CJornpU Ham Bti^aol ICibrary KF 645.A95T877 '""'''' '■''•"'^ '^uZm^«°Z}!^.V.^)!!.°!!.yf.^!^«f90"rses.Wi 3 1924 018 789 358 DATE DUE b^HJPww .-*«-^ GAYLORD PRINTED IN UAA Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018789358 TREATISE LAW OF WATEHCOURSES. WITH AN APPENDIX, CONTAINING STATUTES OF FLOWING, AND FORMS OF DECLARATIONS. By JOSEPH K. ANGELL. i '-t SEVENTH EDITION, EEVISED, AND VEKT MUCH ENLAKGED BY THE ADDITION OF NEW MATTER TO THE TEXT AND NOTES, BY J. C. PEEKINS, LL.D. BOSTON: LITTLE, BEOWN, AND COMPANY. MDCCCLXXVII. 7- ^3* 2, ( Entered according to Act of Congress, in the year 1854, by Joseph K. Angeli-, In the Clerk's Office of the District Court of the District of Rhode Island. Entered according to Act of Congress, in the year 1869, by Little, Brown, and Company, In the Clerlt's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1877, by Little, Brown, and Company, In the Office of the Librarian of Congress, at Washington. CAMBRIDGE : PRESS OF JOHN WILSON AND SON. PREFACE TO THE SEVENTH EDITION. In the preparation of this, the seventh edition of " Angell on Watercourses," the editor has carefully examined and cited, and, where required, stated all the important and leading cases on the subject that have been published since the sixth edition was issued, in 1869. There have also been added in the Appendix various concise and convenient forms adapted to proceedings to obtain redress for injuries done to and by water and watercourses, — both proceedings at Common Law, and for damages under the Mill Acts. These forms have been collected from authentic and approved sources ; and it is confidently believed they will prove useful to the profession in this department of the law. It has been deemed expedient and just towards the parties whose labors are embodied in this work as now published, that there should be some mark of distinction between the different parts of the vol- ume which have been contributed by the author and by the editor. To this end, the additions made to the work by the editor, both in the text and notes, in this and the sixth edition, have been designated by being enclosed in brackets. For other matters, reference is made to the preface^to the sixth edition. PREFACE TO THE SIXTH EDITION. It is now nearly fifteen years since the last edition of this work was published by Mr. Angell, in 1854. It has been for several years out of print. This delay in the issue of a new edition has been caused, in a great measure, by the death of Mr. Angell, which occurred several years since. It is much to be regretted that the work, by his decease, necessarily falls into other hands to be adapted to the vastly important developments in the Law of Watercourses which have taken place since Mr. Angell's last publication. The work has been very much enlarged, both in text and notes, by the editor. He has examined and cited over eight hundred cases which did not appear in the previous edition. He has added nearly a hundred and fifty new sections, and made con- stant and numerous additions to the former sections. The sub- ject of " Surface Water and Drainage" is entirely new to this edition ; most of the law upon it has been decided and settled since Mr. Angell wrote. The whole subject of " Eaves Drip," and much of that part of the work relating to " Subterranean Diversion " of underground streams and percolations of water, as well as of that relating to implied easements, connected with water, are additions of new matter to the volume. Nearly all of the notes, which do not consist of mere citations VI PREFACE TO THE SISTH EDITION. of cases, are additions by the editor. The above statements have been made because the book nowhere exhibits any marks of distinction between the labors of the author and those of the editor. In making additions to the text, the editor, as far as he has been able, has pursued the author's plan, which appears to have been received with favor, of stating cases and decisions with con- siderable fulness where the opinions of different courts have not been harmonious, in order that the reader may, as far as practi- cable and useful, have the benefit of the entire discussion of the subject-matter, and of the reasons given for different results. In preparing the Index of Cases, the whole of them, both English and American, have been mingled together, without the distinction between them made in previous editions. An entirely new, more full, and complete index of subjects, has been prepared for this edition. The latest Mill Acts of Massachusetts, Maine, and Rhode Island, have been substituted for the earlier ones, which appeared in previous editions. In all the labor of preparing this edition, the editor has en- deavored to make the work exhibit the present condition of the law of watercourses in such form as to render it instructive to the student, and useful and convenient to the professional reader. The book is now submitted, in its renewed condition, to the continued indulgence of the profession. By the editor, J. C. P. PREFACE TO THE FOUETH EDITION. StTCH were the author's engagements, that a considerable period elapsed, after the final disposition of the preceding edition of the following work, before he was able to undertake the one here presented to. the public. The ultimate result of this last enter- prise, is something far different from a mere revision of the for- mer editions. The arrangement of the subject-matter, it will at once be perceived, is essentially new, while in bulk it is vastly increased. The very material change in the arrangement was suggested by a renewed and further consideration of the subject, and it is designed to render it. more deductive, and, therefore, more advantageous, and better entitled to public favor. The author has been led also to perceive, while engaged in the revision of the authorities contained in the preceding edition, that they may be treated in the present work, in a manner more circumstantial, and more explanatory of the facts and principles to which they relate. What, however, has contributed still more to the enlargement of the work, is the copious accumulation of judicial authorities, in further and important illustration of those which had previously been cited. But, beyond this explanation of its great increase in size, the addition which has been made to the use of water, as a motive power, has thrown open new sources of litigation, and has thus associated the subject more largely with the rudiments of general jurisprudence. This ex- yiii PREFACE TO THE FOURTH EDITION. tended use has required a judicial construction of particular grants, and of written and unwritten contracts, of legislative acts and of constitutional law, which, while it has much enlarged the volume, has vindicated the soundness of the assertion of Lord Mansfield, that the predominating characteristic of the Common Law is, that it is a science of principles. Actuated by a strong disposition to afford an entire, correct, and comprehensible view of the Law of Watercourses, as it has thus been elaborated and expanded, the author has been inde- fatigable in research, to collect it, and studious in exertion, to present it with accuracy and perspicuity. In the Appendix will be found the statutes of Massachusetts, Maine, and Rhode Island, authorizing the owners and occupants of mills to overflow, subject to certain liabilities, the lands of other persons. The statute of Virginia, in relation to the same subject, which is substantially different in its provisions from those just named, is also given. That of Kentucky, and those of other western and southern States, are modelled so much after the law of Virginia, that it has been deemed inexpedient to swell the size of the volume by inserting them. The Appendix also contains forms of declarations, to be used in actions for injuries done to, or by means of, watercourses. Following the Appendix is an Index, though this has been ren- dered almost superfluous, as so much attention and care have been bestowed on the arrangement and fulness of the Table of Contents. Pkovidencb, June 25, 1850. TABLE OF CONTENTS. CHAPTEE I. MEANING OF WATEKCOURSE, AND OF THE GENERAL EIGHT OP PROPERTY THEREIN. Section Meaning of Watercourse 1-5 How the Private Right of Property in a Watercourse is derived . 5-10 How the Private Right of Property in a Watercourse is appor- tioned between opposite Riparian Owners 10-17 When Persons become Riparian Owners 17-41 Difference between a Boundary on a Watercourse and a Boundary on a Lake or Pond 41-44 CHAPTER II. OF INSULAR AND ALLUVIAL EIGHTS, AND OF EIGHT TO SOIL RELICTED, AS INCIDENT TO THE RIGHT OF PROPERTY IN A WATERCOURSE. Islands 44-53 Alluvion 53-57 Reliction 57-60 Avulsion 60-61 CHAPTER III. OF THE EIGHT OP FISHERY AS INCIDENT TO THE RIGHT OF PROPERTY IN A WATERCOURSE. Exclusive Right of Fishing in the Riparian Proprietors .... 61-71 Of a several Fishery 71-75 Of a Free Fishery , 75-77 Of a Common of Fishery 77-79 X TABLE OF CONTENTS. Sectiok •Eight of Fishery as derived from Special Grants 79-81 User of Private Fisheries 81—84 Obstruction of the Passage of Fish 84-90 CHAPTER IV. OF THE EIGHT OP USE OF THE WATER AS A COEPOEEAL HEEEDITA- MBNT. Of the General Right of Use 90-97 Of the Injury by diverting the Water 97-1 08a Surface "Water and Drainage 108a-109 Subterranean Diversion 109-114^ The Easement of Drip 1149-115 Of the Injury by obstructing and detaining the Water .... 115-120 Of the Right of Irrigation 120-130 Of the Effect of Prior Occupation by a Riparian Proprietor . . 130-136 Of the Injury by rendering the Water corrupt and unwhole- some 136-141 CHAPTER V. OF THE EIGHT TO THE USE OP WATER AS DEEIVED FEOM SPECIAL GRANTS AND RESERVATIONS. Of natural and artificial Easements 141-144 Extent of the Right granted 144-153 " Mill and Appurtenances " 153-158 Secondary Easements 158-167 Lex Loci 167-168 How Easements in Watercourses are created 168-173 Reservation of Water Rights in Grants of Land 173-191 Unity, of Possession 191-200 CHAPTER VL OP THE EIGHT TO THE USE OP WATEE AS DERIVED FROM PRESCRIP- TION, OR FROM PRESUMED GRANT. Foundation of Prescriptive Right 200-203 Grant as presumed by Analogy to act of Limitations .... 203-210 Adverse Enjoyment 210-224 Right acquired commensurate with Extent of Enjoyment . . 224-231 TABLE OP CONTENTS. XI Seotioit The Presumption as relates to Parties not in Possession . . . 231-237 Disabilities 237-240 Extinction of Presumed Water Rights 240-254 Public Rights 254^255 CHAPTER VII. OF THE BIGHT TO THE USE OP THE WATEE AS DEPENDING UPON CONTRACTS AND AGREEMENTS IN WRITING. The use subject to Special Agreement 255-256 Contracts and Agreements by Specialty, and which run with the Land 256-273 Contracts Personal 273-279 Arbitrament and Award 279-285 CHAPTER VIII. OF THE BIGHT TO THE USE OF THE WATER AS DEPENDING UPON PAROL AND VERBAL LICENSE. Difference between an Easement and a right by License . . 285-286 Extent of the Right derived from Parol Licenses in general . . 286-295 Extent of the Right derived from Parol Licenses executed, and as conveying an Interest, in Land 295-318 The Equitable Doctrine concerning Parol Licenses .... 318-326 The Doctrine of Estoppel as applicable to 326-330 CHAPTER IX. OF INUNDATION AND BACKWATER, CAUSED BY THE USE OP THE WATER. Overflowing Land above 330-335 Flooding Land below 335-340- Backwater upon a Mill above 340-350 Prior Occupation 350-353 Right to overflow or cause Backwater as derived from Special Grants and Reservations 353-372 Prescription, or Twenty Years' Enjoyment . 372-387 Parol Licenses 387-388 xii TABLE OF CONTENTS. CHAPTER X. OF THE NATURE OP THE INJUEIES DONE TO, AND BY MEANS OF, A WATERCOURSE ; THE REMEDIES ; AND OF THE PARTIES, PLEADINGS, r AND EVIDENCE. Section Nature of such Injuries 388—389 Remedy by Act of the Party • 389-394 Remedy at Law 394-395 Action on the Case 395-398 By whom to be brought 398-402 Against whom to be brought 402-405 The Declaration 405-422 Pleas 422-426 Evidence 426-440 Actions of Covenant and Assumpsit 440-444 Equitable Remedies 444-457 CHAPTER XI. OP THE RIGHT OF EMINENT DOMAIN AS ' APPLIED TO PRIVATE PROP- ERTY IN WATERCOURSES. The Universality and Limit of the Right of Eminent Domain . 457-458 As a part of English Law 458-461 As a part of the Constitutional Law of the United States . . 461—466 Ofthe "Public Use" 466-472 Of the Nature and Kind of Compensation 472-475 Of the Provision for Indemnity 475-478 CHAPTER XIL STATUTES FOR THE ENCOURAGEMENT AND SUPPORT OP MILLS, BY AUTHORIZING THE OWNERS AND OCCUPANTS THEREOF TO OVER- PLOW THE LAND OF OTHER PERSONS. As founded on Doctrine of Eminent Domain 478-480 The Provisions of Statutes of different States 480-484 Their Effect in abolishing the Common-Law Remedies . . . 484-487 The Public Good as the Basis of such Statutes, and their broad Provisions and Construction to this end 487—490 Do not authorize the overflowing of Existing Mills .... 490-49 TABLE OF CONTENTS. Xlll Sbotion How and when the Land becomes condemned to be over- flowed 492-496 How a Mill once used becomes abandoned 496-500 Claim for Damages waived by Parol 500-504 Prescriptive right to flow without payment of Damages . . . 504^507 In respect to Land overflowed which is under the Jurisdiction of another State or of the United States 507-509 Of the Complaint under the Statute of Massachusetts, and the proceedings following it 509-526 Of the Complaint under the Statute of Maine, and the proceed- ings following it 526-535 CHAPTEK XIII. OF SUCH WATEECOUKSES AS ARE SUBJECTED TO PUBLIC USE. When a Watercourse is a Public Highway 535-542 The Common-Law Distinction between Elvers beatable and " Navigable," and how far the Distinction has been recog- nized in this Country . ... 542-551 Public Right to the Banks of Public Rivers 551-554 Obstructions to the Navigation of Public Rivers 654-562 Remedies in cases of such Obstructions 562, et seq. APPENDIX. Paoe Statutes of Massachusetts authorizing the Flowing of Land . 739-745 Of Maine 747 Of Virginia 752 Of Rhode Island 756 Forms of Declarations 760 Petitions 769 INDEX TO CASES CITED. THE FiaUBES BEFEB TO THE SECTIONS. Abtott V. TJpham 484 V. Wood 288 Ackerman v. Horicon Co. 456 a, 484 Ackroyd v. Smith 96 a, 143 Acton V. Blundell 9, 93, 94, 112 6, 112 6, 114, 114 a, 114 6, 114 c, 114 d, 114 g, 114 t Adams v. Andrews 168, 300 V. Barney 332 ti. Frothingham 63 V. Harrison 108 d V, Pearson 521 V. Pease 11, 59 a, 65, 537, 547 Addison v. Hack 291, 293, 312, 316 a, 433 V. Kowe 465 b Agar V. Regent's Canal Co. 460 Agawam Canal Co. v. Edwards 10, 29, 95, 387 Alabama, State of, v. Bell 549 Albany Street (Matter of) 457, 466, 467 Alder v. SaviU 224, 282, 372 Aldred's Case 186, 330 Aldrich v. Cheshire E. E. Co. 465 a, 465 c, 484 Alexander v. Kerr 115, 136, 219 c Allan V. Gomme 383 a AUen V. Bates 363 V. Fiske 287 i;. Jay 466, 466 a V. Ormond 427 V. Scott 179 AUentown v. Kramer 331 b Allis V. Moore 239 a Alston V. Scales 398 Alton V. Illinois Transp. Co. 582 American Eiver Water Co. v. Amsden 537 Araeriscoggin Bridge v. Bragg 293, 302, 325, 325 a Amidon v. Harris 143 Amoskeag Man. Co. v. Goodale 332, 389, 392, 430, 476, 666 V. Head 466, 466 a, 476, 487 Andover v. Sutton 486 Andrews v. Mulford 215 Anon. V. Deberry 170, 302, 402 Anthoriy v. Lapham 124, 125 Arimond v. Green Bay &c. Canal Co. 140 c Arkwright v. Cell 114 t, 206, 206 a Armstrong v. Jackson 475 Arnold v. Foot 4, 95, 112 a, 112 b, 115, 126, 128 V. Munday 11 V. Stevens 211, 219, 252, 252 a, 386 Arthur v. Case 12, 104, 446 Arundell v. McCuUoch 563 Ash V. Cummings 461, 466 a, 476, 477, 484, 487 Ashby V. Eastern E.E. 465 c V. White 116, 129, 133, 135 Ashley v. Ashley 141, 206 a, 208, 216, 398 V. Pease 5, 90, 149 b, 149/, 149 h V. Wolcott 4, 108 a Atlee V. Packet Co. 636 Atchison v. Peterson 96, 136 Attorney-General v. Birmingham 331 6 V. Boston Wharf Co. 56 V. Chambers 63, 643 V. Cleaver 565 V. Lonsdale, Earl of 108 V. New Jersey E.E. & Transp. Co. 666 V. Nichol 466 V. Steward 136, 140 c, 450 a V. Woods 644 Atwater v. Bodfish 191 Austin V. Cox 143 V. Eutland E.E. Co. 42 Avery v. Fox 546 V. Van Deusen 613 Avon Manuf. Co. w. Andrews 144,160, 409, 414 Axtell V. Coombs 615, 521 a, 530 Ayraud v. Babin 237 XVI TABLE OF CASES CITED. B. Bachelder v. Wakefield 213 Bacon v. Arthur 567 u. Bovvdoin 155 Baer v. Martin 395 Bagley v. Mayor &,c. of New York 335 a Bailey v. Appleyard 230 V. Mittenberger 547, 548 u. Phil., W., & B. R.R. Co. 537 V. Rust 182, 352 V. Stephens 143 Bainbridge v. Sherlock 546, 553 a Baird v. Hunter 385, 486 V. WiUiamson H4/, 114 k Baker v. Hersey 61 V. Lewis 535, 548, 553 a V. Saunderson 412, 437 V. Wheeler 287 Baldwin v. Calkins 135, 221, 224, 228, 402, 432 Ball, Daniel, The 543, 544 Ball V. Armstrong 112 a V. Herbert 551, 552 V. Nye 114./ Ballacorkish &c. Co. o. Harrison 114 k Ballou V. Hopkinton 444, 447, 447 a, 454 Bally V. Wells 257, 264 Balston v. Bensted 111, 112, 114 p, 204, 205 Baltimore i,'. McKim 12 Baltimore & Ohio R.R. Co. v. Chase 53, 546 Bangor v. Lansil 4, 108 a, 108 m Banks v. Ogden 55 Banne, Case of the River 64 Bannon v. Angier 252, 363 Barclay R.R. Co. v. Benson 537, V. Ingham 545, 549 Barden v. Crocker 420 Bardwell v. Ames 10, 59 a, 141, 144, 275, 444, 447 a Barker v. Richardson 204, 232, 233, 238 Barnard y. Fitch 525 Barnes v. Haynes 208 V. Lloyd 173, 252 V. Sabron 108 a Barnet v. Ihrie 394 Barney ;;. City of Keokuk 542, 543, 549 Barrett v. New Orleans 53 t). Parsons 192,483 a Barron u. Corporation of Baltimore 335 a V. Davis 537 Barry v. Lowell 108 I Barton v. Syracuse 331 6 Basey v. Gallagher 135 Bassett v. Salisbury Manuf. Co. 4, 4 c, if, 42, 108 a, 108 b, 108 d, 108 c, 108 f, 108 s, 113, 114, 114o, 119, 430 Batchelder v. Keniston • 55 Baten's Case 114 r Bates V. Ray 514 «. Sloan 283, 486, 491 Bates V. Smith 108 a V. Weymouth Iron Co. 478, 483 a, 487, 489, 489 a, 491 a Bath River Nav. Co. v. Willis 551 Batten's Case 389 Battishill v. Reed 211 Baughton v. Carter 465 c, 465 d Baxendale v. McMurray 139, 219 c, 226, 230 J Baxter v. Taylor 898 Bay City Gas Light Co. v. The Industrial Works 55 Beach v. Schoff 563 Beahan v. Stapleton 29 Beals V. Stewart 163 Bealy v. Shaw 95, 133, 136, 204, 205, 207, 208, 217, 224 Bean v. Hinman 526 Beard v. Murphy 9, 108 g Beardslee v. French 241 Bearse v. Perry 117, 491 a Bearsley v. Clark 213, 214 a Beatty v. Conner 482 V. Gregory 322 Beckett v. The Midland Railway Co. 460 a, 567 Becton v. Chestnut 22 Beekman v. Schenectady & Saratoga R.R. Co. 457, 466, 467, 475, 478 Beeston v. Weate 206 a Beidelman v. Foulk 8, 92, 209, 221, 287, 402 Beissell v. SchoU 95, 116 Belknap v. Trimble 225, 227, 436, 447, 447 a Bell V. McClintock 830, 349 V. Twentyman 374, 398 Bellinger v. N. Y. Cent. R.R. Co. 465 e Bellows V. Dewey 149 V. Sackett 108 d, 108 e, 114 jr Bemis v. Clark 394, 454 V. Upham 444, 447, 447 a, 490 Benedict v. Benedict 306 Benjamin v. Wheeler 108 / Bennett w. Boggs 65 a V. Plotter 536 Bensley v. Mountain Lake &c. Co. 476 Benson v. Morrow 653 V. Soule 214 Bent V. Wheeler 122 Bentz V. Armstrong 108 e, 108 i, 337 Berridge v. Ward 23 Berry v. Carle 537, 547 Beswick v. Combdon 396 Bethune v. Turner 551 Beunerw. Platter 18 Bickel V. Polk 65, 66, 551 Bickett V, Morris 108 Biddle v. Ash 221, 231, Bi^elow V. Battle 149 a, 224, 397, 413 V. Finch 328 b V. Newell 490, 490 a 491 Binney's Case 446, 452, 466, 536, 541 TABLE OP CASES CITED. XVll Bird V. Higginson 295 Bishop V. Chambers 29 V. Seeley 29 Bissell V. Grant 144 Blaine v. Chambers 90, 156 Blaisdell v. Portsmouth, G.r. &g. R.R. 216, 285, 287, 288 Blake v. Clark 90, 157, 159 V. Everett 208, 221 V. Madigan 149 g, 174, 179 Blakemore v. Glamorganshire Canal NaT. 444, 454, 459 Blanehard v. Baker 11, 93, 100, 125, 135, 221, 227, 302, 349 a, 401, 432 V. Bridges 231, 309 V. Collins 567 V. Porter 536 Bland v. Lipscombe 63 Blewett V. Tregonning 8 Bliss V. Kennedy 134, 352 ■/. Rice 11, 102, 135, 219 d, 230 a 429 Bloch V. Pfaff 114 q Blood V. Nashua & Lowell R.K. Co. 667 V. "Wood 215 Bloodgood V. Mohawk & Hudson R.R. Co. 467, 477 Blundell v. Catterall 66, 661 Blunt V. Aiken 394, 402 Boatwright v. Beekman 86 Bodfish V. Bodfish 211 Bolivar Manuf. Co. v. Neponset Manuf. Co. 186, 224, 382, 428, 432 Bolton V. Bishop of Carlisle 168 Bonaparte v. Camden &Amboy R.R. Co. 475 Bonomi v. Backhouse 9 Boothby v. A. & K. Railroad 119 a Borden v. Vincent 373 Borst !;. Empie 149 e Boston V. Richardson 41 b Boston & Roxbury Mill Corp. u. Newman 466, 466 a, 487 Boston Manuf. Co. v. Burgin 491a, 504 Boston Water Power Co. v. Gray 144, 279, 280 Bow V. Allenstown 209 Bowen v. Conner 143, 173, 174, 179 V. Team 246 Bower v. Hill 135, 246, 398, 432 Bowlsby V. Long Island R.R. Co. 108 a Bowman v. Parmer 38 V. Latham 95 V. Middleton 457 w. Wathen 549, 567 V. Wather 174, 208 V. White ■ 85 Boynton v. .Rees 106, 116, 363 V. The Peterboro' & Shirley R.R. Co. 477 Brace v. Yale 5, 99 a, 119 a, 163 a, 153 b, 208, 210, 213, 216, 217, 219, 219 o, 219 d, 373, 380, 383 a, 489, 490 Bracegirdle v. Peacock 228 Bradbury v. Grinsell 282 ' Bradford v. Cressey 24, 26, 29 Bradley v. Amis 402 !). N.Y. & N.H. R.R. Co. 466 a V. Rice 26, 41, 41 b, 489 Bradshaw v. Rogers 457, 475 Bradstreet v. Erskine 481 Brady v. Blackinton 480, 486 Brakeiey v. Sharp 166 6, 166,9, 166 h Branch v. Doane 135, 217, 221, 306, 378, 387, 398, 399 a, 403, 429, 480 Brandt v. Ogden 219 Brayton v. Fall River 108 1, 331 6, 567 Breed v. Breed 66 Brent v. Hadden 403 Brewer v. Boston C. & F. R.R. Co. 567 Bridges v. Blanehard 244, 295 V. Purcell 287, 303, 482 Brigham v. Smith 165,490 a Bright V. Walker 208, 220, 228, 285 Brightman v. Fairhaven 567 Brinckerhofft). Starkins 65 a Brink v. Richtmyer 67 Brisbane v. O'Neall 390 Bristol V. New Chester 461 Broadbent v. Ramsbotham 4, 4 b, 108 r, 108s, 112 6, 1146, 114c, 206a Bronson v. Coffin 142, 262 Brook V. Winters 131, 379 Brooks V. Reynolds 204 Broome v. Mordaunt 396 Brouse v. Cayuga & Susq. R.R. Co. 465 e Brown v. Beatty 461 V. Best 97, 123, 224, 423 V. Bowen 286, 287, 292 b, 327, 328, 340, 898, 479 B. Bush 96, 95 0,390 V. Cayuga & Susq. R.R. Co. 403 V. Chadbourne 11, 389, 635, 537, 539,561, 553, 553 a, 566 V. Collins 114y V. Commonwealth 564 V. Gugy 567 V. lUius 1126, 114^, 114/ u. Kennedy 5, 9, 11, 12, 57, 547 V. Lakeman 643 V. Nichols 153 V. Perkins 563 V. Robins 9 u. Scofield 567 V. Worcester 461 Matter of 209 Brown's Case, Lady 114 r, 191 Bruce v. Yale 192 Brucklesbank v. Smith 665 Bryan v. Whistler 169, 295,301 Bryant v. Glidden 481, 523, 528 6, 529, 530, 534 a, 667 Buccleugh, Duke of v. Metropolitan Board of Works 567 Buckingham v. Smith 5, '328, 468 Buckley v. Gilniore 40 Bucklin v. Truell 380 Buddington v. Bradley 92 a, 96, 135, 221 BufEum V. Harris 1086, 108 s xvm TABLE OF CASES CITED. Buffum w. Hutchinson 174 Bull V. VaUey Falls Co. 444 Bullen ;;. Runnells 5, 135, 152, 170, 217, 221, 225 BuUoek V. Wilson 549 Bulwer's Case 420 Bunker v. Bunker 403 a Burden v. Stein 8, 444, 452 Burdiek v. Glasko 414 Burg V. Pope 114 i Burnham v. Kempton 102, 209, 219 a, 224, 227, 230 a, 380, 429, 444, 445, 447, ■ 447 a, 449, 452 V. Story 480, 484, 486 K. Webster 65 a, 82, 85 Burrows v. Gallup 544 Burwell v, Hobson 449 Bury V. Pope 202 Bush V. Western 200, 318, 445 Butler V. Huse 158, 159, 380, 528 a «. Peck 108/, 108 J, 108 i: Butraan v. Hussey 135, 432 Butte Canal and Ditch Co. v. Vaughn 135 Butterfield v. Marshall 267 Butterworth v. Crawford 166 m Butz V. Ihrie 159, 181, 221, 236, 252, 341, c. C. & R. R.R. V. Speir 119 a Caise v. Haight 446 Caldwell v. Copeland 201 Caledonian R.R. Co., The, v. Sprot 9 Call V. Buttrick 136 u. Carroll 56 Calloner v. Thomas 194 a Campbell v. Smith 209 ■;. Wilson 204, 216, 217, 218, 223 Campbell's Case 467 Canal Appraisers v. The People 11, 546 u. The People, Ex rel. Tibbetts 546 Canal Commissioners v. The People 5, 6, 11, 41 h, 42, 462, 546 Canal Trustees v. Haven 101 a Canfield v. City of Erie 541 a Canham v. Fisk 159, 191 Carbrey i: Willis 114 q, 114 r, 166, 166 m, 166 0, 166 t, 166 !(, 215 Carlin v. Paul 166 b Carlisle v. Cooper 137, 224, 228, 229, 230, 379, 380, 382, 444, 450 a Carleton ;;. Redington 285, 287, 293, 296, 325, 325 a, 403, 403 a Carlyon v. Lovering 136, 201 Carpenter v. Spencer 484 Carr v. Foster 211 r. Lowry 262 Carraway v. Witherington 20 Carrig v. Dee 204 Carroll v. Cockey 276 Carruthers v. Tillman 402 Carson ;;. Blaser 61, 77, 548 V. Western Railroad Co. 119 a Carstairs v. Taylor H* k Carter v. Murcot 65 a, 77, 254, 535 V. Seymour 503 V. Shipman 228 Carver v. Miller 105, 152 Cary v. Brooks 567 V. Daniels 8, 90, 92, 93, 123, 131, 135 a, 141, 166 r, 196, 197, 206 a, 221, 349 a, 350, 360, 483 a, 490, 490 a, 541a Case V. Haight 174 V. Weber 85, 293, 342, 345 Casebeer v. Mowry 334 easier v. Shipman 149 h, 252 Cass V. Penn. R.R. Co. 206 Cates V. WadUngton 61, 539, 549 Cator V. Lewisham 136 Chadwick v. Marsden 152 a Chalk V. McAUly 221 V. Wyatt 445 Chalker v. Dickinson 65 a, 254 Challoner v. Thomas 8, 194 a Chamberlin v. The West End of London & C. Railway Co- 460 a, 567 Chambers v. Turry 551 Chandler v. Rowland 119 a Chapin v. Noyes 170, 285 Chaplin v. Rogers 295 Chapman v. Edmands 23 V. Hartshorne 289 V. Hoskins 53 V. Kimball 547 V. Thames Manuf. Co. 135, 221, 224, 384, 431 Charles v. Monson & Brimfleld Manuf. Co. 509, 510 V. Porter 520, 521 a, 622 Charlestown v. County Commissioners 644 Charlestown Branch R.R. o. Middlesex 477 Chase v. Silverstone 113, 114 V. Sutton Manuf. Co. 466 a, 474 a •Chasemore v. Richards i c, id, 90, 92, 93, 108 r. 111, 112 6, 114, 114 b, 114 c, 114 d, 114 m, 114 p, 123, 124 a, 129, 132, 136, 142, 202, 205, 215, 219 a, 219 c Chatfield v. Wilson 114, 114/ 114^, 114 n, 114 0, 135 Cheney v. Pease 143 Cherry v. Stein 114 g Chicago V. Lafiin 551 V. McGinn 543 Child V. Boston 331 6 <,. Starr 11, 23, 26, 27, 29 V. Tilsed 201 China v. Sguthwick 119 a, 847, 348, 491 6 Choate v. Burnham 363 Cholmondeley v. Clinton 216 Christmas w. Oliver 327 Church V. Meeker 543 TABLE OF CASES CITED. XIX City of London v. Richardson 270 St. Louis V. The People &c. 542 Clancy v. Houdlette 543 Claremont v. Carlton 9, 10, 11, 178 Clark V. Campau 56 V. Conroe 5, 114, 114/, 114 g V. Peckham 567 Clark V. Rockland Water Power Co. 623, 534 a V. Smith 264 V. Swift 268, 264 Clarke v. Cogge 195 Cleaveland v. Norton 65 a Clement v. Burns 546, 567 V. Durgin 302, 387, 500 Clinton v. Myers 93, 96, 119, 336, 489 Clock V. Wliite 467 Coalter v. Hunter 221, 231, 452^83 Coates V. New York 254fS63 Cobb V. Smith 327, 476, 481, 545, 562, 567 Cocheoo Manuf. Co. v. Whittier 173, 174, 176 Cocker v. Cowper 169, 287, 301 Coe V. Lake Co. 452 Cogswell V. Essex Mill Corporation 481, 528 6, 634 a, 567 Colburn t!. Richards 117,123,124 a, 125, 389 Cold Spring Iron Works v. Tolland 11, 14,29 Cole Silver Mining Co. v. Virginia &o. Water Co. 1126,448 Coleman v. Chadwick 112 c V. East Counties R.R. Co. 459 ColUns V. Benbury 61, 65 a, 73, 549 V. Plumb 268 V. Prentice 165, 166 b, 195 Columbus Ins. Co. u. Curtenius 555 V. Peoria Bridge Co. 555 Colrin v. Burnet 9, 209, 357, 375 Colwell V. The May's Landing Water-power Co. 219 a Commissioners of Canal Pund v. Kempshall 11, 12, 546 Commonwealth v. Alger 65 a V. Bailey 65 a V. Bilderback 556 V. Breed 536 V. Chapin 64, 81, 82, 85, 537, 544, 547 V. Church 562 .,. Clary 508 V. Ellis 484, 512, 523, 524 V. Essex Co. 466 a, 555 u.-Faris 486 V. Eisher 385, 486, 499, 548 u.M' Curdy 85 V. Roxbury 10, 56, 548 V. Ruggles 81, 564 V. Stevens 486 V. Upton 254, 563 V. Vincent 64, 65 a, 544 Commonwealth v. Wright 557 Company v. Goodale 330 Concord Railroad v. Greeley 466 Conder v. Coor 30 Congleton v. Pattison 258 Conhocton Stone Road Co. v. Buf- falo, N. Y. & E. R.R. 4, 108 a, 108 b, 349, 465 e Constable's Case, Sir Henry 543 Conwell V. Brockhart 159 Cook V. Burlington 53 u. Hull 124 a, 125, 135, 221, 428, 491a V. McClure 41, 53 V. Stearns 170, 285, 288, 805, 325 a, 490 Cooley V. Philadelphia Board of Wardens 65 a Coolidge V. Hager 166 m V. Learned 204, 208, 217, 223 a V. Williams 66, 67 Cooper V. Barber 114, 114 b, 215, 219 c, 389, 889 V. Cedar Rapids Water Power Co. 15 V. Smith 209, 221 V. Williams 470 Coovert v. O'Conner 6, 29, 541, 548 Coppy V. I. de B. 194 a Corfield v. Coryell 65 a Cornelius v. Glen 89 Corning v. Gould 221, 243, 246, 250, 252, 326 V. Lowerre 572 V. Troy &c. Factory 26, 92, 101 a, 219 b, 231, 327, 329, 449 Corporation of Memphis v. Overton 586, 552 Corsey v. Hammond 31, Cortdlyou v. Van Brandt 543 V. Van Brundt 66, 72 Cottell V. Luttrel 97, 226 Cotton V. Pocasset Manuf Co. 224 Cottrill V. Myrick 82, 466 Courtney v. Collet 395 Covel V. Grant 149/ Cowell V. Great Falls Manuf. Co. 584 V. Thayer 224, 372, 380, 382, 383, 883 a Cowles V. Kidder 96, 136, 286, 293, 302, 825 a, 830, 340, 349, 849 a, 430 Cowper V. Hall 636 Cox V. Matthews 133 V. State 535, 536, 547, 565 Craig V. Lewis 484, 603 Crawford v. Delaware 567 Crenshaw v. Slate River Co. 454, 463, 467 Cress u. Barney 149 a, 150 a Grill V. City of Rome 546 Criswell v. Clugh 484, 564 Crittenden v. Field 11, 158, 153 a, 164 a, 447, 447 a Crittenden v. Wilson 476, 484 XX TABLE OF CASES CITED. Crittenton v. Alger 8, 90, 123, 141, 206 a Cromwell v. Selden 149 a, 149 6, 149 d Crooker v. Bragg 16, 49, 126, 135, 432 Crosty V. Bessey 136, 219 <:, 227, 378 V. Bradbury 157 ,;, Wadsworth 286 Cross V. Lewis 204, 221, 223, 235, 239 a Crossley v. Lightowler 92 a, 129, 135, 136, 140 c, 166;, 166 0, 227,244 a, 252 6, 428, 432, 449 Crounse v. Wemple 303 Crovvder v. Tinkler 572 Cummings v. Barrett 117, 135, 432, 491 a Currier v. Gale 208, 239 a Curtice v. Thompson 379, «80, 399 a, 402, 403 Curtis V. Eastern E.R. 108 j V. Francis 56 V. Jackson 103, 170, 221, 243 V. Keesler 586 a V. Noonan 308, 316 a Curtiss V. Ayrault 166 6, 166 -ni V. Smith 153 h, 496 Cushman v. Smith 119 a, 473, 477 Cuthbert v. Lawton 209, 246 Cutler.);. Tufts 174, 178 Cutts V. Hussey 543 D. Dakin v. Cornish 97, 433 Dalrymple v. Mead 548, 553 a Dana v. Jackson Street &c. Co. 535 V. Valentine 243 a, 452, 506 Daniel v. North 114 b, 204, 232, 233, 234 Daniels v. Chaffin 168 Dave V. Heathcoate 216 Dark v. Johnston 285, 286, 322 Darling v. Blackstone Manuf. Co. • 500, 610, 522 V. Crowell 175 Darlington v. Painter 221, 224, 227 Darwin v. Upton 204, 228 Davidson v. Boston & Maine E.R. 477 Davies v. Stephens 221 Davis V. Brigham 201, 211, 228 i'. Cliarles River Branch B.R. Co. 609, 613 67. Puller 135, 221, 349 .;. Gale 130 i,. Getchell 93 a, 94, 99 o, 117. 119, 119 a, 120, 336 V. Jewett 898, 412 V. Morgan 278, 443 V. Rainsford 863 (,. Stevens ' 628 a 0. Tliompson 288 0. Winslow 97, 119 a, 535, 541 a, . 564, 656, 563 Dawes v. Prentice 66 Dawson v. Duke of Norfolk 234 Day V. Day 66 a Dean v. Colt 131, 303, 371, 478, 490 Dearborn v. Ames 466 De Chanment v. Forsythe 260 Decker v, Fisher 65 a Deerfield v. Arms 44, 55, 56 Deering v. Long Wharf Co. 543 Delahoussaye v. Judice 108 d, 108/, 142, 209 Delaney v. Boston 206 a Delaware & M. E.E. Co. v. Stump 65 a, 571 Delaware & Hudson Canal u. Law- rence 557 Delaware, L., & W. E.E. v. Hannon 56 De Kay v. Darrah 289 a Delhi V. Youmans 113 Delord v. New Orleans 55 Den V. Jersey Co. 65 a V. Eichards 239 a • V. Wright 5, 11 Denn v. Mabe 28 Dennis v. Wilson 143, 149 e Denslow v. New Haven & Northamp- ton Co. 465 Denton v. Leddell 166 g, 166 m, 166 s, 178 Deshon v. Porter 149/, 149 h, 227 Detroit v. Corey 331 b Detweller v. Groff 340 Dewey v. Bellows 149 De Witt V. Harvey 143, 146, 149 5 Dexter v. Haven 287 V. Providence Aqueduct Co. Ill Dickinson v. Canal Co. i, 90, 94, 111, 112 6, 114, 114 6, 114 c, 114 p, 128 V. Worcester 4, 108 a, 108/, 108 I, 108 m, 206 Dilling V. Murray 95, 119, 124 a Dimniett v. Eskridge 389 Dodd V. Austin 489 V. Burchell 159, 166, 166 k, 166 s, 191 Doddington v. Hudson 283 Doddridge w. Thompson 18 Dodge V. County Commissioners 465 c V. McClintouk 216 Doe V. Butler 214, 219, 252 V. Freeland 9 V. Hilder 241 V. Jesson 289 a V. Eeed 216 Doe d. Foley v. Wilson 207 Donnell v. Clark 215, 219 c Donellan v. Read 286, 314 Dorset v. Girdler 318 Dorsey v. Eagle 286 Doty V. Gorham 295 Dougal D. Wilson 204 Doughty V. Bowman 258 Downing v. Baldwin 142 Drake v. Hamilton Woollen Co. 117, 119 a, 483 a, 489 V. Wells 290 Drewett v. Sheard 204, 242, 424 Dryden v. Jephersou 91, 363 TABLE OP CASES CITED. XXI Dudden v. The Guardians of the Poor of the Glutton Union 108 g, 112 6 Duke of Dorset v. Girdler 200 Dumont v. Kellogg 117, 135 Duncan v. Findlater 331 6 V. Sylvester 66 Dunham v. Lamphere 65 a Dunklee v. Wilton R.R. Co. 11, 90, 166 b, 166 e, 166 r, 195, 206, 295, 303, 840 Dunlap V. Stetson 26 Dunn V. City Council 466 Durel V. Boisblanc 195 Dutton V. Gillett 280 a , V. Strong 548, 646 Dwight Printing Co. v. Boston, Suf- folk Co. ■ 136 Dwinel v. Barnard 58, 535, 537, 540 V. Veazie 486, 490, 540, 554 Dyer v. Depui 160, 209, 221, 224, 243, 379, 390 V. Sanford 251. 305, 308, 816 a V. Tuscaloosa Bridge Co. 466 Dygert v. Mathews 187 E. Eager v. Commonwealth 289 a Eames v. New England Worsted Co. 486, 491, 514 Earl of Mexborough v. Bower 114 k Earle v. Be Hart 4, 108 A, 108 i, 108 J, 206, 456 a East Haven v. Hemingway 547, 557 East India Co. v. Vincent 456 a Eastman v. Amoskeag Manuf. Co. 332, 399 a, 402, 403, 430, 461, 476 Eaton V. Boston, Concord, & Montreal R.R. Co. 461,465 a ■u. Swansea Waterworks Co. 215 Eddy V. Simpson 4 b, 95 Edson V. Munsell 200, 201, 204, 208, 214 a, 217, 221, 228, 223 a, 232, 238, 239, 239 a Egremont v'. Putnam 898 V. Williams 5, 144 Elder v. Burrus 549 Eldridge v. Knott 200 Elliott V. Eitchburg R.R., 6, 90, 95, 117, 119, 120, 124 a, 128, 131, 135, 432, 433 V. Rhett 166 b V. Sallee 161, 166 i, 166 n, 166 s, 191 V. Shepherd 162 Ellis V. Bridgnorth, Mayor of 143 V. Clark 290 V. Duncan 114 h, 114 o Elmhirst v. Spencer 140 o Emans v. TurnbuU 53 Embrey v. Owen 90, 97, 116, 117, 118, 119 a, 124 a, 129, 132, 136, 432, 433 Embury v. Connor 461, 467, 471 a Emerson v. Mooney 173, 174 V. Taylor 55, 56 Emery v. Lowell 108 a, 108 /, 831 5 Engard v. Erazier 473 Ensminger v. People 551 Ersing v. McMaster 587 Esling V. WiUiams 211, 221 Esty V. Baker 157, 157 a «. Currier 179 Eubank v. Pence 87 Evans v. Merriweather 90, 98, 121, 128 V. Rees 158 Evansville &c. R.R. v. Cochran 473 V. Fitzpatriek 473 Ewart V. Cochrane 166 k, 166 I, 166 1 Fall River Iron Works v. Old Colony & Fall River R.R. Co. 466 a, 567 Farmers of Hampstead Waterworks, Case of 417 Earnum v. Blackstone Canal Co. 456 a, 507 Farquharson v. Farquharson 333 Farrar v. Cooper 157, 204, 248 a, 247, 252, 363 V. Stackpole 154 Farringtori v. Blish 512 Fay V. Prentice ' 114 q, 389 Fehr v. Schuylkill Nav. Co. 484 Felder v. Bonnet 18 Fellow V. Fulgliam 482 Felton V. Simpson 206, 209 Fentinam v. Smith 169, 286, 295, 301, 314, 315 Ferrea v. Knipe 120, 128 Ferris v. Brown » 201 Fetters v. Humphreys 166 g, 166 m, 166 s Fewell V. CoUins 239 a Field's Estate, Case of 827 Finch V. Rashridger 200, 208, 221, 445 Fish V. Wilber 445 Fisher v. Horicon &c. Co. 466 a Fiske V. Eramingham Manuf Co. 397, 484, 486, 487, 489, 489 a Fitch v. Seymour 170, 172, 387, 500, 503 V. Stevens 484, 491, 494, 522 ■ Fitz V. Stevens 385 Fitzsimons v. Inglis 413 Elagg V. Worcester 4, 108 a, 108 1, 108 m Flanagan v. Philadelphia 545, 546, 549, 562 Fleet V. Hegeman 65 a Fleming <;. Davis 124, 124 a, 126, 127, 129 Fletcher v. Phelps 10, 41, 41 a, 41 6, 42 V. Rylands 114 k, 386, 349, 888 Foley V. Wyeth 9 Folger V. Robinson 535 Eolsom V. Moore 288 Foot V. Bronson 108 c, 108 j V. The New Haven & North- ampton R.R. Co. 168, 293 Forbush v. Lombard 156, 157 a Ford V. Lacy 53 V. Whitlock 344 xxu TABLK OF CASES CITED. Fowler v. Ho'brook 516, 518 Fraily v. "Waters 158, 358 Franklin v. Fisk 108 m Frankum v. Earl of Falmouth 95, 408 Frazier v. Brown 95, 111, 112 6, 114, 1146, 114 e , lUj, 114 n, 114 p, 205 French v. Braintree Manuf. Co. 385, 480, 491, 496, 497 V, Camp 538 V. Morris 143 Frey e. "Whitman 159, 314, 316 Frink v. Branch 157 Fry V. Prentice 428 Frye v. Moore 336, 489 a Fuhr V. Dean 168 FuUer v. Chicopee Manuf. Co. 131, 460 a, 513, 514 V. French 484, 496, 511 V. Plymouth 387 V. Spear 82 Furman v. The City of New York 546 G. Gage V. Pitts 303 Galveston v. Menard 543 Gannon v. Hargadon 4, 108a, 108ni, 337 Gardner v. Newburgh 8, 90, 427, 450, 465 o, 476 Garland v. Hodgson 149 c, 149 A, 174 Garrett v. Jackson 221 Gates V. Blincoe 140, 390, 452, 562 Gatewood's Case 63 Gaved o. Martyn 206 Gavit V. Chambars 4, 9, 14, 25, 535, 536, 547 Geiger v. Filor 557 Georgetown v. Alexandria Canal Co. 536, 565, 566, 572 Gerenger v. Summers 211, 224, 228 Gerrish o. Brown 331 6, 535, 537, 541 a, 554, 563, V. New Market Manuf Co. 95, 117, 135, 335, 430, 433 V. Union "Wharf 543 Giesy v. Cin., Wil., & Zanev. R.R. 47-3 Gile V. Stevens 481, 486, 513, 514 Giles V. Simonds 290 Gillett V. Johnson 4, 95, 119, 124 a, 127, 135 V. Jones 482 Gillis V. Nelson 166 5, 166 s Gilman v. Philadelphia 65 a, 536, 555 c,. Tilton 135,217,341,349 a Giraud v. Hughes 44, 53 Gladfelter v. "Walker 136, 140 c Gleason v. Assabet Manuf. Co. 99, 131 V. Gray 221, 389, 393 V. Tuttle 506, 512, 534 Glover v. Powell 544 Glynne v. Nicholas 427 Godfrey v. City of Alton 536, 552, 553 a Gold V. Carter 554 Goodale v. Tuttle 108 b, 108 J, 114 A Goodrich v. Burbank 114^, 143 V. Longley 157 c, 363 Goodsell V. Lawsou 53, 57 Goodtitle v. Kibbe 542, 540 Gordon v. Somerville Mills 486 V. Tucker 532 Gough V. Bell 546 Gould V. Boston Duck Co. 117, 119 a, 131, 135 a, 219 a, 340, 344, 350, 483 a V. Carter 556 V. Hudson River E.R. Co. 543 V. James 61, 65 a, 79 Grand Rapids Booming Co. v. Jarvis 465 a,' 551 Granger v. Avery 10, 23, 44 Grant v. Chase 158, 166 b, 191 V. Davenport 546 Graves v. Fisher 21 Gray v. Bartlett 328, 547 V. Bond 67, 204, 216, 223, 234 V. Deluce 55, 56 V. Harris 336, 349 Gray's Case 222 Great Falls Manuf. Co. ■;. Fernald 466 a, 487 Great Falls Co. v. "Worcester 330, 389, 390, 390 a, 394 Greatrex v. Hayward 114 i, 206 a Greeley v. Main Central E.R. 108 a Greenleaf v. Birth 174 W.Francis 113, 114 1, 114 ?, 114 n, lUp Greensdale v. Halliday 120, 389, 390 Griffin v. Bartlett 380 V. Foster 209 Griffith V. Marson 413 Grimstead v. Marlowe 63 Griswold v. Butler 239 a V. Hodgman 149/ Groton v. Haines 331 6, 389, 390 a, 397 Guernsey v. Rodbridge 208, 238 Gwinneth v. Thompson 105 Haas V. Choussard 209 Hadley v. Hadley Manuf. Co. 90, 155 a, 158 Hagan v. Campbell 17 Haight V. Keokuk 545, 546 V. Morris Aqueduct 207, 221, 247, 453 Haines v. Roberts 9 Haldeman v. Bruckhardt 112 a, 112 6, 112 c, 114, 114 1, 114 Z, 114 Hale V. Oldroyd 229, 231, 410, 412 Hall V. Augsbury 38O V. Benner 159 ». Chaffee 293, 307, 387 V. Kitson 567 V. Lund 159, 166 h, 166 1 V. McCaughey 252 K. Swift 120, 211, 226, 411 TABLE OP CASES CITED. XXIU Hall V. "Whillis 65 a Halsey v. McCormick 26, 53, 54 a, 101 a Hamilton v. Marquis of Donegal 87 V. White 303 Hammersmith &o. E.R. Co. v. Brand 119 a Hammond v. Fuller 456 o V. Hall 110 V. McLachan 23 V. Ridgely 23, 31 K. Woodmau 153, 163, 166 f, 179 V. Zehner 221 Hancock v. Wentworth 199 Handly v. Anthony 27, 50 Hankey v. Clar^ 143 Hanson v. McCue 112 a, 114 1 V. Willard 15 Hapgood D. Brown 90, 149/ 153 a, 156 Harding v. Goodlet 466, 487, 488 V. Stamford Water Co. 101, 476 Harlan v. Moore 157 b Harlow v. Fisk 23 Harramon v. McGlaughan 37 Harrington v. Edwards 545, 551, 552, 553 a, 563 Harris v. Gillingham 285, 293 !). Ryding 9 V. Thompson 466, 469 Harrison v. Parker 169 V. Sterrett 567 Harrop v. Hirst 135 Hart!). City of Albany 556 V. Cramer 166 p B.Evans 92,97,405,415 a V. Hill 61, 67, 70, 73, 86, 536, 541, 561 o. Mayor of Albany 343, 449, 542, 563 V. Vose 209, 375 Hartzall v. Sill 116, 119 Harvard College v. Stearns 567 Harvie v. Rogers 246 Harwood v. Benton 114/, 114 n, 166 6 Haskell v. New Bedford 331 6, 461, 565, 567 Haskins v. Haskins 144, 192, 554 Hastings v. Stevenson 40 Hatch V. Dwight 11, 24, 26, 189, 385, 399, 490, 492, 496 V. Vermont Central R.R. Co. 119 a, 465 b, 465 c, 478 Hathorn v. Stinson 26, 41, 41 a, 42, 158, 502, 506, 526, 533 Haughton v. Rascoe 24 Haward w. Bankes 114 fc Hay V. Bowman 9 V. Cohoes Co. 479 Hayes v. Bowman 12, 178 V. Hickleman > 108/ V. Waldron 117, 118, 119, 136, 140 d Hayford v. Spokesfleld 252 Haynes v. Burlington 331 b, 465 b, 465 d V. Gratt 96 Hays V. Bowman 547 Hays V. Hays 108 rf V. Richardson 170, 304 Haywood v. Mason 122 Hazard v. Robinson 158, 166 6, 191, 192, 193, 194, 194 a, 195, 201,240 Hazen v. Essex Co. 466 a, 467, 487, 490 Heath v. Williams 95, 183, 135, 340, 850, 379, 389, 890 Heblethwaite v. Palmer 409 Heiskell v. Gross 453 Henderson v. Adams 484 Hendrick v. Cook 117 Hendricks v. Johnson 14, 96, 483, 485, • 493, 508 Hennessey v. Andrews 510 Henniker v. Contoocook Valley R.R. 484 Hepburn's Case 467 Herring v. Fisher 23 Hersey v. Packard 500, 521 Hetherington v. Vane 436 Hetrick v. Deachler 119, 119 a ' Hewlins v. Shippam 142, 169, 287, 295, 299, 301 Hey ward v. Mayor of New York 461, 467 Hickok u. Hine 465 b, 465 d, 466 a, 585, 567 Hickox V. Parmelee 218 Hildreth v. Lowell 461 Hill U.Baker 528 a V. Crosby 208, 214 V. Cutting 174, 290 V. Hill 290 V. Lord 201 ii. Newman 90 V. Sayles 456 a, 484, 486, 490 a D.Smith 185, 140 c, 201 V. Tupper 96 a, 143 V. Ward 342, 349 a Hillary v. Waller 200, 204, 240 Hilton V, Lord Scarborough 318 Hinchcliffe v. Earl of Kinnoul 158, 166 1 Hinckley v. Nickerson 117, 119 Hines v. Hobinson 149 A, 401 Hoboken Land &o. Co. v. Mayor &c. Hoboken 543 Hobson V. Todd 428 Hodges V. Hodges 381, 402, 435, 496 V. Raymond 841, 389, 481 Hodgkinson v. Ennor 114 d, lUJ, 136 Hodgson V. Field 158, 165 Hoesen v. Coventry 99 a HoflFman v. Savage 241 Hogg V. Zanesville Canal Co. 586, 555, 556 Hoisington v. Grirashaw 143 Holcroft V. Heel 204, 252 Holden v. Lake Company 119 a, 128 Holford V. Baily 73 Holker v. Porritt 96 a, 134 HoUenbeck v. McDonald 158 HoUingsworths v. Dunbar 442 HoUister v. Union Co. 547 Holmes v. Buckley 262 V. Drew 510 0. Goring 166, 195 XXIV TABLE OP CASES CITED. Holmes v. Moore 899 V. Seely 165, 166 p Holsmart v. Boiling Spring Bleach- ing Co. 90, 92, 136, 140 6, 219 a, 219 c, 224, 444, 445, 449, 450 a Holt's Cases 392 Hook V. Smith 483 Hooker v. Cummings 11, 61, 65, 86, 545, 546 V. New Haven & Nortll- ampton Co. ' 465 a, 465 d, 466 Hooksett V. Amoskeag Manuf. Co. . 332, 476 Hooper v. Hubon 551 V. Wilkinson 108 d Hopkins v, Kent 536 Hopper V. Lutkins 362 a Home V. Mackenzie 544 Hoskins v. Bobins 169 Hosmer v. Warner 514, 521 a Housee v. Hammond 119, 136 Houston V. Laffee 170, 285, 286, 287, 288, 293, 302, 307, 318, 320, 328, 390 Howard v. Ingersoll 4, 24, 50, 543 u. Moale ' 36 V. O'Neill 213 V. Proprietors &c. 522 Howcott V. Coffield 482 V. Warren 482 Howe V. Ray 509, 510 Howe Scale Co. v. Terry 149 h, 219 b Howell V. M'Coy 96, 114 o, 115, 185, 136, 166 Hoy V. Sterrett 114 i, 114 p, 115, 119, 135, 215 a Hoyt V. Carter 217 V. Hudson 108 a, 108 I Hubbard v. Concord 140 d Hudson & Del. Canal Co. o. New York & Erie R.R. Co. 462 Hughes V. Mung 402 Hull V. Chaffee 170 V. Fuller 365 V. Leonard 175 Hulme V. Shreve 135, 224, 227, 821, 345, 872, 383, 432, 449 Humes v. Shugart 483, 495 Humphries v. Brogden 9, 114 V. Cousins 114j, 836 Hunt V. Hunt 208 V. Whitney 385, 516, 518 Hunter v. Matthews 483 Hurd 1). Curtis 146, 174, 176, 177, 243, 258, 259, 262, 266, 385 Hurlbut V. Leonard 378 Hurley v. Morgan 22 Hutchinson i; Granger 830, 415 V. Man., Bury, & Rossen- dale R.R. Co. 459 Huttemeier v. Albro 166 b Huy V. Cohoes Co. 889 Hyde v. Russell 85 Hynds v. Shultz 227, 372, 380, 383 Illinois River Packet Co. a. The Peo- ria Bridge Assoc. 536, 555 Ingraham v. Hough 211, 221 V. Hutchinson 95, 114 p, 122, 209, 221 «. Threadgill 549 V. Wilkinson 11, 44, 47, 48, 48 a, 59 o Ingram v. Treadgill 61 Inhabitants of Arundel v. McCuUoch 254 Inhabitants of Ipswich Pet'rs 29, 55 Ipswich V. Browne "2, 80 Irwin V. Phillips 185 V. Sprigg 567 Island Fisheries, Commissioners of, V. Holyoke Water Power Co. 64 Isle of Ely 55* Ivimey v. Stocker 191, 206 J. 5, 52, 72 380 202, 208 302 239 o 65 181 39 898, 412 174 Jackson v, Halstead V. Harrington V. Harvey V. Hull V. Johnson V. Keeling V. Lawrence V, Lunt V. Pesked V. Smith V. Snow 28 V. Van Buren 355 V. Vermilyea 180, 369 Jacob V. AUard 140 d V. The City of Louisville 472, 478, 474 Jamaica Pond Aqu. Corp. v. Chand- ler 142, 153 a, 157, 174, 195 James River & Kanawha Co. v. Tur- ner 474 Jamison v. McCredy 269 Jarvis v. Dean 221 Jebb V. Povey 389, 437 Jefferson, The Thomas 543 Jennings, Ex parte 1, 12, 23, 24, 178, 476, 546 Jennison v. Walker 201, 252, 252 a, 868, 385 Jessup V. Laucks 206, 236, 467 Jewell V. Gardiner 481 Jewett V. Jewett 252 Johns V. Davidson 52 V. Stevens 331 Johnson v. Atlantic & St. Lawrence R.R. Co. 465 d V. Irwin 254 V. Jaqui 252 a, 863 V. Jordan 90, 92, 131, 141, 153, 159,166 c, 166!), 166 o, 166 s, 166 (, 166 «, 198 TABLE OF CASES CITED. XXV Johnson w. Kittredge 486, 519 ,521a Knight V. Wilder e, 9, 11, 29, 55, 56 V. Lewis 115, 294, 399 a, 408 Knoll V. Light 337 V. Pannel 28 Knox V. Chaloner 254, 486 *535, 537, V. Rand 227 554, 556 , 561, 563 V. Eayner 8,157 Kraut V. Crawford 53 Johnston v. Jones 55,56 Joincey v. Stocker 191 Jones V. Crow 136 L. u. Johnston 55 V. Pereival 363 Lacy V. Arnett 322, 380 V. Pettibone 10 Lakeman v. Brown 65 a V. Pierce 528 V. Burnham 65 a V. Powell • 392 Lamb v. Crossland 239 V. Royal Canal Co. 319 V. Ricketts 24, 26, 5c , 536, 547 V. Skinner 512 Lambert v. Bennet 186 V. Soulard 11, 55, 547 Lampman v. Milks 90, 154, 166 b. V. Stevens 96 166/, 166?, 166 OT, 166 s, 195 V. Water Lot Co. 12 Lance v. Harvey 467 Jordan v. Atwood 195 Lancey v. Clifford 537, 541 a, 556 V. Woodward 487 Lane v. Carpenter 211 Jourdain v. Wilson 261 V. Newdigate 445 Judd V. Wells 366 Lapham v. Anthony 0. Curtis Lapish V. Bangor 124 105, 336 24, 544 K. Kaler v. Beaman 227 Kauffman v. Greisemer 4, 96, 108 a, 108 e, 108/, 108 J, 142,337 Keith V. Reynolds 39 Kelly «. Natoma Water Co. 130,131, 490 Kennebec Ferry Co. v. Bradstreet 55,55 Kennedy v. Municipality No. 2 53 V. Scovil 144, 148, 159, 185, 221, 271, 451 Kent V. Waite 158, 214 Kenyon v. Nichols 166 6 Keppel V. Bailey 96 a, 143 Keymer v. Summers 223 Keyport Steamboat Co. u. Farmers' Trans. Co. 567 Kidd V. Laird 490 Kieffer o. Imhoff 166 6, 191 Kilburn v. Adams 211,218 Kilgore v. Haskell 146 Kilgour V. Ashcom 161, 166 g, 166 n. 166 s, 359 Kilheffer v. Herr 434, 439 Kimball v. Garhart 492 V. Ladd 223 a King (The) v. Lord Tarmouth 54 V. King 16 V. Sanders 568 V. Shufford 484 V. Tiffany 95, 96, 135 Kingdom v. Nottle 264 Kinlock v. Nevile 552 Kinney v. Watts 440 Knapp V. Douglass Axe Co. 131, 252, 371, 449 a, 486 I). DriscoU 449 a Knight V. Heaton 240, 241 La Plaisance Bay Harbor Co. v. Monroe 547 Large v. Orvis 484 Lasala v. Holbrook 9 Lattimore v. Davis 108 d, 108 _/ Laumier v. Francis 108 d Lawler v. Baring Boom Co. 119 a Lawrence v. Fairhaven 208, 831 b, 465 cf V. Great Northern E.R. Co. 381 a, 465 e V. Obee 240 Lawton v. Rivers 66, 67 ,| Lay V. King 65 a, 67 L. C. & C. E.R. Co. V. Chappell 466 Ledyard v. Ten Eyck 42, 551 Lee V. Pembroke Iron Co. 460 a, 476 LeFevre v. LeFevre 314, 318, 324 Lehigh Bridge Co. v. Lehigh Nav. Co. 349 Leiiigh Valley R.R. Co. v. Trone ^546 Leland v. Woodbury '484 Leonard o. Leonard 165, 166 m, 166 p, 208, 214 V. Schenck 519 V. Wading River Reservoir Co. 486, 519 V. White 156 Leroy v. Piatt 153 b Leveridge v. Hoskins 395 Lewis V. Keeling 65, 558 V. Price 204 V. Stein 140 5 Liggins V. Inge 130, 248, 245, 251, 308, 311, 312, 3i6 a Lincoln v. Chadbourne 181, 343, 392, 398 Lindeman v. Lindsey 108, 269 Lindsay v. Charleston Comm's 466 Lisley v. Lobley 477 Lister v. Lobley 459 XXVI TABLE OP CASES CITED. Littlefield v. Maxwell 217 Little Miami E.R. v. CoUett 473 Little Scljuylkill Nav. & R.E. & Coal Co. V. Richards 140 c LiTermore v. Jamaica 472, 473 Livett V. Wilson 216, 217 Livingston v. Mayor &e. of New York 474 V. McDonald 108 ^ Lloyd V. New York 331 b Lobdell V. Simpson 131 Locke V. Motley 66 Lockwood' V. N. Y. & New Haven R.R. Co. 546 Lombard a. Forbush 156 London &, North Western Railway Co. w. Bradley 119 a V. Smith 460 a Lonsdale Co. v. Moies 143 Lord V. The Comm's of the City of Sidney 23 Loring v. Norton 35 Lorman v, Benson 55, 535, 537, 547, 551,553 a Louisville, C, & C. E.R. Co. v. Chap- pell 475 Lovell V. Smith 303 Loverin v. Walker 149 a Loringston v. St. Clair County 53 Low V. Knowlton 567 Lowell V. Boston 466 o, 487, 491 a V. Proprietors of Locks & Cailal on Merrimac River 465 b V. Robinson 29 V. Shaw 529 V. Spring 501 Lowndes v. Dickerson 65 a Luce V. Carley 29 Lummery v. Braddy 493 Lunt V. Holland 6, 29, 52 V. Hunter • 82 Luther v. Winnisimmet Co. 4, 4 a, 108 a Luttrell's Case 149 a, 226, 409 Lyford v. Odiorne 351 Lynch v. Allen 22, 57 LyoA V. Fishmongers' Co. 5, 543,-587 V. McLaughlin 447, 447 a M. Maeomber v. Godfrey Maddox v. Goddard Maeris v. Bicknell Magnolia, The V. Marshall Magor V. Chadwick Mal\on V. Brown Makepiece v. Bancroft Mallory's Case M'Almont v. Whitaker M' Arthur v. Kelley Manier v. Myers Mann v. Wilkinson Manning v. Smith 4,46,161 90, 159 130, 131, 490 543 553 136, 206 a Win 363 297 135 470 209, 224, 381 456 a, 491 153, 191, 221, 258 Manning v. Wasdale 8 Manser v. Northern & Eastern Coun- ties E.R. Co. 460 Mansur t>. Blake 41,214 a March v. The Portsmouth & Con- cord R.R. 465 a, 465 rf Marcly v. Shultz 227, 380 Marshall v. Hosmer 420 V. Niles 184 v. Peters 491 a V. Steam Nav. Co. 41, 72, 73 Marston v. Gale 285, 286, 287, 288, 293, • 295, 302 Martin v. Bigelow 135 V. Ives 327 V. Jett 96, 108/, 108^, 142 .,. MeCord 317 V. Nance 29 V. Riddle 96, 108 d, 108 e, WSj, 108 m, 337 V. Stiles 445 ... Waddell 65 a, 542, 549, 567 Mason v. Hill 93, 95, 132, 133, 134, 136, 204, 313, 427 w. K. &P. E.R. 465 . Alden 140 c, 398 V. Bishop 165, 195 Seibert w. Levan 166 6, 166?' Seidensparger v. Spear 285, 802, 387, 500, 502, 506 Selden a. Del. & Hud. Canal 117, 168, 286, 287 Selman v. Wolfe 554 Seneca Nation v. Knight 55 Senior v. Metropolitan Railway Co. 460 a Seymour v. Carter 172, 305, 387, 472, 500 V. Lewis 142, 153, 166(?, 166m,, 166 s, 168, 191 V. Lord Courtenay 74, 77 Shadwell v. Hutchinson 399 Shaferw. Smith 397 Sharpe v. Hancock 284 Shaw V. Crawford 88, 546 V. Cummiskey 835 V. Etheridge 166 6 V. Wells 481, 486, 489 Shears v. Wood 115, 409, 413 Sheldon v. Rockwell 456 a Sherlock v. Bainbridge 541 a, 546 Sherwood v. Burr 221 V. Day 372 Shields v. Arndt 4, 4 d, 205, 206, 240 332, 444, 445, 449 Short u. Taylor 318,319 V. Woodward 172, 380, 387, 486, 503 Shreve v. Voorhees 90, 95, 221, 449 Shrewsbury v. Smith 97, 119 a Shrunk v. The Schuylkill Nav. Co. 61, 67, 541, 548 Shumway v. Simons 375 Shuttleworth v. Le Fleming 142 Sibley v. Elhs 208, 228 a V. Hoar 149 6 Silliman v. Troy & West Troy Bridge Co. 536 Simmons v. Cloonan 166 m Simons v. French 543 Simpson v. Lord How den 454 V. Seavey 224, 404, 554 Sims V. Davis 209 SInnickson v. Jackson 476 Sizer v. Devereux 26 Slack V. Lyon 512 V. Walcott 167, 421 Slade V. Neal . 80 Slater v. Fox 58, 383, 334, 537 Smart v. Morton 9 Smith V. Adams 112, 112 a, 112 c, 444 V, Agawam Canal Co. 119 a, 131, 340, 341, 347, 349, 849 a, 490 a, 491 6 V. Auldridge 28 V. Fletcher 114 k V. Goulding 172, 887, 503 u. Kemp 78, 77 V. Kenrick 108 d, 114, 114 h, 114p, 205, 216 V, Lg6 303 v. Miller 62, 206, 206 a, 211, 215, 216, 219, 220, 221, 231 V. Moodus Water Power Co. 157, 885 V. O'Hara 131 V. Porter 143 V. Powers 9 V. Russ 379 V. Smith 16, 221 XX xu TABLE OF CASES CITED. Smith V. St. Louis 53 Smyles v. Hastings 166 b, 166 jo, 252 Snell V. Bridgewater Cotton Gin Manuf. Co. 517 Snow V. Cowles 430 V. Moses 500, 502, 503 V. Parsons 119, 135, 136, 140 rf Snowden v. Wilas 322 Society for Establisliing Manufactures V. Morris Canal Co. 444 Society &c. v. Holsman 148 Soloman v. The Vintners' Co. 9, 206, 206 a, 215 Somerset v. Fogwell 72, 73, 295 Soule V. Russell 141 South Carolina R.R. Co. v. Elmer 554 South Royaltou Bank v. Suffolk Bank 114 n South Shields Waterw. Co. v. Cookson 151 Sparhawk v. Bullard 55, 56, 543 Spaulding v. Abbot 153, 153 a Speffield V. Collier 302 Spencer's Case 256, 257, 259, 262, 264 Spencer v. Birmingham & London R.R. Co. 572 Spigleraoyer o. Walter 484, 564 Spooner v. McConnell 536, 549, 555 Sprague v. Baker 260 V. Snow 178 0. Worcester 108 1, 331 b Spring V. Russell 119 a, 462, 466, 475, 484, 535, 537, 541, 547 V. Seavey 547 Springfield v. Connecticut Rirer R.R. 466 a V. Harris 119 a Stackpole v. Curtis 153 b, 228, 383 b Standish v. Washburn 514 Staples V. Spring 402, 515 Starr v. Child 4, 10, 28, 26, 27 State*!;. Boscawen 547 V. Callum 541 V. Canterbury 647 V. Dibble 554 V. Preeport 554 V. Gainer 136 V. Gilmantown 4/, 11, 41, 42, 547 V. Glen 61, 65 a, 89 V. Godfrey 562 V. Jersey City 545 V. Moffet 332, 389 V. Parrott 563 V. Pottmeyer 65 a, 491 a V. Wilson 538, 543 St. Clair, County of v. Lovingston 63 Steamboat A. D. Hine, The v. Trevor 543 Steamboat New Orleans, The v. Phoe- bus 543 Steamer Magnolia v. Marshall 55 Stearns v. Janes 216 V. Mullen 143, 149 e Steele v. S. E. Railway Co. 466 e Steele v. The Western Inland Co. 465 c Steffy V. Carpenter 221 Stein w. Burden 8, 93 a, 124, 127, 224, 344 • Stephens v. Benson 322 SterUng v. Warden 285, 287, 288, 290 Stetson V. Bangor 553 a 0. Faxon 535 Stevens v. Dennett . 