Rep. 191.

2 Waters v. Lilly, 4 Pick. Rep. 145. It was thus decided, the Court said, in Gatewood's case, 6 Rep. 60; and Coke says, "Note reader the law in this general case well resolved, and no book in the law is adjudged against it." And in the case of Grimstead v. Marlow, (4 T. R. 718,) Lord Kenyon says "The law has been so settled ever since the time of Gatewood's case."