169, 191, 214 a V. Fitch 517, 519 V. Middlesex Canal 465 c, 476 V. Morse 356 V. Stevens 168, 285, 287, 288, 292 a, 293, 295, 302, 305, 310, 502 V. Taft 216, 221 a. The Patterson and New- ark R.R. Co. 543, 546 Stevenson v. Wiggin 144 b, 158 Stiles V. Hooker 221, 341, 379 Stillman v. Wliite Rock Co. 215, 395 Stinson v. Butler 546 V. Gardiner 384 a St. Louis Public Schools v. Risley 53 Stockham v. Browning 55, 56 Stockport Water Works Co. v. Pot- ter 96 a, 136, 143 Stokoe V. Singers 90, 243 a, 244, 244 a Stone V. Augusta 24, 108 1, 108 m, 331 b V. Boston Steel & Iron Co. 55, 56 V. Bromwich 97, 400 v.. Clark 363 Stonehewer v. Farrar 136, 381 Storer v. Freeman 543 Storm V. Manchaug Co. 490, 491 a, 504 Story V. Hammond 137 Stoughton V. Baker 71, 85, 88, 89, 254 Stout V. Kindt 141 V. Mc Adams 135 Stowell V. Flagg 484, 487, 488, 489, 490 a, 506 V. Lincoln 135, 428 V. Zoijch 239 a Stracej' v. Nelson 459 Strader v. Graham 536 Strickler v. Todd 135, 159, 221, 227 Strigan v. Knowles 9 Strong V. Benedict 149 b, 149 d, 224, 389 Strout V. Millbridge Co. 330, 481, 484, 628.i, 567 Strutt V. Bovington 120, 224 Stuart V. Clark 535, 542 Suffield V. Brown 166 !, 166 m, 166 o Sumner v. Finegan 418 V. Foster 150 V. Stevens 216 V. Tileston 841, 350, 376, 398, 406, 437, 490 Sundifer v. Foster 80 Supreme Court of the U. S. in Bos- ton V. Lecraw IQ Sury V. Pigott 90, 98, 114 )■, 166 b, 191, 193, 409 Susquehanna Canal Co, v. Wright 541 TABLE OP CASES CITED. Sutdiffe V. Booth 96 a 0. Wood 293 Sutton V. Clark 404, 420 Swartz V. Swartz 159, 323, 329 Swasey v. Brooks 153 Swettw. Cutts 108a, 113, 114 p, 114?, nit, 119 Symonds v. City of Cincinnati 473, 474 Tabor v. Bradley 153 6, 158, 159 Talbot V. Hudson 466, 466 a, 487, 491 a Talbott V. Grace • 551 Taplin v. Jones 244 Taylor v. Delancey 209 a. Plampton 158, 248, 250, 385 V. Horde 221 V. Porter 467 V. Waters 285, 299, 300, 301, 304 V. Whitehead 163 Tenent v. Goldwin II47, 114 k, 409 Teschemacher v. Thompson 543 Thames Bank v. Lorell 541 Thatcher v. Dartmouth Bridge Co. 476 Thayer ?). Paine 166, 166 i, 166 0, 166 «, 166 « Theriat v. Hart 209 Thieri v. Voegtlander 466 a, 476 Thinmo v. Commonwealth 254 Thomas v. Brackney 117 V. Hill 490 ■ V. Marshfield 215, 216 V. Sorrell 285 V. Thomas 114?, 191, 198 a, 226 Thome v. Seabright 298 Thompson v. Androscoggin Co. 535 V. Crocker 116, 335, 420 V. Grand Gulf R.E. Co. 477 V. Gregory 171, 187, 355, 367 V. Lee 131 V. Monroe 490 a V. Moore 486, 490 a u. Proprietors Andover Bridge 159 V. Shattuck 260 Thornton v. Grant 55, 56, 546, 557, 567 Thunder Bay Booming Co. v. Speechly 535, 537 Thurber v. Martin 119 a, 131, 135 a, 350, 4916 Thurman v. Morrison 546 Thurston v. Hancock 9 Tickle V. Brown 169, 213, 214 a, 220 Tillotson V. Smith 95, 96, 108/, 115, 135, 335, 430, 433 Timm v. Bear 118, 119, 119 a Tinkham v. Arnold 505, 506 Tipping V. St Helen's Smelting Co. 140 c Tobias, Ex parte 7 Todd V. Austin 466, 466 a, 481 Tolle V. Correth 128, 129 Tolly V. R.E. Co. 475 Tomlin v. Dubuque, Bellevue, & Miss. R.K. Co. 543, 545, 546 V. Fuller 165 Toralinson v. Man. & Birm. R.R. Co. 459 Tootle u. Clifton 108 / Tourtellot v. Flielps 90, 92, 95, 119, 119a, 149J, 149/;i49/i, 153, 158, 3(36, 404 a, 4.33 Town V. Faulkner 380 Townsend v. Downer 223 a V. McDonald 90, 95, 135, 141, 200, 205, 206 252 235 Tracy v. Atherton 204, 208! 211,'2i3, 216, 217, 228 a, 239/!, 252 Trask«. Ford 210,216,221 o. Patterson 166, 166 p Treat v. Bates 108 k V. Cliipman 56 V. Lord 254, 486, 535, 537, 539,551, 553 a Trenton Water Power Co. u. Raff 461 Trotter v. Harris 201 Trustees Illinois & Mich. Cent. R.R. V. Haven 23 Trustees &c. of Watertown v. Cowen 572 Trustees &c. of Hopkins Acad. v. Dickinson 4e, 5, 10, 11,44, 45, 48 a, 53, 55, 56, 57, 59 a, 60, 101a Tucker v. Campbell 528 a u. Jewett 135, 166 r, 193, 221 V. Newman 114?, 398 Turget V. Lloyd 265 Turner v. Blodget 567 O.Dartmouth 108/ Tathill.u. Scott 53,832,335,428 Twiss V. Baldwin 115, 123, 135, 409 Tyler v. Beecher 466 V. Hammond 198 V. Mather 521 a V. Wilkhison 8, 10, 11, 90, 95, 117, 135, 136, 211, 212, 218, 221, 230, 238, 239 a, 255, 349 0,449 Tyrrell v. Lockhart 569 U. Underwood v. The North Wayne Scythe Co. 506 Union Canal Co. «. Landis 548 Union Mill &a. Co. u. Ferris 121, 126, 128, 215 a United States v. Ames 488, 508 V. Appleton 158, 159, 166 b V. Arredendo 216 V. The New Bedford Bridge 562 V. The R.R. Bridge Co. 555 Universities of Oxford and Cam- bridge V. Richardson 445 XXXIV TABLE OP CASES CITED. Valentine v. Piper 217, 221 Van Bergen v. Van Bergen 452, 456 a Vancouver, The 557 Vandenburg v. Van Bergen 100, 335 Van Deusen v. Comstock 515, 520, 521 a Van Gorden v. Jackson 5, 39 Van Hoesen v. Coventry 95, 115, 135 Van Home v. Dorrance 472, 473, 475 Van Eensselaer v. Read 262 Varick V. Smith 13, 24, 32, 457, 461,456, 467, 469, 537, 546 Vaugh V. Wetherell 509 Veazie v. Dwinel 390, 481, 484, 486, 490, 491, 535, 537, 541 a, 554, 566, 567 Veghte V. Raritan &c'. Co. 252, 308, 818 Vermont Cent. R.R. Co. v. Hills 148, 153, 159 Viall V. Carpenter 165, 195 Vickerie v. Buswell 173, 866, 880 Vincent v. Michel 209 Vinton v. Welsh 82, 85 Vliet V. Sherwood 119 a Vooght V. Winch 254 Vowles V. Miller 407 Vyvyan v. Arthur 259 w. Waddy v. Johnson 482, 484 !;. Thompson 488 Wade V. Howard 173 Wadsworth v. BuflFalo Hydraulic As- soc. 461 V. Smith 2, 537, 589, 547 V. Tillotson 90, 92, 95, 99, 116, 127, 135 Waffle V. N.Y. &o. R.R. Co. 108 c, 108 j V. Porter 46 Waggoner v. Germaine 394, 402 Wagner v. Long Island R.R. Co. 4, 108 a Wakeman v. West 234 Walker v. Board of Public Works 541, 547 u. Hatton 109 v. Old Colony & Newport R.R. Co. 465 (/ V. Oxford Woollen Manuf. Co. 484, 510 V. Shephardson 23, 29 Walker's Case 257 Wall V. Mxon 886, 436 Wallace v. Fletcher 200, 201, 208, 209, 217, 223, 231, 232, 239 a Wallis V. Harrison 248 a, 287, 301 Walrath v. Barton 828 a Ward V. Robins 225 u. Ward 252, 252 a Waring v. Clarke 550 a Warner v. Southworth 10 Warren v. Blake 166 b, 166 m, 166 t c. Chambers 59 o Warren v. Webb 418 Warring v. Martin 95 Washburn' K. Oilman 136,349,554 Washburn & Moen Manuf. Co. v. Worcester 331 b Wasthoff V. Dracourt 175 Waterman v. Johnson 9, 11, 17, 23, 41, 41 b, 364 Waters v. Lilley 63, 64, 82, 544 Watkins v. Peck 209, 213, 216, 222, 224, 238, 289, 289 a, 828 Watrous v. Watrous 854 Watson V. Peters 23 Watt V. Kinney 361 Watts V. Kelson 166 1, 166 m V. Kinney 421 Weakley v. Legrand 26 Weaver v. Eureka &c. Co. 131 Webb V. Bird 202, 215, 219 a, 219 e u. Manchester & Leeds R.R. Co. 459 V. Paternoster 297, 298, 299, 309 V. Portland Man. Co. 90, 95, 101, 101a, 119 a, 129, 135, 135 a, 432, 433, 449 V. Russell 257 Webster v. Holland 148, 538 a Weekly v. Wildman 8 Weise v. Smith 535, 545 Weld V. Hornby 84, 85, 254 Welland Canal v. Hathaway 327 Weller v. Smeatou 818, 452 Welton V. Martin 389, 432 Wendell v. Pratt 835 a, 336, 402 V. Van Rensellaer 328 Wentworth v. Poor 490 West V. Walker 449 West Roxbury v. Stoddard 41, 41 b, 65 a, 66, 544 Weston V. Alden 116, 122, 123, 124, 124 a, 125 V. Sampson 65 a Wetmore v. Atlantic &c. Co. 558, 557 V. White 107, 159, 320 Whaley v. Laing 96 a Wharf Case, The 387 Wheatley v. Baugh 4 b, 90, 92, 109, 112 a, 112 6, 112c, 114;, mi, 114 p, 119, 215 a V. Chrisman 90, 99 a, 136, 201, 224, 255 Wheeler v. Brovpn 174 u. Spinola 41, 42, 544, 547 V. Worcester 108 a, 108 i!, 404, 465 rf Wheelock v. Thayer 263 Whetstone M. Bowser 112 5,112 c Whipple V. Cumberland Manuf. Co. 185, 480 Whitaker v. Burhaus 546 Whitcomb v. Vermont Cent. R.R. Co. 465 d White V. Chapin 108 a, 108 j, 114 r, 114 f 163, 166 a, 166u, 206, 206 a,' 211, 213,221, 223 a, 390 TABLE OF CASES CITED. XXXV White V. Crawford 143, 252 V. Eames 166 r, 343 a V. Elwell 290 V. Leeson 165 V. Loring 216, 221 V. Whittier 66 Whitechurch v. Hide 318, 452 Whitehead v. Parks 144 6 Whitehouse v. Birmingham Canal Co. 331 b Whiteman v. R.R. Co. 473 Wliitemarsh v. Walker 286, 305 Whitney v. Eames 166 r, 343 a V. Holmes 288 V. Olney 90, 153, 156, 165 Whittier w. Cocheco Manuf. Co. 221, 224, 225, 228 V. P. & K. Eailroad Co. 119 a Whickersham v. Orr 322 Whickham v. Walker 63 Wier V. Covell 414 Wigford V. Gill 108, 391 Wight V. Packer 444, 486, 509, 518 Wilbur V. Brown 411, 441 Wilder v. St. Paul 252 Wilkinson v. Leland 466, 467 Willard V. Cambridge 567 Williams v. Beardsley 555 V. Buchanan 11 V. Earl of Jersey 319 V. Esling 428 V. Gale 108 e, 108 j, 338 u. Jackson 5, 39 V. Morland 94, 11.5, 130, 133, 409, 427 V. Morris 169, 295 V. Nelson 208, 214, 221, 243, 373, 385, 487, 491 a, 504, 505 o. School District 466 u. Wilcox 535, 554 Willyard v. Hamilton 475 Wilmarth v. Knight 486, 520, 521 a Wilson V. Bagshaw 165 V. Forbes 549 V. Myers 482 V. New Bedford 1146, 114 jr, 114/, 339, 514 V. Wilson 221, 372 Wilts & Berks Canal Nav. Co. v. Swindon Water Works Co. 97, 135 Winkley v. Salisbury Manuf. Co. 283, 354 a, 486, 491, 520 o Winnipiseogee Lake Co. v. Young 209, 211, 224, 280, 407, 408, 447, 452 Winnisimmet Co. v. Wyman 56 Winship v. Hudspeth 211, 214 Winslow V. Euhrman 105 Winter v. Brockwell 293, 296, 308, 309, 311,312,313,314,316 a Winterbottom v. Wright 109 Winthrop v. Curtis 5, 39 V. Fairbanks 173, 174 Wishart v. Wyllie 11 Wistanley v. Lee 444, 452 Wolcott "Manuf . Co. v. Upham 489 Wonson v. Woneon 56 Wood V. Edes 119 a, 286, 287, 318, 322, 322 a, 387 V. Hustis 484, 545 V. Kelley 41 b, 210, 211, 428, 506 V. Lake 298, 299, 302, 304 V. Leadbitter 285, 293, 296, 297, 298, 299, 300 o. Manley 290, 293, 301 .7. Sutcliffe 1406,452 V, Veal 234 V. Waud 4, 46, 90, 94, 114/, lUt, 129, 136, 140 c, 206, 206 a, 219 c V. Wood 23 Woodbury v. Parshley 293, 302 V. Short 57 V. WiUis 398 Woodcock V. Estey 5, 90, 363 Woodfolk V. N. &. C. R.R. 473 Woodman v. Kilbourn Manuf. Co. 555 . Wilder, not always in contact with the flow of the 2 Cush. 209. See 3 Kent, 428.] stream ; but it is in such contact for a ^ Jackson «. Halstead, 5 Cowen, 216. great part of every day, in the ordinary « [11 Ad. & Ell. n.s. 707. See Wool- and regular course of nature, which is an rych. Law of Waters, 146 ; post, § 90, and amply sufiicient foundation for a natural note.] 10 LAW OP WATERCOURSES. [CHAP. I. them and other specified lands, must be taken to be the water itself, and not the channel through which it flows." ^j § 6. In this country, a grant by a State conveying a tract of territory, carries with it a right of property in all the water- courses within the boundaries of the grant.^ A patent from the State of New York convej^ing territory twenty-four miles in width on the river Hudson, above tide-water, with the terri- tory described as " lying and being in and upon the banks of Hudson River," includes the soil under the river, as far as the patent extends up and down the river.^ In Pennsylvania, all rivers and streams of water are comprehended within the char- ter bounds of the Province, and passed to William Penn, in the same manner as the soil ; and in grants of vacant land by him and his successors, during the proprietary times, and by the Commonwealth since, streams of water not navigable, falling within the lines of a survey, were covered by them, and belonged to the owner of the tract; and such owner might convey the body of the stream to one person, and the adjoining land to another, or he might convey the adjoining land only to one, who would then be riparian proprietor to the middle of the stream.* § 7. In a case in the State of New York, it appeared that a valuable waterfall in the middle sprout of the Mohawk River, which falls into the river Hudson, had been destroyed by a dam erected for the use of the canals. This fall was granted in terms, as so much land covered with water, 1752, by Stephen Van Renssellaer, and had come by mesne conveyances to the relator ; there being an actual individual seisin of the fall eo nomine for upwards of thirty years. It was well known that the land on both sides of the fall was granted away at a very early period by the State, which had not afterwards asserted the least claim. The canal appraisers refused to allow the relator any damages, on the sole ground that the land under water belonged to the 1 [The words of exception, on which "> Lunt v. Holland, 14 Mass. 149 ; this decision was founded, were in a lease, Middleton v. Pritchard, 3 Scam. (111.) and followed after a grant of all waters 620. and watercourses belonging &c. These 3 Canal Commissioners v. The People, words were, " except a certain water- 6 Wend. 423 ; and see People v. Canal course flawing through Little Moor Mead, Appraisers, 13 Wend. 355 ; Roo-ers v. and thence into another mead named, for Jones, 1 Wend. 255. watering it and other lands of Sir C. * Goovert v. O'Connor, 8 Watts, 470. Wyudham." 11 Ad. & Ell. 700.] CHAP. I.] EIGHT OF PROPERTY IN. 11 State ; but the Supreme Court granted a mandamus against the appraisers.^ § 8. It has, therefore, as a matter of course, been held, that the right to a watercourse is a part of the freehold, of which no man can be disseised but by lawful judgment of his peers, or by due process of law.^ Still, 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 by water." ^ To give execution of that ^ Tobias, ex parte, referred to in note to 6 Cowen, 551 ; and see Jennings, ex parte, Cowen, 518. 2 Gardner v. Newburgh, 2 John. Ch. 162. And see Beidelman v. Foulk, 5 Watts, 308. [In Gary v. Daniels, 5 Met. 238, Wilde J. said, " The right which a party has to the use of water flowing over his own land is undoubtedly identified with the realty, and is a real or corporeal hereditament, and not an easement, but the right of a party to have the water of a stream or watercourse flow to or from his lands or mill, over the land of another, is an incorporeal hereditament, and an easement, or a predial service, as defined by the civil law. And it is immaterial whether the watercourse be natural or artificial ; or whether the right is derived ex jure naturae, or by grant or prescription." And in Critten- ton V. Alger, 11 Met. 284, Hubbard J., re- ferring to the above statements of the law, said, " We entertain no doubt of the correctness of this position." See post, §§ 90, 128 and note, 141. But, strictly speaking, the riparian proprietor has no property in the water itself; but a simple use of it while it passes along. Story J., in Tyler u. Wilkinson, 4 Mason, 400. See Stein v. Burden, 29 Ala. >r.s. 127 ; s.c. 24 Ala. N.s. 130; Burden v. Stein, 27 Ala. N.s. 104.] '2 Bla. Com. 18; Runnington on Eject. 131. fin Racer. Ward, 4 El. &B1., 708, Lord Campbell C.J., said, that an action for taking water, the property of the plaintiff, could not be supported un- less the water were contained in a cistern or some vessel in which he had placed it for his private use. The defendant claimed, in the above case, a right by im- memorial custom, in all the inhabitants of the township, to take water from n, spring issuing from the plaintifTs close, and to carry it to their dwelling-houses for domestic purposes. Lord Campbell said, " The water which they claim a right to take is not the produce of the plaintiff's close ; it is not the subject of property. Blackstone, following other elementary writers, classes water with the elements of hght and air. 2 Bl. 14. Afterwards, having stated that a man cannot bring an action to recover posses- sion of a pool or other piece of water, either calculating its capacity, as for so many cubical yards, or by superficial measure for twenty acres of water, he gives the reason : ' For water is a mova- ble, wandering thing, and must of neces- sity continue common by the law of nature' (p. 18). It is not disputed that this would be so with respect to the water of a river or any. open running stream. We think it equally true as to the water of a spring, when it first issues from the ground. This is no part of the soil, like sand, or clay, or stones ; nor the produce of the soil, like grass, or turves, or trees. A right to take these by custom, claimed by all the inhabitants of a district, would clearly be bad ; for they all come under the category of profit a prendre, being part of the soil or the produce of the soil ; and such a claim, which might leave nothing for the owner of the soil, is wholly inconsistent with the right of 12 LAW OF WATEBCOUESES. [chap. I. which is so wandering and fugitive as running water, is indeed impracticable.^ § 9. The only mode by which a right of property in a water- course, above tide-water, can be withheld from a person who receives a grant of the land, is by a reservation directly expressed or clearly implied to such effect. If the intention of the grantor is not to convey any interest in the water, or any portion of it, 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. property in the soil. But the spring of water is supplied and renewed by nature : it must have flowed from a distance by an underground channel ; and, when it • issues from the ground, till appropriated for use, it flows onward by the law of gravitation. While it remains in the field where it issues forth, in the absence of any servitude or custom giving a right to others, the owner of the field, and he only, has a right to appropriate it ; for no one else can do so without com- mitting a trespass upon the field ; but, when it has left his field, he has no more power over it, or interest in it, than any other stranger." See Year Book, Trin. 15 Ed. 4, fol. 29 A. pi. 7; Weekly v. Wildman, 1 Ld. Ray. 407; Manning v. Wasdale, 5 Ad. & El. 758 ; Blewett v. Tregonning, 3 Ad & El. 554.] 1 In Challenor v. Thomas, Yelv. (Met- calf's ed.) 143, error was brought on a judgment given in ejectment in Com. Carmarthen. And Yelverton assigned the error, because the ejectment was brought de aqum cursu, called Lochar in Llandeby, and declared on the lease of David Rees ap Thomas de quodam rivulo el aquw cursu ut supra. And, per iotam curiam, the judg- ment was reversed ; for rivulus seu aquce cursus doth not lie in demand, neither doth a praecipe 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 mora- tur super mare, which is not allowable by 35 H. 6, for mare non nwratur ; but as 12 H. 7, 4, is, the action ought to be for so many acres of land aqua co-operta; and ejectment well lies of a gorce or pool, for a prmcipe 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 In Godbolt, 167, pi. 213, it is said, " It was adjudged in this court (B.R.) that an ejeclione firmce doth lie de aquce 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 Bvownlow's report of this case. So do Runnington and Adams, in their respective treatises on the action of ejectment. See Woolrych, Law of Waters, 276, 295. An ejectment has, however, been sustained for a boilery 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, wliich are called hoileries. Any one who with- holds 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 diflTerent from a river which is always running ; for here the water is fixed in a certain place, and within the bounds and com- pass of the well, and is considered as a part of the soil. So an ejectment lies pro slaqno, for in law the word stagnum comprehends both land and water. Co. Litt. 5. [" In the same manner, gurges, a deep pit of water, consisteth of water and land ; and therefore by the grant thereof by that name the soil doth pass, and a prcecipe doth lie thereof." Co. Litt. 5 ; Johnson v. Rayner, 6 Gray, 110. So the term "well," aptly designates the soil covered by and used with it ; and a grant thereof passes the fee in the premises occupied by the well. Johnson i. Ray- ner, supra ; Owen v. Field, 102 Mass. 104. See post, § 41.1 CHAP. I.] EIGHT OP PROPERTY JN. 13 he can exclude it by the insertion in the instrument of convey- ance of proper words for the purpose of doing so ; but in the absence of such words, the bed, and consequently the stream itself, passes by the conveyance.^ In a case in the Supreme Court of the State of New York,^ it appeared, that in 1784, the country through which a river called the " Saranac " runs, was wild and uninhabited ; and that a patent for a tract of land was in that year granted, bounding on the east by Lake Champlain, and extending west on both sides of said river, and being seven miles square. The patent contained no other reservation than of " all mines of gold and silver,^ salt springs, lakes, and mines of 1 Claremont v. Carlton, 2 N.H. 371 ; Hay V. Bowman, 1 Rand. (Va.) 420; Waterman v. Johnson, 13 Pick. 261; Brown v. Kennedy, 5 H. & John. 195; Gavit V. Chambers, 3 Ohio, 495 ; 3 Kent, 427, 428 ; Knight v. Wilder, 2 Cash. 199, 209 ; and see post, eh. V. A deed con- veying to the grantee fifty acres of land, being half of a certain hundred-acre lot described as bounded by a river, " said half to be taken off the width of said lot on said river" (which was at the south end), "and so far back as to make the half of said lot, quantity and quality, as it now stands," does not convey any in- terest in the north end of the lot, so as to constitute the grantor and grantee tenants in common of the whole lot. If, how- ever, such deed were construed as consti- tuting a tenancy in common, the fact that the north and south portion of the lot had been long possessed in severalty, each party claiming a dividing line between them, with an agreed boundar}- on the west line of the lot, would be conclusive evidence of partition, notwithstanding the monuments to which they claimed on the east side were different. Smith v. Powers, 15 N.H. 546. 2 People V. Piatt, 17 John. 195; and see Colvin v. Burnet, 2 Hill, 620. ' Not only has land, in its legal signifi- cation, an indefinite extent upwards, but, in contemplation ot law, it extends also downwards, so that whatever is in a direct line beneath the surface of any land and the centre of the earth, belongs to the owner of the surface ; and, there- fore, if a man grants all his lands, he grants thereby all his mines. 2 Bla. Com. 18. See Acton v. Blundell, 12 M. & W. 824; Doe v. Freeland, 1 T. R. 701. See ante, § 5, as to the maxim cujus est solum &c. When the surface of land belongs to one man, and the minerals belong to another, no evidence of title appearing to regulate or qualify their rights of en- joyment, the owners of the minerals can- not remove them without leaving support sufficient to maintain the surface in its natural state. The owner of the surface close, while unincumbered with buildings, and in its natural state, is entitled to have it supported by the subjacent mineral strata ; and if the surface subsides and is injured by the removal of these strata, although the operation of removal may not have been conducted negligently, nor contrary to the custom of the country, the owner of the surface may maintain an action against the owner of the min- erals for the damage sustained by the subsidence. Humphries v. Brogden, 12 Q.B. 739 ; [Eowbotham v. Wilson, 8 El. & Bl. 123; s.c. 6 El. & Bl. 693; s.c. 8 H. L. Cas. 348 ; Harris v. Ryding, 5 M. & W. 60; Smart v. Morton, 5 El. & Bl. 30; Haines v. Roberts, 7 El. & Bl. 625 ; s.c. 6 El. & Bl. 643 ; Bonomi v. Backhouse, El. Bl. & El. 622 ; Rogers v. Taylor, 2 H. & N. 828 ; Partridge v. Scott, 3 M. & W. 220 ; Strogan v. Knowles, 6 H. & N. 454, 466 ; Brown v. Robins, 4 H. & N. 186 ; North Eastern Railway Co. v. Elliot, 1 John. & H. 145. The same rules apply to cases of lateral support of land. Foley V. Wyeth, 2 Allen, 131 ; Solomon v. The Vintners' Co., 4 H. & N. 585 ; The Cale- donian Railway Co. v. Sprot, 2 Macq. H. L. Cas. 449 ; Richardson v. Vermont Central 14 LAW OF WATEECOURSES. [CHAP. I. salt, and carrying places upon any water communication which may be found or contained within the limits of the said land." The Court held, that, as there was no other reservation of the river, nor any restriction imposed in the use of the water ex- pressed in the grant, the whole river within the bounds of the patent passed to the patentee as his exclusive property. 3. Eow the Private Bight of Property in a Watercourse is ap- portioned between Opposite Eiparian Owners. § 10. The owners of watercourses are denominated by the civilians riparian proprietors,^ and the use of the same significant and convenient term is now fully introduced into the common law. The soil of the bed itself, and consequently the water, may be, and most often is, divided between two opposite riparian owners ; that is, the land on one side may be owned by one person, and the land on the opposite side by another. When such is the case, each proprietor owns to the middle, or what is called the thread of the river, or, as it is expressed in Latin, usque ad filum aquce.'^ i There is but one difference between a R.R., 25 Vt. 465 ; Eadcliff u. Mayor &c., i [In Bardwell v. Ames, 22 Pick. 333, of Brooklyn, 4 Comst. 195; Tliurston v. 335, Shaw C.J. said, "By tliis designa- Hantoclc, 12 Mass. 220; Lasala i^. Hoi- tion — riparian proprietor — I understand, brook, 4 Paige, 169 ; Beard v. Murphy, 37 an owner of land, bounded generally upon Vt. 101. " This doctrine," said Lord Camp- a stream of water, and, as such, having a bell C.J., in Humphries v. Brogdeu, 12 qualified property in the soil to the thread Q.B. 739, " stands on natural justice, and of the stream, with the privileges annexed is essential to the protection and enjoy- thereto by law." In the note to Com- ment of property in the soil." The legal monwealth v. Roxbury, 9 Gray, 521, Mr. remedy for an invasion of the right of Gray says :" The words 'riparian proprie- horizontal or vertical support of land tor ' have been heedlessly extended from "does not depend upon any rule of neg- rivers and streams to the shores of the ligence or unskilfulness, but upon the sea. If it is necessary to express it by a violation of a right of property which has single adjective, the term 'littoral pro- been invaded and disturbed. This un- prietor,' as used by the plaintiflfs counsel qualified rule is limited to injuries caused in Commonwealth u. Roxbury, 9 Gray, to the land itself, and does not afford 472, and by the Supreme Court of the relief for damages by the same means to United States in Boston o. Lecraw, 17 artificial structures. For an injury to How. 432, 433, is more accurate."] buildings, which is unavoidably incident ^ ggg Lord Hale's Treatise, I)e Jure to the depression or slide of the soil on if aris &o., Harg. Tracts, 5 (see post, § 54, which they stand, caused by the excava- note) ; Holt, 499 ; Tyler v. Wilkinson, 4 tion of a pit on adjoining land, an action Mason, 397 ; [Bardwell v. Ames, 22 Pick, can only be maintained when a want of 354 ; Fletcher ». Phelps, 28 Vt. 257, 262, due care or skill, or positive neghgence, perlshamJ.; Claremontu. Carlton, 2 N.H. has contributed to produce it." Mer- 369] ; and the authorities cited, ante, § 5, rick J., in Foley v. Wyeth, 2 Allen, et seq. [" This is the legal effect of the 133]. conveyance, and it cannot be varied or CHAP. I.J RIPARIAN OWNERSHIP. 15 stream running through a man's land, and one which runs by the side of it ; in the former case he owns the whole, and in the latter but half.^ § 11. A watercourse is considered the safest boundary of real estate, as it is a natural boundary ; ^ and the invariable construc- tion in this country has been, as it has been for centuries in England, that, whenever land or a mill site is sold and conveyed as being bounded by a watercourse, the watercourse usque ad filum aquce is included. ^ In numerous cases of much importance in controlled by parol testimony." Per Isham J., in Fletcher v. Phelps, 28 Vt. 257, 262.] The word "thread" is de- fined by Johnson " a small line,'' " any thing continued in a course." Johns. Diet. A party having made a ditch six feet wide through his land, and conveyed a part of it bounding the grantee on the ditch, it was held, that the grant extended to the middle of the ditch. Warner v. Southvvorth,6 Conn. 471 ; [Agawam Canal Co. V. Edwards, 36 Conn. 476, 501, 502. In Trustees &c. v. Dickinson, 9 Cush. 544, 552, Shaw C.J. said, " In ascertaining tTie" thread of the river, it will be proper to take the middle line between the shores upon each side, without regard to the channel, or lowest and deepest part of the stream. And in ascertaining the shores or water-lines on each side, to measure, it will be proper to find what those lines are when the water is in its natural and ordinary stage at a medium height, nei- ther swollen by freshets nor shrunk by drought." Pratt v. Lamson, 2 Allen, 275, stated post, § 101 a]. — ' 1 Starr v. Child, 20 Wend. 149. [" If the same person be the owner of the lands on both sides of the river, he owns the whole river to the extent of the length of his lands upon it." 3 Kent, 428 ; Jones V. Pettibone, 2 Wis. 308. See Granger v. Avery, 64 Maine, 292.] ■^ Per Washington J., in Den v. Wright, 1 Peters C.C. 64. [In Dunklee v. The Wilton R.R. Co., 24 N.H. 489, 507, 508, where the land conveyed was bounded on the '■ Sawmill Brook," which was ad- mitted to be an artificial raceway into which the water of the brook had been turned, and, " on the Bridge Meadow Brook," which was the original channel of the brook ; and the deed contained no reservation or stipulation looking to any change proposed or feared of these water- courses, — the Court said, " Now, we think the mention of this raceway as the saw-mill brook, is a recognition of it as being, as between these parties, the brook, the natural channel; since that is the force and significance of the word brook, and is entirely equivalent to an agree- ment that, as between these parties, this raceway is to be regarded as the natural stream."] 3 Mayo V. Quimby (1799), cited in 3 Dane Abr. 4; Hatch v. Dwight, 17 Mass. 289 ; [Cold Spring Iron Works v. Tolland, 9 Cush. 492, 495. When the boundary of two properties passes along or over a stream or piece of water, it is taken prima facie to coincide with the medium JUuvi of the stream, or the diame- ter of the pool; although, of course, it may be proved expressly to have some other direction. In moving that the de- cision appealed from, in Wishart v. Wyllie, 1 Macq. H.L, Cas. 389, should be affirmed, the Lord Chancellor (Lord Cranworth) said, " If a stream separates properties A. and B., prima facie, the owner of the land A., as to his land on one side, and the owner of the land B., as to his land on the other, are each entitled to the soil of the stream, usque ad medium aquae ; that is, prima facie so. It may be rebutted; but, generally speaking, an imaginary line, running through the middle of the stream, is the boundary ; just as, if a road sepa- rates two properties, the ownership of the road belongs half way to one and half-way to the other. It may be rebutted by cir- cumstances ; but, if not rebutted, that is the legal presumption. Then, if two 16 LAW OP WATERCOURSES. [chap. I. this country, it has been declared, that the common law on this subject prevailed here, and that conveyances of land bounded on rivers and streams of water (above tide-water) extend usque ad filum aqum} A grant of all the land situated east and north of a certain stream was held to extend to the middle of the stream.^ Each riparian proprietor owns an equal share of the bed of the stream in proportion to his line on the margin of the stream, together with that portion of the bed of the stream which lies opposite, in front of, or adjacent to, his upland; and this, in the absence of any controlling grant, will be effected by the straight lines, at right angles, which will in general be the shortest and most direct lines to the thread of the river. And it cannot well be perceived how this consideration can be influenced by the shape of the upland lot, or by the direction of its side lines back from the river. ^ § 12. The same rule holds, whether a grant of land is made properties are divided by a rirer, the boundary is an imaginary line in the mid- dle of that river; but to say that the whole of the river is a sort of common property, which belongs to no one, is not a correct view of the case." See 3 Kent, 427, 428. Chancellor Kent says, " Where a stream is used in a grant as a boundary or monument, it is used as an entirety to the centre of it, and to that extent the fee passes. Prima facie, said the Vice- Chancellor of England, in Wright v. Howard, 1 Sim. & Stu. 190, the proprie- tor of each bank of a stream is the pro- prietor of half the land covered by the stream." 3 Kent, 428; Pratt v. Lamson, 2 Allen, 284. In Pratt v. Lamson, it was held, that if a natural stream of water flows and forms the boundary between the lands of different proprietors, the fee of each owner includes one-half of the bed of the stream ; but each is entitled to use one-half of the water which flows in the stream, without regard to the po- sition and course of its principal channel and current. This case is more fully stated on this last point, post, § 101 a. But deeds of land bounding on a stream do not affect previous independent con- veyances of all the water power therein. Crittenden v. Field, 8 Gray, 621J. 1 Palmer v. Mulligan, 3 Caines, 319; Canal Commissioners v. The People, 6 Wend. 423 ; Tyler v. Wilkinson, 4 Ma- son, 397 ; Claremont v. Carlton, 2 N.H. 369 ; Ingraham v. Wilkinson, 4 Pick. 468 ; People V. Seymour, 6 Cowen, 579 ; Hooker V. Cummings, 20 John. 91; Arnold u. Munday, 1 Halst. (N.J.) 1; Adams ti. Pease, 2 Conn. 481 ; Mead v. Haynes, 3 Rand. (Va.) 33; Blanchard v. Baker, 8 Greenl. 253 ; Bliss v. Rice, 17 Pick. 23 ; Waterman u.. Johnson, 13 Pick. 261 ; Wil- liams V. Buchanan, 1 Ire. 535 ; Canal Ap- praisers V. People, 17 Wend. 590; Com- missioners of Canal Fund v. Kempshall, 26 Wend. 404 ; Child v. Starr, 4 Hill, 369 ; [Brown v. Chadbourne, 31 Maine, 9 ; Pike V. Munroe, 86 Maine, 309; Trustees &c. u. Dickinson, 9 Cush. 646, 547 ; State u. Gilmanton, 9 N.H. 463 ; though the courses and distances do not agree with the actual course of the stream. Browne v. Ken- nedy, 6 H. & John. 195, 205, 207. This doctrine applies to the great rivers in this country, like the Mississippi, subject to the public right of passing over them as highways. 3 Kent, 427 ; Morgan v. Read- ing, 3 S. & Marsh. 366, 403; Jones v. Soulard, 24 How. (U.S.) 41]. " Morrison v. Keen, 3 Greenl. 474. » Per Shaw C.J., in Knight v. Wilder, 2 Cush. 199; and see post, §§ 55, 56. CHAP. I.] RIPARIAN OWNERSHIP. 17 by a State or an individual.^ In Maryland, the State is entitled to certain unnavigable rivers, and to the soil they occupy ; and it is held by the courts there, that, if the State grants land on one of such rivers, and the grant calls for the river as a boun- dary, the grantee becomes riparian proprietor, and is entitled to the land the river covers ad filum medium aquce ; and that any subsequent grantee, under the same description, is alike entitled.^ Grants by the legislature of New York of islands in rivers and streams of water, where the tide does not ebb and flow, although made during a long series of years, do not justify the' conclusion that the principle of the common law has not been adopted, that grants of land bounded on such waters carry the exclusive right of the grantees to the middle thereof.^ § 13. Lots bounding on the Oswego River, and immediately below a dam belonging to the State of New York, erected for canal uses, were sold by the commissioners of the land-office as water lots bounding on the river. It was held, that the pur- chaser of such water lots was entitled to the water privileges connected wil^h such lots at the time of the sale, by the natural flow of the surplus water over the State dam, so far as such waters could be used, to the middle of the stream, provided the public right of navigation was not molested; and that State officers could not afterwards lease such surplus waters, and authorize the lessee to prevent them from flowing over the dam, to the injury of the water privileges connected with the water lots thus sold. * § 14. So, grants by the general government of the United States are construed by the Common-Law rule, unless there is something to exclude or qualify that construction. A grant by the United States of land lying upon the river Mississippi, 1 Hayes o. Bowman, 1 Rand. (Va.) Bland Ch. 453. [As the boundary of the 420; and ante, § 6 et seq. ; Jennings State of Georgia is the western banli of ex parte, 6 Cowen, 618 ; and see the note the Chattahoochee River, the rights of of the reporter in the same volume, p. 536 ; riparian proprietors therein extend beyond Arthur v. Case, 1 Paige, 447. the middle of the stream to that bank. 2 Brown v. Kennedy, 6 H. & John. Jones v. Water Lot Co., 18 Geo. 539.] 195. A grantee from the State is entitled ^ 'People v. Canal Appraisers, 13 Wend, to whatever falls within the tract described 355; s.c. 17 Wend. 571 ; £a; parte Jennings, in his patent ; and, therefore, is entitled 6 Cowen, 548 ; Commissioners v. Kemp- to alluvian accretions, and insular forma- shall, 26 Wend. 404. tions. Kidgeley v. Johnson, 1 Bland Ch. * Varick v. Smith, 9 Paige, 547 ; and 316 ; and see Baltimore v. McKim, 3 see 5 Paige, 138. 18 LAW OP WATERCOURSES. . [CHAP. I. without reservation, was held to pass to the grantee a title to the middle of the river.i So the act of Congress establishing the Mississippi River as the western boundary of the Mississippi Territory, and adopting the Common Law for the government of that territory, fixed the middle of the river as the boundary line ; and the rights of the riparian proprietors on the east shore of that river must be determined by the Common Law.^ In Gavit V. Chambers, in Ohio,^ the Court say, " If it be assumed that the United States retain the fee-simple in the beds of our rivers, who is to preserve them from individual trespasses, or determine matters of wrong between the trespassers and them- selves ? It cannot be reasonably doubted that if all the beds of our rivers supposed to be navigable, and treated as such by the United States in selling lands, are to be regarded as unappropri- ated territory, a door is opened for incalculable mischiefs. In- truders upon the common waste would fall into endless broils amongst themselves, and involve the owners of adjacent lands in controversies innumerable. Stones, soil, gravel, the right to fish, would all be subjects of individual scramble, necessarily leading to violence and outrage." The United States have no other rights within the several States than as a landholder, and when they grant a portion of their domain, such rights and such only as are incident to the land, pass to the purchaser.* § 15. It is, therefore, obvious, that, in respect to tenants in common whenever they make partition, by assigning the land on one side of a watercourse to one of the co-tenants, and the land on the opposite side to the other, the two tracts are separated by the thread of the river.^ 1 Middleton v. Pritchard, 3 Scam. (HI.) « Hendricks v. Johnson, 6 Port. (Ala ) 510. 472. 2 Morgan v. Reading, 3 S. & Marsh. 5 King v. King, 7 Mass. 496. [Where 366. [So in Cold Spring Iron Works v. partiesownincommona water power, and Tolland, 9 Cush. 492, it was held that mills, machinery, dam, and other appur- under a statute by which a stream not tenances, a partition of the whole prop- navigable is made the boundary of an erty may be made; such partition, if incorporated territory, the centre of the insisted upon, must be made regardless stream, and not the edge or margin, is of the inconvenience or hardship thereby the true boundary line ; and this is so, occasioned. Hanson v. Willard, 12 Maine, although the monuments were described 142 ; Smith v. Smith, 10 Paige, 470 ■ as standing on the margin or bank of the Cooper d. Cedar Rapids* Water Power Co.i stream.] 42 Iowa, 898.] 3 Gavit V. Chambers, 3 Ohio, 495. CHAP. I.] AS TO BOUNDARY UPON. 19 § 16. Proprietors of islands own to the thread of each branch of the river, which, in its natural course divides it from the main land.i And, where a watercourse is divided by an island, and the smaller portion of the stream dividing it descends on one side of it, and the residue on the other, the riparian proprietor of the main land by which the, smallest quantity flows, is entitled to the use of no more of the water than naturally runs between his bank and the island.^ 4. When Persons become Riparian Owners. § 17. It matters not what may be the intention of the grantor of land described as being bounded by a watercourse, or by words as comprehensive or in law equivalent ; the grantee in such case will hold to the thread of the river, even if such was not the grantor's intention.^ As a reservation of a right of way in a grant of land so bounded, upon the bank of the stream, does not prevent the fee in the land from vesting in the grantee, it does not limit his riparian rights.* § 18. What words employed in a grant of land bounded by a watercourse, will exclude the bed of the stream, and conse- quently all aquatic right, has, in this country, been a fertile sub- ject-matter of litigation. It has been settled that territory described as "lying between" two rivers, is the whole country from their sources to their mouths ; and if no fork of either of them has acquired the name, in exclusion of another, the main branch, to its source, must be considered as the true river.^ lu South Carolina it has been held, that where a certain survey called " Dean's Swamp " as a boundary, the creek or main stream of the swamp was intended, and not the outer edge or margin of low marshy land that frequently bounds the main stream.^ 1 People V. Canal Appraisers, ubi sup. division." Phear Eights of Water, 11, 2 Crooker v. Bragg, 10 Wend. 260 [3 12]. Kent, 428. " If a river be divided into ^ See ante, § 9 ; Waterman v. John- two courses by an island in its middle, son, 1.3 Pick. 261 ; Nickerson v. Crawford, the medium filuni for boundary purposes 16 Maine, 245. is that which bisects the island, but If * Hagan v. Campbell, 8 Port. (Ala.) 9. the island be nearer one side than the * Doddridge v. Thompson, 9 Wheat. other, no account is taken of the smaller 470; Beuner v. Platter, 6 Ham. (Ohio) branch; the other alone represents the 504. whole river, and its mediumfilum consti- « Felder v. Bonnet, 2 M'MuU. (S.C.) tutes the prima facie line of proprietary 44. 20 LAW OP WATERCOURSES. [CHAP. I. § 19. A description in a grant calling for the mouth of " Lodge's Eun " as the place of beginning, thence by several courses and distances to a stone bridge over the run, it being in the main road, at twelve perches north-east of a certain corner, mentioned in a deed, &c., thence down along the said run on the southwardly side thereof to the place of beginning, the said described run to be the boundary, was held proper to be applied by the Jury, and not, the Court, to evidence that there was, at the date of the deed, a wooden bridge, and not a stone one, over the main branch, which was usually called " Lodge's Ilun ; " and that there was a stone bridge over a gut or small branch of it, at the specified distance from the particular corner tree.^ § 20. A patent in North Carolina described the land as lying on the north side of a river, and the line in dispute called for " a pine on the marsh branch, then along the said branch 320 poles thence to the beginning," and the branch meets the river at a shorter distance. It was held that the branch was the boundary, and the mouth the corner of the land covered by the patent, and that the distance was to be disregarded.'^ § 21. It has been held in Maine, that if a tract of land is 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. Trespass was brought for entry upon land, which was the point of land made by the junction of a creek, called " Molasses Creek," with a river, called " Cathance " River, in Maine ; and the plaintiff claimed the land in question as a part of a lot called "letter A." The question was at first, by rule of Court, referred to arbitrators ; and upon the coming in of their report, which was in favor of the plaintiff, it was contested by the defendant, and on his motion recommitted. After a sec- ond hearing, a report was again returned for the plaintiff and again contested by the defendant. It appeared from examination of the referees, that the principal controversy was whether the locus in quo was part of the lot called A., belonging to the plain- tiff, or of B., belonging to the defendant. These lots in point of 1 Nourse v. Lloyd, 1 Penn. St. 220. Una Terra R. 275; 1 Ired. (N.C.) Dig. 2 Carraway v. Witherington, N. Caro- 107. CHAP. I.] AS TO BOUNDARY UPON. 21 fact, upon actual survey, were situated as thus described by the continued lines : — D si M '3 It appeared further before the referees, that a plan of these lots, with others, was made by John Merrill, in 1772 ; the part representing these lots purporting to be copied from McKenzie's plan, by which the lots were represented as lying farther down the river, and the road between the two lots as touching the river below the locus in quo, as appears by the dotted lines in the above diagram. The plaintiff hereupon contended that the lot A. extended across the creek to Cathance River, on which it was bounded by the deed ; and further proved, that in low tides the water wholly flowed put of the creek at low water, in the part contiguous to his lot. But the defendants insisted that no more land would pass by the grant of lot A. than was delineated on the plan ; by which the flats in question were evidently a part of lot B. But the referees, intending, as they said, to decide accord- ing to law as well as equity, were of opinion that as the side lines of the lots and of the road, as far as the creek, were undisputed and unquestionable, the division line must be taken to extend by the same course to the river, the creek not being mentioned as a boundary in the deed, and thereupon decided for the plain- tiff. The exceptions to the report were overruled by the Court ; 22 LAW OF WATERCOURSES. [CHAP. I. Weston J., who delivered their opinion, observing, " There being no question about the side lines of the lots A. or B., the flats in controversy belong to the plaintiff, as the owner of A., if that lot extends to the river. The title of both the parties to their respective lots is derived from a conveyance by James Bowdoin of lot A. to Abraham Preble, Jr., and of lot B. to Abraham Preble. By that conveyance, lot A. is bounded easterly on Cathance River. Lot A. then very clearty embraced these flats. It is contended, however, that this plain and necessary result is to be controlled and modified by a certain plan, made by John Merrill, in 1772, upon which these lots were delineated. No plan is referred to or mentioned in Bowdoin's deed ; but it is urged, that the designation of the lots by letters implies and supposes a plan. This does not necessarily follow. A survey might be made, and the lots now owned by the parties, and the rear lots upon which they were bounded, might receive the names of A., B., C, and D., without making a plan. And if a plan was made, and A. did not, as laid down upon it, go to the river ; if the owner did not refer to the plan, and thought proper distinctly and expressly to extend it to the river, in his conveyance, he had a perfect right so to do ; and the grantee would hold accordingly. But if the plan exhibited to the referees and now produced to the Court had been referred to, the limits of A. would not thereby be curtailed. By that plan, the whole easterly line of A. is bounded on Cathance River. It is true. Molasses Creek is there represented as entering upon the south side of B. and extending northerly thereon ; whereas, in fact, it enters upon A. But this mistake in the location of the creek does not change the rights of the parties. The creek is not given as a boundary in the deed, but each lot is expressly bounded on the river, both in the deed and on the plan. When the survey was made, the waters of the river might have been so high that the mouth of the creek might appear to the eye to be on B., and this may account for its having been thus delineated ; but, however occasioned, this error in a part of the plan, altogether immaterial in fixing the location of the lots, can have no legal influence in the decision of the cause." ^ § 22. In North Carolina it is a principle clearly settled, that a 1 Graves v. Fisher, 5 Greenl. 69. CHAP. I.J AS TO BOUNDARY UPON. 23 natural and permanent object shall be deemed the boundary in preference to the line designated by course and distance. It is true that the call for a natural boundary may be, itself, vague or imperfect, or even contradictory ; as in the case of a stream of water where there are two of the same name ; or, if it be uncer- tain which of the two bears the name, then, necessarily, the case is open for evidence to the jury, as to which was the object meant, and by which the survey was actually made.^ In Hurley V. Morgan, in North Carolina,^ it was held, that, as a general rule, in questions of boundary, a natural object has a preference over marked lines or corners, and will control them when the natural object is of such a nature as cannot easily be mistaken by the parties either in name or situation, as in the case of a river. But the reason of this rule does not apply to very small streams which either have no names, or have formerly had a dif- ferent name from that which they now bear. With respect to these, it is open to evidence which stream the parties meant by a particular name ; and the jury, if satisfied of the fact, from proof of possession or the like, may find a stream to be the one meant, although not the one bearing the name mentioned in the deed. § 23. It appears to be generally understood, that, where general terms are used in a description in a deed, the Court will put a construction upon those terms where any definite rule has been established. Thus, premises conveyed and described as being bounded by a watercourse, extend by legal operation to the thread of the river ; yet in this case the grant may be limited by language sufficiently strong and definite to give a different oper- ation and exclude the watercourse ; for, where parties make any definite agreement in their deed, such agreement will control any legal • implication.^ The cases, on the whole, may be said to demonstrate the existence of the rule, that a grantee bounded on a river (and it is almost immaterial by what mode of expression) goes ad medium filum aquce, unless there be decided language 1 Becton v. Chestnut, 4 Dev. & Bat. prima facie presumed to own to the (N.C.) 335. centre ; and in the construction of deeds, 2 Hurley v. Morgan, 1 Dev. & Bat. the general rule is, that when a grant of (N.C.) 425; and see Lynch v. Allen, 4 land is bounded on a highway, it conveys ]Dev. & Bat. (N.C.) 62. the land to the centre of the road, unless 3 Waterman v. Johnson, 13 Pick. 261 ; there be decided and controlling words or Hammond v. Ridgely, 5 H. & John. 215. specific descriptions to show a contrary intent. The owner of land on each side of a road Herring i;. Fisher, 1 Sandf. 344 ; Ham- or stream of water not navigable, is mond v. McLachan, 1 Sandf 323. 24 LAW OF WATEECOUESES. [chap. I. showing a manifest intent to stop at the water's edge ; ^ and there seems a distinct and strong tendency in the eases to turn every doubt upon expressions which fix the boundary next the river, in favor of a contact with the water .^ The words which create 1 3 Kent, 429 [post, § 29, note; Walker v. Sliepardson, 4 Wis. 486]. ^ [This tendency was not followed in the case of Chapman v. Edmands, 3 Allen, 512, in which it was held, that flats are not included in a description of land bounding on a salt-water " creek betwixt said land and land of J. L." But if it were not for the eminent source from which this decision emanated, the remark would be adventured, that the expression quoted was merely a descrip- tion of the creek, and not an exclusion of it. If, however, it did exclude it, the question would arise, at what state of the tide f The remark made in the decision of the above case, that the above expres- sion " shows that the creek was regarded as separate and distinct from the adjoining land, and was not intended by the parties as an abuttal by which the extent of the proprietary right in the premises de- scribed in the indenture was defined and limited," seems to be hardly an obvious conclusion from the premises. The case of Harlow v. Fisk, 12 Cush. 302, more clearly expresses the law of boundary on a creek or watercourse according to the tendency of the later cases. In this case it was held that a deed of all the land on " the easterly side of a creek, meaning to convey all the land between " certain other specified bounds and said creek, conveys the flats adjoining, to the centre of tlie creek. Shaw C.J. said, "It is, therefore, the ordinary case of land bounding on a creek or watercourse, where neither of the side lines nor the middle line is expressed. The conclusion of law is, that the channel or middle line, or Jilum. aquae, is intended." The case of Lord V. The Comms. for the City of Sid- ney, 12 Moore P.C. 473, in which a boundary on a creek was under considera- tion, strongly exhibits the same ten- dency. See Berridge v. Ward, 10 C.B. N.s. 400, 411. A township bounded " easterly and northerly on Schoodiac River" carries the grant to the middle thread of the river above tide-waters. Granger v. Avery, 64 Maine, 292. A patent describing land as bounded by a line commencing at a point on the river, then running outward and return- ing to a point on the same, and thence by the river to the place of beginning, conveys title to low-water mark, with a frontage at low-water mark equal to the distance between the termini. Wood u. Appal, 6.3 Penn. St. 210. In Watson V. Peters, 26 Mich. 508, it was decided that the grant of a city lot bounded on a navigable stream, with the water as a boundary, in the absence of any express reservation, conveys to the grantee the land under the water -to the centre of the stream ; and the fact that the grantor, before conveying, platted the land into lots and blocks, with distinct lines and distances marking the bounda- ries of each lot, and with the water boundary of the river lots indicated by a line representing the shore line, and con- veyed by such plat, will not limit the grant to such shore line, or operate to reserve to him proprietary rights in front of the lots conveyed. Cooley J. said : " The owner of city lots bounded on nav- igable streams, like the owner of any other lands thus bounded, may Hmit his conveyance thereof within specific limits, if he shall so choose ; but where he con- veys with the water as a boundary, it will never be presumed that he reserves to himself proprietary rights in front of the land conveyed, which he may grant to others for private occupation, or so occupy himself as to cut oflf his grantee from tlie privileges and conveniences which apper- tain to the shore of navigable waters Such privileges and conveniences consti- tute a part, and in many cases the princi- pal part, of the value of the grant ; and it is precisely in these cases of city lots that they are of most value, and generally constitute the chief inducement to the purchase, and the chief, or at least a very important, element in determining the CHAP. I.] AS TO BOUNDARY UPON. 25 the most difficulties are where the termini of the river line stand on the bank at some distance from the stream, and the line is prescribed to run between them " along the river," or " up the river," or " down the river," or the like.^ The description of " margin " of a river was used in a grant of land made by the State of New York ; and it was contended that the State, by such description, had reserved the bed of the river, and of course the right to the river itself. The Court, however, decided, that such a construction was a misapprehension of the legal meaning and extent of the grant ; and they held, that though land, nominally and in terms, is bounded on the " margin " of a river, it extends, by construction of law, to the centre or thread of the river. § 24. The word " bank " ^ of the river, may be used as synony- mous with the river, carrying the boundary line to the bank, and then along the river, and not along the " bank of the river." * price. These cases, therefore, of all others, are those in which the reason of the rule which infers an intent to convey the land under the water, is most appar- ent and forcible. And the rule itself is too valuable, and too important, to be varied by so immaterial a circumstance as that the boundary on the water is de- fined by a line, instead of by making use of words which to the common under- standing would convey the same mean- ing. And what we have said of naviga- ble waters is equally applicable to all natural watercourses. If, on the face of the plat by reference to which the de- fendant bought, there was any thing which distinctly indicated an intent on the part of tlie proprietors to make this case exceptional, and to reserve to them- selves any rights in front of the water lots marked on it, after they should have been sold, the case would have been dif- ferent." See Child v. Starr, 4 Hill, 369 ; Trustees of Illinois and Michigan Canal V. Haven, 11 111. 554; Ryan v. Brown, 18 Mich. 196 ; Yates v. Milwaukee, 10 Wal- lace, 497. Such riparian rights will not be affected or limited by a mere sand bar or place of sliallow water, exposed only when the wind is favorable or the water low. Watson >i. Peters, supra.] 1 The opinion of Cowen J., in Starr v. Child, 20 Wend. 149; [Pike v. Munroe, 36 Maine, 3091. ^ Jennings, ex parte, 6 Cowen, 518. 3 [Various legal definitions, generally agreeing in substance, have been given of this word ; such as, " The bank is the outermost part of tlie bed in which the river naturally flows." Grotius de Jur. B, et P. 2, 8, 9. In the words of the Digest, " that is considered the bank which contains the river when fullest." Digest, 43, 12, 3. It is that line or ridge of earth which ordinarily holds or con- tains the river. The banks of a river are not changed because in times of freshets, heavy rains, or other extraordinary causes, they may be overflowed. The bank is "the fast land which confines the water of the river in its channel or bed in its whole width." Wayne J., in Howard v. IngersoU, 13 How. (U.S.) 417. "The banks of a river are those elevations of land which confine the waters when they rise out of the bed." Curtis J., 13 How. (U.S.) 427. "Land usually of some ele- vation, along the side of a river or stream, confining the water in its channel or bed." Burrill Law Diet. verb. " Bank." See Stone V. Augusta, 46 Maine, 127, 137.] * Per Gridley V.C, in Varick v. Smith, 9 Paige, 547; Lamb v. Rickets, 11 Ohio, 311. 26 LAW OP WATERCOURSES. [chap. The Supreme Court of Massachusetts say, that, without doubt, the owner of land extending to the " bank " of a river, will own to the middle of the river ; but that the owner " may sell the land without the privilege of the stream, as he will if he hounds Ms grant by the hank.'" ^ The Court, it appears, admit that an owner to the " bank " of the river owns the river ; but they immediately say that he mat/ bound his grant by the "bank," and the stream will not pass. This has been considered as evi- dently meaning a bounding by a reservation, or plain exclusion ; or, otherwise, the expression would be inconsistent in itself and incompatible with principle and all the cases ; and that it is plain that the naked circumstance of bounding a grant on, to, or hy a " bank," cannot exclude the stream any more than bounding on the " margin " of the stream.^ The remark of the Court in the case in Massachusetts, that where land is bounded by the " bank " of a stream, such description excludes the bed of the stream, it ' Hatch u. Dwight, 17 Mass. 289 ; [Bradford v. Cressey, 45 Maine, 13. In Stone V. Augusta, 46 Maine, 127, it was held, that, wliere the boundaries of land conveyed by a deed were, " thence to mill-brook ; thence hy the bank of said brook, to" &c., the grantee's land is bounded by ordinary high-water mark; and this principle is not changed by the fact, that the land continues to rise more or less precipitously above that point. His land is not limited to the top of the hill or bank beside the stream, but ex- tends to the margin of the stream, to that point where the bank comes in con- tact with the stream. The land which was the subject of controversy in this case was upon the margin of a stream in which, according to the testimony, the tide ebbed and flowed, though the water was fresh. See Lapish v. Bangor, 8 Maine, 85]. 2 See the note of the Reporter to the case of Jennings, ex parte, 6 Cowen, 549, and ubi sup. In the case of Hatch «. Dwight, 17 Mass. 289, E., in 1807, mort- gaged a strip of land including mills, and running a considerable distance along the river; but, in 1810, having sold a small piece of the mortgaged premises for a hide mill and lime vats, he obtained a grant, or rather release, from the mort- gage, for a nominal consideration of what he (E.) had sold, described thus : Begin- ning at tlie end of a dam, running up the river two rods, and so round to the bank of the river. The mortgagee afterwards hav- ing foreclosed, one question was, whether the release gave a right to the centre of the river ; and it appeared that if it was to have this effect, it would destroy the value of the mortgagee's mill privileges. For this and other reasons, it was held that it should not extend beyond the bank. The various reasons assigned by the Courtwere, that the release was lim- ited to the bank ; that there were no general words showing that a right to keep up a dam was intended to pass ; that the consideration was nominal ; and that it was not to be inferred that the mortgagee intended to release every thing valuable in the mortgaged premises, for which he had given a large considera- tion. The Court considered the release, under these circumstances, as being no more than a mere exception to the mort- gage ; and there were various other special circumstances in the case which led the Court to infer that the intention of the parties was to limit the grant or re- lease to the bank. See the note of the Reporter to Jennings, ex parte, 6 Cowen, 636, et seq. CHAP. I.] AS TO BOUNDARY UPON. 27 was held by the Vice-Chancellor of New York (Gridley) to be clearly founded in truth, as applied to the facts of that case;^ and the facts of the case, he held to be such as to indicate, with great certainty, that, by the use of the phraseology employed, the par- ties intended to exclude from the operation of the release the bed of the stream. But he was at the same time of opinion that this was not the necessary construction of such descriptive words in a grant. The popular understanding of them, he considered, would doubtless limit the grant of the land adjacent to the stream ; and so would the popular understanding of a description which bounded the premises upon the " margin " of a stream, or on the stream itself; but the legal construction of such words contained in the description of premises in a grant, had, by repeated adjudi- cations, been established otherwise.^ § 25. In an important case in Ohio, it appeared that the plain- tiff had taken possession of the bed of the river Sandusky, and had built a mill ; and he sued the defendants for building below and flowing back water upon the mill. The defendants denied that the plaintiffs owned the bed of the stream ; for they claimed under a conveyance from the United States, bounding them on the " bank ; " and, iildeed, the area of the river was deducted by the United States, and only lands on the shores paid for. Yet the bed of the stream was held to pass, though there was every thing but an express exception by the United States. They had included the river in their surveys, but deducted the bed from the price, and bounded the patentee on the banks. The Court ask, " At what point does the right of the owner of the adjoining lands terminate ? on the top or at the bottom of the bank? at high or low water mark? does his boundary recede or advance with the water, or is it stationary- at some point? and where is that point ? " The Court then say, " No satisfactory rules can be laid down in answer to these questions, if the Common-Law doctrines be departed from." ^ § 26. It thus appears to be well established that the bank and the water are correlative, and that one cannot be owned without 1 Which are stated in the preceding " bank " of the river, without regard to note. distance ; and the intersection of the lines 2 Variek v. Smith, 9 Paige, 547. A with the river is tlie point from which the line called for "171 poles to Roanoke next line commences. Haughton y. Ras- River," the call to the river terminates, coe, 3 Hawks (N.C.) 21. when the line reaches the " margin " or ■* Gavit v. Chambers, 3 Ohio, 495. 2^8 LAW OP WATERCOURSES. [CHAP. I. touching the other ; that the hanh is the principal object ; so that when the law once fixes the proprietorship of that, the soil of the river follows as an incident; or rather (as it has been said), " as part of the subject-matter, usque ad filum aquce.'" ^ If a boundary- is described as running to a monument standing on the bank, and from thence running " by the river " or " along the river," it does not restrict the grant to the bank of the stream ; for the monufnent in such case is only referred to as giving the directions of the line to the river, and not as restricting the boundary on the river. If, however, the grantor, after giving the line to the river, restricts his land to the bank of the river, or describes the line as running along the hanh of the river, his intention is manifested not to consider the whole alveus of the stream a mere mathemat- ical line, so as to carry his grant to the middle of the river.^ [And in all cases where the language used clearly shows such to be the intention of the grantor, the bank, side, margin, or shore become themselves monuments, and are to be treated as such.^ By a deed of a parcel of land, the east line of which is described, " thence east until it strikes the creek on which the mill stands, thence south-westerly on the west bank of said creek " (which is a small, unnavigable, fresh-water stream), the grantee is restricted to the hank of the creek. And such grant does not extend to the centre or thread of the stream, unless there are, in the deed, other words indicating that such was the grantor's intention.*] § 26 a. There is obviously an essential difference between "fronting to," and "fronting upon," and it has thus been illus- trated by Mr. Livingston, counsel for the defendants in Morgan V. Livingston, in Louisiana : ^ " The cathedral (New Orleans) fronts the public square and the river ; but it fronts upon 1 By Cowen J., in Starr v. Child, 20 must be the boundary, and not a straight Wend. 149. [But adverse possession of line. V(''eakley v. Legrand, 1 Tenn. 269. the bank is' not by construction of law ' [Bradford d. Cressey, 45 Maine, 13; possession to the centre of the stream. Starr v. Child, 5 Denio, 599 • Sizer v. Corning v. Troy &o. Factory, 34 Barb. Devereux, 16 Barb. 160; Hatch v. 529.] Dwight, 17 Mass. 289 ; Halsey v. McCor- '^ Per Walworth Ch., in Child v. Starr, mick, 13 N. Y. (3 Kernan) 296 ; Bradley 4 Hill, 369; Lamb v. Eicketts, 11 Ohio, u. Rice, 13 Maine, 198; Dunlap v. Stet- 811. In Tennessee, where the grant son, 4 Mason, 349 ; 3 Kent, 434 ; Hathorn called for a '.'tree" and the "river i^. Stinson, 10 Maine, 224.] bank," thence down the river to another * [Bradford v. Cressey, 45 Maine, 9.1 "tree" on the "bank of the river;" it 5 Morgan v. Livingston, 6 Mart. (La.) was held, that the meanders of the river 19. CHAP. I.] AS TO BOUNDARY UPON. 29 Chatres Street. The expression, then, front, or front to, only- means the exposure, the, direction of that boundary of a house or lot, in which is the principal entrance. How many houses, lots, and farms, on the heights about New York and Naples, front those bays, which are yet miles distant from the water ! " § 27. In a conveyance of a lot of land situate in Rochester, in the State of New York, the lot was described as a " mill lot," " beginning, &c., and running eastwardly to the Genesee River ; thence northwardly along the shore of said river to Buffalo Street.'.' It was held, by the Supreme Court of that State, that the grantee took usque ad filum aquce.^ But Bronson J. dissented ; and on appeal to a Court of Errors, the decision was reversed. By that Court it was held, that no part of the bed of the river passed under the conveyance, and that the grantee took only to low- water mark. And the fact, that the premises conveyed in this case were described in the deeds as " mill lots," could not operate to extend the grant into the alveus or bed of the river, for the deeds also showed, that the contemplated mills were to be supplied with water from the mill-race already constructed ; and not by water to be taken from the Genesee River opposite the lots granted ; and the right to discharge the water into the river after it had been used to propel the machinery on the mill lot, was at most but an easement, and did not require for its owner- ship any part of the bed of the stream by the grantees. It was, moreover, considered that a river in which the tide does not ebb and flow, has, properly speaking, no shore ; that it has ripam, but not littus;^ that when the term shore is applied to such a river, it means the river's banks above the low-water mark, rather than those portions of the banks of the river which touch the margin or edges of the water ; so that a grant of land which is bounded by the shore of a fresh-water river conveys only the land to the water's edge, at low water.^ 1 Starr v. Child, 20 Wend. 149. the ocean. Dr. Johnson says it applies 2 See Hall on Eights to the Sea; and to a river only in a secondary, or, as he Angell on Tide-Waters. calls it, a licentious sense. ' Beside the 3 Child V. Starr, 4 Hill, 369. In the fruitful shore of muddy Nile.' Johns. Die. case in the Supreme Court (Starr v. 4to. 'Shore.' Yet it is sometimes so ap- Cliild, uhi sup.), Cowen J., in giving the plied in legal proceedings. The compact opinion of the Court, thus criticises tlie between Virginia and Kentucky speaks word shore: "I admit that it is not crit- of the shores of the Ohio; which word ically correct to say the shore of a river; shores was treated by C.J. Marshall as the the term belongs, in its strict sense, to same with side or bank. Handly v. An- 30 LAW OP WATEECODHSES. [chap. § 28. Where a line is described as running in a certain direc- tion to a river, thence " up the same," or " down the same," or " with the river," those words necessarily imply that the line is to follow the river, according to its meanderings or turnings ; and that, of course, must be the middle of the river.^ § 29. Where land adjoining a river is described as bounded by a monument standing on the bank of the river, and a course is given as running from it down the river as it turns, to another monument, the grantee takes to the middle of the river.^ So where land is bounded by a line commencing at a stake " by the side of the river or mill-pond," and running " by the side of said pond" to another stake "by the side of said pond," the grant extends to the thread of the river.^ The decision in Lunt v. Holland, in Massachusetts,* is, that a line running between two trees, one standing " by the side of," and the other " by the river," is a bounding on the river; and that the grantee is. thony, 5 Wheat. 385." ... "It is con- ceded," says the learned Judge, "that the words to and along the river would include the stream. What difference be- tween that and to and along the shore ? A difference in words signifying the same thing. In either case, taken literally or according to common understanding, they carry you to a line immediate the water; and the land, and touching both. How do they take more 1 Upon con- struction of law, which does not require express words for the grant of every part, as houses, fences, mines, or the ele- ments of water or air, which all pass by the word land ; and as a grant of land by certain boundaries, prima facie passes all such parts to the grantee, usque ad caelum et ad infernos ; so within the same principle it passes the adjoining fresh-water stream usque adjilum aquce/' 1 Jackson v. Snow, 12 John. 252; Johnson v. Pannel, 2 Wheat. 206. A call in a grant from a bound on a river, " west up the river to a stake," is in law equivalent to " with the river,'' and the line must pursue the course of the stream. Denn v. Mabe, 4 Dev. (N.C.) 180. " Thence 50° east, down the creek," the creek is the boundary. Smith v. Auld- ridge, 2 Hay. (N.C.) 382. ^ Luce V. Carley, 24 Wend. 451. [A grant of land, bounded on a stream not navigable, carries the exclusive right and title of the grantee to the centre of the stream, unless the terras of the grant clearly denote the intention to stop at the edge or margin. And this is so, although tlie monuments are described as standing on the margin or bank of the stream. Cold Spring Iron Works u. Tolland, 9 Cush. 495, 496; Robinson v. White, 42 Maine, 209, 217, 218 ; Child «. Starr, 4 Hill, 375, per Walworth Ch. ; Coovert v. O'Conner, 8 Watts, 470; Knight v. Wild- er, 2 Cush. 199 ; Inhab. of Ipswich, Pet'rs, 13 Pick. 431; Bradford v. Cressey, 45 Maine, 13 ; Beahan v. Stapleton, 13 Gray, '427 ; 3 Kent, 427 ; Gray J., in Paine !>. Woods, 108 Mass. 169 ; Agawam Canal Co. V. Edwards, 36 Conn. 476, 501 ; Bishop V. Seeley, 18 Conn. 393 ; Martin v. Nance, 3 Head (Terin.) 649. It would require an express exception in the grant, or some clear and unequivocal declaration, or certain and immemorial usage, to limit the title of the owner, in such cases, to the edge of the river. 3 Kent, 428 ; Walk- er V. Shepardson, 4 Wis. 486. But the owner in fee of the land under an un- navigable river, may sell such land sepa- rate from the upland to which it is at- tached. Knight V. Wilder, 2 Cush. 199.] ' Lowell V. Robinson, 16 Maine, 357. Running to -a. stake on the Ohio River, held to be a boundary on the river. 1 Pirt. (Ken.) Dig. 130. * Lunt V. Holland, 14 Mass. 149. CHAP. I.] AS TO BOUNDART UPON. 31 therefore, a riparian proprietor, and his land extends usque ad filum aquce. The line around a tract of land was described in a deed as " running to a stake at the river, thence on the river north 6° 40' west, 23 perches ; thence north 39° 50' west, 83 perches ; thence north 20° 20' west, 35 perches and 3 links, to a stake by the river." This description, it was held, made the river the boundary .i § 30. It is considered to be settled in North Carolina, that " up the river," is the same as " along the river," unless there be something else besides course and distance to control it. Thus a call in a grant from a river " west up the river to a stake,^' was held in law to be equivalent to " with the river," and the line must pursue the course of the stream ; but this sense of the words might possibly be controlled by a call for a line of marked trees, or a visible permanent corner, and a meaning thereby given them equivalent to " m^," not " with, the river ; " but by no call less certain can they be controlled.^ The last line given in 1 Eix V. Johnson, 5 N.H. 520. Kich- ardson C.J., in this case, said, " We were at first inclined to thinlc that the return had not made the river a boundary. For, although the stakes are described as at and 4y the river, and the line is said to run on the river, yet, taking the whole return together, we thought it not im- probable that the words, at, by, and near, the river might be intended to express nothing more than ' near the river.' And the circumstance that the line along the river is so particularly described by courses and distances, seemed to us to countenance such a construction of the return. " But there are circumstances and ar- guments which, upon a more attentive consideration of the case, seem to us much more decisive, to show that the river must have been intended as a bound- ary. " In the first place, there are no monu- ments mentioned in the return, at the river, except in the lines that run to and from the river. In the description of the lines along the river, although the course changes twice, no bound is mentioned. If the intention was to make the river the boundary, this is all natural. But if the intention was to have the line upon the bank, it would have been according to the usual practice to have mentioned a monu- ment at each change of the course. " In stating the course of the line along the river, from the ' stake at the river,' it is expressly said to be ' on the river ;' and although the words ' on the river ' are not repeated at each change of the course of the line, yet, as the line ends at a stake by the river, and, in fact, nearly coincides through the whole extent with the ridge of the bank, the words 'on the river ' may perhaps be fairly enough con- sidered as intended to apply to the line in its whole extent. If this be so, it is a strong argument to show that the river was intended as a boundary. And this argument is greatly strengthened by the consideration, that, if the river had not been intended as the boundary, it would have been natural to use the words ' on the bank,' instead of ' on the river,' in this place, which would have removed all doubt. If the line had been stated as running to a stake at the river, thence on the bank of the river, the courses and distances mentioned in the return, there would have been no pretence for saying that the river was a boundary. 4 Mason, 365, 366; 17 Mass. 298." 2 Rogers w. Nabe,4Dev. (N.C.) 180; and see Slade v. Neal, 2 Dev. (N.C.) 61 ; and ante, § 22. 32 LAW OP WATEECOURSES. [CHAP. I. a deed of land in North Carolina, was thence " along the river to the beginning," and the river was held to be the boundary, although the line coming towards the river called for a white oak as its termination, which was half a mile distant from the river.^ In another case in the same State, the lines called for were " east 177 poles to an oak, thence southwardly along the various courses of the river." There was a marked oak at the end of the distance ; and the river, from whence the point where a direct line from the oak would intersect it, ran southwardly. The east or third line called for, it was contended, extended to the river, because the river was the boundary called for between the corner of the third line and the beginning. This, as an abstract proposition, the Court said, was true, but then there was evidence that an oak actually stood at the spot where the 177 poles end ; and a southwardly course from thence would strike the river at a small distance, and the liver from the point where it is intersected by a line from the oak to the nearest part of the river runs southwardly to the beginning. If, said the Court, the line be not stopped at the oak, but is extended to the river, the course of the river from thence would not be in a southwardly but in a westwardly course till we got opposite the oak, and then southwardly. It was left to the jury with the instruction, that, if they believed the oak to have been made the point of termina- tion when the original survey was made, they should make it now the boundary. 2 § 31. A grant of land in Maryland described the land as lying on the west side of N. branch of P. River, beginning at a bounded oak standing by the said branch, and running, &c., &c., to a bounded white oak standing by the said river, then bounding on the said river running S. 50 E. 270 perches, then by a straight line to the first bounded tree. It was held to be uncertain whether the last line bounded on and followed the meanders of the river, or whether it ran in a straight line to the boundary ; and that the question was to be decided by the jury.^ But where, in a grant of a tract of land, it is described as " lying on the west side of the N. branch of Patuxent River, beginning at a bounded red oak, standing by the said river, and running [three 1 Sundifer v. Foster, 1 Hay. (N.C.) » Corsey v. Hammond, 1 H. & John. 237. 190. 2 Conder v. Coor, 2 Hay. (N.C.) 183. CHAP. I.] AS TO BOUNDARY UPON. 33 courses] to a bounded white oak, standing by the said river, and then bounding on the said river, running S. 50 E. 270 perches, then by a straight line to the first bounded tree ; it was held, that the construction of that grant was for the Court^ and that the imperative construction, was, that the fifth or last line could only be located by beginning at the end of the fourth line, wherever that was, and running a straight course to the beginning, without regard to the meanders of the Patuxent River.^ In Hammond v. Ridgely, in Maryland,^ it was held, that where a grant of a tract of land is described as " beginning at three bounded white oaks standing by Patuxent River, aijd running and hounding on the said river N. 4 E. 87 perches ; then N. [sundry courses] ; then N. 1 W. 48 perches, to a bound white oak, by the river ; then S. 47 E. 388 perches, to a bound white oak ; then by a straight line to the first-mentioned white oaks j" the first course is to be run N. 4 E. 87 perches, bounding the same on the River Patux- ent, and all the subsequent courses were to be run according to the course and distance, until the course N. 1 W. 48 perches. § 32. When a grant of land refers to a map, upon which the land is laid down as bounded on a watercourse, the grantee is entitled to hold usque adfilum aquoe? In a sale of land in the village of Oswego, iu the State of New York (by virtue of which the grantee claimed the use of the water to the thread of the river), the lots were not very particularly described in the certifi- cate of sale ; but a map of the village in the office of the Secre- tary of State was referred to, and the lots were sold as laid down on that map. In a bill in Chancery by the grantee for a diver- sion of the water by canal commissioners, it was stated that the map designated the lots as being mill and water lots ; and that the surveyor-general, at the sale, represented the lots as such, and that the purchaser would have the right to use them as such. The construction given by the Court was, that the grant of the lots under the above description and circumstances included a right to the watercourse.* § 33. In Kentucky, the plat of public lands is, bylaw, a nec- essary part of the surveyor's report, and it is, therefore, proper evidence in ascertaining the position of the land, and what it 1 Hammond v. Eidgely, 5 H. & John. 3 Newson v. Pryor, 7 Wheat. 7. 245. * Varick w. Smith, 5 Paige, 137 ; ib. 2 6 H. & John. 245. 647. 3 34 LAW OF WATERCOURSES. [CHAP. I. includes. It has often happened in that State, that surveyors have one or more lines, bounded by streams of water, calling for divers courses, as meanders thereof, and the plat itself exhibits the stream as composing such lines ; but whenever there is an attempt to run their courses and distances contained in a cer- tificate and patent, they will not follow the stream at all, but widely depart from it ; and, in such cases, it is held, that the stream must control the courses and distances called for, because the plat makes the stream the boundary.^ § 34. Where a verdict in an action of ejectment called to run from one fixed object to another, with the meanders of the stream, not located upon the flats ; it was considered by the Court so entirely uncertain, whether it was within the lines of the tract claimed and defended, or not, that no judgment could be entered upon it, nor writ of possession executed under it.^ § 35. In a case decided by the Supreme Court of Maine, it appeared that a lot of land, being one of several fronting on the river, was sold by reference to a plan, without other de- scription ; and it also appeared that the surveyor, in laying out a large number of river lots, measured the front lines and marked the corners of the river, but never surveyed the sides nor the rear lines ; nor did he correctly lay down, the course of the river, but represented the place in question as a regular curve, and laid down the rear lines of the lots from corner to corner, as part of a larger concentric circle, when in fact the course of the river at that place was irregularly serpentine. It was held that the lots were to be located by laying off the side lines by the courses and distances from the river, according to the plan, and then drawing the rear lines from one corner to another, thus making them conform to the true course of the river, as originally designed, though not so delineated by the surveyor.^ § 36. Whenever the beginning of a tract of land is ascer- tained, and the lines from thence are to terminate at a water- course, if the course and distance given will not extend the line to the watercourse, the course and distance must be disregarded ; and the line, notwithstanding these, must be extended to the 1 Keid V. Langford, 3 J. J. Marsh. Court cited as authority, Bowman v. 420. White, decided in Maine in 1861 ; and 2 Miles V. Knott, 12 Gill & J. 442. Proprietors of Ken. Purchase v. Tillany, 3 Loring v. Norton, 8 Greenl. 61. The 1 Greenl. 210. CHAP. I.] AS TO BOUNDARY UPON. 35 watercourse, that being a natural boundary.^ Where a line was described as running S.W. by S., to the head of " Howard's Branch," it was held, that it must run in a straight line from its beginning to that boundary.^ § 37. In Harramond v. McGlaughan, in North Carolina,^ it appeared that about fifty years before the year 1798, the State had granted to the defendant a tract of land beginning at a hickory, standing not far from a river, and running thence down the river a certain course and distance ; but the course ran 06- liquely from the river, leaving between it and the river a tri- angular piece of land. The State claimed this triangle, and in 1787 granted it to the plaintiff, who sued in ejectment. The Court held, that the river was the boundary of the first grant, and decided against the claim of the State ; and they used the following language : " When a deed, patent, or grant describes a boundary from a certain point ^down a river, mentioning also courses and distances, should the latter be found not to agree with the course of the river, it ought to be disregarded, and the river considered the true boundary." § 38. One of the lines in a deed of conveyance was thus described : " Beginning at the mouth of Black Brook, on the south side of the brook, and running from thence up said brook, due west, until it strikes the common land." The brook was very crooked, running sometimes on one side and sometimes on the other side of a due west line. It was held, that the brook was not designated as a monument with sufficient certainty to control the point of compass.* . § 39. A grant of land extending to a certa,in distance on each side of a river (and no courses are given) is to be located in such a manner that every point in the exterior line shall be ex- actly that distance from the nearest point of th6 river. The words of the grant in Winthrop v. Curtis, in Maine,^ were " the space of fifteen miles on each side of the Kennebec River; and it was held by the Court, that the location of the land was to be made in the mode just mentioned. The same is the established rule in New York, and prevailed in the Court of Errors in that State, in the location of the Catskill patent, which was to extend 1 Pollock w. Harris, 1 Hay/ (N.C.) 252; 3 Harramond v. McGlaughan, Taylor and see cases referred to in 1 Ire. (N.C.) (N.C.) 196. Dig. 107, and ante § 22. ■• Bowman v. Farmer, 8 N.H. 402. ' Howard v. Moale, 2 H. & John. 249. ^ Winthrop v. Curtis, 3 Greenl. 110. 36 LAW OP WATERCOURSES. [CHAP. I. four English miles " from five great plains." That Court held the true construction of the patent to be, that its boundaries were to be ascertained by lines four miles distant, in every direction from the five plains mentioned in the patent, so as to make the exterior lines correspond as far as possible with the sinuosities of the plains.^ The location of the Hoosack patent, which extended for two miles on each side of the river by that name, was the subject of controversy in the same Court ; and DeWitt Clinton, Senator, in delivering his opinion, in which a majority of the Court concurred, states, that " the mode now adopted by the State, and considered the only practicable one in cases like the present, is to run the bounds so that every point in them shall be exactly the given distance from the point near- est to it in the creek or river." ^ In the case of Jackson v. Lunt, in New York,^ Staat's patent was under consideration. This patent was to run up the river Hudson as that river runs, from a certain point, two hundred chains ; thence up into the woods, north-west twenty chains, to the mountain ; thence along said mountain, parallel with the Hudson River, to a certain rivulet ; thence down that rivulet to the place of beginning. Spencer J., in delivering the opinion of the Court, observed, that in running a line parallel with a river, it is only requisite that the distance, where that is to control, should be such that the river in some one point is not further off than is required. In other words, the west line of Staat's patent, without reference to the moun- tain, if run parallel with the general course of the river, might in some places be at a greater distance than twenty chains, and yet be correctly run. But if particular courses are given in a grant of a tract of land bounding on a river, to the exterior side lines, the location must be determined accordingly. Thus, where a tract of land was granted fronting on a brook, and extending back bi/ a given course, two miles ; it was held, that by this de- scription each side line should be two miles in length, and that the rear line must be parallel with the front.* § 40. An entry of Virginia military lands, in Ohio, read as follows :" Churchill Jones enters 1,000 acres of land, part of a military warrant, 2,311, on the north-west side of the Ohio, beginning at the mouth of Brush or Eighteen Mile Creek, run- 1 Van Gorden v. Jackson, 5 John. 440. ^ Jackson v. Lunt, 2 Caines, 363. 2 Williams v. Jackson, 6 John. 489. * Keith v. Reynolds, 3 Greenl. 393. CHAP. I.] DIFFERENCE BETWEEN, AND LAKE OR POND. 37 ning up the river 60 poles, thence from the beginning down the river 500 poles when reduced to a straight line, thence at right angles from the general course of the river, for quantity." The true construction of this entry, it was held, was to give a base on the Ohio River of 500 poles, including the 50 poles above the creek.^ Another entry of the same kind called for 1,000 acres on the lower side of Brush Creek, " beginning at a marked cherry-tree, supposed about ten miles above Tod's Road, running thence west 400 poles, and from each end of this line for quantity." The distance was understood to be in a direct line, and not by the meanders of the creek, it being a small stream, and the usual line of travel not upon its banks.^ 5. Difference between a Boundary on a Watercourse, and a Boundary on a Lake or Bond. § 41. When land is conveyed bounding upon a lake or pond, if it is a natural pond, the grant extends only to the water's edge ; ^ but if it is an artificiai pond, like a mill-pond, caused by the flowing back of the water of a river, the grant extends to the middle of the stream, in its natural state.* [A deed described the boundary of certain land as running " to the pond to a stake and stones," and it was held, in Robinson v. White,^ that this restricted the grantee to the "stake and stones," if they, or their original location, could be ascertained ; if not, then 1 Hastings v. Stevenson, 2 Ohio, 8. [Robinson v. White, 42 Maine, 209, , 2 Buckley v. Gilmore, 12 Ohio, 63. 218; Lowell i>. Robinson, 16 Maine, 357; 3 [The boundary on a natural pond Mansur v. Blake, 62 Maine, 38 ; Wheeler extends only to low-water mark. Per u. Spinola, 54 N.Y. 377]. Hoar J., in West Eoxbury t/. Stoddard, ^ [Robinson <;. White, 42 Maine, 209, 7 Allen, 167 ; Wheeler v. Spinola, 54 N.Y. 218. Where the boundary line along a 377. In Marshall u. Steam Nav. Co., 3 pond commenced at "a stake near the ,B. & S. 732, it is queried, whether the soil high-water mark of the pond," running of lakes, like that of fresh-water rivers, thence, "along the high-water mark of prima facie belongs to the owner of the said pond, to the upper end of said pond," land on either side, ad medium filum aqum, it was held that the line thus given was or whether it belongs to tlie king in right a fixed iind permanent one, and did not of his prerogative. Riparian owners on follow the changes in the high-water mark Lake Michigan own to the line where the of the pond, and that the defendant, who water usually stands, when unaffected by owned the bank bounded by said line, any disturbing cause. Seaman v. Smith, could not claim any accretions or land 24 111. 521.1 Isft '^''y '° consequence of the water of i State V. Gilmanton, 9 N.H. 461 ; the pond receding, although the gradual Hathorn v. Stinson, 1 Fairf. 238. See and imperceptible result of natural causes, also Smith v. Miller, 5 Mason, 196; Cook ». McClure, 58 N.Y. 437.] 38 LAW OP WATERCOUESES. [CHAP. I. his grant extended "to the pond."] In Bradley v. Rice, in Maine,! it was contended, that a certain lot which was conveyed bounding on a natural pond raised by artificial means, was not limited by the margin of the pond, and that, by construction of law, it extended to the centre. But the Court held otherwise, and made a distinction between such a pond and a stream of water. No case, they observed, had been cited, nor had any been found by them, where the rule of construction had been extended to a natural pond ; and they then proceeded to say, " The proprietors of the pond and df the contiguous land, when they sold to the pond, must have intended to reserve that as a reservoir for the purpose to which it had been appropriated." And they add, " Had the land been bounded by a river or stream, or upon an artificial pond created by expanding a stream, by means of a dam, the riparian proprietor would go to the thread of the stream." ^ But this, though they conceived it to be law well settled and understood, did not, in their opinion, apply generally to ponds and lakes. They cite the similar case of Waterman v. Johnson, in Massachusetts,^ as being one strictly in point. In that case the land conveyed was a farm, the bounds of which were described in the deed as beginning at " Jones's River Pond," and, after several courses, running to the " Perse Pond," thence up stream by said pond to the canal that leads from " Jones's River Pond," thence by said canal to " Jones's River Pond," thence by said pond to the first-mentioned bound. It was in evidence that " Jones's River Pond " was a natural pond, and that ever since the memory of man, it had at times been flowed beyond its natural dimensions, by artificial means. Parol evidence was held to be competent to prove, that a certain line was agreed on and understood at the time of the conveyance, as the boundary. Shaw C. J., in giving the opinion of the Court, said, "Now the word 'pond' is indefinite. It may mean a natural pond, or an artificial pond raised for mill purposes, either permanent or temporary, and in both cases the limits of such body of water may vary at different times and seasons, by use, ' 1 Bradley v. Eice, 13 Maine, 198. of the same a specified distance, thence 2 Phinney v. Watts, 9 Gray, 269 ; by a line parallel with the first line to [Mansur v. Blake, 62 Maine, 38. It was the road, thence to the place of begin- held In this last case that when the lines ning ; the grant runs to the centre of the of a deed, beginning at a road, run thence pond], to an artificial pond, thence by the side " Waterman v. Johnson, 18 Pick. 261. CHAP. I.] DIFFERENCE BETWEEN, AND LAKE OR POND. 39 or by natural causes ; and where the one or the other is adopted as a descriptive limit or boundary, a different rule of construction may apply. A large natural pond may have a definite low-water line ; and then it would seem to be the most natural construction} and one which would be most likely to carry into effect the intent of the parties, to hold, that land bounded upon such a pond would extend to low- water line ; it being presumed that it is intended to give to the grantee the benefit of the water, whatever it may be, which he could not have upon any other construction. ^ Where an artificial pond is raised by a dam, swelling a stream over its banks, it would be natural to presume, that a grant of land bounding upon such a pond would extend to the thread of the stream upon which it is raised, unless the pond had been so long kept up as to become permanent, and to have acquired another well-defined boundary.^ But it is difficult to apply either of these rules to the present case, which is that of a pond originally natural, but which has been raised more or less by artificial means. The discovery of this fact, upon applying the deed to the local objects embraced within its descriptive terms, discloses a latent ambiguity. According to a well-established rule of evidence, therefore, it is competent to resort to parol proof, showing all the circumstances from which a legal inference can be drawn, that one or another line was intended by the ambiguous description used in the deed. And this is, in truth, what both parties have done in the present case." [§ 41 a. It was decided in Phinney v. Watts,^ that a deed bounded " westerly by P.'s Mill Pond," which has been arti- ficially created by erecting a dam across a stream, and through which the thread of the stream has always been apparent, passes the land to the thread of the stream. Metcalf J. said, " Bv the deed under which the plaintiff claims title to the loeus in quo, he is bounded ' westerly by Phinney's Mill Pond,' which, according to the agreed facts, is sometimes called by that name, and sometimes by the name of 'Trout Brook,' and which is 1 [Fletcher v. Phelps, 28 Vt. 257, 262. a natural pond after it has been for a long In Wood V. Kelley, 30 Maine, 55, Shepley time enlarged by artificial means, and C.J., having quoted this passage from thereby determine, that the line of boun- the opinion in Waterman v. ' Johnson, dary is to be found at low-water mark."] said, " It is not perceived, why the same " [Phinney v. Watts, 9 Gray, 269.] presumption respecting the intention does ' [Phinney v. Watts, 9 Gray, 269, not arise, when the land is bounded upon 270.] 40 LAW OP WATERCOURSES. [CHAP. I. about thirty rods long, and through which the thread of the stream has always been apparent. On this state of facts, the Court are of opinion that the western boundary of the plaintiif 's land is the centre or thread of the stream ; as it unquestionably would have been, if the deed had bounded him on Trout Brook, the other name by which the water was known and called." ^ § 41 b. In Wood v. Kelley,^ it was held that where there is a conveyance of land bounded on a fresh-water pond, which had been permanently enlarged by means of a dam at its mouth, the title extends to low-water mark of the pond in its enlarged state. In vindication of this rule the Court say, " The use of the waters of such ponds at all seasons is of great importance to the owners of the adjoining lands. When the water is low, its use becomes more desirable and valuable. Such waters are most valuable to the owners of land adjoining them for purposes for which tide-waters cannot be used. Unless rebutted by some proof, the presumption is, that it was the intention of the parties to a conveyance of land bounded by a pond, that the land should be bounded upon it at all seasons of the year, and not while the pond remained only at the level existing at the time of the con- veyance. If the contrary doctrine were adopted, a person who received a conveyance of land adjoining on a pond, when the water was quite low, might convey it to another at a more el- evated and yet not high state of the water with a like boundary, and retain a small strip of land between those two water lines ; and there might, under the application of the doctrine, be several strips of land thus owned by different persons, when conveyances were made at several different states of the water. No grantor or grantee can be supposed to have intended to produce such results." ^ This case is distinguished from Bradley v. Rice. * ] 1 [Fletcher v. Phelps, 28 Vt. 257, 262; immaterial that it was executed in the Gray J., in Paine v. Woods, 108 Mass. winter.] 169, 170 ; Hathorn v. Stinson, 1 Fairf. 238 ; « [Stated in § 41, ante. Vattel, when B.C. 3 Fairf. 183.] speaking of lalces, observes, " If some of 2 [Wood V. Kelley, 30 Maine, 47..] the lands bordering on the lake are only 8 [In Paine v. Woods, 108 Mass. 160, overflowed at high water, this transient it was decided that a deed of land bounded accident cannot produce any change in " on " a ppnd which was used to be raised their dependence. The reason why the to an artificial height in the winter, and soil whicli the lake invades by little and allowed in summer to remain at its natu- little, belongs to the master of the lake, ral level, conveys to low-water mark of and perishes with respect to the ancient the pond in its natural state; and it is proprietor, is, because the proprietor has CHAP. I.] DIFFERENCE BETWEEN, AND LAKE OR POND. 41 § 42. The law of boundary, as applied to rivers, is, without doubt, inapplicable to the lakes and other large natural collec- tions of fresh water in this country. ^ The ordinary Common- Law rule of extending the right of soil in running fresh-water streams, to riparian grantees. Chancellor Walworth considered was not sufficiently broad to embrace the large fresh-water lakes, or " inland seas," in the State of New York; and that they were wholly unprovided for by the Common Law of England. As to these, said he, there is neither flow of the tide nor thread of the river ; and it appeared that the local law of the State had assigned the shores down to the ordinary low-water mark to the riparian owners, and the beds of the lakes with the islands therein, to the public.^ Such is the judicial construction in no other limits besides the lake, nor any other mark besides its hank, to ascertain hovr far his possession extends. If the water advances insensibly, he loses ; if it retires in like manner, he gains. Such must have been the intention of the peo- ple who have respectively appropriated the lake and the neighboring territories to each other ; it can scarcely be supposed, that they had any other intention. But a territory overflowed for a time, is not confounded with the rest of the lake ; it is still to be knovyn, and the master may preserve his right as proprietor." B. I., ch. 22, § 275. " This doctrine," Shepley C.J. remarks in Wood v. Kelley, 30 Maine, 56, " is alike applicable to large ponds ; and if a line as permanently ex- ' isting could be established at the margin of the waters at the time of the convey- ance, its application to them would be excluded. Such line could not be varied by a permanent encroachment of the pond." In Paine v. Woods, 108 Mass. 169, 170, Gray J. said, " A grant of land bounded by a river or stream above the ebb and flow of the tide, carries the grantor's title to the thread of the stream. Boston V. Richardson, 13 Allen, 146, 154 ; B.C. 105 Mass. 351, 852, and cases cited. And this, even if at the time of the grant the water of the stream has been perma- nently raised by artificial means so as to create a pond, atid the grant is bounded generally by that pond. Phinney v. Watts, 9 Gray, 269, and cases cited. In like manner, a grant bounded by a great pond or lake, which is public property, ex- tends to low-water mark. Walworth C, in Canal Commissioners v. People, 5 Wend. 423, 447; Shaw CI., in Water- man V. Johnson, 13 Pick. 261, 265 ; Hoar J., in West Roxbury v. Stoddard, 7 Allen, 158, 167 ; Wood v. Kelley, 30 Maine, 47, 57 ; Fletcher v. Phelps, 28 Vt. 275." The learned Judge, in the above case of Paine V. Woods, reviewed and distinguished the case of Waterman v. Johnson, 13 Pick. 261, and also noticed the difference between the decision in Bradley v. Rice, 13 Maine, 198, and the decision in Wood I/. Kelley, supra.] 1 State V. Gilmanton, ubi sup. ; Hat- horn u. Stinson, ubi sup. ; [Fletcher v. Phelps, 28 Vt. 257, 262. But in Bassett V. Salisbury Manuf. Co., 43 N.H. 578, Bartlett J. said, " It is by no means cer- tain that the entire absence of current in a lake would prevent the application of the general principles that protect the rights of land-owners on running streams "]. 2 Canal Commissioners u. People, 5 Wend. 423. [But, in a recent case in the Su- preme Court of New York, it was held that a lake measuring less than a mile in width by five miles in length, and having no navi- gable outlet, would pass under a grant of a large tract of land which included it in its boundaries. Ledyard v. Ten Eyck, 36 Barb. 102. The rule that the proprietors of lands, bordering upon streams and waters in which the tide ebbs and flows, own only to high-water mark, is not applica- ble to a case where, by the cutting of a 42 LAW OP WATEKCOURSBS. [CHAP. T. New Hampshire ; and it seems to have been the construction of the legislature of that State, as appears from the annexation of islands in Winnipiseogee Lake, to the towns adjacent.^ If a town in that State strikes any large body of water, by whatever name it may be called, it will go only to the water's edge, and be there bounded ; that is, if there is nothing in the terms of the grant to show that it was to be extended further.^ [It has been held in Vermont, that lands bounded on Lake Champlain extend to the edge of the water at low-water mark. And the same rule was applied to lands near the lake, bounded on a creek emptying into it, the waters of which ordinarily maintain the same level, and rise and fall with those of the lake ; there being no claim made in the case that the boundary should extend to the centre of the creek.^] § 43. If a lot of land is conveyed agreeably to a plan, and is described as bounding one end on a pond, and there is a nar- row arm of the pond extending from the pond across the lot, and if the land conveyed is to be limited by this arm, the lines will not correspond with those of the adjoining lots, and there would remain a portion of land not conveyed between the arm and the pond ; the land granted extends across the arm to the main body of water called the pond.* channel between a fresh-water pond and have no title to the soil beyond low- some body of salt-water, the water of the water mark, nor right appurtenant, but former becomes salt, and the tide ebbs only a statutory right to build wharves and flows therein. In such case the rights and storehouses into the lake, in front of the riparian proprietors are not af- of their land. Therefore, if land is made fected thereby. Wheeler v. Spinola, 54 by a stranger by filling in earth in front N.Y. 377.] of their land from the line of low-water 1 State V. Gilmanton, 9 N.H. 461. mark into the lake, and wharves and '^ State V. Gilmanton, 9 N.H. 461. docks are built thereon, they cannot ' [Pletcher v. Phelps, 28 Vt. 257. In maintain ejectment therefor. Austin o. Austin V. Rutland E.R. Co., 45 Vt. 215, Rutland R.R. Co., 45 Vt. 215.] it was decided that owners of land border- * Nelson v. Butterfield, 21 Maine, 220. ing on the waters of Lake Champlain, CHAP. 11. J ISLANDS. CHAPTER II. OP INSULAR AND ALLUVIAL RIGHTS, AND OP RIGHT TO SOIL RELICTED, &C., AS INCIDENT TO THE RIGHT OP PROPERTY IN A WATERCOURSE. 1. Islands. 2. Alluvion. 3. Reliction. 4. Avulsion. 1. Islands. § 44. In treating, in the preceding chapter, of the apportion- ment of a watercourse between opposite riparian proprietors, it has appeared that the estate of each proprietor extends to the middle of the stream. Now, according to this rule, if there be a newly formed island exactly in the middle of the stream, it is equally divided between the two proprietors ; ^ and so it is laid down both by ancient and modern writers.^ But if one portion of the island approaches nearer to one side of a stream than it does to the other, the greater part belongs to the owner of the nearer estate, according to its approximation thereto. To establish, therefore, how great an extent of property in an island is annexed to the adjoining estates, the vicinity and remoteness of the island from the shore is to be taken into 1 [In Trustees &o. v. Dickinson, 9 Cush. 548, Shaw C.J. stated the rule to be, that if an island gradually arises above the surface in a river, and becomes valu- able for use as land, and it is so situated that it is partly on one side and partly on the other of the thread of the river, it shall be divided by that line which was the thread of the river immediately before the rise of the island, and in that manner be held in severalty by the adjacent proprietors.] 2 Fleta, lib. 3, ch. ii. § 6 ; Braeton, lib. 2, ch. ii. ; 2 Bla. Com. 261 ; 1 Swift's Dig. Ill; Schultes on Aquatic Eights, 117; Woolrych Law of Waters &c. 38 ; Ingra- ham V. VPilkinson, 4 Pick. 268; 8 Kent, 428 ; Phear Rights of Water, II, 12 ; Shaw C J., in Trustees &e. v. Dickinson, 9 Cush. 648. And see Giraud v. Hughes, 1 Gill & J. 249 ; People y. Canal Appraisers, 13 Wend. 35-5; Deerfield v. Arms, 17 Pick. 41. [If the same person owns the land on both sides of a stream, above tide waters, he owns the islands therein, to the ex- tent of the length of his lands opposite to them. Granger v. Avery, 64 Maine, 292 ; ante, § 10 note.] 44 LAW OP WATERCOUESES. [CHAP. II. consideration.! This doctrine is agreeable to, and is unques- tionably copied from, the Civil Law,^ which says, "If an island rises in a river, and is placed exactly in the middle of it, such island shall be in common to them who possess the land near the banks. But if the island is nearer to one side than to the other, it belongs to them only who possess the land next to the banks on that side to which the island is nearest." ^ § 45. The rules on this subject are very definitely laid down in the code of Louisiana,* as follows : " Islands and sand- bars, which are formed in streams not navigable, belong to the riparian proprietors, and are divided among them accord- ing to the rules prescibed in the following articles : If the island be formed in the middle of the stream, it belongs to the riparian proprietors whose lands are situated opposite the island. If they wish to divide it, it must be divided by a line supposed to be drawn along the middle of the river. The riparian proprietors then severally take the portion of the island which is opposite their land, in proportion to the front they respectively have on the stream, opposite the island. If, on the contrary, the island lie on one of the sides of the line thus supposed to be drawn, it belongs to the riparian proprie- tors on the side on which the island is, and must be divided among them, in proportion to the front they respectively have on the stream, opposite the island."® § 46. Supposing that another island should arise between an island already risen, on one side of the stream, and which 1 Ibid. [3 Kent, 428 ; Phear Rights of was held that the island was to be reek- Water, 11, 12. The rule of the Common oned as part of the bed of the river. Lord Law assigns tlie whole island, or bare Westbury said, that if the island had be- ground formed in the bed of the river, if come annexed to the bank, so as to ba- it be wholly on one side of the bed of the come a permanent accretion, he should river, to the owner on that side. Shaw have been of opinion that the appellant C.J., in Trustees &c. v. Dickinson, 9 Cush. would have had the right to have the 548. In the Earl of Zetland u. The Glover river measured from the north side of this Incorporation of Perth, L. R. H. L. 2 Sc. permanent accretion.] 70, a question arose as to the right of fish- 2 2 Bla. Com. 261. ing in the Tay, the usage being the same '' Coop. Just. lib. 2, t. 3 ; [Shaw C.J., as the rule, that each should fish ad in Trustees &o. v. Dickinson, 9 Cush. medium Jilum. A drifting island had 548]. sprung up which gradually increased * Civil Code of Louisiana, art. 505, from the operation of currents, tides, and 506, 507. floods. It was contended by the Earl of 5 [These substantially are laid down, Zetland, that, as it was nearer his side of as rules of the Common Law, in Trustees the river, the measurement should be &c. v. Dickinson, 9 Cush. 548, 549. See from the outer side of the Island ; but it post, § 59 a.] CHAP. II.J - ISLANDS. 45 belongs wholly to the estate which it adjoins, and the opposite banks ; it is declared by Fleta, that the admeasurement of property in the new island shall be made from the first, and not from the shore to which it belongs.^ § 47. These provisions, though they appear to be confined to the case of islands recently formed, the same reason will extend to the case of islands the origin of which cannot be traced, unless the property in them has been otherwise appropriated, according to the rules of law ; for whether originally formed by deposits from the water, or by a sudden division of the river, would seem to be immaterial, unless the owner of one side should be able to show it was created by a disruption of his land.^ § 48. In a case in Massachusetts, the above rules were applied to the following facts : The island that was in dispute is situated in Pawtucket River, above tide-water. The plaintiff was owner of a tract of land on the east side of the river, extending up and down the river, beyond the island ; and the defendant was owner of a similar tract on the west side of the river. The island was not held by any separate grant, by either ; nor did any other person claim it by virtue of any grant, or by pos- session. Both plaintiff and defendant, and those under whom they severally claimed and held their farms on the main land, had occasionally cut trees on the island ; but no agricultural improvement had been made thereon. In partition of the estate among the heirs of E. B., father of the grantor of the plaintiff, this island was set off to those heirs, in 1756 ; but it did not appear that any possession was taken under the partition, except the occasional cutting of wood, for forty or fifty years past. It appeared, also, that the defendant, or those under whom he claimed, had cut wood on the island, for thirty years past, at pleasure, without any objection having been made by those who held under E. B. Upon these facts, the Court considered it obvious, that neither the plaintiff nor the defendant had obtained such exclusive possession of the island, or any part of it, as would enable either to maintain trespass against the other, without referring their possession to some title. And the Court thought it equally obvious, that no title appeared in either, 1 Fleta, lib. 8, c. ii. § 8. ^ Per Parker C.J., In Ingraham ». Wilkinson, 4 Pick. 268. 46 LAW OP WATEECOUBSES. [CHAP. II. except what may be derived from their property in the land on either side of the stream of the river, opposite the island. Thus were the Court obliged to consider the principles of law, as above laid down, and the result to which they came was in favor of the plaintiff.^ [§ 48 a. In a later case ^ in Massachusetts, this subject was again discussed with great fulness of statement and illus- tration of the law, by Mr. Chief-Justice Shaw. Referring to the case cited in the last preceding section, he says, " It recognizes the rule of the Common Law, that the property in the soil of rivers not navigable, subject to public easements, belongs to those whose lands border upon them ; and from this right of property in the soil in the bed of the river the Court deduce the right of property in an island which gradu- ally arises above the surface and becomes valuable for use as land. Assuming the thread of the stream as it was imme- diately before such land made its appearance, this rule assigns the whole island, or bare ground formed in the bed of the river, if it be wholly on one side of the thread of the river, to the owner on that side ; but if it be so situated that it is partly on" one side and partly on the other of the thread of the river, it shall be divided by such line, — i.e., that line which was the thread of the river immediately before the rise of the island, — and held in severalty by the adjacent proprietors. But that line must thenceforth cease to be the thread of the river, or jllum aquce, because the space it occupied has ceased to be covered with water. But, by the fact of an island being formed in the middle of the river, two streams are necessarily formed by the original river, dividing it into two branches. The island itself, having become solid land, forms itself a bank of the new stream on the one side, and the old bank on the main shore forms the other. And the same rule applies on the other side of the island. There must, then, be a jilum aquae, to each of these streams, whilst the old jilwm aquce. is obliterated to the extent to which land has taken the place of water. But this island, having all the characteristics of land, may soon be divided and subdivided, by conveyances and descents, and all the modes of transmission of property known 1 Per Parker C.J., in Ingraliam v. '•' [Trustees of Hopkins Academy a. Wilkinson, 4 Pick. 268. ■ Dickinson, 9 Cush. 544, 547-550.] CHAP. II.] ISLANDS. 47 to the law, and thus become the property of different owners. Now suppose another island formed in one of these branches, between the first island and the original main shore. It seems to us that it must be divided upon the same principle as the first; but, in doing it, it will be necessary to assume as the filum aquce the middle line between the first island and the original river bank on that side. If this is a correct view of the practical consequences flowing from the adoption of the prin- ciple stated, — and it appears to us that it is, — an obvious difficulty presents itself, in making that line a fixed standard for the demarcation of the boundaries of real estate between con- terminous proprietors, which is itself fluctuating and changeable. Perhaps a satisfactory answer to this may be found in the sug- gestion, that the rule is equitable, and as certain as the pro- verbially variable nature of the subject-matter will admit ; and, in adapting it to the varying circumstances of different cases, a steady regard must be had to the great principle of equity, — that of equality. This changing of the filum aquce seems not to be distinctly treated in any case ; but it seems that it must necessarily occur in many cases. In addition to those already mentioned, suppose a river, by slow accretions or washing away, widens or narrows on both sides as it may, but unequally, the filum aquce must change its actual line. Supposing an island dividing a river for some distance shall be wholly washed away, the filum aquce must shift and pass along a line which was for- merly solid land." ^] § 49. Where the stream is divided by an island, so that only 1 [In a passage cited by Chief-Justice Hargrare's Law Tracts, 37. It may be Parker, in Ingraliam v. Wilkinson, 4 added here, on the authority of Lord Pick. 268, from Lord Hale, such a shift- Hale, that he derives the title to islands, ing of the filum aguce in one case is al- in creeks or havens or arms of the sea, luded to. The passage is this : "If the from the right of property in the soil un- filum aquce divide itself, and one part take der the water, stating that this is prima the east and the other the west, and leave facie and of common right in the' king ; an island in the middle between both^/«, yet if, in point of propriety, it doth belong the one naif will belong to the one land, to a subject by grant or prescription, the and the other to the other." And Lord islands that happen within the precincts Hale adds further, in the same connection, of such private propriety of a subject will " that this is to be understood of islands belong to the subject. This is applicable, newly made ; for if a part of an arm of by strict analogy, to the case of a river the sea — and the same thing is true of a not navigable, when the right of property river, which is material to the present is admitted to be in the riparian proprie- case — by a new recess from his ancient tor, ad filum aquce. Shaw C.J., in Trust- channel, encompass the land of another ees &c. v. Dickinson, 9 Cush. 549, man, his propriety continues unaltered." j650.] 48 LAW OF WATERCOURSES. [chap. II. one-fourth of the stream descends on one side of the island, and the residue on the other, the owner of the shore where the largest quantity of water flows is entitled to the use of the whole quantity flowing there, and the owner of the other shore has no right to place obstructions at the head of the island, to cause one-half of the stream to descend on his side of the river.i § 50. In a case decided by the Supreme Court of the United States, it was determined, that the boundary of the State of Kentucky extends only to low-water mark, on the Ohio River, and therefore did not include an island separated from the main land by a channel, or bayou, fllled with water only when the river rises above its banks, and is dry at other times.^ § 51. If a watercourse divides itself, and encircles a field, and thereby forms an island, the property of the field is unaltered, and continues in him to whom it before appertained. ^ § 52. A grant of a river, eo nomine, as it will have no effect upon the property in the soil, can convey no property in an island.* But all islands situated within the limits of a patent, or grant of land, are, of course, included.^ 1 Crooker o. Bragg, 10 Wend. 260. 2 Handly u. Anthony, 5 Wheat. 374. When a river is the boundary hne be- tween two nations or States, if tlie original property be in neitlier, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State (Virginia) is the original proprietor, and grants the ter- ritory on one side only, it retains the river within its domain, and the newly erected State extends to the river only, and the low -water mark is its boundary. Ibid. In 1802, when Georgia ceded her back lands to the United States, slie had juris- diction over the whole of Chatlalioocliee River from its source to the 31st degree of north latitude. The Supreme Court of the United States held tlie rule to be, that where a power possesses a river, and cedes the territory on the other side of it, making the river the boundary, that power retains the river, unless there be an express stipulation for the relinquisli- mentof tlie rights of soil and jurisdiction over the bed of such river. Howard v. IngersoU, 13 How. (U.S.) 381. And see Missouri (State of) u. Iowa (State of), 7 How. (U.S.) 660. 8 1 Swift's Dig. 112. * Jackson v. Halstead, 5 Cowen, 216. 6 Lunt V. Holland, 14 Mass. 149. The boundaries of Mifflin County, in Pennsyl- vania, were fixed by an act of the legisla- ture, of Sept. 19, 1789 ; and the fact that an island, evidently included by the act within the limits of that county, had been assessed for twenty-eight years in Hunt- ingdon County, in the same State, will not avail to disturb the boundary fixed by the act. If the boundary fixed by the act were uncertain, sucli assessments, for a long period, might be admissible to show where the line was fixed by the act ; but are not admissible where the line fixed by the act, viz., the Juniata River, is known. Where the two counties join at Juniata River, at their southern point of junction, their respective boundaries do not extend usque ad Jilum aquce ; but the whole bed of the Juniata River, from that point up to " Jack's Narrows," is in Mifflin County, and the islands in the river be- long to the latter county. Johns v. Da- vidson, 16 Penn. St. 512. CHAP. II.] ALLUVION. 49 2. Alluvion. § 53. Alluvion is the addition made to land by the washing of the sea or rivers ; and the characteristic of alluvion is its im- perceptible increase, so that it cannot be perceived how much is added in each moment of time.^ The gradual alteration of a stream will of course add to one and diminish the opposite bank. In all cases where the change is so gradual as not to be perceived in any one moment of time, the proprietor, whose bank on the river is increased, is entitled to the addition.^ The rule of the ^ [" By alluvion here we mean,'' says Shaw C.J., in Trustees of Hopkins Academy c. Dickinson, 9 Gush. 551, " such slow, gradual, and insensible accre- tion, that it cannot be shown at what time it occurred."] 2 2 Bla. Com. 262 ; 1 Swift's Dig. Ill ; Adams v. Krothingham, 3 Mass. 352; Schultes, 116 ; Morgan v. Livingston, 6 Martin (La.) 19 ; [Halsey v. McCormick, 13 JS.Y. 296; s.c. 18 N.Y. 147; 3 Kent, 428; Chapman v. Hoskins, 2 Md. Ch. 485; New Orleans v. United States, 10 Peters, 662 ; Atty.-Genl. v. Chambers, 4 De Gex & J. 55; Emans u. Turn- bull, 2 John. 313; Ford v. Lacy, 7 H. & N. 151 ; Gerrish v. Clough, 48 N.H. 9 ; Lovingston o. St. Clair County, 64 111. 56 ; Nichaus v. Shepherd, 26 Ohio St. 40 Goodsell V. Lawson, 42 Md. 348, 362, 363 ; Baltimore & Ohio R.R. Co. v. Chase, 43 Md. 23, 34, 35 ; Cook v. McClure, 58 N.Y. 437 ; Kraut v. Crawford, 18 Iowa, 549. In County of St. Clair v. Lovingston, 23 Wal- lace, 46, 62, Mr. Justice Swayne said, " In the light of the authorities, alluvion may be defined as an addition to riparian land, gradually and imperceptibly made by the water to which the land is contiguous. It is different from reUction, and is the op- posite of avulsion. The test as to what is gradual and imperceptible in the sense of the rule is, that, though the witnesses may see from time to time that progress has been made, they could not perceive it wlule the process was going on. Whether it is the efiect of natural or artificial causes makes no difference. The result as to the ownership in either case is the same. The riparian right to future allu- vion is a vested right. It is an inherent and essential attribute of the original property. The title to the increment rests in the law of nature. It is the same with that of the ownerof a tree to its fruits, and of the owners of flocks and herds to their natural increase. The right is a natural, not a civil one. The maxim. Qui sentil onus debet sentire commodum, lies at its foundation. The owner takes the chances of injury and of benefit arising from the situation of the property. If there be a gradual loss, he must bear it ; if a gradual gain, it is his. The principle applies alike to streams that do, and to those that do not, overflow their banks, and where dykes and other defences are, and where they are not, necessary to keep the water within its proper limits." Municipality No. 2 v. Orleans Cotton Press, 18 La. Rep. 122 ; Kennedy v. Mu- nicipality No. 2, 10 La. Ann. 64 ; Barrett V. New Orleans, 13 La. Ann. 105 ; Saulet V. Shepherd, 4 Wallace, 502; Smith u. St. Louis, 30 Mo. 290 ; Chapman v. Hos- kins, 2 Md. Ch. 485. Sea-weed thrown upon the beach belongs to the owner of the beach. Phillips v. Rhodes, 7 Met. 523; Emans v. Turnbull, 2 John. 322]. The reader is also referred to the learned and elaborate discussion in relation to the claim to the batture in the city of New Orleans, 2 Am. Law Journal, 282, 393. And see Giraud v. Huges, 1 Gill & John. 249. Lands were thus described in a deed : " Beginning at the south bank of the Tuscarawas River, where the line between the first and second quarter of the fifth township intersects tlie same, where tliere is an old dogwood, with a notch and blaze in it, and a number of slioots springing from the roots. 60 LAW OP WATERCOURSES. [chap. II. Common Law, on the subject of alluvion, also, is the same as that of the Civil Law. The latter is thus translated : " That ground which a river has added to your estate by alluvion, be- comes your own, by the law of nations ; and that is said to be alluvion which is added so gradually that no one can judge how much is added in each moment of time." ^ from which a white oak, fifteen inches in diameter, bears south twenty-eight degrees, west fifteen linlis ; thence south with the division line; thence east &c. ; thence north &c., seventy-two chains and ten links, to the south bank of the Tuscarawas River, from whence a maple, four inches in diameter, bears south, thirty-six degrees east, eleven links ; a forked maple bears south, &c., thence with the course of the south bank of the Tuscarawas River, to the place of beginning." Before that deed was made, about ten acres of alluvion had been formed on the southern bank of the river, along the Ime between the old dogwood and the corner at the maple. It was held, that the alluvion passed by the deed. Lamb V. Rickets, 11 Ohio, 311 ; [Nichaus v. Shepherd, 26 Ohio St. 40, 44, 45 1. And in this case it was considered a well- established principle, that formations by slow and gradual accretion, belong to the owner of the land, when made by a stream forming his boundary, and opposite thereto. [St.Louis Public Schools u.Risley, 40 Mo. 356 ; Cook v. Burlington, 30 Iowa, 94 ; Mather v. Chapman, 40 Conn. 382. Where the channel of a, river has been gradually changing for years, by wearing away the bank on the defendant's side, and by adding and forming accretions upon the opposite shore owned by the plaintiff, by slow and imperceptible de- grees, the channel, as so changed, must be regarded as the rightful and accus- tomed channel for the time being as between the difierent parties. Gerrish v. Clough, 48 N.H. 9. Sargent J., in this case, said, "It is very well settled that land formed on one side of a stream of water by the variations in the channel caused by the natural flowing of the water therein, belongs to the owner of the land on that side of the stream. These natural accretions are entitled to the same protection, when once acquired, that the original enclosure would have been. Either party may protect himself against any anticipated change of that kind by rubbling or securing his bank in any way that shall keep the channel in its present location, if he do not thereby injure or raise the water upon his neigh- bor's land, either above or opposite to him." 48 N.H. 11, and cases cited. See Pierce v. Kinney, 59 Barb. 56 ; Slater v. Fox, 5 Hun (N.Y.) 644.] 1 Coop. Just. lib. 2, t. 1. [" Where a stream changes its course by slow and imperceptible steps, the riparian proprie- tors are obliged to accept the consequent alteration in their boundaries ; but when the shifting is sudden and well marked, the original medium filum continues to be the border line, and the stream, so far, passes entirely within the land of the one proprietor. Harg. Tracts, De Jure Maris, cap. 1 ; 2 Bla. Com. 262. If an island is formed by natural causes, the property in it remains apportioned in the same manner as was, before its appearance, the property in the soil on which it stands. 2 Bract, lib. 2, cap. 2, IF 2 ; 2 Bla. Com. 261; Schultes, 118." Phear Rights of Water, 12. " The large size of the rivers in America," he adds, " and their enor- mous powers of denudation and deposi- tion, have given this point a pre-eminence in that country which it does not possess here ; and, accordingly, it will be found to have received In the American text- books much more elaborate treatment than it requires in England." Phear, 12. See Trustees of Hopkins Academy v. Dickinson, 9 Cush. 544, 547. The owner of land which is being inundated by a stream breaking away from its channel, may legally turn it back to its old chan- nel. But he would have no right, in pre- venting the inundation of his own land, to cause it to flow on to the land of another except in its old channel. Tut- hill V. Scott, 43 Vt. 526.] CHAP. II.] ALLUVION. 51 § 54. The case of the King v. Lord Yarborough involved the right of soil connected with tide-water ; but the case is impor- tant as connected with the subject of this work, inasmuch as the argument in it was upon the word " imperceptible." In behalf of the Crown two passages were cited from Hale's ^ Be Jure Maris, wherein that writer speaks of land gained by alluvion as belonging generally to the Crown, unless the gain be so insen- sible that it cannot hy any means, according to the words of one of the passages, or hy any limits or marks, according to the words of the other passage, be found, that the sea was there ; idem est non esse et non apparere. This led to the following interpreta- tion of the legal meaning of the word " imperceptible " by the Court, the opinion being delivered by Abbott C. J., as follows : " In these passages, Sir Matthew Hale is speaking of the legal consequence of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of which it can- not be said, with certainty, that the sea ever was there. An accretion extremely minute, so minute as to be imperceptible even by known antecedent marks or limits at the end of four or five years, may become, by gradual increase, perceptible by such marks or limits at the end of a century, or even of forty or fifty years. For it is to be remembered, that if the limit on one side be land, or something growing or placed thereon, as a tree, a house, or a bank, the limit on the other side will be the sea, which rises to a height varying almost at every tide, and of which the variations do not depend merely upon the ordinary course of nature at fixed and ascertained periods, but in part also upon the strength and direction of the wind, which are differ- ent almost from day to day. And, therefore, these passages from the work of Sir Matthew Hale are not properly applicable to this question. And, considering the word ' imperceptible ' in this issue, as connected with the words ' slow and gradual,' we [1 Mr. Phear, in his book on Rights weather says of it, " It is a treatise famil- of Water, p. 47, note, referring to the iarly called Lord Hale's, but I have every " valuable treatise entitled De Jure Maris, reason for thinking, as far as regards the and ascribed to Lord Hale," says, " The book published by Mr. Hargrave, that it authenticity of this work is at least doubt- is not Lord Hale's ; at least, I would ven- ful, and its style of expression is so little ture so far as to say that there is no precise, that it ought scarcely to be con- sound reason for assuming that it is sidered an infallible authority in its most so." Mereweather on the Seashore, dogmatic portions." Sergeant Mere- p. 11.] 52 LAW OP WATERCOURSES. [CHAP. 11. think it must be understood as expressive only of the manner of the accretion, as the other words undoubtedly are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time. And taking this to be the meaning of the word ' imperceptible,' the only remaining point is, whether the accre- tion of this land might properly, upon the evidence, be considered by the jury as imperceptible. No one witness has said that it could be perceived, either in its progress, or at the end of a week or a month. One witness, who appears twice to have measured the land, says, ' that within the last four years, he could see that the ' sea had receded,' but he could not say how much ; the same witness said, ' that it certainly had receded since he meas- ured it last year,' but he did not say how much ; and, according to his evidence, the gain in a period of twenty-six or twenty- seven years was, on the average, about five yards and a half in a year. Another witness speaks of a gain of one hundred to one hundred and fifty yards in fifteen years ; a much greater increase than that mentioned by the first witness ; and this sec- ond witness adds, that during the last five years there had been a visible increase in some parts of from thirty to fifty yards. Upon the evidence of this witness, it is to be observed, that he speaks very loosely, the difference between one hundred and one hundred and fifty in fifteen years, and between thirty and fifty in five years, being very great. The third witness said there had been some small increase in every year. The fourth witness said, ' the swarth increases every year gradually, and perhaj}s it had gathered a quarter of a mile in breadth in some places within his recollection, or during the last fifty-four or fifty-five years, and in some places it had gathered nothing.' And this was the whole evidence on the subject. We think the jury niight, from this evidence, very reasonably find that the increase had not only been slow and gradual, but also ' imper- ceptible,' according to the sense in which, as I have before said, we think that word ought to be understood." ^ 1 TheKingv.LordYarborougli, 3B.& following reply : " When the ingenious C. 91 ; B.C. affirmed in the House of Lords, counsel can analyze the different deposits, 2 Bligh, N.s. 147 ; 1 Dow, n.s. 176. In the separate the sands of the Red River, the controversy respecting the baiture at New rich mould of the Missouri from the clay Orleans, when it was urged that it was and other various soils which the Missis- not alluvion, because its increase was per- sippi receives from a thousand tributary ceptible, after every swell of the Missis- streams ; when he can dive into its turbid sippi, it elicited from Mr. Livingston the eddies, watch the moment of the precious CHAP. 11.] ALLUVION. 53 [§ 54 a. Where the water is diverted, by artificial means, and not imperceptibly, from the land of a proprietor bounded by deposit, and date the existence of each stratum of its increase ; then this first branch of the authority he has cited (quantum quoque temporis momenta adjicia- tur) may be applicable to his cause." 2 Hall's Law Journ. 307. " Alluvium, or alluvial deposits, a name given to those accumulations of sand, earth, and loose stones or gravel brought down by rivers, which, when spread out to any extent, form what is called alluvial land. " There are three successive stages in the formation of alluvium ; viz., the crumbling of the mineral crust of the earth, by the action of tides, currents, streams, and atmospheric agency ; the transportation of the loosened fragments ; and their deposition in the form of allu- vium at the bottom of rivers, lakes, Eestuaries, and the ocean. " The mineral substances of most rocks have a tendency to combine with the oxygen of the atmosphere, under particu- lar conditions of heat, moisture, and electricity ; carbonic, acid and water are absorbed by many rocks ; vicissitudes of temperature tend to expand, contract, split, and disintegrate rocks ; lightning often shivers a rock into innumerable fragments ; every shower of hail or rain washes off fragments more or less numer- ous from the surface of rocks ; so that by these combined agencies of air, moisture, carbonic acid, heat, electricity, hail, and rain, there is a constant wearing away of the substance of solid rocks. It is true that these agencies work very slowly, when the bulk of the rock is considered ; but as time, in geological phenomena, is reckoned by ages or centuries instead of by years, this slowness does not throw any improbability over the alleged action of meteoric forces on solid rocks. " Another kind of agency is the power of a running stream to wear away the banks and rocks against which it rubs. The force of water, when directed against any obstacle in its course, is very con- siderable, even by its own weight alone, especially if it be flowing over a highly inclined surface ; but its destructive power is greatly augmented if it be loaded with sand and gravel. In floods, very consid- erable blocks are carried by the stream to great distances ; for it must be re- membered that these are much more easily moved in water than on land, in consequence of the law in hydrostatics, that a solid body fully immersed in water weighs so much less than it does in air by a sum equal to the weight of the mass of water which it displaces. If the water flows with a velocity of three inches per second, its force, when free from sus- pended matter, is sufiicientto tear up fine clay ; six inches per second, fine sand ; twelve inches per second, fine gravel ; and three feet per second, will tear up beds of loose stones of the size of an egg. Instances have been recorded in most countries of masses of stone, weighing from a hundred to a thousand pounds each, having been transported many miles by the force of a current. " The formation of valleys by the ero- sive power of running water is another cause of the accumulation of alluvium. The explanation of this subject more fit- tingly belongs to another article [Val- leys] ; but it may here be observed that there is abundant proof of the power of water to cut a passage through solid rock. In Sicily, the river Simeto has cut a pas- sage for itself through a bed of very hard rock, fifty feet deep, and several hundred feet wide. The river Nerbudda, in India, has worn away a rock to the depth of one hundred feet. Among the Alps, gorges have been scooped out to the depth of six hundred or seven hundred feet, by the action of running water alone. Such facts as these are sufficient to show that a rapidly flowing river exerts a power- ful disintegrating force. " The wearing and transporting powers of rivers depend upon the volume of water, the quantity and size of the solid matter suspended, and the velocity vfith which it moves. A river generally runs with greatest rapidity in the higher parts of its course, where indeed it often con- sists of a succession of torrents and cata- racts for many miles ; but it has not yet acquired its full destructive force, because 54 LAW OP WATEECOUESES. [chap. II. low-water mark, he acquires no title to the derelict bed of the stream.i But in Halsey v. McCormick, Pratt J. said, " I find the mass of water is still comparatirely small ; nor has it yet become loaded 'with solid matter. In the lower part of its course, long before it joins the sea, it has usually reached a level country, and there its velocity becomes greatly re- tarded. The loss of destructive power, by diminished velocity in the level country, is sometimes compensated, in a considerable degree, by the effects produced by the weight of the great volume of water impinging upon certain parts. " Tlie tortuous courses of rivers when they are cut through solid roclc, as in the case of the Moselle, whose banks are some- times six hundred feet high, are among the strongest proofs of the destructive power of running water; for no sudden deluge, however powerful, could have scooped out such a trough ; and that a cleft of such a nature should be occasioned by any disruption of the earth's crust, is not less improbable. More sudden, and therefore more striking, instances of the waste of the land occur where a river flows through a lake, and by its wasting action causes a breaking down of the barrier. " The distance to which the detached fragments are carried depends upon the volume of water, and the nature of the ground over which it flows. The torrents from the south-western Alps, rushing over a steep uninterrupted slope, trans- port large blocks to the sea ; but a river that runs through a long stretch of level country deposits the grosser matter in the upper part of its course, and carries to its mouth only that which is more easily held In suspension. The larger stones, after being detached from their parent rock, have therefore to undergo an immediate process of abrasion, by be- ing rubbed against each other in the bed of the stream, before their particles are finally committed to the deep. If a river pass through a lake in its course, the solid matter will be deposited in that trough until it has filled it up ; and if the lake be very large, even the lighter parti- cles will have time to fall, and the water will flow out clear from the other ex- tremity. Such processes are now going on, by the gradual filling up of the Lake of Geneva by the Rhone, of the Lake of Constance by the Rhine, of the Lake of Wallerstadt by the Linth, and of many other lakes which have rivers flowing through them. In other cases, the bed of the river itself is gradually being raised by the deposition of this alluvium, and the river is often turned out of its course. This process has gone on at such a rate in Lombardy, that the inhabitants are obliged to make artificial banks to con- fine the river Po within its proper limits. "In a mountainous country, where the land rises rapidly from the shore, the rivers descending over a steep bed sweep all the contents into the sea. If the neighboring sea be deep, and the tides be strong, an sestuary or inlet is formed at the mouth of the river ; that is, the sea forms a deep indentation into the land, of a triangular shape. If, on the other hand, a low shelving shore, and the absence of strong tidal currents, favor the gradual and tranquil deposit of the solid matter brought down by the river, an extensive level of alluvial land is formed. In this case the main river, at a distant point inland, often divides itself into two streams, which gradually diverging until they reach the sea, inclose a triangular space of land having the form of the fourth letter of the Greek Alphabet, A, and hence called a delta. The mass of water does not, however, long continue divided into two streams only; the pro- cess of separation is repeated several times, and thus the delta is traversed by several channels, and the great river empties it- self into the sea by many mouths. Such a delta is formed at the mouths of the Nile, Ganges, Rhine, Rhone, Po, Danube, Wolga, Indus, Orinoco, and many other rivers. Great as is the amount of new land thus formed, it is but insignificant in comparison with the quantity of solid 1 [Halsey v. McCormick, 18 N.Y. 147; s.c. 13 N.Y. 296.] CHAP. II.] ALLUVION. 65 no distinction in the books between the case of alluvion formed by natural or artificial means. If, by some artificial structure or impediment in the stream, the current should be made to impinge more strongly against one bank, causing it impercep- tibly to wear away, and causing a corresponding accretion on the opposite bank, I am not prepared to say that the riparian matter carried down by rivers and de- posited in the depths of the sea. The quantity of mud and sand poured by the Ganges into the Bay of Bengalis so great, in the flood season, tliat the sea recorers its transparency only at the distance of sixty miles from the coast. Mr. Lyell shows that supposing the water to eon- tain one hundredtli part of solid matter, a mass equal in bulk to the greatest of the Pyramids of Egypt is brought down by the Ganges every day. If a current runs across the mouth of such a river, it gives rise to the formation of a sand-bank, and greatly accelerates the accumulation of the delta. " Such, then, are the numerous modes in which alluvium is formed, and fitted to become the basis of a rich vegetable soil, by converting into dry land tracts which were before covered with water. " Besides this erosive action of rivers, there is an enormous power due to the sea itself. An extensive waste of the land is' in constant progress along every line of coast which presents an abrupt face to the sea. The amount and rapidity of that waste depend upon a variety of cir- cumstances ; the nature of the rocks of which the clifis are composed, according as they are capable of long resistance, or are easily acted upon by the weather and the sea; the force of the tides and cur- rents; the greater or less frequency of storms, — all these accelerate or retard the destructive force of the ocean. In this case also, as well as in the action of run- ning water on the land, the force is greatly augmented when the water is charged with solid matter. The violent surge of a tempest dashing against a clifiF, detaches large blocks, and sweeps them away; but the next returning wave hurls them back again against the cliff, and thus a power- ful artillery is supplied by the land for its own destruction. The east and south coasts of Great Britain, the Shetland and Orkney Islands, the shores of Denmark, and many other sea coasts of Europe, show evident signs of the power of the sea to encroach upon and wash away the clifis; thereby adding to the quantity of alluvium brought down by the rivers. " The instances of this destructive power are numerous, and are made evi- dent by the circumstance that buildings which once stood far inland are now close to the cliffs, the sea having gradually washed away the intervening rock. At Sherringham on the Norfolk coast, at Eeculver in Kent, and at many other places, this is observable. Geologists are of opinion that England once formed a part of France ; the cliffs on the opposite side of the Channel are identical at the Straits of Dover ; and between Folkestone and Boulogne a submarine chain of hills is in some places only fourteen feet below the surface at low water. From the Ger- man Ocean to the Straits the water be- comes gradually more shallow, diminish- ing in a distance of two hundred leagues from one hundred and twenty to eighteen fathoms ; and in the same manner from the Straits to the mouth of the English Channel there is a gradual increase of the depth of the water, so that at the Strait there is a ridge with a fall to the west and to the east. In the wearing of the sides, and consequent widening of the Straits, which is now going on, we see only an advanced stage of a work of de- struction which has been many thousand years in operation. That Sicily was at one time united to Italy, Ceylon to Hin- dostan, and the West-India Islands to the Continent of America, are in like manner deemed very probable hypotheses, the destructive power having in each ease been the same; viz., the sea." Nat. CyclopsBdia, Vol. I. tit. Alluvium, pp. 510-513. 56 LAW OP WATBRCODRSES. [chap. II. owner would not be entitled to the alluvion thus formed, espe- ciall)' as against the party who caused it."] § 55. Land formed by alluvion in a river is, in general, to be divided among the ^veral riparian proprietors entitled to it, according to the following rule : Measure the whole extent of their ancient line on the river, and ascertain how many feet each proprietor owned on this line ; divide the newly formed river- line into equal parts, and appropriate to each proprietor as many of these parts as he owned feet on the old line ; and then draw lines from the points at which the proprietors respectively bounded on the old, to the points thus determined as the points of division on the newly formed shore. This rule is to be modi- fied under particular circumstances ; for instance, if the ancient margin has deep indentations or sharp projections, the general available line on the river ought to be taken, and not the actual length of the margin, as thus elongated by the indentations or projections.! [" The effect of this rule is, to give to each propri- etor a length on the new water-line proportioned to his length on the old water-line, whether the one be longer or shorter than the other." 2] 1 Deerfield v. Arms, 17 Pick. 41. The Court, in this case, adopted the rule found in a work of the Civil Law, entitled, " A Collection of New Decisions," by Denisart, published in France in 1783, and is found under the title Att&issement. See Ken- nebec Perry Company v. Bradstreet, 28 Maine, 374; [Trustees of Hopkins Academy V. Dickinson, 9 Cush. 544 ; 3 Kent, 428. The rule established in Deerfield v. Arms, supra, was followed in Batchelder v. Ken- Iston, 51 N.H. 496. See Miller v. Hepburn, 8 Bush, 326 ; Thornton v. Grant, 10 R.I. 477; Jones v. Johnston, 18 How. (U.S.) 150 ; Delord v. New Orleans, 11 La. Ann. 699 ; O'Donnell v. Kelsey, 10 N.Y. 412 ; Attorney-General v. Boston Wharf Co., 12 Gray, 553. As to New Jersey, see Stockham v. Browning, 18 N.J. Eq. 390]. 2 [Per Shaw C.J., in Trustees &c. v. Dickinson, 9 Cush. 544, 552, 553. See Gray v. Deluce, 5 Cush. 9 ; Thornton a. Grant, 10 R.I. 477. In Clark v. Cam- pau, 19 Mich. 325, it was held that the boundary line between adjoining riparian owners is to be determined by extending ■ a line from the boundary at the shore, perpendicularly to the general course of the stream opposite that point. In this case, Campbell J. said, "The right to lancl under water, extending from the shore toward the centre or thread of a stream, has always been deemed as appurtenant to the shore itself. It has no reference whatever to the extent of the riparian owner's possessions back from the shore, and is the same whether those possessions consist of a deep parcel or a mere strip of shore. And this right to the covered lands in front has always been held to exclude any adjacent claimant from intercepting in any way the full extent indicated by the width at the shore, with- out reference to whether the track ap- proaches the shore at right angles or di- agonally. Where the stream is straight, the water front will be bounded by lines drawn at right angles with the thread of the stream, protracted until they reach the ends of the shore line. Where the stream curves, the same principle applies, and the lines running from the shore would converge or separate, according as the land lay within or without the curve. CHAP. II. J ALLUVION. 57 § 56. Analogous' to the decision in the case cited in the pre- ceding section, is the rule as to the apportionment oi flats-ground in Massachusetts and Maine.^ In Emerson v. Taylor, in the lat- in all cases where ownership of the sub- merged land or of alluvial increments, appurtenant to riparian ownership, has come in question, the only elements which have ever been considered by the courts have been the shore lines and the central line or thread of the stream, and the partition among adjoining owners has been made with reference to these, but never with any reference whatever to the direction of the boundaries or the extent of the domain on the uplands. Thei aim in every instance has been to secure to each owner such share as was indicated by his shore line, and not by his lands back of it." Emerson v. Taylor, 9 Greenl. 42; Deerfield v. Arms, supra; Rust V. Boston Mill Corp., 6 Pick. 158 ; Sparhawk v. Bullard, 1 Met. 95 ; Kriight V. Wilder, 2 Cush, 199; Ipswich Pet'rs, 13 Pick. 431 ; Jones v. Johnston, 18 How. (U.S.) 150; Johnston a. Jones, 1 Black, 209; Banks v. Ogden, 2 Wallace, 67; O'Donnell v. Kelsey, 10 N.Y. 412; Lor- man w. Benson, 8 Mich. 18 ; Rice v. Rud- diman, 10 Mich. 125 ; Sauletu. Shepherd, < 4 Wallace, 502 ; Jones v. Soulard, 24 How. (U.S.) 41 ; Seneca Nation v. Knight, 23 N.Y. 489 ; Steamer Magnolia v. Mar- shall, 39 Miss. 109; Stone v. Boston Steel &'lron Co., 14 Allen, 230. And in The Bay City Gas-Light Co. v. The Industrial Works, 28 Mich. 182, the same learned judge, discussing the same point, said, " There is no distinction in this regard between streams which are subject to easements of passage, and those which are not. Even the beds of navigable tide-waters are subject to the disposal of State laws, saving always any public rights that may exist in them ; and it is the settled law of this State (Michi- gan) that any use of lands under rivers, which is compatible with the full enjoy- ment of the public easement, belongs with the upland to which it was originally appurtenant, unless sold or granted sepa- rately so as to sever it. Even in streams not susceptible of any public use, it can seldom happen that any riparian proprie- tor can occupy by erections any large portion of its bed, except where it is dammed. He cannot so use it as to destroy the benefits of the water to his neighbors. In each case the right of every owner is subject to some limita- tions ; and he is compelled to use his own property so as not to injure the rights of others, whether piiblic or individual." " The controversies arising concerning riparian rights upon waters having no middle thread, properly so called, can have no bearing on rivers. Whether the proprietary right is confined by high or low water mark, or extends further, it is manifest that upon the open sea or on a bay or other body of water having no defined stream running in a confined and continuous bed, the shore may be the only tangible element of computation or measurement, and it has very prop- erly in such cases been regarded as the most important. But even there some regard has usually been paid to the com- mon-sense rules which would prevent inequalities from being created by any blind adhesion to the accidental conforma- tion of the shore line at the extremity of any riparian property; and regard is paid to extent, as well as to other con- siderations." ] l [In Thornton v. Grant, 10 R.L 477, 488, 489, Durfee J., referring to the law of Massachusetts on this point, said, " The rule is this : Where the flats lie in a cove or recess, a front line is to be drawn from headland to headland, and from the front Une so drawn division lines are to be drawn through the flats to meet the division lines of the upland at their intersection with the shore, and are to be so drawn as to give each proprietor a length of the front line proportionate to the length of his shore line at ordinary high-water mark. Rust v. Boston Mill Corporation, 6 Pick. 158; Deerfield v. Arms, 17 Pick. 41 ; Hopkins Academy v. Dickinson, 9 Cush. 544 ; Wonson v. Won- son, 14 Allen, 71; Delaware, Lacka- wanna, and Western R.R. Co. v. Hannon, 37 N.J. Law (8 Vroom) 276. This rule has been approved in other States, 58 LAW OP WATERCOURSES. [chap. II. ter State,^ the question was in respect to the side lines of water- lots, from the upland to low- water mark, under the colonial ordi- nance of 1641 [1647. J The language of the ordinance referred to is, that " in all creeks, coves, and other places about and upon and in the Supreme Court of the United States. O'Donnell v. Kelsey, 10 N.Y. 415; Miller v. Hepburn, 8 Barb. 332; Johnston ^. Jones, 1 Black, 209. The rule, when applied to a cove or inlet of regular outline, is probably as just as any which can be devised. But it is easy to conceive a shore so irregular in its outline that the rule, if applied with- out modification, would be very unsatis- factory in its results. Indeed, Chief- Justice Shaw admits, in Deerfield v. Arms, that where the shore line is elon- gated by deep indentations or sharp pro- jections, its length should be reduced by equitable and judicious estimate, before it is employed in making the apportion- ment. In Maine, a rule has been devised which is quite different from the Massa- chusetts rule, but which has not been so favorably regarded, because it is too complicated for every application. Emer- son V. Taylor, 9 Greenl. 44 ; and see Nott !;. Thayer, •2 Bosw. 10. Even in Massachusetts, the rule has not been invariably applied. In Gray a. Deluce, 5 Cush. 9, flats lying on a curv- ing shore were divided by drawing par- allel lines from the ends of the division lines of the upland to low-water mark, in such a manner that they would intersect a line drawn from headland to headland of the shore at right angles. And this rule seems to have met the approval of Chancellor Zabriskie, in Stockham v. Browning, 18 N.J. Eq. 891. In the case before us we are not called upon to partition alluvion or flats, but to determine the extent of the plaintiff's water front. The principle involved, however, is very much the same in the one case as in the other ; and we are therefore not insensible to the guidance to be derived from the decisions cited. But those decisions do not establish any one invariable rule, and it is quite evident that no one of the several rules which they do suggest could be applied in all cases without sometimes working serious injustice. In the case at bar, a solid rock projecting out to the main channel has preserved the shore of the plaintiffs from detrition at that point, but has allowed quite a deep inward curve beyond that point, while the shore of the defendants, having no such protection, has conformed more to the course of the river. The consequence is, that if we draw a front line from headland to headland, and then draw the division line so as to give to each set of proprietors a length of front line proportionate to the length of their original shore, the division line will pass diagonally across what would ordinarily be regarded as the water in front of the defend- ant's land. This is a result which does not commend itself to us as either reason- able or just. We have decided upon another rule, which to us seems equitable, and which for our present purpose, in the circumstances of this case, leads to a pretty satisfactory result. The rule is this : Draw a line along the main channel, in the direction of the general course of the current in front of the two estates, and from the line so drawn, and at right angles with it, draw a line to meet the original division line on the shore. This rule is not unlike the rule adopted in Gray v. Deluce. It will give the plaintiffs as large an extent of water front as we are disposed to allow them ; and upon the front so defined we will grant them an in- junction to prevent the defendants from encroachment." See, for other modifica- tions of the Massachusetts rule, the plans filed in the clerk's oflSce, and recorded in the Registry of Deeds, for Essex County, in the eases of Breed «. Breed, 110 Mass. 532 ; s.c. 117 Mass. 693 ; and in Park- hurst 0. Todd, Supreme Judicial Court, Essex County, Mass., April Term, 1877. In neither of these cases, however, was the attention of the Court called to the correctness of the mode of division, as there was no opposition to the mode reported. See Commonwealth v. Rox- bury, 9 Gray, 451, 621-523; and post, § 843, note.] 1 Emerson v. Taylor, 9 Greenl. 44. CHAP. 11.] ALLUVION. 59 salt water, where the sea ebbs and flows, the proprietor of the land adjoining shall have propriety to low-water mark, where the sea doth not ebb, above a hundred rods, and not more, wheresoever it ebbs and flows." The expression, " to low-water mark," seemed to the Court to imply to the low-water mark in the nearest direction, and without any regard to the course of the side lines of the upland to which the flats are adjoining and appurtenant.! Such a construction appeared to the Court more consistent than any other with the respective rights of contig- uous owners of upland ; and in some cases the Court considered, where the upland adjoins a cove, and the contiguous lots are so laid out or bounded, as that their side lines strike the cove (as some of them necessarily must) obliquely, the above rule must be applied as the general rule of construction ; otherwise, the exten- sion of the side lines and one of the upland lots in a straight direction, might, in some cases, deprive an adjoining lot of all benefit of the flats ; and according to the plan on the following page, marked A, it would cut off from lot No. 6 most of the benefit of the flats adjoining it. The Court, in giving their opinion, say, " After a careful examination of the subject, we perceive but one construction or application of the principle of the ordinance which will do justice to all concerned. The mode of applying the principle is this : Draw a base line from the two corners of each lot, where they strike the shore ; and from those two corners, extend parallel lines to low-water mark, at right angles with the base line. If the line of the shore be straight, as in the case before us, there will be no interference in running the parallel lines.^ If the flats lie in a cove of a regular or irregular curvature, there will be an interference in running such lines, and the loss occasioned by it must be equally borne, or gain enjoyed equally by the con- tiguous owners, as appears by the following plan, marked B. By the foregoing plan it will be noticed that the parallel lines, running at right angles with the base lines, are merely dotted ; while the base lines and the true division lines between the flats, 1 And the Court appear to have 2 [gee Delaware &o. E.E. Co. v. Han- adopted this construction in Bust v. Bos- non, 37 N.J. Law, 276 ; Stone v. Boston ton Mill Corporation, 6 Pick. 158, and Steel and Iron Co., 14 Allen, 230, 2-33; Knight V. Wilder, 2 Cush. 199; Spar- Gray w. Deluce, 5 Cush. 12 ; Porter w. Sul- hawk V. BuUard, 1 Met. 95, 106. Uvan, 7 Gray, 443.] 60 LAW OF WATERCOURSES. [chap. II. belonging to the respective upland lots, are distinctly drawn. It will also be seen that each of the lots, 1, 2, 5, 6, have their appurtenant flats converging from the upland to low-water mark, in consequence of the recess and curvature of its margin ; while the lots 3 and 4 have their appurtenant flats wider at low-water mark than where they join the upland, in consequence of the projection of each lot into the stream. On the same principle, where there is an extended projection of upland of any form, or an island, belonging to different owners, each one's lot being CHAP. II.J ALLUVION. 61 bounded on the sea, or the tide-water in which the island is situ- ated, the surplus width of the flats at low-water mark, arising from the form of the upland, must be divided among the contig- uous owners of such upland, and the mode of division and the result are to be ascertained by drawing base and parallel lines in the manner before mentioned, and then making an equal division I 62 LAW OP WATERCOURSES. [chap. II. of the surplus.! By this process, justice will be done, and all interference of lines and titles prevented. We are not aware of any cases, where, in apportioning appurtenant flats among contig- uous owners of upland, the foregoing principles and mode of proceeding would not be properly applicable as the rule of decision. Still we do not undertake to affirm that there may not be some peculiarity in the form of the upland to which flats are appurtenant, and some peculiarity of manner in which the upland may be divided among contiguous owners, the effect of which we have not anticipated, which would vary the principle. Should any such cases hereafter present themselves, requiring the application of a different principle, such new principle must of course be applied." ^ [1 See Treat v. Chipraan, 35 Maine, 36; Call Adams v. Pease, 2 Conn. 481. [See also, to the same effect. Hooker w.-Cum- mings, 20 John. 90, 99 ; Moulton v. Lib- bey, 37 Maine, 472 ; Jackson v. Keeling, 1 Jones, Law (N.C.) 299. The common right of fishing has always been held and enjoyed in subordination to the right of navigation. Any erection which can be admitted by the latter will not be pre- vented by the former right. Shepley C.J., in Moulton v. Libbey, 37 Maine, 493; Lewis u. Keeling, 1 Jones (N.C.) 299.] ' 2 [3 Kent, 412, 413; Shaw C.J., in Weston V. Sampson, 8 Cush. 351 ; Shep- ley J., in Parker v. The Cutler Mill-dam Co., 20 Maine, 857 ; Moulton v. Libbey, 37 Maine, 472; Woolrych, Law of Wa- ters, 38 ; Dunham v. Lamphere, 3 Gray, 271; Bickel v. Polk, 5 Barring. (Del.) 325; State v. Glen, 7 Jones, Law (N.C.) 321.] ' [Shaw C.J., in Weston v. Sampson, 8 Cush. 355 ; Lakeman v. Burnham, 7 Gray, 437 ; Porter v. Shehan, 7 Gray, 435 ; Par- ker V. The Cutler Mill-dam Co., 20 Maine, 353 ; Moulton v. Libbey, 37 Maine, 472 ; Gray J., in Commonwealth v. Bailey, 13 Allen, 542 ; 2 Dane, 690, 700 ; Mar- tin V. Waddell, 16 Peters, 410, 413, 414 ; Den V. Jersey Co., 15 Hoiy. (.U.S.) 132; Hall V. Whillis, 14 Scotch Court of Sess. Cas. (2d series) 324; Gray J., in Proctor V. Wells, 103 Mass. 217. Oysters planted by an individual in a bed clearly marked out below low-tide mark, in a bay or arm of the sea, which is a common fishery to all inhabitants of the State, and where there are no oysters growing sponta- neously at the time, and where the bed does not interfere with the exercise of the common right of fishing, are the property of the planter, who can maintain trespass for their asportation. Lowndes v. Dick- erson, 34 Barb. 586. See Fleet v. Hege- man, 14 Wend. 42 ; Decker «. Fisher, 4 Barb. 592 ; Brinckerhoff v. Starkins, 11 Barb. 248.] * [Moulton V. Libbey, 37 Maine, 472 ; Dunham o. Lamphere, 3 Gray, 268. In Commonwealth ». Vincent, 108 Mass. 447, Gray J., said, " The power of the legislature of the Commonwealth over the public rights of navigation and fishing in any waters within its boundaries is un- restricted, provided it does not interfere with the power to regulate commerce, conferred upon the general government by the Constitution of the United States. Cooley V. Philadelphia Board of Wardens, 12 How. (U.S.) 299; Oilman o. Philadel- pbia, 3 Wallace, 713. The legislature of a State has power to regulate the time and manner of fishing in the sea within its limits ; and, according to the opinions of most respectable judges, may even grant exclusive rights of fishing at par- ticular places in tide water. Burnham v. Webster, 5 Mass. 266 ; Dunham v. Lam- phere, supra; Smith v. Maryland, 18 How. (U.S.) 71; Corfield v. Coryell, 4 Wash. C.C. 371, 380 ; Bennett o. Boggs, Baldw. 60. In those waters, whether within or beyond the ebb and flow of the tide, which are not navigable from the sea for any useful purpose, there can be 72 LAW OF WATERCOURSES. [chap. III. lege to anj' part of such waters, unless he has acquired it by grant or by prescription .^J no restriction upon its authority to regu- late tlie public rights of fishing, or to malce any grants of exclusive rights which do not impair other private rights already Tested. Nickerson v. Braekett, 10 Mass. 212; Cleaveland v. Norton, 6 Cush. 380; Russell V. Russell, 15 Gray, 159, 161.] 1 [Preble v. Brown, 47 Maine, 284 ; 3 Kent, 418; Woolrych, Law of Waters, 80 et seq. ; 2 Dane, 690 ; Mayor of Ox- ford V. Richardson, 4 T.R. 437, 439; Gould V. James, 6 Cowen, 869, 876 ; Day V. Day, 4 Md. 262, 270 ; Carter v. Mureot, 4 Burr. 2164 ; Palmer v. Hicks, 6 John. 188 ; Rogers v. Jones, 1 Wend. 287 ; Dela- ware & U. R.R. Co. V. Stump, 8 Gill & J. 479 ; Gray J., in Commonwealth a. Bai- ley, 13 Allen, 548 ; Lakeman v. Burnham, 7 Gray, 440 ; Scratton v. Brown, 4 B. & C. 485; Word «. Creswell.WiUes, 265; Col- lins V. Benbury, 5 Iredell, 118 ; Lay v. King, 5 Day, 72 ; Peck v. Lockwood, 5 Day, 22 ; Commonwealth v. Vincent, 108 Mass. 446, 447; Proctor v. Wells, 108 Mass. 216, 218 ; and cases cited. In Lakeman v. Brown, supra, Shaw, C.J., having cited Weston v. Sampson and Dunham v. Lamphere, supra, and Com- monwealth u. Alger, 7 Cush. 68, said, " By these cases, we think the following propositions are well established : That by the Revolution, and by the acknowl- edgment of our independence by the British Government, the State of Massa- chusetts succeeded to all public rights of British subjects, whether originally be- longing by prerogative to the Crown, or exercised and administered by Parliament in due course of law; that, by the char- ter of the colony of Massachusetts, the people and settlers of the territory ac- quired not only the right of soil, but a right to the shores and arms of the sea, for all useful purposes of navigation and fishery ; that, since that charter, no ex- clusive right of navigation or fishery, on the sea- shores or in the bays or arms of the sea, could be acquired, except under the authority of the colonial, provincial, or constitutional government, adminis- tered by the legislature by act or resolve ; that, though perhaps, in the absence of such proof by act or resolve, such grant might be proved by adverse use and en- joyment, it must amount to that degree of exclusive occupation sufficient to raise a belief that such act or resolve had actually been passed, though not now appearing." Chalker v. Dickinson, 1 Conn. 882, 383, 884; Collins v. Benbury, 5 Iredell, 118; Delaware & M. R.R. Co. b. Stump, 8 Gill & J. 479 ; Gould o. James, 6 Cowen, 369, 376. " And in general this can only be done by showing an actual possession of the fiats where the tide ebbs and flows, by building thereon or enclosing the same, so as to exclude the access of boats and ves- sels; that the Common Law, giving the rights of navigation and fishery to the public, remains in force in Massachusetts, except so far as it is qualified and re- strained by the Colony ordinance of 1647, giving to the proprietor of the upland the fee in the soil, in flats flowed by tide- water, to th^extent of one hundred rods ; but by the terms of that ordinance and the construction given to it, the rights of all the members of the community, to navigation and fishery in tide-waters, on the shore and flats below high-water mark, remain until the proprietor elects to build a wharf, or otherwise fill up and enclose such flats." 7 Gray, 440. See Parker v. The Cutler Mill-dam Co., 20 Maine, 353 ; Moulton V. Libbey, 87 Maine, 472. Great Ponds, in Massachusetts, containing more than ten acres, which were not, before the year 1647, appropriated to private persons, were by the Colony ordinance of that year made public, to lie in common for public use. 'Fishing, fowling, boating, bathing, skating, or riding upon the ice, taking water for domestic or agricultural purposes or for use in the arts, and the cutting and taking of ice, are lawful and free upon these ponds, to all persons who own land adjoining them, or can obtain access to tliem without trespass, so far as they do not interfere with the reasonable use of the ponds by others, or with the public right, unless in cases where the legislature have otherwise directed. West Roxbury v. Stoddard, 7 Allen, 158 ; Ancient Charters, 148, 149 ; Gray J., in CHAP. III.] EXCLUSIVE EIGHT OF PISHING. 73 § 66. Under the local law of Massachusetts, by which towns may appropriate the fish, in tide-waters, if not appropriated by the legislature, no man, says Parsons C.J., can lawfully go on the soil of another, without his leave ; and if no such appropriation has been made, any citizen may take the fish, " so that he does not trespass on the land of others." ^ In a very early case in the same State, the defendant claimed the right of going over the plaintiff's land to the river Merrimack, but he relied solely on prescription .2 In South Carolina, where a person living on an island had a navigable watercourse from his own door to the highway, of no greater distance than to pass through his neigh- bor's field, the Court held, that it was not such necessity as gave him a right of way over the field.^ In Cortelyou v. Van Brundt, in New York,^ it was held, that the common right of fishing even in tide-waters, gives no power over the adjoining land. And, though both commerce and fishing, and bathing in the sea, are matters favored by the Common Law, by reason of public and national benefits to be derived from them, thej-- do not, because the waters of the sea are open to all persons for all lawful pur- poses, afford a universal right of access to them over land which is private property.^ § 67. The riparian proprietor has the sole right, unless he has granted it, to fish with nets or seines in connection with his own land.^ It was expressly held, also, in Lay v. King, in the Supreme Court of Errors of Connecticut,^ that an adjoining proprietor on the river Connecticut, near its mouth, had an ex- clusive right to draw a seine on his own land ; though the right of fishery in that part of the river was free and common to all the citizens of the State. This exclusive right is considered to give all the owners of land on the margin of the river Schuyl- Paine v. "Woods, 108 Mass. 169; Com- 325; 3 Kent, 413; West Roxbury v. monwealth v. Vincent, 108 Mass. 441, Stoddard, 7 Allen, 158. The common 446, 447. As to ice, see fartlier. Gray J., right of fishery does not authorize the in Paine v. Woods, 108 Mass. 173 ; State public to fix stakes in flats belonging to V. Pottraeyer, 33 Ind. 402.] the owner of the upland, for the purpose 1 Coolidge V. Williams, 4 Mass. 440. of setting a seine. Locke v. Motley, 2 2 White «. Whittier, 2 Dane Abr. Gray, 267; Duncan u. Sylvester, 24 Maine, 702. 486. But below low-water mark one 3 Lawton v. Rivers, 2 McCord (S.C.) may use a seine. 2 Dane Abr. 692, 693]. 445, cited in 2 Rice Dig. 356. " Hart v. Hill, 1 Wharton, 138 ; Cool- * Cortelyou i-. Van Brundt, 2 John, idge v. Williams, 4 Mass. 140; Brink v. 357. Richtmyer, 14 John. 255. 5 See Blundell v. Catterall, 5B. & Aid. 7 Lay v. King, 5 Day (Conn.) 72, 268; [Bickel v. Polk, 5 Earring. (Del.) 74 LAW OP WATERCOURSES. [CHAP. III. kill such great advantages, that it has been hardly worth while for any other persons to attempt to fish with seines. The right of property in front of the river is therefore valuable, and is called a fishery, and one which, in some places is rented for a considerable sum annually.^ Where certain persons had landed, with their nets, on the bank of a navigable river, and had at various times, dressed and improved the landing place, it was held, that it was properly left to the jury to presume a grant of the right of landing for that purpose, by the. owner of the shore. In this case, it was remarked by Burrough J. that every act done by the plaintiffs {or forty-six years on the locus in quo, would have been a trespass, if they had not a right of landing with their nets there ; but from 1774, to the present time, all these acts had been done openly ; and the only question was whether there were any facts from which a judge could leave it to a jury to presume a grant of the right in question ; and, undoubtedly, the circumstances were such as could scarcely have occurred without the knowledge of the owner.^ The right of landing with and drawing seines upon another's land, is undoubtedly an easement,^ and therefore, as in the case just above referred to, may be ac- quired by prescription, like a right of way. § 68. This right of fishery, growing out of an ownership of the soil, is subject to dower; that is, a woman may be endowed of one-third part of the profits.* It would seem, however, that dower cannot properly be claimed in a fishery, unless it is at- tached to, or connected with, lands, of which the husband was seised ; and, therefore, in a fishery disunited with ownership of the soil, it is doubtful whether dower would arise. § 69. Where a fishery belongs to co-heirs, they shall have the ' Per Tilghman C.J., in delivering the i ib. 256, 496 ; 5 ib. 233 ; 6 ib. 795. Acts opinionof the Court in Shrunk t). Sohuyl- of Parliament hare from time to time kill NaT. Co., 14 S. & Rawle, 71. been passed in England, to give parties 2 Gray v. Bond, 2 B. & B. 667, and engaged in the herring fisheries a right 6 Eng. Common Law, 368. At all the to use the adjoining lands in certain cases, fisheries in the river Tweed, the work- 1 Jae. I. 23 ; 29 Geo. II. ch. 23, s. 2 ; 30 men exercise the right of walking over Geo. II. ch. 80, s. 7; 11 Geo. III. ch. 31, and along the adjoining shore, while s. 11. drawing their nets from the river. They 3 Hart v. Hill, 1 Wharton, 138. A also exercise the right of drawing their right of way must be by grant or pre- nets on the adjacent banks, called " a net scription ; mere convenience gives no right, green." But this right is considered as Seabrook v. King, 1 N. & McCord (S.C.) a mere easement, which may be presumed 140; Lawton w. Kivers, 2 McCord (S.C.) by twenty years' enjoyment. 28 Lend. 445. Law Mag. 337 ; and see 3 M. & W. 229 ; « Bac. Abr. Dower. CHAP. III.] OP A SEVERAL FISHERY. 75 second, third, or fourth fish, according to the number of persons entitled.^ § 70. In one case,^ it was moved, that ejectment does not lie for a fishery ; on which point the Court doubted ; but to avoid the question, the plaintiff released his damages, and the' question was not agitated. But where a fishery is rented with the soil, it is a tenement within the meaning of the statute of 9 and 10 William III., ch. xi., so as to entitle a person renting it, to a par- ochial settlement. And, it seems, a fishery, without the soil, would have the same effect. In the case where this point was determined, Mr. J. Ashurst laid it down as law, that a fishery is a tenement ; that trespass will lie for an injury to it ; and that it may be recovered in ejectment.^ In this case, BuUer J. said, the fact of letting a fishery is sufficient, and we must presume the soil passed along with it ; but he was by no means ready to allow that, if it had been any other kind of fishery, it would not have given a settlement. 2. Of a Several Fishery. § 71. The exclusive right of fishery, we have just considered as being identified with the property in the soil, has been usually denominated a several fishery.* The town of Dorchester, in Massachusetts, in 1633, made a grant in these words : " It is gen- erally agreed that Israel Stoughton shall build a water mill, if he see cause." Then follows a grant to him of a wear adjoining to his mill ; and no person is to cross the river with a net, or other- wise to the prejudice of the said wear ; but Stoughton is to sell the alewives at five shillings per thousand, and the other fish at 1 3 Bract. 2 b. ch. xxxiv. s. 1. was, and that entire damages had been 2 Cro. Jac. 146. given. The plaintiff upon this released ' 1 T.R. 358. That trespass will lie ; his damages totally and his action as to Hart V. Hill, 1 Wharton, 124. The, in- the piscary, and then had judgment, the competency to bring ejectment respects Court being doubtful upon the point of the incorporeal right, because, where the the fishery. Molineux v. Molineux, Cro. soil is in question, any fishery incident Jac. 146. The fishery in that case was thereto will pass along with it. But the not one connected with the soil. difficulty arises when the privilege is in- * See the authorities cited, ante, § 61. dependent of the land. Ejectment was [A several fishery is an exclusive one. brought for a lease of a house and lands. No other person can lawfully fish within and of a free fishery in the Trent, and, its bounds. Per Rice J., in Preble v. amongst other things, it was moved that Brown, 47 Maine, 284 ; Shepley C.J., in ejectment lay not for a fishery ; that it Moulton v. Libbey, 87 Maine, 489.] did not appear in what vill the piscary 76 LAW OF WATERCOURSES. [CHAP. III. reasonable rates. The Colony Legislature, in 1634, confirmed the grant to Stoughton and his heirs. It was held, that the wear thus granted and confirmed amounted to the franchise of a sev- eral fishery at that place.^ § 72. But there seems to have long been a contrariety of opinion, with respect to the point whether the ownership of the soil covered with water be essential to a several fishery. It would be attended with little use, to cite all the various prece- dents to which this question has given birth. The weight of authority is much in favor of the negative ; and two modern writers,^ who have considered the question with much attention and acuteness, have arrived at the same conclusion, and have expressed decided opinions that a right of several fishery may exist independent of the soil.^ This is the doctrine of Sir Ed- ward Coke, who observes, that if a man be seised of a river, and by deed do grant a several fishery in the same, and maketh livery of seisin secundum formam ohartce, the soil doth not pass, nor the water, for the grantor may take water there, and if the river become dry, he may take the benefit of the soil ; for there passed to the grantee but a particular restricted right ; namely, a right only to fish, and the livery being made secundum formam chartce, cannot enlarge the grant ; but he may exclude the owner from fishing there, for he has departed with his interest therein.* For the same reason, he says, if a man grant aquam suam, the soil shall not pass, but the piscary within the water passeth there- with.^ And where, says Mr. Hargrave,^ is the inconsistency, in 1 Stoughton V. Baker, 4 Mass. 522. pendently of the high authority of Lord 2 Schiiltes on Aquatic Eights, and Colie on sucli a matter, I must say that Woolrych on the Law of Waters &o. Ill this doctrine appears to me the only one et seq. The latter published in London which is reconcilable with principle or as late as 1851. reason. It is admitted on all hands that 3 And see, to the same effect, the au- a several fishery may exist independently thorities cited in Mr. Hargrave's Co. Litt. of the ownership of the soil in the bed of the 122 a. n. 7. Mr. Woolrych (pp. Ill et water. Why, then, should such a fishery seq.) cites a case as early as 46 Ed. III. be considered as carrying with it, in the * Co. Litt. 122 a. absence of negative proof, the property 5 Co. Litt. 4 b ; and so held in Jackson in the soil ? On the contrary, it seems V. Halstead, 5 Cowen, 216 ; Somerset v. to me that there is every reason for hold- Fogwell, 5 B. & C. 875. [In Marshall v. ing the opposite way. The use of water Steam Nav. Co., 8 B. & S. 747, Cockburn for the purpose of fishing is, where the C.J., having quoted from Lord Coke the fishery is united with the ownership of passage in the text, added, " Now, inde- the soil, a right incidental and accessory « Hargrave's Co. Litt ut supra. CHAP. III.] OP A SEVERAL FISHERY. 77 granting the sole right of fishing with a reservation of the soil and its other profits ? Nor do we understand, he adds, why a several fishery should not exist without the soil, as well as a sev- eral pasture} Much confusion, it has been happily suggested by Mr. Woolrych,^ would be prevented, by calling the sole right of fishery growing out of the property in the soil, a territorial fishery ; and giving to that the name of several fishery which is enjoyed exclusively by one individual. § 73. The exclusive right of fishing being incident to the ownership of the soil, it will be presumed, unless the contrary appear, that such right resides in the owner of the soil ; ^ and hence to an action of trespass for an injury to a right of several fishery, it is a good plea that the soil and freehold belong to the defendant. To this, however, the plaintiff may reply title to the several fishery, either by prescription or grant, thereby rebutting the presumption of the right of several fishery being still vested in the owner of the soil.* A more modern case is to the latter. On a grant of the land, the water and the incidental and accessory right of fshing would necessarily pass with it. If, then, the intention be to con- vey the soil, why not convey the land at once, leaving the accessory to follow ? Why grant the accessory, that the prin- cipal may pass incidentally f ■ Surely such a proceeding would be at once il- logical and unlawyerlike. The greater is justly said to comprehend the less, but this is to make the converse of the propo- sition hold good. A grant of land carries with it, as we all know, the mineral which may be below the surface. But who ever heard of the grant of the mineral carrying with it the general ownership of the soil "i Why should a different principle be ap- plied to the grant of a fishery, which may be said to be a grant of that which is above the surface of the soil, as a grant of the mineral is a grant of that which is below it? Nor should it be forgotten that the opposite doctrine involves the startling and manifest absurdity, that, should the water be diverted by natural causes or become dry, the fishery, which was the primary and principal object of the grant, would be gone, and the prop- erty in the soil which only passed inci- dentally and as accessory to the grant of the fishery, would remain." ] 1 [See Melvin v. Whiting, 7 Pick. 79 ; Cortelyou v. Van Brundt, 2 John. 357, 362; Ipswich v. Browne, Savil. 14.] ^ Woolrych, ut supra. 3 Anon. Loft. 364 ; Marshall v. Steam Nav. Co., 3 Best & S. 732. The owner of a several fishery, in ordinary cases, and where the terms of the grant are un- known, may be presumed to be the owner of the soil. Somerset v. Fogwell, 5 B. & C. 875. Trespass lies by owner of several fishery. Hart ... Hill, 1 Wharton, 124. [One having a several fishery has a prop- erty in the fish, and may maintain tres- pass for taking them. Collins v. Benbury, 5 Iredell, IIB; Smith o. Kemp, 2 Salk. 637 ; Holford v. Bailey, 13 Q.B. 426, and note, p. 447.] Tliough there is no reason why a person may not have a several fishery in alieno solo, yet prima facie, he is owner of the soil, and that presumption is conclusive, if not opposed. Partheriche ^. Muser, 2 Chitt. 658. * 13 Hen. VI. per Paston J. ; [Holford V. Bailey, 8 Q.B. 1000, 1016; s.c. 13 Q.B. 444, 445; Wightman J., in Marshall v. Steam Nav. Co., 3 B. & S. 744. In McFarlin v. The Essex Co., 10 Cush. 304, it was held that if a several right of fish- ery on the land of another can be acquired by prescription, it must be by an actual and exclusive occupation and enjoyment 78 LAW OP WATERCOURSES. [chap. III. cited by Mr. Woolrych,i as proving no more than what might readily be admitted; namely, that the ownership of a fishery will imply a property in the soil, without further explana- tion.^ § 74. To constitute a several fishery, it is doubtless requisite that the party claiming it should so far have the right of fishing, independently of all others, as that no person can have a co- extensive right with him in the object claimed. But a partial independent right in another, or a limited liberty, does not derogate from the right of the general owner.^ A several fish- ery, says Mr. Woolrych, is, as its name imports, an exclusive property. Not but that the territorial owner, or his grantee or lessee, may give permission to another person to fish, and yet preserve the several fishery. An owner of the above descrip- tion would still remain seised of his original estate or right ; and of the fishery, adverse to the riparian pro- prietor, and continued for at least twenty years. See ante, § 63, in note ; 3 Kent, 418; Melvin v. Whiting, 13 Pick. 184]. 1 Woolrych on the Law of Waters &o. 116 et seq. 2 Rex V. Old Arlesford, 1 T.R. 358. A declaration reciting that defendant had been summoned to answer plaintiff in an action of trespass, charged that defendant, with force and arms, broke and entered a fishery of plaintiif, in a certain part of a river then flowing and being over the soil of one F., and then fislied for fish in the said fishery of plaintifi", and the fish of tlie said fishery of plaintiff, there found, and being in said fishery, chased and dis- turbed : Conclusion, contra pacem. Held in arrest of judgment, after verdict for plaintiff, that the declaration was framed in trespass ; and that (semble) trespass lies for breaking and entering the several fish- ery of A. on the soil of B. ; but the words " sole and exclusive fishery " were not equivalent to "several" fishery ; and that no cause fur an action of trespass appeared. Holford V. Bailey, 8 Ad. & Ell. n.s. 1000. [In Marshall v. Steam Nav. Co., 3 B. & S. 749, 7S0, Cockburn C.J. said, " In Holford V. Bailey, 8 Q.B. 1000, Lord Denman, in delivering the considered judgment of this Court, says, p. 1016, ' No doubt the allegation of a several fishery, prima facie, imports ownership of the soil, though they are not necessarily united.' And the same doctrine is enunciated by Parke B., in delivering the judgment of the Court' of Exchequer Chamber in the same case, 13 Q.B. 426, 444. And though in both instances, the doctrine may be said to have been extrajudicial, as being un- necessary to the decision, which turned on the question whether trespass would lie for disturbance of a several fishery, the affirmative of which was held on grounds altogether independent of the ownership of the soil, yet it cannot be denied that these dicta occurring in the considered judgments of the Courts are entitled to very great weight. And in the learned note to fol. 122 a, of Har- grave and Butler's edition of Coke upon Littleton, the annotator, after passing in review the conflicting authorities on this subject, concludes, 'I cannot but think contrary to the eflTect of his own reason- ing, that the true doctrine on this subject Is that a several piscary is presumed to comprehend the soil till the contrary ap- pears. I feel that in disposing of this rule we ought to yield to the authority of these opinions ; but entertaining my- self individually a very different view, I am desirous to have it known that, while I submit to them, I am far from acqui- escing in them.' " ] ■* Seymour v. Lord Courtenay, 5 Burr. 2814. CHAP. III.J OP A FREE FISHERY, 79 he would be the several proprietor, although he should suffer a stranger to use a co-extensive right w^ith him.^ S. Of a Free Fishery. § 75. A free fishery has been defined by Sir William Black- stone to be an exclusive right of fishing in a public river ; and he says it is a royal franchise, and is considered as such in all countries where the feudal polity has prevailed ; though the making such grants, and by that means, appropriating, what it seems unnatural to restrain, the use of running water, was prohibited for the future by Magna Charta.^ The same writer distinguishes it from a several fishery, by connecting the latter with the ownership of the soil ; and from a common of fishery, because it is an exclusive right, while the common is not ; and then he adds, that a man has a property in the fish before they are caught, which is not the case in a common of piscary. " To consider such right," he proceeds, " as originally a flower of the prerogative, till restrained by Magna Charta, and de- rived by royal grant (previous to the reign of Richard I.) to such as now claim it by prescription ; and to distinguish it, as we have done, from a several and a common of fishery, — may remove some difficulties, in respect to this matter, with which our books are embarrassed." Upon this illustration, Mr. Har- grave has bestowed the following comment : " Though for the sake of distinction, it might be more convenient to appropriate free fishery to the franchise of fishing in public rivers, by deri- vation from the crown ; and though, in other countries, it may be so considered ; yet, from the language of our books, it seems as if our law practice had extended this kind of fishery to all streams, whether public or private ; neither the register nor the books professing any discrimination."^ § 76. Blackstone admits, that there are not wanting respect- .able authorities which maintain that a free fishery implies no exclusive right, but is synonymous with a common of fishery. 1 Woolrych, ut supra. such prescription must be founded on 2 2 Bla. Com. 34. " In this country," immemorial use and occupation, and is says the late jC.J. Swift, " any State has not like prescribing for an easement in the power of granting this right, though the freehold of an indiyidual. In this it is an abridgment of the common rights country, there has been no decision as to of the people. And as it may be granted, the length of time." 1 Swift's Dig. 110. it may be prescribed for. In England, ^ Note to Co. Litt. 122 a. 80 LAW OP WATERCOURSES. [CHAP. III. Mr. Hargrave considers them as convertible terms, and synony- mous with each other in .regard to their privileges. Mr. Wool- rych says, that sometimes a free fishery is confounded with a several, sometimes said to be synonymous with common, some- times treated as distinct from either; and again, we find it mentioned as a royal franchise. Yet, notwithstanding the diversity of opinions, and the discrepancy of authorities, he thinks that to consider free fishery as the same with common of fishery, will be a reasonable as well as a legal conclusion.^ We may add, that the doctrine that a free fishery is not an exclu- sive fishery, has been adopted by the Supreme Court of Mas- sachusetts.^ 4. Of Common of Fishery. § 77. To what has been said, in the two preceding sections, there is but little to be added concerning common of fishery. We have endeavored to show that it is the same as free fishery. On the strength of the various English authorities, according to Mr. Schultes, it must appear plain and unquestionable, that libera piscaria and communia piscaria are the same ; and they are mentioned, he asserts, in the old authors indiscriminately, without signifying any essential difference.^ All the judges, he says, in the ease of Carter v. Murcot,* were of this opinion. Mr. J. Eyre entertained the like opinion ; ^ and in Seymour v. Courtenay,^ it was held, that where one has a co-extensive right of fishing with another (which- by legal construction implies a common of fishery), it is a free fishery. In a case in Massa- chusetts,^ as lately as the year 1828, the ' Court adopted the • Woolrych on the Law of Waters &c. to any one of them, unless tliat one be 122, 123. particularly named, but as including 2 Melvin v. Whiting, 7 Pick. 79. tliem all." Shepley C.J., in Moultou v. 3 Schultes on Aquatic Rights, 67. Mr. Libbey, 37 Maine, 489, 490.] Woolrych is clearly of the same opinion. * Carter v. Murcot, 4 Burr. 2162. Woolrych on the Law of Waters &c. 122, 5 Smith v. Ken)p, 2 Salk. 637. 123. [See Carson v. Blazer, 2 Binn. 475, " Seymour o. Lord Courtenay, 5 Burr. 489. " In all the treatises respecting the 2816. common right of fishery, the general term ' Melrin u. Whiting, 7 Pick. 79. This ' piscaria,' or its equivalent, is used as in- was an action on the case tor the destruc- cluding all fisheries, without any regard tion of the plaintiff's several fishery. The to their distinctive character, or to the defendant pleaded the general issue, and method of taking the fish. There are soil and freehold in himself. The plain- many kinds of fishery recognized in them, tiff claimed the fishery by prescription, and in judicial decisions ; but the general To support his title, he offered in evi- terra is uniformly used not with reference dence the record of a judgment in a CHAP. III.] FISHERY DERIVED PROM SPECIAL GRANTS. 81 opinion that a free fishery is only a common of fishery, as most agreeable to authority, and as the most conformable to the pop- ular sense of the term " free fishery " in this country. § 78. Mr. Schultes says, in regard to things or liberties mentioned as common, where they relate to or are exercised by a community, that expression applies to the individual use of every person comprising that community ; and therefore common use and public use, in this respect, are the same. It is to be observed, however, he adds, that although a public right, namely, the right of fishing in a public water, may be common, yet it does not hold, e converso, that a right exercisible in common in a private fishery, is public ; because, in the one case, it is unrestrainable and universal ; in the other case, it may extend only to a few individuals. ^ 6. Right of Fishery as derived from Special G-rants. § 79. From the foregoing authorities it may be inferred, that property in a watercourse, as derived from the ownership of the land, may be subjected to every kind of restriction by conven- tion and agreement.^ It has been very properly asserted, that it is agreeable to natural reason, that where a man has an ab- solute property in a private iiver, which he necessarily must have if he be owner of the estates on each side, he should have the liberty of using it according to his inclination ; ^ and the most ancient Common-Law authorities are cited in support of this position.* Hence, he may grant the soil covered with water to one for the purpose of a mill, reserving the right to fish. To another he may grant the entire territorial right of fishing on his own estate, reserving the soil, which would give the grantee former action" between the same parties, still of right ought to fish, at hie or their respecting the fishery at the same place, free will and pleasure. Issue was taken in which Melvin was defendant, and on these allegations; andthe jury found Whiting was plaintiff; which was ad- that Melvin, and all those whose estate mitted without objection. That was an &c. have been used and accustomed to action of trespass, in which it was alleged fish in the fishery at their free will and that Melvin entered the close of Whiting, pleasure, and that Melvin still of right covered with water, and there took fish, might fish in the fishery. Melvin pleaded that he was seised in fee ^ Schultes on Aquatic Rights, 68. of land on the bank of the river, and that ^ And such is the conclusion of Mr. •he had, by prescription, a free fishery in Schultes, ut supra, p. 90. the fishery mentioned in Whiting's decla- ' ibid. ration, in which fishery he (Melvin), and * Bract, lib. 4, c. xxviii. ; and ibid. lib. all those whose estate he had, fished, and 2, c. xix. s. 4; 46 Ed. III. pi. 21. 6 82 LAW OF WATERCOURSES. [CHAP. III. an exclusive or several fishery, without ownership of soil. Or, he may grant a privilege to fish to several persons, and then they would have a free fishery with him, and his ownership of the soil would not control their right. Or, he may grant the soil to one of them, having such free fishery in common with others, and yet by this means the fishery of the others would not be destroyed, though the former right of fishing of the grantee might be merged by such acquisition.^ So one having the ab- solute property on one side of a river, may grant a free fishing in his own water, to his neighbor on the opposite side,^ by which means his neighbor would have his own predial or territorial fishing, and a free fishing in the same river ; the one being a liberty originally coincident with his estate, and the other a right or service due from another estate. Again, continues Mr. Schultes, a man having one side of the stream, may grant an exclusive right to fish to another, and his opposite neighbor might grant a freedom to fish to the same person ; and, by this means, the grantees would have a free fishery and a several fishery in the same river within their respective limits.^ To illus- trate — says the author just referred to — still further, Bracton, in treating of nuisances, says, that if any one shall establish a fishery or a pool, having lands on either side of the water, when his estate is free on every side, and owes no service to the neigh- boring estate above or below it (although such a thing may be of some damage to his neighbor), yet it shall not be accounted injurious, unless it affect the public utility.* § 80. It has been held, in one case, that the river and all the profits of it may belong to one person, and the soil and ferry to another.^ And in a subsequent case, in Great Britain, it was held, that the soil of the river Thames is in the King,- and the Mayor is conservator of the river, and it is common to all fisher- men ; and therefore there is no such contradiction betwixt the soil being in one, and yet the river common for all fishers.^ 1 Schultes, ut supra, 91. " 1 Mod. 195 ; and see also Holt, 499. '^ Skinner, 667. In like manner other territorial rights 3 Schultes, ut supra. And see ante, may exist by grant and constitution, ch. II. § 2; and Melvin u. Whiting, 7 Thus a prescription for sole and several Pick. 79 ; and Gould v. James, 6 Cowen, pastures at all times, so as to exclude the 369. lord of the soil from feeding, is good ; al- 4 Bract, lib. 4, c. xliv. though an entire exclusion, for all pur- 5 Inhabitants of Ipswich v. Browne, poses, from the soil, is void; because Savil. case 48. such prescription does not exclude the CHAP. III.] USER OF PRIVATE FISHERIES. 83 6. User of Private Fisheries. § 81. The owner of a fishery may lawfully use nets, as by setting a seine, for the purpose of taking fish,i but the nets must be such as will not injure the rights of other persons.^ Upon most occasions, a man may use any nets, according to his pleasure, in his several fishery ; but if he allow another to participate in his property, he cannot be justified, in taking the fish with such engines as would leave no fish for his grantee, because the prin- ciple is sic utere tuo ut alienum non Icedas? With respect to a common of fishery, in England, we are told, the user of nets must be regulated according to the custom of the manor. In some manors there, the net is employed at certain seasons for the purpose of taking fish ; and it would be clearly incompetent for some commoners to drag with instruments of a greater depth than customary, whilst their neighbors were content with the usual manner of obtaining commonable profit.* § 82. In Massachusetts, the exercise of the right of several fishery in watercourses is regulated by the government, and the right to regulate it has immemorially been granted to towns. Both in that State and in Maine, the rule of the Common Law, that fisheries in streams not navigable belong to the riparian owners, has been modified ; it being deemed most conducive to the public good to subject the shad and alewive fisheries to pub- lic control, whenever the legislature thought proper to interpose ; • and the paramount claims of the public have been implied in all grants made by them, and so in all conveyances by individuals.^ The State of Massachusetts, in a grant of a tract of land, con- veyed also the privilege of fishing, to be held in common among the grantees and other settlers. Afterwards the inhabitants of the territory granted became a town, and they were authorized by law lord of the profits, for he shall have " Woolrych on the Law of Waters mines, trees, and other things. Bac. A br. &c. 166. 621. 4nd a service to exclude the lord * Woolrych on the Law of Waters of the. soil from depasturing his own cat- &c. 166. tie, may be made by specific contract, * Vinton v. Welsh, 9 Pick. 87; Cot- according to Bracton (lib. 4, c. vi. s. I) trill v. Myrick, 12 Maine, 222; Common- 1 Commonwealth v. Kuggles, 10 Mass. wealth v. Chapin, 6 Pick. 199 ; Waters v. 391 ; Commonwealth v. Chapin, 6 Pick. Lilly, 4 Pick. 145 ; Burnham v. Webster, 199. 5 Mass. 266 ; [Shaw C.J., in McFarlin v. 2 Commonwealth !J. Kuggles, supra. Essex Co., 10 Cash. 309, 310.] 84 LAW OF WATERCOURSES. [CHAP. III. to appoint a committee to regulate the fishery within the town ; and a penalty was imposed on any person, except such committee, or those authorized by them, who should take any fish. It was held, that the owner of the land adjoining the river was subject to the penalty, notwithstanding he, and those under whom he claimed, had used to take the fish there, before the grant made by the State.^ The act of the Legislature of Massachusetts of 1807, granting the emoluments arising from the fisheries in the Dam- ariscotta River in the towns of Newcastle and Nobleborough, in Maine, while a part of Massachusetts, and authorizing those towns to choose a committee with power to keep open a sluice or passage-way for the fish, and to go on and over any land or mill, whenever it should be necessary for the purposes of the acts, without being considered as trespassers, was held to be in no violation of the constitution.^ The legislative right of regulating fisheries, even over those which are private property, having been long exercised in Maine, before its separation from Massachusetts, the constitution of the former does not forbid the exercise of the right.^ § 83. With respect to the quantity of fish which may by the Common Law be taken, it is clear, as will be seen by the first section of this chapter, that where the proprietor has an exclusive right, the number must be unrestricted ; but if there be a special grant, by the proprietor, of a right to fish, the extent of such right will depend upon the terms of the grant.* As a general principle, the right cannot be so exercised as to injure a similar right belonging to another person. It is, says Mr. Woolrych, ' most consistent with the origin of the grant, that a commoner should take a reasonable supply only ; because it is understood that such a common inures to the sustenance of his family, and that its produce may not be appropriated to any other pur- pose.^ 1 Nic'kerson v. Braekett, 10 Mass. 212. facilities in the bed of a stream, for the 2 Cottrill V. Myrick, 12 Maine, 222. ascent of fish, and the erection of a fishery, 3 Lunt V. Hunter, 16 Maine, 9 ; Feb- where they could not otherwise pass, bles V. Hanneford, 18 Maine, 106 ; Fuller without the consent of the riparian pro- V. Spear, 14 Maine, 417 ; [Parker v. Cut- prietor, and without making compen- ler Mill-dam Co., 20 Maine, 353; Moulton sation — qwere. Cottrill v. Myrick, 12 V. Libbey, 37 Maine, 472, 494.] But Maine, 222. whether it is competent for the legislature * See ante, § 79. to provide for the removal of natural ob- "^ Woolrych, 166, 167. structions, or for the erection of artificial CHAP. III.j OBSTRUCTION OF THE PASSAGE OP PISH. 85 7. Obstruction of the Passage of Fish. § 84. Even the exclusive right of fishery in rivers not navi- gable, is subject to a reasonable qualification, in order to protect the rights of others, who have a similar interest, but might lose all advantage from it, if their neighbors below them could with impunity wholly impede the passage of fish. The right of sev- eral fishery is clearly limited to the right of taking fish, and does not carry with it the right to hinder the passing of them above, and of preventing the supra-riparian proprietors from enjoying a similar privilege. In Rolle's Abridgment, there is cited 17 E. 3, pi. 31, as an authority to show that assize may be maintained against an heir, an alienee, or feoffee, if any one of such refuse to amend the grievance of an obstruction to the privileges- of a several fishery.^ In the modern English case of Weld v. Hornby, in the Court of King's Bench,^ it appeared that the plaintiff, being possessed of a sole and several fishery in a stream of water, undertook to convert a brush wear, through which some of the fish might and did escape, into a solid stone wear, which was entirely impervious. This was determined to be a nui- sance, because it obstructed the passage of fish higher up the stream. § 85. This private right of fishery, in rivers above tide-water, is, in this country, considered and held to be subject to the qual- ification of not being used so as to injure the private rights of others ; so that it does not extend to impede the passage of fish up the river by means of dams or other obstructions.^ The above case of Weld v. Hornby was recognized, by the Supreme Court of Massachusetts as being in conformity with the doctrine of the Common Law, which is thus laid down by Parker C.J. : " It appears that this Common-Law right of several fishery in the owners of land bordering on streams not navigable, is subject to a reasonable qualification, in order to protect the right of others, who, in virtue of owning the soil, have the same right, but might lose all advantage from it, if their neighbors below them on a stream or river might with impunity wholly impede the passage 1 2 Roll. Abr. 142. man, 1 Rice (S.C.) Law, 447; Case v. 2 Weld V. Hornby, 7 East, 195. Weber, 2 Carter (Ind.) 100. 3 3 Kent, 411; Boatwright v. Beek- 86 LAW OP WATERCOURSES. [chap. III. of fish into the lakes or ponds, where they by instinct repair for the multiplication of their species. This restriction is founded' upon that universal principle of every just code of laws, Sie utere tuo ut alienum non Icedas." ^ And yet (although large, rivers, above tide-water, like the Connecticut, extend through several States, and their banks are thickly settled, so that a great population is interested in the preservation of the fish which frequent the river) " manufacturing machinery and steam- boats, and the insatiable cupidity and skill of fishermen, have prodigiously diminished the resort of the most valuable fish into the rivers of the northern States."^ ^ Commonwealth i>. Chapin, 5 Pick. 199. 2 3 Kent, 411, n. u. It appears, by the case of Commonwealth v. Chapin, ubi supra, that the Common Law in Massa- chusetts has been altered by successive legislative acts, from the earliest settle- ment of the country, as well under the colonial and provincial as under the pres- ent form of government. And the rights of the citizens of the Commonwealth, as well as the penalties to which they may be subject, are to he determined by the effect, and according to the form of this legislation, rather than by the ancient Common Law. The Court proceed to say, " By Prov. St. 8 Ann. i;. iii., all per- sons are prohibited from placing in or across rivers or streams, any fixed imple- ment or machine by which the free pas- sage of fish may be obstructed. And by Prov. St. 15 Geo. II. o. vi., it is required of those who build dams across streams or rivers, to keep open, during a certain period, sluiceways or passages for the fish to pass through. These statutes assert the right of the public to regulate the mode of taking fish even in private or several fisheries, and they also, by impli- cation, recognize the right of proprietors to erect dams and other works on rivers or their banks, provided a passage is left through them at certain portions of the year for the escape of the fish. By the St. 8 Ann. above cited, the erection of certain obstructions Is declared to be a nuisance, and by a particular process, therein specified, such obstructions are to be abated ; but those obstructions are not dams erected for permanent use, but hedges, wears, fishgarths, stakes, and kiddles, which, though not permanent, may occasion an entire interruption of the passage of fish ; and there is a special exception of dams erected for the use of mills. But by St. 15 Geo. II. there is an implied grant or recognition of the rights of proprietors to erect and maintain dams, provided they secure a passage for the fish, by sluices &c. during the season when they are accustomed to ascend the streams. This legislative provision, though altering, is not contrary to the Common Law, for by that the proprietors of banks might make such obstructions as were necessary to the taking of fish, leaving room enough for some of them to escape and ascend the streams. The statute only ascertains the mode in which this restriction shall be enforced, and pro- vides the penalty for neglecting or vio- lating it. But it is plain that the mere erecting or continuing a dam whereby fish may be obstructed, is no longer an oflFence, for that would he committed by any erection, however necessary for any profitable use of the fishery. The offence consists only in having a dam without providing a convenient passage for the fish during two or three months in the year ; and the remedy, where this requi- sition is not observed, is totally different from that which exists at Common Law for a nuisance. Instead of abating a dam which is found to be deficient, the statute provides a pecuniary mulct, and gives power to certain municipal officers to supervise the public interests, and see to the execution of the law. It follows, we think, clearly, that an indictment, as at CHAP. III.] OBSTRUCTION OP THE PASSAGE OP FISH. 8T § 86. It appears that statutes of States other than those of Massachusetts and Maine, evince an earnest solicitude in their legislatures to preserve a free passage for fish in rivers ; and more especially those which are annually visited by fish from the ocean.i In Hooker v. Cummings, Spencer C.J. says, that the Legislature of New York " have confessedly the right of regulat- ing the taking of fish in private rivers ; and do, every year, pass laws for that purpose, as to rivers not navigable in any sense, and which are unquestionably private property." ^ § 87. Causing a superfluity of water to drown or overflow a fishery, is a plain obstruction, and punishable by an action of tres- pass.^ An action of trespass was maintained in Ireland, for wrong- Common Law for a nuisance, cannot be maintained ; but that if the dam should be continued without opening through it, at the proper season, a passage-way for the fish, the proprietors will be subject to the penalty provided by statute." See also the following decisions : Stoughton V, Baker, 4 Mass. 522 ; Burnham v. Web- ster, 5 Mass. 266 ; Nickerson v. Bracket, 10 Mass. 212 ; Commonwealth v. M'Curdy, 5 Mass. 324; Vinton v. Welsh, 9 Pick. 87. For an act concerning the passage of fish in Mystic River, see Hyde v. Russell, 2 Cush. 251. 1 An old act of Pennsylvania recites in its preamble that large quantities of fry or brood of fish, and young fish, are destroyed by dams, wears, baskets &c. in the rivers Delaware and Schuylkill and Susquehanna, whereby the great quantities of fish that were formerly to be taken in said rivers are greatly dimin- ished ; and then prescribes several penal- ties against persons who violate its pro- visions by such obstructions. See Hart V. Hill, 1 Wharton, 132. In New York, the Revised Statutes regulate the right of fishery in rivers navigable and not navigable. Particularly with regard to certain kinds of fish, and in the waters of the upper Hudson, jurisdiction of the subject is given to the Courts of Com- mon Pleas within their respective coun- ties, in regard to streams, ponds, and lakes. 1 JS.y. Rev. St. 687, 688. In New York, also, salmon cannot be taken between October 20 and February 1 ; nor between these months, at or below the city of New York, between sunset on Saturday and sunrise on Monday ; nor any net used between these hours ; nor in the months of March, April, and May, a drift net, at the above places. lb. In Virginia, a dam shall not be built without an inquiry by jury as to the obstruction of fish. 2 Va. Rev. St. 230, 311, 341. In South Carolina, a statute requires the owners of existing dams to make slopes or openings for tlie passage of fish, the suflSciency of which is to be determined, as in Massachusetts, by commissioners. When a dam is built for the propelling of machinery, the owner may, at his elec- tion, leave sixty feet in width of the river open, or keep open a sluice in February, March, and April. S.C. St. 1827, p. 79. In North Carolina, in the laying off of rivers, the commissioners shall allow three-fourths to the owner to erect stops, dams, and stands, and one-quarter, in- cluding the deepest part, for the passage of fish. They shall also require a suflS- cient slope in mill-dams. 1 N.C. Rev. St. 535, 536. In Alabama, where one erects a fish-dam on a watercourse which is a public highway, he shall open in the deepest channel one-third of the stream, including the main channel. Aik. Dig. 442. In Michigan, the diversion from their natural course of wMte fish is for- bidden. Mich. Laws, 475. See 2 Hill Abr. 168 &e. ^ Hooker v. Cummings, 20 John. 90. [See per Shaw C.J., in McFarlin v. Essex Co., 10 Cush. 309, 310.] 3 1 Ld. Raym. 274. 88 LAW OP WATEECOUESES. [CHAP. III. fully setting up certain wears and traps upon a certain fall of water, in the river Bann, so that salmon, trout, and other fish which would have come from the sea, and that part of the river which lay below the plaintiff's fishery, were hindered from so doing. A writ of error was then brought in the Exchequer Chamber, where the judgment was affirmed ; and the case was then car- ried up to the House of Lords in Ireland, where the judgment was again affirmed.-' The inquest taken upon a writ of ad quod damnum, in Kentucky, for flowing land by means of a dam, must ascertain whether or not fish would be obstructed ; and in case they would be, permission to build the dam will be denied. ^ § 88. In Shaw v. Crawford, in New York,^ the Court say (ohiter dictum'), " Every owner of a mill-dam or a stream which fish from the ocean annually visit, is bound to provide a con- venient passage-way for the fish to ascend ; " and they rely expressly on the case of Stoughton v. Baker, in Massachusetts.* By that case, it appears that an ancient and long-continued usage of the General Court of Massachusetts has been to appoint com- mittees to locate and describe the site and dimensions of passage- ways for fish, and the owner of a mill holds it subject to the limi- tation that a reasonably sufficient passage-way shall be allowed for the fish. The Court, by Parsons C.J., say, " If the govern- ment, in its grant of a mill privilege, expressly or by necessary implication, waive this limitation, it would be bound. But 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 unques- tionably entitled." Again, says the learned Judge, " The right to build dams for the use of mills, is, under certain implied limi- tations, 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 pas- sage-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 by one Z. P., in 1784, 1 Hamilton v. Marquis of Donegal, 3 2 Eubank v. Pence, 5 Litt. (Ken.) 338. Ridg. 267, and cited in Woolrycli, 189, » Shaw v Crawford, 10 Jolin. 236. 190. * Stoughton v. Baker, 4 Mass. 522. CHAP. III.] OBSTRUCTION OP THE PASSAGE OP FISH. 89 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 restric- tion 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 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.^ Li 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 authlDrized to require the proprietors of certain dams on Neponset River, to alter them, in such a way as should be suf- ficient 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 limita- tion that a reasonable and sufficient passage should be allowed for the fish. The Court, however, expressly say, that any pros- tration 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 1 Passed in 1800, and enacts, that the slope thereto, that salmon may easily pass owners of mill-dams made across any up over into the waters above the dam ; river running into Lakes Ontario, Erie, or by removing the obstruction of such or Champlain, so as to prevent the usual dam in any other manner; and in case course of salmon from going up, shall, such dam shall not be so altered &g. it within eighteen months from the passage shall be deemed a public nuisance. of the act, so alter the dam, by making a 2 People v. Piatt, 17 John. 195. 90 LAW OP WATEECOUESES. [CHAP. III. privilege, expressly, or by necessary implication, waive this limita- tion, 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 Saranae passed to Zephaniah Piatt, and has been transmitted, through him, to the defendants, without any limitation or restriction, and that the fishery itself became vested in the pi'oprietor 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 recogni- tion of the defendant's property in the river, and fortifies and sup- ports the defendant's claim to it, as private propert}'-. In a case thus circumstanced, the opinion of the Court in Stoughton v. Baker, would protect the defendant in the exclusive and undis- turbed 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." ^ 1 [And it has been held in North Caro- take away a part of the dam at his own lina, that where one owning the bed of expense, so as to make an opening for the an unnavigable river, under a grant from passage of fish. State v. Glen, 7 Jones, the State, has erected a dam across the Law (N.C.) 321; Cornelius u. Glen, 7 stream, the legislature has not the power Jones, Law (N.C.) 512.] to compel him, without indemnity, to CHAP. IV. J OP THE GENEBAL RIGHT OP USE. 91 CHAPTER IV. OP THE BIGHT OP USE OF THE WATEB AS A COEPOREAL HEBED- ITAMENT. 1. Of the General Eight of Use. 2. Of the Injury by Diverting the Water. 3. Surface Water and Drainage. 4. Subterranean Diversion. 5. Easement of Drip. 6. Of the Injury by Obstructing and Detaining the Water. 7. Of the Bight of Irrigation. 8. Of the Effect of Prior Occupation, by a Eiparian Proprietor. 9. Of the Injury by rendering the Water corrupt and unwholesome. 1. Of the General Might 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 pro- prietor, is not what is called an easement, because it is insepara- bly connected with, and inherent in, the property in the land ; it is a parcel of the inheritance, and passes with it.^ In general, 1 [Woolrych says, " A watercourse poreal tenement, and the right which he may be either a real or an incorporeal would possess in respect of his water- hereditament. If by grant, prescription, course would be real." Law of Waters, or otherwise, one should have an ease- 146. Where hydraulic privileges are ment of this kind in the land of another created by conducting a stream across person, it would partake of the latter lands in an artificial channel, the proprie- quality ; but if the water flow over the tors of lots crossed by the artificial chan- party's own land, although indeed it can- nel, in the absence of any stipulation to not be claimed as water, yet it is in effect the contrary, have the same rights to the identified with the realty, because it use of the water on their respective lots passes over the soil, and , cty'ws est solum as between themselves, as would exist if ejus est usque ad caelum. For example, a the artificial were the natural channel of miller may purchase the water adjoining the stream. Townsend i;. McDonald, 2 to his mill, as an easement, the soil being Kernan, 381.] left in the hands of the original proprie- ^ [Gardner v. Newburgh, 2 John. Ch. tor ; and in that case he would gain an 166 ; Holsman v. Boiling Spring Bleach- Incorporeal hereditament; but if he was ing Co., 1 McCarter, 343; Wheatley v. to buy the land itself over which the Baugh, 25 Penn. St. 528, 531 ; Shaw C.J., water flowed, he would then have a cor- in Johnson v. Jordan, 2 Met. 239 ; Pol- 92 LAW OP WATERCOURSES. [chap. IV. 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 owner- ship.i It is in accordance 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 neces- sary for its beneficial enjoyment.^ lock C.B., in Dickinson v. Grand Junction Canal Co., 7 Exch. 299, 300; Parke B., in Eawstron o. Taylor, 11 Exch. 382; Wood V. Waud, 3 Exch. 775 ; Embrey v. Owen, 6 Exch. 353 ; Evans v. iWerri- weather, 8 Scamm. 492; Wright v. How- ard, 1 S. & S. 203; Sampson v. Hoddinott, 1 C.B. N.s. 590; Shreve v. Voorhees, 2 tireen Ch. 25; Gary u. Daniels, 8 Met. 466 ; Plumleigh v. Dawson, 1 Gilm. 544 ; Webb V. Portland Manuf. Co., 3 Sumner, 189 ; Tourtellot v. Phelps, 4 Gray, 370, 374 ; M'Coy v. Danley, 20 Penn. St. 85 ; Wheatley v. Christman, 24 Penn. St. 298 ; Hill V. Newman, 5 Cal. 445; McCord i/. High, 24 Iowa, 336 ; Mayor & City Coun- cil of Baltimore v. Appold, 42 Md. 442, 456. In Stokoe v. Singers, 8 El. & Bl. 36, Erie J. said, " The right to the natu- ral tlow of water is not an easement, but a natural right, which is not lost until an adverse easement has been acquired." See per Storrs J., in Wadswortli v. Til- lotson, 15 Conn. 366, 373 : " We consider it as settled law, that the right to have a stream running in its natural course is, not by a presumed grant from long ac- quiescence on the part of the riparian proprietors above and below, but is jure naturw (Shury v. Piggot, 3 Bulst. 339; Tyler v. Wilkinson, 4 Mason, 397), and an incident of property, as much as the right to have the soil itself in its natural state, unaltered by the acts of a neighbor- ing proprietor, who cannot dig so as to deprive it of the , support of his land." Pollock C.B., in Dickinson v. Grand Junction Canal Co., 7 Exch. 299, 300; Wightman J., in Chasemore v. Richards, 7 H. L. Cas. 349 ; 5 H. & N. 984, 985, and Lord Wensleydale in the same case ; Parke B., in Rawstron v. Taylor, 11 Exch. 382 ; Wilde J., in Gary v. Daniels, 5 Met. 238 ; Hubbard J., in Crittenton v. Alger, 11 Met. 284; ante, §§ 5, 8, and notes.] 1 Ashley v. Pease, 18 Pick. 268; Embrey u. Owen, 6 Exch. 353; [Hadley o. Hadley Manuf Co., 4 Gray, 140, 143, stated, post, § 155 a ; Elliott v. Fitchburg R.R. Co., 10 Gush. 193; Pratt v. Lamson, 2 Allen, 285.] 2 Whitney o. Olney, 3 Mason, 280; Blaine u. Chambers, 1 S. & Rawle, 169 ; New Ipswich Woollen Factory v. Batch- elder, 3 N.H. 190; Blake v. Clark, 6 Greenl. 436; [Dunklee v. The Wilton R.R. Co., 24 N.H. 495, 496, 497, 498, per Bell J. ; Selden J., in Lampman v. Milks, 21 N.Y. 510; Colt J., in Hapgood v. Brown, 102 Mass. 452, 453; Richardson V. Bigelow, 15 Gray, 156 ; post, §§ 156, 157.] Grant of mill conveys the use of the water as a corporeal hereditament. Maddox u. Goddard, 15 Maine, 218. It was not unusual in the early history of the country, to find mill privileges con- veyed without any exact bounds, and such deeds have been held to convey so much land as was necessary and custom- arily used with the mill. Per Shepley J., in the case just cited. [But a vote passed by a town in 1850, granting to certain persons named " the liberty of erecting a grist-mill on Fort River near Lawrence's Bridge, with the use of said stream," and CHAP. IV.] OP THE GENERAL EIGHT OF USE. 93 § 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 & freehold,'^ determinable upon the cessation of the mills, or as a demise, for the time the mills should continue ; and that it car- ried with it a right of possession, for the violation of which an action of trespass would lie.^ § 92. If the owner of a large tract of land through which a watercourse passes should convey parcels above and below his own land, each grantee would take his parcel with a full right, without special words to such effect, to the use of the flowing water on his own land, as parcel, and subject to the right of all other riparian proprietors to have the water flow to and from such parcel. There is, therefore, no occasion for the grantor in such case, to convey the right of water to the grantee, or reserve the right of water to himself, in express words ; because being inseparable from the land, and parcel of the estate, such right passes with that which is conveyed, and remains with that which is retained.^ [In Johnson v. Jordan,* Shaw C.J. said, " Every accepted by the grantees, is not to be to look at the title before doing so; for construed as a grant of land, in the ab- his right to dam the water, on investiga- sence of other evidence that the town tion, may prove defective. Beidelman v. owned the land on which the mill was Toullc, 5 Watts, 308. See also Randall v. erected. Hadley v. Hadley Manuf. Co., Silverthorn, 4 Penn. St. 173. 4 Gray, 140 ; post, § 155 a. As to what * [Johnson v. Jordan, 2 Met. 239. See will pass by a conveyance of a " spring," also Tourtellot v. Phelps, 4 Gray, 370, see Woodcock v. Estey, 43 Vt.,515, cited 375, 376; Chaseroore v. Richards, 5 N. & ante, § 5, note.] H. 989; Storrs J., in Wadsworth «. Tillot- 1 See ante, § 8. son, 15 Conn. 373 ; Corning v. Troy Iron 2 Dryden v, Jeplierson, 18 Pick. 392, & Nail Factory, 39 Barb. 311, 322, 323 ; per Shaw C.J. Holsman i'. Boiling Spring Bleaching Co., 3 See opinion of Shaw C.J., in Gary 1 McCarter, 335 ; Wheatley v. Baugh, 25 V. Daniels, 8 Met. 466 ; Hart v. Evans, Penn. St. 628, 531 ; ante, § 5 and note, 8 Penn. St. 13. He who purchases land § 8; PolUtt v. Long, 58 Barb. 20.] and a watercourse from another, is bound 94 LAW OP WATERCOURSES. [CHAP. IV. person, through whose land a natural watercourse runs, has a right, puhlici juris, to the benefit of it as it passes through his land, to all the useful purposes to which it may be applied ; and no proprietor of land on the same watercourse, either above or below, has a right unreasonably to divert it from flowing into his premises, or obstruct it from passing from them, or to corrupt or destroy it. It is inseparably annexed to the soil, and passes with it, not as an easement, nor as an appurtenance, but as par- cel. Use does not create it, and disuse cannot destroy or sus- pend it. Unity of possession and title in such land with the lands above or below it does not extinguish or suspend it."] [§ 92 a. In Sampson v. Hoddinott,^ Creswell J. said, " It ap- pears to us that all persons having lands on the margin of a flowing stream have, by nature, certain rights to use the water of that stream, whether they exercise those rights or not ; and that they may begin to exercise them whenever they will. By usage, they may acquire a right to use the water in a manner not justi- fied by their natural rights ; but such acquired right has no oper- ation against the natural rights of a land-owner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the ten- ement above a servient tenement." It matters not how much the owner of land upon a stream has actually used the water or whether he has used it at all, his right to the use of it remains unaffected, during any period of time. A mere non-user of his right raises no presumption against him.^] § 93. The uses to which the water of a watercourse may be, and has been, applied, are various ; but the value of an estate is much enhanced by the existence thereon of what is called a "water privilege." ^ One of the most important uses of it, in many parts of the United States, is its application to working of mills and machinery ; a use profitable to the owner, and vastly beneficial to the public* But both his benefit and that of the 1 [Sampson <^. Hoddinott, 1 C.B. n.s. * See opinion of Shaw C.J., in Gary v. 590.] Daniels, 8 Met. 466 ; Blancliard v. Baker, 2 [Williams J., in Sampson v. Hoddi- 8 Greenl. 253. [But the owner of a mill nott, 1 C.B. N.9. 608 ; Buddington v. on a flowing stream is in the same posi- Bradley, 10 Conn. 213 ; Crossley v. Light- tion as a riparian proprietor; he can have owler, L. R. 3 Eq. 296.] no larger right than that which he has 3 See opinion of Lord Denman, in by nature against those above or below Mason v. Hill, 5 B. & Ad. 1. him, unless it has been acquired by ad- CHAP. IV.J OF THE GENERAL RIGHT OP USE. 95 public would be diminished, just in proportion to the extent which other ' riparian owners above or below him may deprive him of the water, or use it to his annoyance, and contrary to the established rules of law ; contrary to the doctrine which is clearly, though quaintly, stated, in the old books, in which it is said, " A watercourse begins ex jure naturce, and having taken a certain course naturally cannot be diverted." Aqua currit et debet currere, ut ourrere solebat, is also the language of the ancient Common Law.^ That is, the water runs naturally, and should be permitted thus to run, so that all through whose laud it runs may enjoy the privilege of using it.^ In 32 Ed. III., fol. 8, an assize of nui- sance was brought by A. against B., for that B. had made a trench over a river and drew away thereby a part of the water and stream another way from that in which it did formerly use to run; and the assize passed for the plaintiff; and, it was adjudged, that the water should be removed into the ancient channel at the cost of the defendant.^ [§ 95 a. In Nuttall v. Bracewell,* Martin B. said, " The application and use of flowing water to work machinery is as old as the law. Corn mills have existed from time immemorial ; and it appears, from old legal authorities, that fulling and other mills worked by water for the purpose of manufacture are of very ancient date. Until the last century steam as a power verse user. A party, whether mill owner which it is temporarily detained, and its or riparian owner, suing for obstruction power tliereby accumulated and stored of water, must establish a right either up for use, and the maxim of ' debet cur- jure naturm or by user, and in the latter rere ' is not applicable to such detentions case the user must be such as to establish of the current as are convenient and a servitude affecting the land through necessary and usual for the purpose of which the water flows. Cresswell J., in making such accumulations." ] Chasemore o. Richards, 2 H. & N. 181, ^ [" This is sustained by numerous 182.] judicial decisions and all elementary 1 Shury v. Piggot, .3 Bulst. 339; s.c. writers upon the subject." Grover J. in Poph. 166; CountessofEutlandB. Bowler, Clinton v. Myers, 46 N.Y. 511, 517.] Palm. 290. [Under the maxim referred to ^ Callis on Sewers, 268. In the Year inthetext, Seymour J., in Keeney& Wood Book, 14 Hen. VIII. 31, where an action Manuf Co. v. Union Manuf. Co., 89 Conn, on the case was brought for diverting a 682, said, "Water cannot be detained for river, it is said by Row, " It seems that the use of mills so as to deprive the pro- here he shall have assize of nuisance, and prietors below of what is needed for not action on the case; as if you stop a domestic and agricultural purposes, and conduit, I shall have assize of nuisance," under that maxim water cannot be di- Cited by one of the learned counsel in verted from its natural channel to the Acton v. Blundell, 12 M. & W. 339. prejudice of the lower proprietors upon Palmes v. Heblethwaite, Skinn. 65, 175. the stream. But water power is made < [L. R. 2 Exch. 1.] available mainly by means of dams, by 96 LAW OF WATERCOURSES. [CHAP. IV. was, if known, not much in use ; and until it was introduced, water power was very generally used, and it is still the cheapest when available. The mill is sometimes situated upon the bank of the natural stream, but more usually at some little distance from it; the water is conveyed to it by a goit or artificial cut leading from the stream, and then, after turning the wheel of the mill, flows away in what is commonly called the tail-goit. So, also, water was and is very frequently con- veyed from the natural stream in the same manner for the pur- poses of irrigation. And it is not too much to say, that the value of actual or supposed water rights of this character throughout England may be estimated by hundreds of thou- sands, perhaps millions. The law has been supposed to be well settled, and in my opinion is nowhere more clearly stated than by Lord Kingsdown, in Miner v. Gilmour.^ He says, ' By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land ; for instance, to the reasonable use of the water for domestic purposes and for his cattle, and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream.^ But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up a stream for the purposes of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the -water by other proprietors, and inflicts upon them a sensible injury.' " ^ The use in all the above cases must be a reasonable one.*] 1 [12 Moore P.C. 156.] v. Kitchin, 3 Post. Fin. 292; 9 Jur. ^ [Mayor & City Council of Baltimore n.s. 132, Martin B., in bis direction to the V. Appold, 42 Md. 456, 457 ; Stein v. Bur- jury, quoted tiie passage wliich is quoted den, 29 Ala. 127.] in the text from Lord Kingsdown as con- ' [Substantially the same general rules taining the law on this subject, and ruled of right to the uses of the water of a that the riparian proprietor could only stream are fetated by Kice J. in Davis v. take the water for a purpose of utility, Getchell, 50 Maine, 604, 605; Stein i. and not to make an ornamental pond. Burden, 29 Ala. 127. In Lord Norbury The plaintiff's counsel moved for a new [Davis V. Getchell, 50 Maine, 602.] CHAP. IV.] OP THE GENERAL RIGHT OP USE. 97 § 94. By all the modern as well as bj"^ all the ancient authorities, the right of property in the water is usufructuary, and consists not so much of the fluid itself, as of the advantage of its momentum or impetus ; ^ and the grant by the legislature of a State of the water-power of a navigable stream, does not pass to the grantee the title to the corpus of the water, or pre- vent its use by others.^ The owner of the land merely trans- mits the water over the surface ; he receives as much from his higher neighbor as he sends down to his neighbor below ; he is neither better nor worse : the level of the water remains the same.^ § 96. In a case in this country of much more than ordinary importance, and one universally and frequently appealed to as of high authority, the general doctrine in relation to the right to apply the water of a watercourse is thus laid down by Mr. Justice Story : * " Primd 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 fid filum aquoe.^ In virtue of this ownership, he has a right to the use of the water flowing over it, in its natural cur- rent, without diminution or obstruction.^ But, strictly speak- ing, he has no property in the water itself ; but a simple use of it, while it passes along.^ The consequence of this principle is, trial, on the ground that the dictum of ^ Mayor &c. v. Commissioners of Lord Kingsdown stated the right of a Spring Garden, 7 Penn. St. 348. [In riparian proprietor too extensively. The Owen v. Field, 102 Mass. 104, Ames J. Court did not decide that it was exactly said, "It is to be remembered that run- correct, but discharged the rule on the ning water is not of itself the subject of a ground that the defendant had not taken grant."] an unreasonable quantity of water. The ' Per Tindal C.J., in Acton v. Blundell, stream sent down 333,000 gallons a day, 12 M. & W. 324. and the defendant abstracted 8,000 to < In Tyler w. Wilkinson, 4 Mason, 400; 9^000.1 and see the opinion of the same learned 1 Williams o. Moreland, 2 B. & C. Judge in Webb v. Portland Manuf. Co., 510 ; [Rice J., in Davis v. Getchell, 50 3 Sumner, 189 ; and the case of Bowman Maine, 604; Merrick J., in Pratt y. «. Latham, 2 McLean, 376. Lamson, 2 Allen, 287 ; Pollock C.B., in] '" [Riparian proprietors on opposite Dickinson v. Canal Co., 7 Exeh. 300, 301 ; sides of a stream are each entitled to use [Wood V. Waud, 3 Exch. 775 ; 'ante, § 8, one-half of the water which flows in the note; Pixley t). Clark, 35 N.Y. 524, 625.] stream, without regard to the position A riparian proprietor acquires no property and course of its principal channel and in wood or timber floating over his land ; but cur-rent. Pratt v. Lamson, 2 Allen, 275.J it has been held that he has an exclusive ^ [Wadsworth v. Tillotson, 15 Conn, right to seize such wood or timber, and 366 ; Dilling v. Murray, 6 Ind. 324] unless claimed within a reasonable time, ' [Ante, § 8, note; Agawam Canal Co.' to convert it to his own use. Rogers o. v. Edwards, 36 Conn. 476, 477 ; McDonald Judd, 5 Vt. 223. •>. Askew, 29 Cal. 207.] 98 LAW OP WATEECOUESES. [chap. IV. 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 of 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."^ ' [See post, § 101 a ; Atchison i^. Pe- terson, 20 Wallace, 507, 511 ; Mayor and City Council of Baltimore v. Appold, 42 Md. 442, 456 ; Agawam Canal Co. a. Ed- wards, 36 Conn. 476, 497, 498 ; Clinton v. Myers, 46 N.Y. 511, 516. "The riglit to the use of flowing water is publici juris, and common to all the riparian pro- prietors ; it is not an absolute and exclu- sive right to all the water flowing past their land, so that any obstruction would give a cause of action ; but it is a right to the flow and enjoyment of the water, subject to a similar right in all the pro- prietors, to the reasonable enjoyment of the same gift of Providence. . . . What is a just and reasonable use of flowing water, may often be a difficult question, depending on various circumstances. To take a quantity of water from a large running stream, for agriculture or manu- facturing purposes, would cause no sensi- ble or practicable diminution of the bene- fit, to the prejudice of a lower proprietor; whereas, taking the same quantity from a small running brook passing through many farms would be of great and mani- fest injury to those below, who need it for domestic supply or watering cattle ; and therefore it would be an unreasonable use of the water, and an action would lie in the latter case and not in the former. It is therefore, to a considerable extent, a question of degree ; still the rule is the same, that each proprietor has a right to a reasonable use of it, for his own benefit, for domestic use, and for manufacturing and agricultural purposes.'' Shaw C.J., in Elliott V. Fitchburg R.R. Co., 10 Cush. 193, 194, 196. Subject to the above con- siderations, the same rules of law apply to a small stream of water as to other watercourses. Elliott v. Fitchburg R.R. Co., supra ; Gillett v. Johnson, 30 Conn. 180, 183. See Van Hoesen v. Cov- entry, 10 Barb. 518 ; Frazier v. Brown, 12 Ohio St. 299, per BrinkerhotF J. ; Ger- rish V. New Market Manuf. Co., 80 N.H. 483 ; Tourtellot v. Phelps, 4 Gray, 370 ; post, § 136 note.] 2 Per Chief-.Justice Gibson, of Penn- sylvania, in M'Calmont v. Whitaker, 3 Rawle, 84 ; per Woodward J., in Brown u. Bush, 45 Penn. St. 66 ; Van Hoesen V. Coventry, 10 Barb. 518; Mofl'ett v. Brewer, 1 Greene, 348 ; [Bell J., in Tillotson V. Smith, 32 N.H. 94; 95 Townsend v. McDonald, 2 Kern. 391 Rhodes v. Whitehead, 27 Texas, 310 McDonald v. Askew, 29 Cal. 207. As to the mode of ascertaining and proving this natural fall, or difference of level, see per Woodward J., in Brown v. Bush, 45 Penn. St. 66, post, § 95 a.] It is laid down as the law of Scotland, that al- though 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 ex- press with more exactness the law of England and of the ITnited States upon CHAP. IT.] OF THE GENERAL EIGHT OF USE. 99 [It is also important to obser-ve, that as each proprietor through whose land a watercourse passes has a right to the natural flow and descent of a watercourse, subject to a like reasonable use by all others, he necessarily enjoys the benefits of any improvements made by the proprietors above him. If they increase the head waters, for useful purposes, by flowing increased areas of land, and by making reservoirs to preserve surplus waters for dry seasons, and thus increase the volume of water for hydraulic purposes, every lower proprietor neces- sarily enjoys the benefit of it.^] the same subject, unless it be the one employed by Lord Ellenborough ; viz., ' ' Every man is entitled to a stream of water 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 eases con- cur in supporting the general proposition of Lord Ellenborough, just mentioned. It is very fully sustained by the late case of Wright V. Howard, 1 S. & S. 203, and the still later case of Mason v. Hill, in Great Britain, 3 B. & Ad. 304, and 5 ib. 1. A case in this 6ountry many years ago, recognized the same general principles. In Beissell c. SchoU, i Dallas, 211, the action was a case for diverting a water- course. The Covirt 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 a. Hutchinson, in Connecticut, 2 Conn. 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 solehat; 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 de- rive from the water, which does not injure the proprietor of lands on the river below him." See also Warring v. Martin, Wright's Cond. (Ohio) 380; Arnold v. Foot, 12 Wend. 330 ; Frankum v. Earl of Falmouth, 6 C. & P. 529; and 25 Eng. Com. Law, 526 ; King v. Tiffany, 9 Conn 162 ; Buddington v. Bradley, 10 Conn. 213; M'Calmont v. Whitaker, 3 Rawle, 84; Shreve v. Voorhees, 2 Green (N.J.) Ch. 25; [Pillsbury v. Moore, 44 Maine, 154; Cowles v. Kidder, 24 N.H. 365; Tillotson V. Smith, 32 N.H. 94, 95; Wads- worth V. Tillotson, 15 Conn. 366.] A riparian proprietor, who owns both banks of a stream, has a right to have the water flow in its natural current, without any obstructions, over the whole extent of his land, unless his rights have been impaired by grant, license, or an adverse appropriation for twenty years. Heath V. Williams, 25 Maine, 209. 1 [Shaw C.J., in Tourtellot v. Phelps, 4 Gray, 376. In this case, it was held, that a grantee of land including the site of a dam, with the privilege of flow- ing, during the winter only, the meadow of the grantor higher up on the same stream, "for the benefit of carrying on the blacksmith's business," has the right, as against his grantor, or those claiming under him privileges above or below on the same stream, to use at all seasons, for any reasonable purpose, the water of the stream, including any additional power subsequently created by improve- ments of his grantor. The limitation was only on a use which should cause a flowing of that meadow. Where the 100 LAW OF WATERCOURSES. [CHAP. IV. [§ 95 a. An owner of land through which a stream of water runs, in the bed of which is an obstruction which he has a right to maintain there, may change that obstruction by clear- ing it out or otherwise, and erect another on his own land of the same or a different character and purpose, and in the same or some other place, provided that he makes no change in the level or fall of the water entering upon or leaving his territory, to the injury of any other proprietor on the same stream. But great difficulties frequently present themselves in the effort to find some sure test for determining whether such change of level has been made or not. A question of this kind arose in Brown v. Bush,i where it appeared that a natural or artificial " stone row " had existed in the bed of a stream on the land of the defendant for many years, forming, as alleged, a dam which flooded the plaintiff's land ; and it was held that the defendant might clear out the stone row, because it was on his own land, and might raise his dam, so as to cause the same height of water on the plaintiff's land as the stone row caused, " but no more, — not a jot more." The Court say, "The water- power of the defendant consists of the fall of the stream, when in its natural state, as it passes through his land. . . . This natural power is as much the subject of property as land itself." But the Court add, " How is this natural fall to be ascertained? By instrumental levelling, says the plaintiff in error. And his counsel argue, that results so obtained are mathematical demonstrations which cannot be gainsaid. But there was evidence of what the Court call ' actual, visible facts,' to which they led the jury to give preference over the instrumental measurements ; and this is the error complained of." The Court then refer to the facts shown ; such as the ripples above and below the stone row, and above a bridge which was over the stream ; the mudsill under the bridge frequently out of water before the dam was built, but not visible when the plaintiff iiad constructed a dam across supply of water that usually descended a certain creek, and the defendant subse- from the defendant's first dam, it was quently constructed a dam on another held that the defendant's right' to this creek, from which the water found its water was merely usufructuary, and that way by natural channels to the plaintiff's he was liable to an action ' Eddy n. dam, and the defendant some time after Simpson, 3 Cal. 249.] built another dam on the same creek ' [Brown v. Bush, 45 Penn. St. with the plaintiff's, which stopped the 61.] SEP 30 . . 1937 CHAP. IV.J OP THE GENERAL BIGHT OP USE. dam was full ; the rise and fall of the water on the posts an5 abutments of the bridge ; the drowning out of the spring-run, about thirty yards above the bridge. " Witnesses referred themselves to one or more of these circumstances, to establish their opinions, that the dam of the defendant had raised the water higher on the plaintiff's land than the stone row raised it. As there was a struck jury and view in the case, these and similar tests, on the ground, became important evidence ; and, when we consider how liable instrumental measurements are to accidents and mistakes, we think the Court gave no undue prominence to the ' actual and visible facts ' alluded to. The learned Judge said, with great propriety, ' Water will find its level with more certainty than science can do the same work. The instrumental levelling does show that the defendant has more fall upon his land than he has elevation at his dam ; but if that does not tell the height of the water set back as clearly as shown by the water itself, then the fact demonstrated upon the ground must govern.' We cannot see that there was any error in this instruction. We do not undervalue scientific measurements ; but the history -of all engineering in Pennsyl- vania has shown that, whenever science has disregarded. and set aside the testimony of local experience and observation, it has blundered, and has had to do its work over again. Its con- clusions may be fortified by the nicest experiments and the minutest calculations ; but there are the fallibility of instru- ments, the unsteadiness of the hand or eye that uses them, the carelessness of assistants, and other causes which affect the results. And then Nature has her own secrets, which she has not revealed even to science. Who can calculate for what the watermen call ' piling ' of water, or for the effect of removing a given obstruction a few rods further down stream, whereby the velocity of the current at a particular point is changed ; or for atmospheric resistance to water ? ... No doubt, the lev- elling was well done ; but if, in spite of it, the water would make other marks than it did when obstructed only by the stone row, it was a tell-tale that could not be contradicted."] § 96. The Supreme Court of Alabama construe the Common ^Law, in relation to watercourses, as follows : " By the rules of the Common Law, ail proprietors of lands have precisely the same rights to waters flowing through their domains, and one 102 LAW OP WATERCOURSES. [CHAP. IT. can never be permitted so to nse the stream, as to injure or annoy those who are situated on the course of it, either above or below him. Should any one interpose an impediment to the flow of the stream to the injury of others, successive actions on the case would in the course of time compel its removal, or in- duce an accommodation of the injury." ^ The same view of the law is entertained by the Courts of North Carolina ^ and of South Carolina.^ [So in a late case in New Hampshire,* Bell J. said, " Every owner of land situate upon a stream has a right to the natural flow of the stream ; a right to insist that the stream shall continue to run ut currere solebat ; that it shall flow upon his land in the usual quantity, at its natural place, and at its usual height, and that it shall flow off his land upon the latid of his neighbor bolow in its accustomed place, and at its usual level.^ This right he has as an incident to the property of his land, and he cannot be deprived of it but by grant, actual or presumptive. Whenever, by reason of the interference of the owner above, the water is diverted from his land and made to run elsewhere, or the water of other streams, naturally running elsewhere, is turned upOn his land, or the water of the natural stream is made to flow upon his land at a different place from its natural channel, or at a different level, or in an unnatural manner ; and so whenever, by the acts of the owner of the land below, the water is obstructed, or drawn down, or made to run off in an unusual place, or in an unusual manner, and actual in- jury ensues to any material amount, the owner of the land may maintain an action for such injury. These rights are subject to the rights, of the owners of the land situate above and below upon the stream, to make a reasonable use of the water upon their own land, while it is passing along the same. ... It seems very evident that if a man's land is materially damaged by water 1 Hendricks v. Johnston, 6 Porter of water which would otherwise descend, (Ala.) 472. without grant or license.- Omelvansy v. 2 Pugh V. Wheeler, 2 Dev. & Bat. Jaggers, 2 Hill (S.C.) 634; Haynes v. (N.C.) 50. Gratt, 1 McCord (S.C.) 543. 3 The established doctrine in South < [Tillotson v. Smith, 32 N.H. 94.] Carolina is, that every owner of land 5 [See Jones v. Stevens, 3 Vt. 308, through which a natural stream runs, has 316 ; Pugh v. Wheeler, 2 Dev. & B. 50, a right to the advantage of the stream as 53 ; Martin v. Jett, 12 La. 501 ; KaufF- it was wont to flow, and to use it for any man v.'Griesemer, 26 Penn. St. 407, 413 ; purpose of his own not inconsistent with Martin i>. Riddle, 27 Penn. St. 415, note; a similar right of the owners below. The Overton v. Sawyer, 1 Jones (N.C.) S08.] owner above cannot diminish the quantity CHAP. IV.] OP THE GENERAL RIGHT OP USE. 103 thrown upon it by reason of the acts of another, it can make no difference what the source of the water may be ; whether it be back water, or the flowage of the same, or the water of a-nother stream. The wrong consists in turning any water upon the land which does not naturally flow in that place ; and it can make no difference if the water, wrongfully turned upon a man's land against his will, flows in the channel of an ancient stream, or in a course where no water flowed before, if similar damage results." 1 [§ 96 a. In a late English case,^ a question of some importance was raised and decided in regard to the right of one riparian proprietor to grant riglits or privileges in the stream to a mill owner on riparian land, and the extent to which the mill owner could protect himself in the enjoyment thereof as against other riparian proprietors. The plaintiff was the lessee of a mill sit- uated on riparian land. A., through whom he derived title, had, in 1804, under a written agreement with the adjoining higher riparian owner, and subject to an annual payment therefor, con- structed a goit or artificial cut on the higher owner's land, inter- cepting the water of the stream at a wear in that land, and taking it thence to his mill. The flow of the water through this goit had ever since been enjoyed by the mill owner, and used for the purpose of working the mill ; and the annual acknowledg- ment had been paid. The defendant, a riparian owner above the wear, and also a mill owner, intercepted the water of the stream for the purposes of his mill, to the damage of the plain- tiff, who was held entitled to recover therefor. Bramwell B. said, " The principle on which it seems to me the plaintiff is entitled to recover is this : as a general rule, when a man has a property, he may grant to others estates in and rights of enjoy- ment of it, and the grantees may maintain actions against those who disturb them. A man entitled to land may grant leases, may grant the exclusive herbage, a right of depasturing, a right of way, a right to game. He may grant the mines underneath, or the right to get minerals, and other rights in or over the prop- erty, or of enjoyment of it. So, if the land is covered with water, he may grant rights of fishing. And in all these cases 1 [Tillotson V. Smith, 32 N.H. *90, 95, Huston J., in Howell v. M'Coy, 3 Rawle, 96 ; Merrill o. Parker, Coxe (N.J.) 460; 256; King v. Tiffany, 9 Conn. 162.] Pardessus on Servitudes, §§ 82, 85-88; ^ [Nuttall y.Bracewell, L.R. 2 Exch. 1.] 104 LAW OF WATERCOURSES. [CHAP. IV. the grantee may maintain actions in respect of the rights granted. Now what is the case here? Mr. Bagshaw, the person with whom the plaintiff made the agreement, is a riparian proprietor, subject to the rights of those opposite and those lower down the stream ; he may divert the water where it flows by his land. Why may he not grant this right or mode of enjoyment ? I say the burden of proof is on those who say he may not. This right of his, this mode of enjoying his property, is presumably grant- able like others. It seems to me that all reason of public con- venience, and all other reasons, make this right grantable as much as any otlier right." Pollock C.B. and Channell B. held, that what was done, in the case above stated, amounted to a division of the stream into two courses ; and that the plaintiff was a ri- parian proprietor in respect of the goit or artificial cut ; and in regard to this the latter, speaking for himself and the Lord Chief- Baron Pollock, said, " Since 1804 there has been either an addi- tional supply of water or a substituted one, I am not sure which, through a goit leaving the river higher up on the estate of another proprietor. Now it seems to me that the goit is to all intents and purposes a mere stream, and any person having land upon it would have the rights of a riparian proprietor ; viz., to use the water in any way not interfering with others. I see no reason why the law applicable to ordinary running streams should not be applicable to such a stream as this, for it is a natural stream or flow of water, though flowing in an artificial channel. It may be that the case of an entirely artificial stream, as one flowing from a mine, for instance, would be different ; but that an artificial stream may be on the same footing as a natural one as regards the rights of riparian proprietors, is held in Sutcliffe v. Booth." i 1 [32 L.J. Q.B. 136. A question upon his boilers ; that the defendant fouled which a considerable diversity of opinion the water in the canal, whereby the prevails, and it is equally applicable to water as it came to the plaintiff's prem- natural and artificial watercourses, re- ises was fouled, and by the use of it the lates to the right of a person, having a plaintiff's boilers were injured. The mere permission to use the water of a defendant had no right or permission to stream, to maintain an action for an in- do this from the canal owners. Bram- jury caused to him in using it. In well B, said, "We think these facts Whaley v. Laing, 2 H. & N. 476. The establish a cause of action in the plain- facts were that the plaintiflf, by permis- tiff. The plaintiff had, by permission of sion of a canal company, made a com- the cajial owners, got possession of a munication from the canal to his own certain quantity of water, which he was premises, by which water got to those entitled to pump up from his cistern or premises, and with which water he fed reservoir, as much as he would have CHAP. IV.] OP THE GENERAL RIGHT OP USE. 105 — " The case where a riparian proprietor makes two streams in- stead of one, and grants land on the new stream, seems anal- ogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river. In the case of a grant of land on a new stream, the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights." ^ — " The right to a flow of water in a goit," said Martin B., in Nuttall v. Bracewell,^ "is a well-known easement, and is an incorporeal hereditament, and although it is not competent for an owner of been entitled to use it if he had taken it in a pail or bucket. The consequence of his doing so, that is, of emptying his cistern or reservoir, is, that other water flows in from the canal to supply its place. This water the defendant has fouled, and consequently by his act foul water flows into the plaintiif' s cistern, the plaintiff only contributing thereto by removing the water already there, which, as we have said, he had a clear right to do. This being without justifi- cation by the defendant, gives the plain- tiff a cause of action. It is true that the great injury the plaintiff sustains, is by his own act in feeding the boilers with the fouled water; but he was not bound to let it remain in his cistern, and we do not know that merely pumping it away would have been less costly than using it as he did." " Our opinion pro- ceeds on the ^ground that the defendant caused foul water to flow on to the plain- tiff's premises without right to do so. And this opinion is warranted by the cases cited, which show that though tliere may be no right to water, there may be a right, if it comes or is sent, to have it come or sent without pollution." The Court expressly abstained from giv- ing any opinion upon the question, whether an action would have been maintainable against the defendant if the defendant had diverted the water, or if the plaintiff, in order to get the water, had been obliged to go to the canal with a bucket or engine and draw it foul from the canal. In tlie Exoliequer Chamber (3 H. & N. 675, 901), the judgment was reversed, but reversed upon grounds involving no dissent from the judgment below, viz., — that a man has no right to cause dirty water to flow on to his neighbor's land without some special right to do so ; but the judgments in the Exchequer Chamber show that it is very doubtful whether a person, having a mere permission from a riparian owner to take water out of a stream, can maintain an action against a wrong-doer for diverting or fouling the stream higher up. The preponderance of authority appears to be in favor of the negative.] ' [Stockport Waterworks Co. v. Pot- ter, 3 H. & C. 326. In this case, Pollock C.B., said, " There seems to be no au- thority for contending that a riparian proprietor can keep the land abutting on the river, the possession of wliich gives him his water rights, and at the same time transfer those rigiits, or any of them, and thus create a right in gross, by as- signing a portion of his rights appur- tenant. It seems to us clear that the rights which a riparian proprietor has with respect to the water, are entirely derived from his possession of land abut- ting on the river. If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights. But if he grants away a portion of his estate not abutting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is that he can have them against the grantor, but not so as to sue other persons in his own name for an infringement of them."] ^ [L. B. 2 Exch. 10.] 106 LAW OP WATEECOURSES. [chap. it. land to render it subject to a new species of burden at his fancy or caprice, the burden of one man's land being subject to the right of another to have a flow of water running through it to work his mill, is as old as the law itself, and in my opinion is the subject of property and of grant, and not merely of license. It is true that, being an incorporeal hereditament, it cannot be created so as to immediately bind the original grantor except by deed under seal ; but I think the actual possession and enjoyment of the goit by the plaintiff gives a good and valid right of action against the defendant, a wrongdoer." i] 2. Of the Injury hy Diverting the Water. § 97. Ever since the time of the Year Books, it has invariably been held, that it is illegal to divert a watercourse,^ unless author- ized or justified by the particular circumstances of the case.^ The maxim of the law, which every riparian proprietor is bound to respect, as regards his right to the water, is sio utere tuo ut alienum non Icedas.^ 1 [See Stockport Waterworks Co. o. Potter, 3 H. & C. 300; Hill o. Tupper, 2 H. & C. 121 ; Ackroyd v. Smith, 10 C. B. 164; Keppel v. Bailey, 2 M. & K. 535 ; post, § 143 and note ; Holker v. Porritt, L.R. 8 Exch. 107 ; L.R. 10 Exch. 59. In Hill V. Tupper, it was held, that a grant by an incorporated C£|,nal company to the plaintiflF, of the sole and exclusive right or liberty of putting or using pleasure- boats for hire on their canal, did not create such an interest or estate in the plaintiff, as to enable him to maintain an action in his own name against a person who disturbed his right by putting and using pleasure-boats for hire on the canal. The distinction between Hill i>. Tupper and Nuttall v. Brace well, is stated by Bramwell B., in the opinion delivered by him in the latter case. L. R. 2 Exch. 11, 12.J '^ [As to what is meant by diverting a watercourse, see Parker v. Griswold, 17 Conn. 299, per Storrs J., post, § 99, note.] ^ [See Newhall v. Ireson, 8 Gush. 595, 599.] * [In reference to this maxim, see Shrewsbury v. Smith, 12 Cush. 180, 181 ; Davis V. Winslow, 51 Maine, 291.] Be- sides the authorities in the two or three preceding sections, see Cottell v. Luttrel, 4 Co. 36 ; Stone v. Bromwich, Yelv. 162 ; Sands v. Trifusis, Cro. Car. 573 ; Brown V. Best, 1 Wils. 174 ; Merritt v. Parker, 1 Coxe (N.J.) 460; Hart v. Evans, 8 Penn. St. 18. Baron Alderson mentions a case of Dakin v. Cornish, tried before him at Leeds, in 1845, where water was taken from the river Ayr to work a steam-engine. There was an artificial course from the river to a reservoir in the yard of a mill ; the water was there mixed with other water obtained from the earth, the whole was then used for the steam-engine. What remained was transferred into another tube, and car- ried back to the river ; and the question was, whether this was injury to some other mills lower down the stream. He says, '■ We took much pains about the case, and I left it to the jury to say if the same quantity of water continued to run in the river." Embrey v. Owen, 6 Exch. 353. [A canal company, having under their act power to supply their canal with water from the neighboring streams, bought a mill and turned the mill-stream CHAP. IV.] INJURY BY DIVERTING THE WATER. 107 § 98. In an action on the case, in Illinois, for obstructing and diverting a watercourse, in wliich the plaintiff obtained a verdict, and judgment was rendered thereon, the defendant excepted to the instructions asked for and given, at the instance of the plain- tiff. After the cause was brought to the Supreme Court, the parties agreed upon facts as having been proved at the trial, which were, that S. & B., in 1834, bought of T. C. six acres of land, through which a branch run, and erected a steam-mill thereon. They depended upon a well and upon the branch for water in running their engine. About one or two years after- wards, J. E. bought of T. C. six acres of land in the same branch above, and immediately adjoining the lot of S. & B., and erected thereon a steam-mill, depending upon a well and the branch for water in running his engine. Ordinarily there was an abundance of water for both mills ; but, in the fall of 1837, there being a drought, the branch failed, so far that it did not afford water sufScient to run the upper mill continually. One of the men employed by J. E. made a dam across the branch, just below J. into the canal. Many years afterwards a waterworks company diverted part of the mill-stream, and thereby supplied a. neighboring town with water; it was de- termined that the canal company, both under their act and as owners of the mill, were riparian proprietors, and had power to prevent the unlawful use of the water by other riparian proprietors, and that the supply of a neighboring town was such an unlawful use ; and that the canal company were entitled to come into equity, and obtain an in- junction to restrain this as an unreason- able use of the stream. Wilts and Berks Canal Navigation Company v. Swindon Waterworks Company, L.R. 9 Ch. App. 451. Sir W. M. James L.J., in this case said, " The defendants in this case are a waterworks company, who, partly from public motives and partly for pri- vate profit, have been minded to supply water to the large town of Swindon," and they " wish to use and divert water for the purpose of supplying that town. That is not a purpose for which a ripa- riaa proprietor is entitled to take the water from its natural course ; and the defendants are diverting water from the stream for a purpose which is not le- gal, and in a manner which is not legal." "It has, been settled that actual pecu- niary damage is not necessary to give a right of action or suit, because it is suffi- cient to show that the defendants are interfering with that which is a right, and in a mode which may give » future legal right to interfere with the stream when it may be wanted, or may in a pecuniary point of view be useful to the riparian proprietor below." " The canal company, however, only want water legally as a canal company for the purposes of navigation. It is true that, if they have surplus water, there would be great difficulty in saying whether or not they might sell it to other persons. That, however, is a matter as between them and other persons who would be injured by the water being so taken, but, as far as their constitution goes, they are only entitled to take and use the , water for the purposes of navigation, and the surplus must be the surplus which arises casually with regard to the water they have so taken." This decision was affirmed on appeal, L. E. 7 H. L. 697. See Owen v. Davies, 9 Weekly Notes, 176,1 108 LAW OP WATERCOURSES. [CHAP. IV. E.'s mill, and thereby diverted all the water in the branch into J.'s well. After this diversion, the branch went dr}' below, and the mill below did not run in consequence of it more than one day in a week, and was then supplied with water from the well 5 for which the suit was brought. The Court held that the diversion, according to all the cases, both English and American, was clearly illegal.^ § 99. In Parker v. Griswold, in Connecticut,^ it appeared that the plaintiff owned land on a natural stream of water, and that the defendant owned land, with a mill thereon, on the op- posite side, and bordered by it below the plaintiff's land; and that, under an authority obtained from the proprietors of the land on both sides of the stream above the plaintiff's land, the defendant erected a dam there, and cut a channel therefrom to his mill upon his land, through which a portion of the water was diverted from the stream, producing a considerable dim- inution thereof ; and that the water was not returned until it had passed the plaintiff's land. It was held, that the defendant could not justify such diversion, either by virtue of the authority derived from the proprietors above, or by virtue of his general rights as riparian proprietor below ; and that the plaintiff was not precluded from an action for such diversion, because he owned the land only on one side of the stream, and not beyond its centre.^ § 99 a. The owners of a mill have not the right, when it becomes necessary for the purpose of repairs, to divert the stream upon which it is situated, to the injury of another pro- prietor upon the same stream below. If they cannot make their 1 Evans u. Merriweather, 3 Soamm. was a diversion of the stream from his (111.) 492. land, in what may be called the technical ^ Parker v. Griswold, 17 Conn. 288. sense of that word, which denotes the " In this case (Parker v. Griswold, 17 turning of the stream, or a part of it, as Conn. 299), Storrs J. said, " There was such, from its accustomed direction, — its not a diversion of the water here, in that natural course, — so that the water thus loose sense in which that term might be diverted never reached the land of the used to denote that incidental obstruction plaintiff, and therefore could not be used or loss of the water which is necessarily by him, as it might have been, were it consequent upon the lawful use of it, for not for such diversion." [A mill-owner which, as was decided in Wadsworth v. has no right, as against anotiier mill- Tillotson, 15 Conn. 366, an action could owner farther down tlie stream, to appro- not be maintained, by the proprietor be- priate additional power by lowering or low ; nor was there a mere interruption changing the natural bed of the stream, of the water, so that it was only delayed though wholly on his own land. ■ Gleason in arriving at the plaintiff's land; but it [Hayes v. Waldron, 44 N.H. 584; Embrey v. Owen, 6 Exch. 352 ; Davis v. Getchell, 50 Maine, 602; Wells J., in Bearse v. Perry, 117 Mass. 211, 212 ; and in Hinckley v. Nickerson, 117 Mass. 213, 214, 215 ; and in Merrifield v. Worcester, 110 Mass. 219 ; Mayor and City Council of Baltimore v. Appold, 42 Md. 456, 457.] 2 Tyler v. Wilkinson, 4 Mason, 401 ; [Cummings v. Barrett, 10 Cush. 186 ; Thomas v. Brackney, 17 Barb. 654; Par- ker V. Hotchkiss, 25 Conn. 321 ; Gould v. Boston Duck Co., 13 Gray, 442; Drake V. HamQton Woollen Co., 99 Mass. 579, 580; Hendrick v. Cook, 4 Geo. 241; Selden v. Del. & Hud. Canal, 29 N.Y. 642. In Elliot v. Fitchburg R.R. Co., 10 Cush. 195, Shaw C.J. said, " The rule, that no riparian proprietor can wholly abstract or divert a watercourse, by which it would cease to be a running stream, or use it unreasonably in its passage, and thereby deprive a lower proprietor of a quality of his property deemed in law in- cidental and beneficial, necessarily flows fi:om the principle, that the right to the reasonable and beneficial use of a running stream is common to all the riparian pro- prietors ; and so each is bound so to use his, common right as not essentially to prevent or interfere with an equally bene- ficial enjoyment of the common right by all the proprietors. Were it otherwise, and were it an inflexible rule that each lower proprietor has a right to the full and entire flow of the natural stream, without diminution, acceleration, or re- tardation of the natural current, it would follow that each lower proprietor would have a right of action against any upper proprietor for taking any portion of the water of the stream for any purpose : such a taking would be a disturbance of his right; and if taken by means of a pump, a pipe, a drain, or otherwise, though causing no substantial damage, it would be a nuisance, and warrant the lower proprietor in entering the close of the upper, to abate it. Colburn ». Rich- ards, 13 Mass. 420." — " It would also follow, as the legal and practical result; that no proprietor could have any bene- ficial use of the stream, without an en- croachment on another's right, subjecting him to actions Mies quoties, as well as to a forcible abatement of the nuisance. If the plaintiff could, in a case like the pres- ent, have such an action, then every pro- prietor on the brook, to its outlet in Nashua River, would have the same ; and because the quantity of diminution is not material, every riparian proprietor on the Nashua would have the same right, and so every proprietor on the Merrimac River to the ocean. This is a sort of reduclio ad absurdum, which shows that 200 LAW OP WATERCOURSES. [CHAP. IT, § 118. The following opinion, on the same nice point, was given by the Supreme Court of New York, and delivered by Wordsworth J. : " The common use of the water of a stream by persons having mills above, is frequently, if not generally, attended with damage and loss to the mills below ; but that is incident to that common use, and for the most part unavoidable. If the injury is trivial, the law will not afford redress ; because every person who builds a mill, does it subject to this contin- gency. The person owning an upper mill on the same stream, has a lawful right to use the water, and may apply it in order to work his mills to the best advantage, subject, however, to this limitation, that if in the exercise of this right, and in conse- quence of it, the mills lower down the stream are rendered use- less and unproductive, the law, in that case, will interpose and limit this common right, so that the owners of the lower mills shall enjoy a fair participation ; and if, thereby, the owners of the upper mill sustain a partial loss of business and profits, they cannot justly complain, for this rule requires of them no more than to conform to the principle on which, their right is founded. It cannot, then, be admitted, that the defendants may use the water as they please, because they have a right to a common use, although their works may require all the water, in order to derive the greatest profit. The plaintiffs' rights must be regarded ; they must participate in the benefits of the stream, to a reasonable extent, although the defendants' profits may be thereby lessened. If the defendants insist on the unrestricted use of the water, and appropriate it accordingly, and this proves destructive to the mills below, the law, in that case, allows the such cannot be the rule, as was claimed or stream to the use of the water, implies by the plaintiff." The diversion of the a right to control, detain, and even dimin- stream in the above case was made for ish the volume of the water, but only to the purpose of furnishing the defendants' a reasonable extent ; this extent being locomotive steam-engines with water, and dependent upon the size of the stream, as for other similar purposes ; and it was well as upon the uses to which it is sub- held that no action could be maintained servient, as the detention must necessarily for such diversion, which was of only be sufficient to accumulate the head of a part of the water in the stream, unless water requisite for practical use. The it caused actual, perceptible damage, right of detention is not limited to time See post, § 135 and note, § 124 a ; Gerrish necessary for repairs, or to extraordinary V. New Market Manuf. Co., 30 N.H. 483 ; occasions ; but applies to the ordinary Dumont ». -Kellogg, 29 Mich. 423. use of such streams, provided it be not In Davis v. Getehell, 50 Maine, 602, it an unreasonable use or detention. Mer- was held, that the equal right of every rifieldw. Worcester, 110 Mass. 219; Cooley proprietor of land on the banks of a river J. in Dumont v. Kellogg, 29 Mich. 423.] CHAP. IV.] INJURY BY OBSTRUCTING THE WATER. 201 party injured a compensation in damages, to the extent that, under all the circumstances, shall be considered an equivalent. In that event, the plaintiffs receive no more than they would have realized by their business, had the defendants permitted the water to flow in a reasonable manner." ^ § 119. The reasonableness of the detention, by a riparian proprietor above, to the injury of a riparian proprietor below, depends much upon the nature and size of the stream, as well as the employment to which it is subservient.^ In an action on 1 Merritt v. Brinkerhoff, 17 John. 306 ; [Hayes v. Waldron, 44 N.H. 584 ; Timm V. Bear, 29 Wis. 254 ; Dumont v. Kellogg, 29 Mich. 420. Although the rigVit to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes, still this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of other riparian proprietors to the reasonable enjoyment of it ; and con- sequently, it is only for an unreasonable and unauthorized use of this common benefit that any action will lie. Embrey u. Owen, 6 Exch. 353.] 2 [Hayes v. Waldron, 44 N.H. 580, 58'5 ; Housee v. Hammond, 39 Barb. 95. As to the circumstances to be considered in determining what is a reasonable use of water by the riparian proprietors, see post, § 119 a ; Elliot v. Fitchburg E.R. Co., 10 Cush. 191 ; Davis v. Getchell, 50 Maine, 602 ; Gillett w. Johnson, 30 Conn. 180; ante, § 95, in note; Tourtellot v. Phelps, 4 Gray, 375, 376 ; Norway Plains Co. V. Bradley, 52 N.H. 86, 105, 110; Bassett v. Salisbury Manuf Co., 48 N.H. 569 ; Swett v. Cutts, 50 N.H. 439 ; Timm V. Bear, 29 Wis. 254; Mayor and City Council of Baltimore v. Appold, 42 Md. 442 ; PoUitt v. Long, 3 N.Y. Sup. Ct. Pep. 232 ; Keeney & Wood Manuf Co. a. Union Manuf. Co., 39 Conn. 576 ; Parker V. Hotchkiss, 25 Conn. 321; Billing v. Murray, 6 Ind. 324. In Elliot v. Fitch- burg R.R. Co., supra, Shaw d.J. said, "This appears to have been a small stream of water ; but it must, we think, be considered that the same rules of law apply to i(, and regulate the rights of riparian proprietors, through and along whose lands it passes, as are held to apply to other watercourses, subject to this con- sideration, that what would be a reason- able and proper use of a considerable stream, ordinarily carrying a large vol- ume of water, for irrigation or other sim- ilar uses, would be an unreasonable and injurious use of a small stream, just suf- ficient to furnish water for domestic uses, for farm-yards, and watering-places for cattle." In Hinckley v. Nickerson, 117 Mass. 213, it was held, in a case where the defendant had a legal right by statute to maintain a dam for the purpose of flowing and irrigating his land for the cultivation of cranberries, that neither a statute provision that " no such dam shall be erected to the injury of any mill lawfully existing, either above or below it, on the same stream ; " nor any right which may be acquired for an ancient mill by prescription, prevents the erection of works above, upon the same stream, which are reasonably adapted to the size and character of the stream, al- though their effect may be to modify or disturb somewhat the regularity of the flow of the current. Wells J. said, " To maintain an action of tort, at Common Law, whether as land-owner or as mill- owner, the plaintiff'must show that the de- fendant's dam is not reasonably adapted to the size and character of the stream, or that the extent of meadow which he undertakes to flow is too great for its capacity, or else that he has so used or managed his gates as to cause an un- reasonable detention." One ground on which the plaintiff sought to recover was, that any obstruction to the free passage of water to his ancient mill, whereby its valuable use was diminished, was a viola- tion of his rights as such mill-owner. " But," the Court said, " an ancient mill 202 LAW OF WATERCOURSES. [CHAP. IV. the case in Pennsylvania, the plaintiff alleged, that the defend- ant obstructed and retained the water of a certain stream that flowed through his land, so as to deprive him (the plaintiff) of the use of the water for the purpose of driving his grist-mill. It appeared, that the plaintiff was the owner of a tract of land through which the stream ran, and upon which his grist-mill was ; that the defendant was the owner of land above, on the same stream, on which he built a saw-mill, and made a dam across the stream for the purpose of conducting the water to his saw-mill. The plaintiff gave in evidence, that the defendant withheld the water three, four, and five days, and at one time thirteen days ; that at times he discharged the water in such quantities as to flood the plaintiff's mill; that when the water was detained in the defendant's dam eight days and longer, it got no higher that when detained three days ; that the water sank away in a dam, or dried up when detained so long, as the breast of the dam did not leak ; and that the defendant had said that if he let the water run, it would cause his forebay to leak. The defendant, on the other hand, gave evidence to show that when he detained the water, the stream was low, and the season very dry, and that without the detention he could not saw at his mill ; that he only used the water for his saw-mill, and for the purpose of watering his meadow ; that the water was turned into its natural course before it left his premises ; that the stream was a small one, and insufficient for both mills ; that his dam was a clay bottom, and that the water could not well sink away ; that the breast of his dam did leak, and that there were two springs in the dam. In his charge to the jury, the Judge said, " The defendant had a right to use the water as it passed through his land. If he detained it no longer than was necessary for the proper enjoyment of it, the plaintiff cannot recover. Whether, if you believe from the evidence that he did detain the water three days, at times, at other times five days, and at one time cannot prescribe against the reasonable Miller, 9 Penn. St. 74 ; Davis y. Getchell use of the stream above. Its prescrip- supra ; Hayes v. "Waldron, 44 N.H. 680 ; tive rights are exclusive only so far as its Housee tP. Hammond, 39 Barb. 95 ; Snow actual appropriation extends." v. Parsons, 28 Vt. 459 ; Holden v. Lake What is a reasonable use is generally a Company, 63 N.H. 552 ; Phillips ^. question for the jury to decide. Wheat- Sherman, 64 Maine, 171 ; PoUitt v. Long, ley w. Baugh, 25 Penn. St. 585 ; Hetrick 3 Thomp. & C. (N.Y.) 232; Parker v. V. Deachler, 6 Penn. St. 32; Miller vl Hotohkiss, 25 Conn. 321.1 CHAP. IV.] INJORY BY OBSTRUCTING THE WATER. 203 thirteen days, in his own dam, to the injury of the plaintiff's mill, this was longer than was necessary for the defendant's proper enjoyment of the water, at his mill, as it passed through his land, is left to your determination. If you believe it was, you will find for the plaintiff: if you believe it was not, you will find for the defendant, unless you believe that the defendant did vexatiously or wantonly detain the water, or that there was some degree of malevolence in the time or quantity of water discharged, to the injury of the plaintiff's mill ; for, if you be- lieve this, your verdict should be for the plaintiff." This charge was objected to ; and it was contended, that the Court ought not to have submitted the question of time to the jury ; that the time the water was detained, under the circumstances of the case, was so long and unreasonable as entitled the plaintiff to recover ; and per Curiam : " The law of the case is so fully and accurately laid down in the charge, that scarce any thing can be added to it. The reasonableness of the detention, depending as it must, on the nature and size of the stream, as well as the business to which it is subservient, and on the ever-varying cir- cumstances of each particular case, must necessarily be deter- mined by the jury, and not by the Court. It is not many years since the reasonableness of notice of the dishonor .of a bill or note, though reducible to rule, was determinable in the same way. But it is impossible to make even a general rule for cases like the present ; and the matter was fairly submitted, therefore, to the jury." ^ [§ 119 a. In Thurber v. Martin,^ which was an action of tort for obstructing the natural flow of the water, and diverting it from the plaintiff's mill, Shaw C.J. thus stated the law of the case : " Every man has a right to the reasonable use and enjoy- ment of a current of running water, as it flows through or along his own land, for mill purposes, having a due regard to the like reasonable use of the stream by all other proprietors above and below him. In determining what is such reasonable use, a just regard must be had to the force and magnitude of the current, > Hetrick v. Deachler, 6 Penn. St. 82. 595 ; Morris Canal & Banking Co. v. So- [See Davis „. Getcliell, 50 Maine, 602.] ciety &o., 1 Halst. (N.J.) Ch. 203; [Clin- And to the same effect, Hoy v. Sterrett, ton v. Myers, 46 N.Y. 511, 519.] 2 Watts, 327 ; Hartzall v. Sill, 12 Penn. 2 [Thurber u. Martin, 2 Gray, 394. St. 248. See also Miller «. Miller, 9 See Tourtellot v. Phelps, 4 Gray, 376 ; Penn. St. 74 ; Newhall v. Ireson, 8 Gush. Davis v. Getobell, 50 Maine, 602, 605.] 204 LAW OP WATEECOUESES. [CHAP. lY. its height and velocity, the state of improvement in the country in regard to mills and maclunery, and the use of water as a pro- pelling power, the general usage of the country in similar cases, and all other circumstances bearing upon the question of fitness and propriety in the use of the water in the particular case.^ If any party claims a special right to the use of the water, more beneficial to himself, and more burdensome to the riparian pro- prietors above or below, than what may be called the natural or general right to the reasonable use of the stream, he must estab- lish such right by grant or prescription." So in Chandler v. Howland,^ the Court say that the owner of the upper mill must " use the water in such manner that every riparian proprietor, at points further down the stream, shall have the enjoyment and use of it substantially according to its natural flow, subject to such interruption as is necessary and unavoidable by the reason- able and proper use of the mill privilege above." And in Davis V. Winslow,^ the Court said, " The detention of water, by a dam for the benefit of a mill, oftentimes results in an injury to the owners of the privilege below. It does not, however, follow that for every such injury there is a remedy. If the detention is indispensable to the owner's reasonable enjoyment of his rights in the common highway, and is continued no longer than is nec- essary for that purpose, the proprietor below is without remedy for any injury he may have suffered thereby ; otherwise, the right of common use is nugatory, and the party requiring such use is himself obstructed in its exercise.* It appeared in Pitts v. Lancaster Mills,^ that the defendants were proprietors of land and mills above those of the plaintiffs, on the same stream, and having erected a new dam, which they had a right to do, they detained the water no longer than was necessary to raise their own head of water and fill their own mill-pond. The Court 1 [Ante, § 119, note; and Gould v. 3 Sumner, 189; Embrey u. Owen, 6 Boston Duck Co., 13 Gray, 442 ; Merri- Exch. 353 ; Shrewsbury ,.. Smith, 12 field V. Worcester, 110 Mass. 219 ; Drake Gush. 181. A mill-owner has no right to V. Hamilton Woolen Co., 99 Mass. 579, unnecessarily and unreasonably detain 580 ; Pool V. Lewis, 41 Geo. 162.] water from those who have a right to use 2 [Chandler v. Howland, 7 Gray, 850 ; it subsequent to his own use ; and he will Holden v. Lake Company, 58 N.H. 552 ; be liable in damages for so doing. Phil- .Appleton C.J. in Phillips v. Sherman, 64 lips v. Sherman, 64 Maine, 171 ; Timm v. Maine, 171, 174; Timm v. Bear, 29 Wis. Bear, 29 Wis. 254.] 254.] 5 [Pitts u. Lancaster Mills, 13 Met. 3 [Davis V. Winslow, 51 Maine, 290.] 156 ; Brace «. Yale, 10 Allen, 444 • post * [See Webb v. Portland Manuf, Co., § 219.] CHAP. IV.] OP THE BIGHT OP IRRIGATION. 205 decided " that this was not an unreasonable use of the water- course by the defendants, and that any loss which the plaintiffs temporarily sustained by it, was damnum absque injuria.'''' ^ And in Wood V. Edes,^ Hoar J. said, " We are of opinion that to retain the water by a dam for the purposes of a fish-pond, con- stantly maintained, and therefore allowing the natural flow of the water to pass unimpeded to the plaintiffs' mill, is a just and reasonable exercise of the defendant's right to use the water as it passes through his land. In the absence of any grant, pre- scription, or contract, the plaintiffs have no legal right to use the defendant's land as a reservoir, except so far as the erection of their mill-dam may necessarily cause the water to flow back upon it ; and the right to cause it thus to flow cannot restrain the defendant from making a reasonable use of the water on his own land, provided he returns it all to its natural channel when it leaves his land, and allows it to flow thence regularly to the plaintiffs' land below." ^] 7. Of the Right of Irrigation. § 120. The cases in England in which the controversy has been in respect to the abstraction of water from a watercourse for the purpose of fertilizing land, are few, and generally those in which a right so to abstract it has been claimed on the ground of grant or presciption ; but they nevertheless imply, that, as a general rule, the water cannot be so abstracted to the material diminution of the quantity of water which naturally runs in the 1 [See Hetrick v. Deachler, 6 Penn St. Co., 35 Maine, 319 ; Whittier v. P. & K. 32 ; Davis v. Getchell, 50 Maine, 605 ; Railroad Co., 88 Maine, 27 ; Cushman v. Vliet V. Sherwood, 35 Wis. 229.] Smitli, 34 Maine, 247 ; Boothby u. A. & 2 [Wood V. Edes, 2 Allen, 580.] K. Railroad Co., 51 Maine, 318 ; Carson •* [See Springfield w. Harris, 4 Allen, v. Western Railroad Co., 8 Gray, 423; 494. A boom company was authorized Pittsburg & Fort Wayne R.R. Co. v. to erect and maintain a boom, which was Gillieland, 56 Penn St. 446 ; C •& R. Rail- done without fault or negligence on the road v. Speir, 56 Penn. St. 325 ; Hatch v. partof the company ; it was held that the Vermont Central R.R. Co., 25 Vt. 49; company was not liable for the flowage of China v. Southwick, 3 Fairf. 238 ; Smith land, taken under its charter, caused by the v. Agawam Canal Co., 2 Allen, 357 ; boom, in co-operation with an unusual ac- The London & North-Western Railway cumulation of logs and a large rise of Co. v. Bradley, 3 Mac. & G. (Am. ed.) water. Lawler y. Baring Boom Company, 336 note (1) and cases cited; Hammer- 66 Maine, 443. See Spring v. Russell, 7 smith &c. R.R. Co. u. Brand, L.R. 4 Greenl. 273 ; Rogers v. K. & P. Railroad H.L. 197.] 206 LAW OF WATERCOURSES. [CHAP. IV. watercourse.^ But a case is mentioned in a late English publi- cation,^ of an action brought for the disturbance of a watercourse, where it appeared that the water, after being used for irrigation, was returned to the natural channel ; and Wood B. nonsuited the plaintiff. As, however, it was shown that a portion of the water was lost, by irrigation and absorption, the Court of King's Bench set aside the nonsuit. The judgment of the King's Bench, in this case, coincides with the law of France, by which, although a riparian proprietor on a brook or river may divert the water for his meadows, " yet every one must use this liberty so as to do no injustice to his neighbors, who have a like want and an equal right." ^ § 121. It is very easy to be perceived that judicial tribunals in this country, in a number of instances, in expounding the law of watercourses, and in adjusting the conflicting claims of riparian owners, have had in their minds a distinction between one kind of use of water and another ; one of which may be called a use for natural purposes, and the other for artificial pur- poses.* A distinction of this sort was, for the first time it is believed, expressly laid down in a case before the Supreme Court of Illinois ; ^ an entire account of which will be given before the consideration of this branch of the subject of the right to the use of a natural watercourse is concluded. The wants of riparian proprietors on a watercourse, in the opinion of the Supreme 1 See Greenslade v. Haliday, 6 Bing. ble quantitj' of water, or make such un- 379 ; Strutt v. Boviugton, 5 Esp. 66 ; Hall reasonable use of it, as to deprive other V. Swift, 6 Scott, 167. [In Elliot v. proprietors of the substantial benefits Fitchburg R.R. Co., 10 Cush. 194, Shaw which they might derive from it, if not C.J. said, " It has sometimes been made a diverted or used unreasonably." See question whether a riparian proprietor Ferrea v. Knipe, 28 Cal. 343.] can divert water from a running stream, 2 Geiie & Whatley on Easements, 284. for purposes of irrigation. But this, we ^ Domat, Pub. Law, 1, 8, 2, 11. [See think, is an abstract question which Davis v. Getchell, 50 Maine, 604.] cannot be answered either in the affir- ■• See the opinion of Gibson C.J. in mative or negative, as a rule applica- Mayor &o. v. Coram. Spring Garden, 7 ble to all cases. That a portion of the Penn. St. 328 ; Pugh v. Wheeler, 2 Dev. water of a stream may be used for the & Bat. (N.C.) 50; [Union Mill &c. Co. purpose of irrigating land, we think is v. Ferris, 2 Sawyer, 176.] " The waters well established as one of the rights of made him great, the deep set him up on the proprietors of the soil along or high with her rivers running round about through which it passes. Yet a proprie- his plants, and sent out her little rivers tor cannot, under color of that right, or unto all the trees of the field." Ezekiel for the actual purpose of irrigating his xxxi. 4. own land, wholly abstract or divert the ^ Evans u. Merriweather, 3 Scam. (111.) watercourse, or take such an unreasona- 496. CHAP. IT.] OF THE RIGHT OF IRRIGATION. 207 Court of Illinois, as expressly declared, may be thus summarily stated : They are either natural or artificial ; natural are such as are absolutely necessary to be supplied, such as thirst of people and of cattle, and household purposes; and, in arid climates, water for irrigation is referred to the class of natural wants, to which artificial wants must ever be legally subservient. So that, whether the want of water for the purpose of irrigation, be a natural or an artificial want, is dependent upon circumstances. It may be the one or the other. If the want of water is simply for the comfort or convenience or prosperity of a riparian propri- etor, it is artificial; and under this head is referred the demand for water for manufacturing purposes and for hydraulic purposes in general. These discriminating suggestions are offered in limine to prepare the reader for the authorities now to be laid before him. § 122. It was decided many years ago in Connecticut, that a riparian proprietor may take advantage of a stream of water running through his land, to fertilize his meadows ; provided he does not deprive the adjoining proprietor, below, of a sufficiency of water for kitchen purposes, or for watering cattle ; and pro- vided the water, which is diverted for irrigation, shall (unless absorbed on the land) be returned to its natural channel before the stream leaves his land. And if a person, by absorption on his own land, can dispose of the whole of the water, excepting only a bare sufficiency for the purposes before mentioned, he has the prior right, because he is the first on the stream, and has the first opportunity.! jjj another case, in the same State, it appearing that the diversion of the water was for the purpose of irrigation ; and that all the water, which was diverted, was absorbed on the land, or returned to the natural channel, before it left the land ; the Court held, that no action would lie.^ In the year 1800, the same doctrine was countenanced in Massa- chusetts ; and the opinion of the Court was then given, that, if the defendant took the water for any other purpose than water- ing his own meadow, or if he did not return what was not ex- pended in that way, into the usual channel, after using what was necessary, the action might be maintained. The verdict was 1 Perkins v. Dow, 1 Root (Conn.) 535. '' Haywood v. Mason, 2 Swift's Syst. As to prior occupation, see post, § 130. 87 ; and 1 Root (Conn.) 537. 208 LAW OP WATERCOURSES. ]]CHAP. IV. accordingly for the defendant.^ So, in Weston v. Alden,^ the Court gave their opinion as follows : " A man owning a close on an ancient brook, may lawfully use the water thereof for the purposes of husbandry, as watering his cattle, or irrigating his close ; and he may do this, either by dipping water from the brook and pouring it upon his land, or by making small sluices for the same purpose ; and if the owner of a close below is dam- aged thereby, it is damnum absque injuria.^'' These precedents appear to be much more liberal in favor of upper riparian owners than is warranted by cases of a subsequent date ; and with regard to the two which have been cited from the reports of Connecticut, they, in the opinion of the late Chief-Justice Swift, of that State, not only reverse the Common Law, but are repug- nant to a statute of that State, in affirmance of the Common Law ; which, says he, must remove all doubt upon a question which has been frequently agitated.^ With respect to the case of Haywood v. Mason, the same learned judge has affirmed, that it not only gives to the upper riparian proprietors on rivers the advantages to which the lower are entitled, but denies that even seventy years' exclusive enjoyment, in any particular manner, will confer an absolute right.* § 123. In the case of Colburn v. Richards,^ in Massachusetts, it was held, that the water could not be taken out for irrigation, to the injury of a mill below. The Court endeavored to recon- cile this decision with that in Weston v. Alden, as follows: " There is this difference between that case and the one now before us : in that case there was no obstruction to the course of the water; sluices were made for it into the land of the defendant, in that action ; and the water, after washing his lands, still passed down the natural channel. Nor does it appear that the plaintiff, in that case, had acquired a right, by prescription, to the use of the stream, to carry works which had been erected and maintained at expense ; but he had merely enjoyed the natural benefits of the stream, without any labor or expense of his own. In the case before us, the whole stream was stopped, or at least so much of it as to ren- der the defendant's mill entirely useless. There is no principle 1 Bent V. Wheeler, Sullivan on Land * Opinion of Swift C.J., in Ingraliam Titles, 273. u. Hutchinson, 2 Conn. 684. ^ Weston V. Alden, 8 Mass. 136. Colburn v. Richards, 13 Mass. 420. 3 1 Swilt's Dig. in. CHAP. IV.] OP THE RIGHT OP IRRIGATION. 209 upon which this can be justified." The distinction that would seem to have much force, which is attempted to be shown, between the case of "Weston v. Alden and this case is, that, in the latter, there was a right in the plaintiff to the use of the water, hj prescription, for propelling certain works. But the right to use a natural watercourse is not derived from the erection of a mill, nor by prescription ; but it is a right incident to the ownership of the land.^ 1 See ante, § 5 et seq. [§§ 8, 90, 92 ; post, § 134. In Dickinson v. The Grand Junction Canal Co., 7 Exeh. 282, 299, 300, Pollock C.B. said, " We consider it as settled law, that the right to have a stream running in its natural course is, not by a presumed grant from long acquiescence on the part of the riparian proprietors above and below, but is ex jure natures, and an incident of property, as much as the right to have the soil itself in its natural state, unaltered by the acts of a neighboring proprietor, who cannot dig so as to deprive it of the sup- port of his land." In Chasemore v. Richards, 7 H.L. Cas. 349; 5 H. & N. 989, Lord Wensleydale said, " It is now settled that the right to the enjoyment of a natural stream on the surface, ex jure naturce, belongs to the proprietor of the adjoining lands, and he is entitled to the benefit of it as of all other natural advan- tages incident to the land of which he is the owner. He has the right to have it come to him in its natural state in flow, quantity, and quality, and to go from him without obstruction, and this right does not depend upon prescription." See Gary v. Daniels, 5 IVIet. 238 ; Crittenton V. Alger, 11 Met. 284.] All the cases are agreed, that where a natural watercourse is diverted, the plaintiff need not aver that his mill is ancient ; in other words, he need not show a prescriptive right. In one of the earUest reported cases, Doddridge J. said, " In this action there was no need that it should be an ancient mill ; for if one erects a new mill on his freehold, and another diverts the water- course of that mill, as it passes by his land, still, if the water used to follow this course, an action on the case lies against him ; for he cannot use his land, or the water which passes through his land, to the damage of the other ; and that so it had many times been before adjudged." Eutland v. Bowler, Palmer, 3 Exch. 290, 774. Again, in an action for diverting a watercourse, running to the plaintiff's mill, the declaration had only a dehet et solet currere; and it was adjudged to be good, without saying tlie mill was an ancient mill ; for, as the action was against a wi-ong-doer, possession was sufficient ; and the Court held, in this case, that an action had lain for diverting a stream, though no mill had been erected. PoUexfen, for the plain- tiff, went upon the right the owner had in the soil, and said it was lawful for a man to use his own, after what manner he pleased, so as not hurting his neighbor. The defendant, he contended, could no more stop the water, than " where I have a way over several men's land to my land, and I then build my land into tenements, they could stop my way, for that their land is charged with the way." Palmer v. Heblethwaite, Skinner, 65, 175. In an action for stopping lights, excep- tion was taken, because the declaration did not state antiquum messuagium ; but Hale said, " If a man has a watercourse running through his ground, and erects a mill upon it, he may bring his action for diverting the stream, and not say antiquum molendinum ; and upon the evi- dence, it will appear if the defendant hath ground through which the stream runs before the plaintiff's ; and he used to turn the stream as he saw cause ; for otherwise, he cannot justify it, though the mill be newly erected." 1 Ventr. 237. See also, to the same effect. Sands v. Trefu- sis, Cro. Car. 575; Brown v. Best, 1 Wil- son, 174 ; and Twiss v. Baldwin, 9 Conn. 291. 14 210 LAW OF WATERCOURSES. [CHAP. IV. § 124. In the case of Anthony v. Lapham,^ decided by the Supreme Court of Massachusetts, in 1827, reference is again made to the case of Weston v. Alden. The defendant con- tended, that he took no more water than was useful to him for the purpose of irrigating his lands, and that he had a right to all that was necessary for this purpose, although he might thereby deprive the plaintiff of a portion of the water he had before used for the same purpose.^ It did not appear that the plaintiff had ever appropriated the water in any other way than for irrigating his land. The Court said, if the case was to be supported at all, it was upon the authority of Weston v. Alden, the difference being that there the defendant took the water by small sluices over his land and returned it into the natural channel ; but, in the case before them, the water was stopped by a dam ; a great deal of it absorbed by the land, or lost by evaporation ; and the surplus not returned into the natural channel ; so that the plaintiff was deprived of the privilege which belonged to him. The Court then proceeded to say, " Every man through whose land water passes, may use it for watering his cattle or irrigating his land ; but he must so use it, in this latter way, as to do the least' possible injury to his neighbor, who has the same right." ^ The judgment, which had been for the plaintiff, was affirmed. [§ 124 a. In a still later case * in Massachusetts, it was held that a diversion of a large portion of the water of a natural watercourse, by a proprietor of land through which the water- course runs, renders him liable to an action on the case by a proprietor of the land below from which the water is thus di- verted ; although the latter thereby sustains no present actual damage. Shaw C.J. said, " This was an unwarrantable and in- jurious use of a common right to a watercourse, running in its natural channel, through the lands of several different proprie- tors. The rule of law is well settled that each of such pro- prietors has a right to a reasonable and beneficial use of the current as it passes through his own land ; but he has no right to divert or corrupt it, so as to prevent the proprietor below him from having and enjoying the same use, for all usual and 1 Lapham v. Anthony, 5 Pick. 175. < [Newhall v. Ireson, 8 Cush. 695, 'i [See Stein v. Burden, 29 Ala. 127.] 599. See Elliot v. Fitchburg R.R. Co.^ ' [Fleming v. Davis, 37 Texas, 173.] 10 Cush. 191.] CHAP. IV.] OP THE RIGHT OP IRRIGATION. 211 beneficial purposes. This substantial diversion of the water- course, therefore, was unwarranted by any right of the defend- ants, as proprietors above ; was an encroachment on the rights of the plaintiff, and prejudicial to her estate. And although the plaintiff has sustained no present damage, because she has no mill upon it, or otherwise used it for any agricultural or manufacturing purpose, yet such diversion would prevent such beneficial use of it hereafter, and thus impair the value of the estate. It is therefore a case where an action can be main- tained to vindicate the plaintiff 's right, and to prevent a loss of it by adverse use and lapse of time. Even where it has been considered that a riparian proprietor had authority to make use of the stream for purposes of irrigation, and thus by that use di- vert a portion of it, it has been held under the condition, that such diversion was, under all circumstances, a reasonable use of the stream, and that the surplus of the water thus used must be returned into its natural channel. These cases carry a strong implication, that a diversion of the entire stream, or of a consid- erable part of it, is prejudicial to the proprietor below and not justifiable." i] § 125. The Supreme Court of Maine say, " The proprietor of the watercourse has a right to avail himself of its momentum as a power, which may be turned to beneficial purposes. And he may make a reasonable use of the water itself, for domestic purposes, for watering cattle, or even for irrigation ; provided it is not unreasonably detained or essentially diminished. For, although by the case of Weston v. Alden, the right of irrigation might seem to be general and unlimited ; yet subsequent cases ^ have restrained it consistently with the enjoyment of the com- mon bounty of nature, by other proprietors, through whose land a stream had been accustomed to flow ; and the qualification of the right by these latter decisions, is in accordance with the Common Law." ^ § 126, In a case in the Supreme Court of New York, the parties were owners of adjoining farms. On the farm of the de- 1 [See Weston v. Alden, 8 Mass. 136 ; Davis, 37 Texas, 173; Dilling v. Murray, Colburn v. Richards, 13 Mass, 420 ; Cook 6 Ind. 324.] V. Hull, 3 Pick. 269 ; Embrey v. Owen, 6 2 Xhe Court cite Colburn v. Rich- Exch. 353 ; Gillett v. Johnson, 30 Conn, ards ; Cook u. Hull ; and Anthony d. 180, 183 ; Chasemore w. Richards, 2 H. & Lapham, ut sup. N. 189, 190, per Coleridge J. ; Fleming v. ^ Blanchard v. Baker, 8 Greenl. 253. 212 LAW OF WATERCOURSES. [CHAP. IV. fendant, within five or six rods of the land of the plaintiff, there was a living spring, the water from which, in its natural channel, ran over the land of the plaintiff. The defendant diverted the water from his spring and caused it to flow upon his meadow to the extent of three or four acres, for which the plaintiff recov- ered. The Chief Justice, in giving the opinion of the Court, said, " The defendant has a right to use so much as is necessary for his family and his cattle, but he has no right to use it for irrigating his meadow, if thereby he deprive the plaintiff of the reasonable use of the water in its natural channel." ^ § 127. In an action on the case, for the diversion of a water- course, in Connecticut, as lately as the year 1843, it appeared, that the defendant, who was the owner of the land on which there was a spring, took water from it for his domestic and culi- nary purposes, and for watering his cattle, by means of an arti- ficial aqueduct from the spring to his house and barn ; and after the use of what was necessary for such purpose, the surplus was not returned to the stream before it reached the plaintiff's land below, but was allowed to escape, and either irrigate the defend- ant's land, or to be lost, by flowing constantly through small apertures in penstocks, at the house and barn, in order to keep the water from freezing in winter, and becoming impure in summer; it being necessary, for these purposes, that it should be kept thus running. It was held, that these acts did not neces- sarily constitute an infraction of the plaintiff's right; and that the case was not varied by the circumstance, that the water was appropriated by the defendant to his use at a place on his land lower than where the stream, in its natural course, entered the land of the plaintiff. The Court took the ground that the water so used was not used in an unreasonable manner.^ i Arnold v. Poot, 12 Wend. 330; that the defendant applied the water to [See Crooker v. Bragg, 10 Wend. 264 ; a useful and proper purpose, and in a Fleming v. Davis, 37 Texas, 173 ; Union prudent and husbandlike manner. She Mill &c. Co. V. Ferris, 2 Sawyer, 176.] was bound to apply it in such a reason- 2 Wadsworth v. Tillotson, 15 Conn, able mannei- and quantity as not to deprive 366. [In Gillett v. Johnson, 30 Conn, the plaintiff of a sufBcient supply for hia 183, Butler J. said, " The right of the cattle." — " Tlie claim of the defendant defendant to use the stream for purposes was that she had a right to divert the of irrigation cannot be questioned. But whole for the purpose of irrigation, re- it was a limited right, and one which gardless of the rights and necessities of could only be exercised with a reasonable the plaintiff; and she did so divert it. regard to the right of the plaintiff to the Such diversion, under the circumstances, use of the water. It was not enough was clearly unreasonable, and therefore CHAP. IT.J OP THE RIGHT OP lERIGATION. 213 § 128. We now proceed to the case -which has been already- referred to as having been decided by the Supreme Court of Illinois,^ -w-here the general question -was presented, as to -what extent riparian proprietors upon a -watercourse can use the -water, and the Court say, " Each riparian proprietor is bound to make such a use of running -water, as to do as little injury to those below him as is consistent with a valuable benefit to himself. The use must be a reasonable one. Now the question fairly arises, is that a reasonable use of running water by the upper proprietor, by which the fluid is entirely consumed ? To answer this question satisfactorily, it is proper to consider the wants in regard to the element of water. These wants are either natural or artificial. Natural are such as are absolutely necessary to be supplied in order to his existence. Artificial, such only as, by supplying them, his comfort and prosperity are increased. To quench thirst, and for household purposes, water is absolutely indispensable. In civilized life, water for cattle is also necessary. These wants must be supplied, or both man and beast will perish. The supply of a man's artificial wants is not essential to his existence ) it is not indispensable ; he could live if water was not employed in irrigating lands, or in propelling his machinery. In countries d^erently situated from ours, with a hot and arid climate, water doubtless is indispensable to the cultivation of the soil, and in them, water for irrigation would be a natural want. Here it might increase the products of the soil, but it is by no means essential, and cannot, therefore, be considered a natural want of man. So of manufactures, they promote the prosperity and comfort of mankind, but cannot be considered absolutely necessary "to his existence." Prom these premises, the Court then proceed to state the conclusion resulting ; namely, " That an individual owning a spring on his land, from which water flows in a current through his neighbor's land, would have the illegal, and the Court correctly rendered he may recover damages therefor of the judgment for the plaintiflf." For the party who caused the injury. And it is facts of this case, see ante, § 4, note. See no ans-wer that the water would have Fleming v. Davis, 37 Texas, 173. If continued to flow back into the stream, water is diverted for an artificial use, had not a stranger by his unauthorized . from its natural channel in quantity interference rendered the means pro- sufficient to affect injuriously the rights vided unavailing for that purpose. Stein of the proprietor below, and the water is v. Barden, 29 Ala. 127.] not returned to its channel before it ^ Evans v. Merriweather, 3 Scam, reaches the lands of such proprietor, (111.) 496; and ante, § 121. 214 LAW OP WATERCOURSES. [CHAP. IV. right to use the whole of it, if necessary to satisfy his natural wants.i He may consume all the water for his domestic pur- poses, including water for his stock. If he desires to use it for irrigation or manufactures, and there be a lower proprietor to whom its use is essential to supply his natural wants, or for his stock, he must use the water so as to leave enough for such lower proprietor.^ Where the stream is small, and does not supply water more than sufficient to answer the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufactures. So far, then, as natural wants are concerned, there is no difficulty in furnishing a rule bj' which riparian proprietors may use flowing water to supply such natural wants. Each proprietor in his turn may, if necessary, consume all the water for these purposes. But where the water is not wanted to supply natural wants, and there is not sufficient for each proprietor living on the stream to carry on his manufacturing purposes, how shall the water be divided ? We have seen, that, without a contract or grant, neither has a right to use all the water ; all have a right to participate in its benefits. Where all have a right to parti- cipate in a common benefit, and none can have an exclusive enjoyment, no rule, from the very nature of th^ case, can be laid down, as to how much each may use without infringing upon the rights of others. In such cases, the question must be left to the judgment of the jury, whether the party complained of has used, under all the circumstances, more than his just pro- portion." ^ § 129. It is submitted, whether it may be not fairly deduced from the preceding authorities, that, for any essential'diminution of the water of a watercourse, which nature has directed to run in a certain and determinate channel, for ani/ purpose, the law, in this country, will interpose? Streams of water, says Kent,* are intended for the use and comfort of man ; and it would be 1 [Union Mill &c. Co. v. Ferris, 2 Miller, 9 Penn. St. 74 ; Arnold a. Foot, Sawyer, 176 ; Ferrea v. Knipe, 28 Cal. 12 Wend. 330 ; Elliot v. Fitchburg R.B. . 843 ; ToUe v. Correth, 31 Texas, 335 ; Co., 10 Cush. 191, 195 ; Holden v. Lake ' Rhodes v. Whitehead, 27 Texas, 310.] Company, 63 N.H. 562.] 2 [Union Mill &c. Co. v. Ferris, 2 * [3 Com. 439, 440. See Chasemore Sawyer, 176.] v. Richards, 2 H. & N. 189, 190, per 8 [See Elliot v. Fitchburg E.R. Co., Coleridge J.] 10 Cush. 197, per Shaw C.J. ; Miller v. CHAP. IV.] OP THE RIGHT OP IREIGATION. 215 unreasonable and- contrary to the universal sense of mankind, to debar every riparian proprietor from the application of water to domestic, agricultural, and manufacturing purposes ; provided^ the use of the water be made under the limitation, that he do no material injury or annoyance to his neighbor below him, who has an equal right to the subsequent use of the same water. In a late case in the English Court of Exchequer, the Chief Baron considered, that the rule laid down by Kent is the true rule. In England, says he, it is not very clear, that such a Juser (i.e., for irrigation) would be permitted as arising out of the right to the use of the water /wre naturce; "but no doubt if the stream were only used by the riparian proprietor and his family, by drinking it, or for the supply of domestic purposes, no action would lie for this ordinary use of it ; and it may be conceived, that if a field be covered by houses, the ordinary use by the inhabitants might sensibly diminish the stream ; yet no action would, we apprehend, lie, any more than if the air was rendered less pui'e and healthy by the increase of inhabitants in the neighborhood, and by the smoke issuing from the chimneys of an increased number of houses." ^ [In a late case ^ Lord Wensleydale, dur- 1 Wood V. Waud, 3 Exch. 748. The quern meliorem agrum suam facere, ne vicini Court below, in Randall v. Silverthorn, deteriorem facial. The Code Napoleon, 4 Penn. St., 173, said as follows : " The Nos. 640-645, establishes the same just plaintiff was entitled to all reasonable rules. And see also Dig. 39, 3, 4, 10 use of the water on his land for agricul- Code, lib. 8, tit. 34, 1, 7 ; Pothier, Traite tural and manufacturing purposes, pro- du Contrat de Societe, Second App. Nos. vided he returned it to its channel before 236, 237. In Prance, every one may use leaving his land, without material and the water " en ion pere de famille, et pour unreasonable diminution." So in Miller son plus grand avantage," Code Civil, V. Miller, 9 Penn. St. 74. [Under the Art. 640, note a, by Pailliet. See his laws of Texas, a proprietor of a tract of Manuel de Droit Franqais, Paris, 1838, land in which originates a spring, form- cited by Baron Parke, in 20 Law Jour, ing a stream, running in a channel 212; and s.c. 4 Eng. Law & Eq. on through his land and into the land of p. 477 ; 6 Exch. 353. another person, has a right to divert the The case of Embrey v. Owen, in the stream from its natural channel and EngUsh Court of Exchequer, 6 Exch. 353, cause it to overflow and irrigate the land, was decided in 1851,* and the decision provided the stream resumes its original was, that a riparian proprietor has a right channel before entering the land of the to irrigate his land by water from the adjacent proprietor, ToUe v. Correth, 31 stream, provided he does not thereby Texas, 862.] The just and equitable interfere with the rights of others ; and principle, Kent says (3 Com. 441), is whether the use made by him of the given in the Roman law : Sic enim debere stream for this purpose be reasonable * Embrey v. Owen, 20 L.J. n.s. 212, and s.c. 4 Eng. Law & Eq. 466 ; 6 Exch. 353. 2 [Chasemore v. Richards, 7 H.L. Cas. 349, 362; s.c. 5 H. & N. 982.] 216 LAW OP WATERCOUESES. [chap. it. ing the argument of counsel, said, " The English cases have not yet allowed of the use of water for irrigation ; the American and permitted, or not, depends on the circumstances of each case : That where an action on tlie case founded in such an irrigation, is brought against a riparian proprietor by another having a mill lower down on the stream, it appearing that the irrigation does not take place con- tinuously, but only at intermittent peri- ods, when the river is full, and that no damage is done thereby to the working of the mill, and that the diminution of the water is not perceptible to the eye ; such is a reasonable use of the water for which no action can be maintained. It was argued by the counsel for the plain- tiff, that the plaintiff had a, right to the full flow of the water in its natural course and abundance, as an incident to the property in the land through which it flowed ; and that any abstraction of the water, however inconsiderable, by an- other riparian proprietor, and though productive of no actual damage, would be actionable, because it is an injury to a right (see post, 427, et seq.) ; and if continued would be the foundation of a claim of adverse right in that proprietor. Baron Parke, who delivered the judg- ment of the Court (the Court consisting of himself, Alderson, Piatt, and Martin), said, that he by no means disputed the truth of the counsel's proposition with respect to every description of right. And he added, "Actual perceptible damage is not indispensable as the foun- dation of an action ; it is sufficient to show a violation of a right, in which case the law will presume damage, — injuria sine damna is actionable, — as was laid down by Lord Holt in the case of Ashby V. White, 2 Ld. Ray. 938, and many subsequent cases. But in applying this admitted rule to the case of rights to running water, and the analogous cases of rights to air and light, it must be con- sidered what the nature of those rights is, and what is a violation of them. The law as to flowing water is now put on its right footing, by a series of cases, and is fully settled in the American courts." fTlie learned Baron, in the course of his opinion, cited Webb v. Portland Manuf. Co., 3 Sumner, 189, and 3 Kent, 439- 445.) " The right to have the stream to flow in its natural state without diminu- tion or alteration is an incident to the property in the land through which it passes ; but flowing water is publici juris, not in the sense that it is honum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it ; that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each propri- etor of the adjacent land has the right to the usufruct of the stream which flows through it. This right to the benefit and advantage of the water flowing past his land, is not an absolute and ej^clusive right to the flow of all the water in its natural state ; if it were, the argument of the learned counsel, that every ab- straction of it would give a cause of ac- tion, would be irrefragable ; but it is a right only to the flow of the water, and the enjoyment of it, subject to the simi- lar rights of all the proprietors of the banks on each side, to the reasonable enjoyment of the same gift of Provi- dence. It is only, therefore, for an unreasonable and unauthorized use of this common benefit that an action will lie ; for such a. use it will, though there may be no actual damage to the plain- tiffs. This [a reasonable use] must depend on the circumstances of each case. On the one hand, it would not be permitted that the owner of a tract of many thousand acres of porous soil abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose ; on the other hand, one's common sense would be shocked by supposing that a CHAP. IV.] OF THE RIGHT OP IRRIGATION. 217 cases do allow it. In Embrey v. Owen,^ an action for using the water for the purposes of irrigation failed, because the evidence showed that no injury had really been occasioned." In Samp- son V. Hoddinott,^ it appeared that the plaintiff had immemorially enjoyed the benefit of irrigating certain of his meadows with the water of the river Yeo, subject, however, to the right of the miller at West Mill to detain the water for the use of his mill. Although the natural flow of the river was prevented by the exercise of this right, yet the water was allowed to come down at such times that the plaintiff was enabled to irrigate his mead- ows effectually. But of late, the defendant, for the purpose of irrigating his own adjacent land, had from time to time diverted the water after it had passed the mill, and before it reached the plaintiff's meadows; and although the facts stated in the special case did not lead to any certain conclusion, that by the mere irrigation on the part of the defendant, the quantity of water which ultimately reached the plaintiff's meadows was sensibly diminished, yet the effect was that the water was detained by the process of irrigation, and did not arrive until so late in the day that the plaintiff was deprived of the power to use it fully. The question was, whether such a diversion and detaining of the water by the defendant was actionable. On the part of the plain- riparian owner could not dip a watering- the reasonable use by one man of this pot into the stream in order to water his common property does not do actual and garden, or allow his family or his cattle perceptible damage to the right of an- to drink it. It is entirely a question of other, to a similar use of it, no action will degree, and it is very difficult, indeed lie. A man cannot occupy a dwelling impossible, to define precisely the limits and consume fuel for domestic purposes, which separate the reasonable and per- without its in some degree impairing the mitted use of the stream from its wrong- natural purity of the air ; he cannot erect ful application ; but there is often no a building, or plant a tree near the house difficulty in deciding whether a particular of another, without in some degree di- case falls within the permitted limits or minishing the quantity of light he enjoys; not, and in this we think, that as the but such small interruptions give no irrigation took place not continuously, right of action ; for they are necessary but only at intermittent periods, when incidents to the common enjoyment of the river was full, and no damage was all." [The decision in this case was done thereby to the working of the mill, recognized and approved in Northam v. and the diminution of the water was not Hurley, 1 El. & Bl. 665. See per Lord perceptible to the eye, it was such a Wensleydale, in Chasemore v. Richards, reasonable use of the water as not to be 7 H.L. Cas. 362.] prohibited by law. The same law will i [Embrey v. Owen, 6 Exch. 353.] be found to be applicable to the corre- ^ [Sampson v. Hoddinott, 1 C. B. n.s. sponding rights to air and light. These 590. See Crossley w. Lightowler, L.R. also are bestowed by Providence for the 8 Eq. 296.] common benefit of man, and so long as 218 LAW OF WATERCOURSES. [CHAP. IT. tiff, it was denied, generally, that a riparian proprietor, as such, had any right to apply the water of the stream to irrigate his adjacent land, although he did so in a careful manner ; and it was also contended, that at all events, in this case the plaintiff had gained a title to the uninterrupted flow of the stream by immemorial enjoyment. " As to the latter proposition," the Court said, " it appears to us that all persons, having lands on the margin of a flowing stream, have, by nature, certain rights to use the water of that stream, whether they exercise those rights or not ; and that they may begin to exercise them when- ever they will. By usage, they may acquire a right to use the water in a manner not justified by their natural rights ; but such acquired right has no operation against the natural rights of a land-owner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tene- ment. But the mere non-user of the right would not raise a presumption of a grant. If the user of the stream by the plain- tiff for irrigation was merely an exercise of his natural right, such user, however long-continued, would not render the defend- ant's tenement a servient tenement, or in any way affect the nat- ural rights of the defendant to use the water." — "In the present case, it appears to us, on the evidence, that the detention by the defendant, under the circumstances, of the water of the river Yeo, for the purposes of irrigation, was a use of it which, in its character, was necessarily injurious to the natural rights of the plaintiff as the proprietor of land lower down the stream. The effect was obviously the same as if the defendant had placed a bar or wear across the river, and by that means had wholly pre- vented its natural course for a certain number of hours. And it appears to us that there is neither authority nor principle for contending that such an act can be justified on the ground that it was done for the purpose of improving the adjacent land of the defendant, whether by irrigation or otherwise." ^] 8. Of the Effect of Prior Occupation hy a Riparian Proprietor. § 130. A question of much importance has been, on several occasions, discussed, whether a title to the use of running water 1 [See Fleming v. Davis, 87 Texas, 173.] CHAP. IV.J OP THE EFFECT OP PRIOR OCCUPATION. 219 is acquired by mere occupancy, so as to authorize any diversion of it from its accustomed course, or any obstruction or detention of it. Blackstone has stated water to be one of those things, the property in which is acquired by occupancy, and that, by first occupancy, a property is acquired in the current ; ^ and in Williams v. Morland,^ and in Liggins v. Inge,^ there are dicta to the effect, that, by the law of England, the possessor who first appropriates any part of water flowing through his land to his own use, has a right to the use of so much as he thereby appropriates against any other. The dictum of Lord Chief- Justice Tindal in the case last named, is to this effect : " Water flowing, it is well settled by the law of England, is publioi jurist By the Roman law, running water, light, and air were considered some of those things which were res communes, and which were defined things, the property of which belongs to no person, but the use to all ; and by the law of England, the person who first appropriates any part of this water flowing through his land to his own use, has the right to the use of so much as he then appropriates, against any other." ^ § 131. The doctrine laid down in Gary v. Daniels, in Massa- chusetts,^ seems in accordance with that of C.J. Tindal. Shaw C.J., in giving the opinion of the Court in that case, speaks of the right to the use of the water inherent in the land as a right " puhlici juris ;"'^ and he considers, that the rule that the limita- tion of the right to use of the water of a running stream, that the use must not be inconsistent with a like reasonable use by the 1 2 Black. Com. 402. priority of riglit as against one who had 2 Williams v. Morland, 2 B. & C. 913. afterwards tapped the same stream and ' Liggins V. Inge, 7 Bing. 692. dug a ditch. Dayis v. Gale, 32 Cal. 26.] * See ante, § 92. 6 Gary v. Daniels, 8 Met. 466. [In 5 [Kelly V. Natoma Water Co., 6 Cal. Keeney & Wood Manuf. Co. v. The Union 105. A party acquires a right to water Manuf. Co., 39 Conn. 582, it is said by flowing in his ditch only from its actual Seymour J., that the doctrine announced appropriation to some useful purpose, or by Judge Shaw in the case of Cary v. from an intention, avowed by acts or Daniels " appears not now to be the law words and duly followed up, so to ap- of Massachusetts. Gould v. Boston Duck propriate it, and not by using the ditch Co., 13 Gray, 442 ; " and he adds, " The merely for drainage. Maeris v. Bicknell, case of Parker v. Hotchkiss, 25 Conn. 821, 7 Cal. 261. Where one has dug a ditch, shows that it is not the law of Connecti- and appropriated water for the purpose cut."] of working certain mining claims, he may ' [See Elliot v. Fitchburg R.R. Co., use the water at other points and for 10 Cush. 198, 196 ; Johnson v. Jordan, 2 other purposes than those for which the Met. 239 ; ante, § 92.] ditch was constructed, without losing his 220 LAW OP WATEECOUESES. [CHAP. IV. other riparian proprietors on the same stream, above and below, is to be taken with a qualification growing out of the nature of the ease, which qualification he thus explains : " The usefulness of water for mill purposes depends as well on its fall as its vol- ume. But the fall depends upon the grade of the land over which it runs. The descent may be rapid, in which case there may be fall enough for mill sites at short distances; or the descent may be so gradual as only to admit of mills at consider- able distances. In the latter case, the erection of a mill on one proprietor's land may raise and set the water back to such a dis- tance as to prevent the proprietor above from having sufficient fall to erect a mill on his land. It seems to follow, as a neces- sary consequence from these principles, that, in such case, the proprietor who first erects his dam for such a purpose has a right to maintain it, as against the proprietors above and below ; and to this extent, prior occupancy gives a prior title to such use.^ It is a profitable, beneficial, and reasonable use, and therefore one which he has a right to make.^ If it necessarily occupy so much of the fall as to prevent the proprietor above from placing a dam and mill on his land, it is damnum absque injuria. For the same reason, the proprietor below cannot erect a dam in such a manner as to raise the water and obstruct the wheels of the first occupant. He had an equal right with the proprietor below to a reasonable use of the stream ; he had made only a reasonable use of it; his appropriation to that extent, being justifiable and prior in time, necessarily prevents the proprietor 1 [Pratt V. Lamson, 2 Allen, 288 ; plaintifif's dam was originally erected be- Smith V. Agawam Canal Co., 2 Allen, fore the defendant's. Barrows J. said, 355,357; Thurber d. Martin, 2 Gray, 394 ; "The plaintiff having erected his dam Gould V. Boston Duck Co., 13 Gray, 442. before the defendant had made any move- Kelly u. Natoma Water Co., 6 Cal. 105 ; ment of the sort, had, so far as the de- Bigelow C.J., in Fuller v. Chicopee fendant was concerned, a perfect right to Manuf. Co., 16 Gray, 43, 44. It was de- maintain it perpetually, and to recover aided in Lincoln v. Chadbourne, 56 Maine, for any injury which the defendant might 197, that, as between proprietors of dams inflict by means of any subsequent erection on the same stream, he has the better below him. Unless he abandoned the right who was first in point of time. In right, the temporary destruction of his this case it appeared that of three dams dam, whether by accident or by design, situated within a short distance of each would not enable the defendant to acquire, other on the same stream, eacli erected as against him, the rights of a prior occu- either by or with the consent of the ripa- pant."] rian proprietor on whose land it stands, '^ [See Weaver o. Eureka &c. Co., 15 the middle one belonged to the plaintiff Cal, 271.] and tlie lowest to the defendant ; and the CHAP. IT.] OF THE EFFECT OP PRIOR OCCUPATION. 221 below from raising the water, without interfering with a right- ful use already made ; and it is therefore not an injury to him. Such appears to be the nature and extent of the prior and exclu- sive right which one proprietor acquires by a prior reasonable appropriation of the use of the water in its fall ; and it results, not from any originally superior legal right, but from a legitimate exercise of his own common right, the effect of which is, de facto, to supersede and prevent a like use by other proprietors ■ originally having the same common right.^ It is, in this respect, like the right in common, which any individual has, to use a highway ; whilst one is reasonably exercising his own right, by a temporary occupation of a particular part of the street with his carriage or team, another cannot occupy the same place at the same time. But such appropriation of the stream to mill purposes upon the principles stated, gives the proprietor a prior and exclusive right to such use only so far as it is actual.^ If, therefore, he has erected his dam and mill, with its waste-ways, sluices, and other fixtures necessary to command the use of the water to a certain extent, and there is a surplus remaining, the proprietor below may have the benefit of that surplus.^ If he erects a dam and mills, for the purpose of using and employing such surplus, he is, as to such part of the stream, the first occu- pant, and makes the first appropriation. As to that, therefore, his right is prior and exclusive. And although the proprietor above might, in the first instance, have- raised his dam higher, keeping within the limits of a reasonable use, yet after such appropriation by the proprietor below, he cannot raise his dam 1 [But the right which is thus acquired obstruct the movement and operation of is not so absolute as to give him the con- the wheels and machinery of his previ- trol of the whole stream, or to deprive ously existing mill. Thurber u. Martin, other proprietors of the reasonable enjoy- 2 Gray, 394 ; Smith v. Agawam Canal ment of the privileges to which they are Co., 2 Allen, 357.] naturally entitled. They may still con- ^ [See Brook v. Winters, 39 Md. 505 ; struct and maintain dams across the Maeris v. Bicknell, 7 Cal. 261 ; Thomp- stream at any point either above or be- son v. Lee, 8 Cal. 275 ; Ophir &c. Co. v. low his mill, for the purpose of raising Carpenter, i Nevada, 534 ; M'Kiuney v. a head of water to propel, operate, and Smith, 21 Cal. 381 ; Ortman v. Dixon, 13 work mills of their own, erected on the Cal. 38. | adjoining land, provided that their ar- * [If the first appropriator of the water rangements are so made that they will takes it only for use during certain days not unreasonably withhold and detain of the week, another may afterwards take the water above, nor throw it back from it during, the remaining days of the week, below, so as to affect, impede, delay, or Smith v. O'Hara, 43 Cal. 371.] 222 LAW OP WATERCOURSES. [CHAP. IT. and take such surplus ; because, as to that, the lower proprietor has acquired a prior right." ^ § 132. Now the proper construction of the Roman law,^ as adduced by C.J. Tindal, and referred to by C.J. Shaw, is, that it considered running water, not as a honum vacans, to which the first occupant might acquire an exclusive right ; but as public and common in this sense only, that all who have a right of access to it might drink it, or apply it to the necessary purpose of sup- porting life ; and that no one had any property in the water itself, except in that particular portion, which he might have abstracted from the stream, and of which he had the possession, and during the time of such possession only. And no other interpretation should be put upon the passage in Blackstone.^ § 133. The case of Mason v. Hill, which may be considered as having settled the law on this subject in England, came twice before the Court of King's Bench.* Upon the first trial there was a verdict for the defendant ; but a new trial was granted, by the unanimous opinion of the Court delivered by Lord Ten- terden, upon the ground that the defendant could not, by law, acquire a right to the water by the prior use of it, unless the enjoyment was undisturbed for twenty years. Upon the next trial, the question was raised by special verdict, and was elabo- rately discussed at the bar, and after time taken by the Court, 1 See post, § 134 ; [Elliot v. Fitchburg vent such a practical beneficial use by the R.R. Co., 10 Cush. 198, per Shaw C.J. ; party having the prior right, they are Bigelow C.J. in Fuller v. Chicopee Manuf. then wrongfully diverting his water, and Co., IG Gray, 44 ; Gleason v. Assabet become liable to an action for the dam- Manuf. Co., 101 Mass. 72, 77; Dean v. ages. Samuels u. Blanciiard, 25 Wis. Colt, 99 Mass. 486 ; Knapp v. Douglas 329. An appropriation for a saw-mill Axe Co., 13 Allen, 1 ; Smith v. O'Hara, allows the party to use the same amount 43 Cal. 371; Lobdellv. Simpson, 2 Nevada, for a grist-mill instead. McDonald v. 274 ; Keeney & Wood Manuf. Co. v. The Bear Eiver &c. Co., 13 Cal. 220.] Union Manuf. Co., 39 Conn. 676. A fair ^ See Inst. tit. 1, s. 1 ; and Vinnius and reasonable implication from such Comm. on the Inst. ; Dig. B. 48, tit. 18. right is, that he who has it is entitled to 3 pej. Lord Denman C.J., in Mason v. a head of water sufficient to enable him Hill, 6 B. &Ad. 1; and per Baron Parke, to make a practical, beneficial use of the in Embrey u. Owen, 6 Exch. 352, 369 ; amount to which he is entitled, for the 20 Law. Jour. n.s. Exch. 212, and s.o. 4 purpose of propelling machinery. This Eng. Law. & Eq. 466 ; [adopted by Cress- is essential to the enjoyment of the prior- well J. in Chasemore v. Richards, 2 H. & ity of right. Samuels v. Blanchard, 25 N. 168, 181; Pratt v. Lamson, 2 Allen, Wis. 829. Whenever, in such a case, 287.] And see ante, § 121 et seq. the head of water in the dam becomes so * Mason v. Hill, ub. sup. and 3 B. & low, that, if parties subsequent* in right Ad. 804. continue to use the water, they will pre- CHAP. IV.j OF THE EFFECT OP PRIOR OCCUPATION. 223 judgment was pronounced by Lord C.J. Denman. The learned Judge, in giving judgment, said, " The position, that the first occupant of running water for a beneficial purpose, has a good title to it, is perfectly true in this sense, that neither the owner of the land below can pen back the water, nor the owner of the land above divert it to his prejudice. In this, as in other cases of injuries to real property, possession is a good title against a wrong-doer.; and the owner of the land who applies the stream that runs through it, to the use of a mill newly erected, or other purposes, if the stream is diverted or obstructed, may recover for the consequential injury to the mill. But it is a very differ- ent question, whether he can take away from the owner of the land below, one of its natural advantages which is capable of being applied to profitable purposes, and generally increases the fertility of the soil, even when unapplied, and deprive him of it altogether, by anticipating him in its application to a new pur- pose. If this be so, a considerable part of the value of an estate, which, in manufacturing districts particularly, is much enhanced by the existence of an unappropriated stream of water with a fall, within its limits, might, at any time, be taken away ; and, by parity of reasoning, a valuable mineral or brine spring might be abstracted from the proprietor in whose land it arises, and converted to the profit of another. We think that this propo- sition has originated in a mistaken view of the principles laid down in the decided cases of Bealy v. Shaw,i Saunders v. New- man,^ and Williams v. Morland.^ It appears to us also, that the doctrine of Blackstone, and the dicta of learned Judges, both in some of those cases, and in that of Cox v. Mathews,* have been misconceived." The judgment of Sir John Leach, in Wright v. Howard,^ also settles, that no appropriation of running water, except for such a period as will confer an easement, can diminish the natural rights of other parties possessing lands along the course of the stream.^ § 134. The weight of authority in this country is decidedly 1 Bealy v. Shaw, 6 East, 208. 190. This accords with the law as laid 2 Saunders v. Newman, 2 B. & Aid. down by Sergeant Adair, Chief Justice 258. [See Heath v. Williams, 25 Maine, of Chester, in Prescott v. Phillips, cited 209.] in Bealy v. Shaw, 6 East, 208. 3 Williams v. Morland, 2 B. & C. 915. « [1 Smith, Lead. Cas. (5th Am. ed.) * Cox v. Mathews, 1 Ventr. 137. 370, in notes to Ashby v. White, 2 Ld. 5 Wright V. Howard, 1 Sim. & Stu. Kay. 938.] 224 LAW OP WATERCOURSES. [chap. IV. in favor of the doctrine that, if one' riparian proprietor upon a natural watercourse, builds a mill, and a supra-riparian pro- prietor diverts the water, the owner of the mill may recover for the injury to the mill, although, before he built, he could only recover for the natural uses of the water, as needed for his family and his cattle.^ But if, instead of building a mill, he had di- verted the stream, he cannot justify it against a proprietor below, 1 [In Holker v. Porritt, L.R. 10 Exch. 59, it appeared that a natural stream was divided immemorially, but by artificial means, into two branches : one branch ran down the river Irwell ; the other passed into a farm-yard, where it supplied a watering-trough, and the overflow from the trough was formerly diffused over the surface, and discharged itself by percola- tion. In 1847, W., the owner of the land on which the watering-trough stood, and thence down to the Irwell, connected the watering-trough with reservoirs which he constructed adjacent to, and for the use of, the mill on the Irwell. In 1865, W. became owner of all the rest of the land through which tliis branch flowed. In 1867, he conveyed the mill, with all water rights, to the plaintiff. In an action brought by the plaintiff against a riparian owner on the stream above the point of division, for obstructing the flow of the water, it was held that the plaintiflF was entitled to maintain the action. Lush J. said, " The water which came down to him [W.] at the farm was his own to use it as he pleased. There was no one en- titled to share with him in its use, and no one who could call him to account for any use which he chose to make of it there. In this respect liis position was different from that of a riparian owner, who only shares the use of the water in common with other riparian owners. In collecting the overflow at the trough and conveying it to the mill, he clearly did nothing in derogation of the rights of any other person, or which he was not entitled to do in the lawful use and enjoy- ment of his own property. Nor did he thereby lose any right which he then before had. While the water overflowed the trough and ran to waste, he had a right to complain of any undue diversion or obstruction of the stream which di- minished the accustomed supply to the trough, and he acquired no greater rights by conveying it to the mill. No doubt the consequences to a wrong-doer became more serious after the drain was made than they were before, because the wrong- ful act was more injurious, and larger damages would have to be paid for it; but it is a fallacy to say that a man's rights are abridged, if, when he abuses them, he has to make larger compensa- tion. It is the necessary effect of every appropriation of running water to a new and more beneficial use, that a wrongful diversion or abstraction entails a larger measure of responsibility. It is estab- lished by many authorities, which are collected in and confirmed by Mason v. Hill, 5 B. & Ad. 1, that, as soon as the owner of land on a stream has appropri- ated the water to a beneficial use, he may sue for the injury done to him in respect of such new use. In that case, the pro- prietor, having appropriated the stream to the use of a mill newly erected, was held entitled to recover, from a proprietor higher up the stream, damages for the injury to his mill occasioned by the wrong- ful diversion of the stream, although be- fore the mill was built the wrong-doer would only have been liable to nominal damages. If, therefore, W. had been in possession of the mill in question, it is clear to us that he could have brought this action, not because he happened to be at the same time riparian owner higher up than the mill, and also owner of the mill, but simply as owner of the miU. And there is no conceivable reason why the plaintifl" should not have the same right, in as much as he is surrenderee of the mill with all the water rights annexed, and which had become appurtenant to it."l CHAP. IV.] OF THE EFFECT OF PRIOR OCCUPATION. 225 upon the ground that he had thus made an artificial use of the water, before the other had made any such application of it. Every riparian proprietor, necessarily, and at all times, is using the water running through it, in so far at least as the water im- parts fertility to the land, and enhances the value of it.^ There is, therefore, no prior or posterior in the use, for the land of each enjoyed it alike from the origin of the stream ; and the priority of a particular new application, or artificial use of the water, does not, therefore, create a right to that use ; ^ but the exist- ence or non-existence of that application, at a particular time, measures the damages incurred by the wrongful act of another, in derogation of the general right to the use of the water, as it passes to, through, or from the land of the party complaining. The right is not founded in user, but is inherent in the owner- ship of the soil ; and when a title by use is set up against an- other proprietor, there must be an enjoyment for such a length of time as will be evidence of a grant. This is the doctrine ex- pressly laid down by the Supreme Court of North Carolina,^ who rely for its support upon the above case of Mason v. Hill. To give such a construction to the passage from Blackstone above quoted, as that the owner of a mill-site who first occupies it, by the erection of a mill or dam, may use and appropriate the water to the injury of any other riparian proprietor above or below him (unless the use and appropriation has been of so long continuance as to afford the presumption of a grant), would be an extension of the doctrine of occupancy, in the words of Mr. C.J. Thompson, "dangerous and pernicious in its consequences ; " and the occupancy, says he, " must be regulated and guarded with a view to the individual rights of all who have an interest in its enjoyment; and the maxim. Sic utere tuo ut alienum non Icedas, must be taken and construed with an eye to the natural rights of all. " * 1 Pugh V. Wheeler, 2 Dev. & Batt. peared that the owners of an upper mill, (N.C.) 50. And see ante, §§ 8, 9, 92, 93. whose business required the running of ^ [Bliss V. Kennedy, 43 111. 67 ; post, their mill only by day, detained the § 352, note.] water of the stream during the night, 3 See Pugh v. Wheeler, ub. sup. such detention and the larger discharge * Piatt V. Johnson, 16 John. 213. See during the day causing serious damage also Palmer v. Mulligan, 3 Caines, 397 ; to the owners of the lower mill, whose Merritt v. Brinkerhoff, 17 John. 306. business required the running of their [In Keeney & Wood Manuf. Co. u. The mill both night and day. The lower Union Manuf. Co., 39 Conn. 676, it ap- privilege was occupied several years 15 226 LAW OF WATERCOURSES. [chap. IV. § 135. By tlie learned Mr. Justice Story, the right to have a stream flow on in its accustomed course, is laid down to be a right, -which can only be interfered with by an easement ac- quired by grant, or by an adverse enjoyment for the period of time limited by the statute of limitations for entry upon land. " Mere priority of occupation," says he, " of running water, without such consent Or grant, confers no exclusive right.' It is not like the case of mere occupancy, where the first occupant takes by force of his priority of occupation. That supposes no ownership already existing, and no right to the use already ac- quired. But our law awards to the riparian proprietors the right to the use in common, as one incident to the land ; and before the upper, and after the upper mill was built the water was for several years allowed to flow during the night, and the lower mill had used it by night and by day. Upon a petition by the lower mill- owners against the upper, for an injunc- tion against the detention of the water by night, it was held ; (1) That the peti- tioners had acquired no superior rights by their earlier occupation, or by their use of the water by night, so long as they had exercised no rights greater than such as belonged to them as riparian proprie- tors ; the full flow of the stream being nothing beyond such right. Seymour J. said, " So long as the defendants had no occasion to detain the water at night, the plaintiiFs as riparian owners below were entitled to the uninterrupted flow of the stream by night and by day, and under those circumstances, that being their right, by the exercise of it they could acquire no right to such uninterrupted flow, if afterwards the defendants had occasion to detain more of the water of the stream than they before had done. Nor, on the other hand, do the defendants lose any of their natural proprietary rights by allowing the water to flow past their mill without interruption, or with only a partial interruption. In order to maintain their proprietary rights, they are not obliged to detain more water than they hare immediate use for. When the defendants have occasion to detain more water they may do so, keeping within the bounds of reasonable use, and the fact that they have heretofore allowed the water to pass by them without de- taining or using it to the full extent of their right, in no manner impairs their present right to its full enjoyment. Parker^ u. Hotchkiss, 25 Conn. 321. The Court in the above case of Keeney & Wood Manuf. Co. v. The Tlnion Manuf. Co., farther decided: (2) That all that the petitioners were entitled to, was a reasonable use of the stream against an unreasonable use or detention by the re- spondents ; that the question was whether the respondents had acted unreasonably in detaining the water; and that the burden of proof on this subject was on the petitioners. The right of the pro- prietor above to make the water useful to him by detaining it long enough to make it useful, is of the same quality as the right of the proprietor below to take the constant course of the current for his use, where both parties are applying the water to the artificial use of propelling machinery. In deciding between these conflicting rights, there are to be consid- ered: (1) The custom of the country as to the running of mills; (2) The local custom, if there be one ; (3) The general rule that will best secure the entire stream to useful purposes ; (4) Whether the de- tention of the water is necessarily an injury to the lower mill, and whether the apparent injury is not caused by the in- sufficiency of its own privilege.] 1 [See Snow v. Parsons, 28 Vt. 463 ; Ellsworth J., in Roath v. DriscoU, 20 Conn. 541.1 CHAP. IV.] OP THE EFFECT OF PRIOR OCCUPATION. 227 whoever seeks to found an exclusive use, must establish a right- ful appropriation in some manner known and admitted by the law.i Now, this may be by a grant from all the proprietors, whose interest is affected by the particular appropriation, or by a long exclusive enjoyment without interruption, which affords a just presumption of right." ^ In fact, by numerous authorities in this country, the first appropriator of running water has no right to divert or retain the stream to the extent of such appro- priation, to the injury of other riparian proprietors, who shall afterwards seek to use the stream ; ^ though here, as in England, dicta may be found to the contrary ; * and that a diversion of a watercourse, without actual injury to a riparian owner lower down the stream, legally imports damage (because it is an in- 1 [Mere priority of appropriation of the water of a stream confers no exclusive right to the use of it. Heath v. Williams, 25 Maine, 209 ; Ellsworth J., in Roath v. DriscoU, 20 Conn. 541.] '^ Tyler ... Wilkinson, 4 Mason, 397. See also the opinion of the same learned Judge in Whipple v. Cumberland Manuf. Co., 2 Story, 6tjl. [But an omission by the owner to make use of water rights does not impair his title or confer any right thereto upon another. It is not the non-user by the owner, but the adverse enjoyment by another, which destroys the right. Townsend v. McDonald, 2 Kernan, 381, 391, 392; Pillsbury v. Morse, 44 Maine, 154, 155.] 3 Gilman o. Tilton, 5 N.H. 231 ; Mar- tin V. Bigelow, 2 Aik. (Vt.) 184; Hoy u. Sterrett, 2 Watts, 327 ; Twiss v. Bald- win, 9 Conn. 291 ; King v. Tiffany, 9 Conn. 162; M'Almont v. Whitaker, 3 Rawle, 84; BuUen v. Runnels, 2 N.H. 257; Buddington v. Bradley, 10 Conn. 213; Tucker v. Jewett, 11 Conn. 311; Wadsworth v. Tillotson, 15 Conn. 366; Plumleigh v. Dawson, 1 Gilman, 544; Stout V. M'Adams, 2 Scam. (111.) 67; Baldwin v. Calkins, 10 Wend. 167; Heath v. Williams, 25 Maine, 209 ; Davis V. Fuller, 12 Vt. 178 ; [Gillett v. Johnson, 30 Conn. 180, 183; Bu'tman v. Hussey, 12 Maine, 410; Cowles v. Kidder, 24 N.H. 364, 378.] And as to general rights of riparian proprietors, see ante, § 90, et seq. [In Dumont v. Kellogg, 29 Mich. 420, Cooley J. said, "The settled doctrine now is that priority of appropriation gives to one proprietor no superior right to that of the others, unless it has been continued for a period of time, and under such circumstances, as would be requisite to establish rights by prescription." The question, as between riparian proprietors, of the wrongful detention of flowing waters, to the prejudice and injury of . proprietors below, was said by the same learned Judge, in the above case, to be essentially different from that of the diversion of the stream from its natural course so as to turn it away from the lower proprietor, or from that of an inter- ference by a stranger in any way to diminish the water ; for these acts are wholly wrongful.] 4 1 Wm. Saund. 114 a, n. (g). In Strickler v. Todd, in Pennsylvania, 10 S. & Rawle, 63, Duncan J., in giving the judgment of the Court, appears to accede to the doctrine that a superior right to the use of a natural watercourse may be acquired by the simple act of prior occu- pation ; but the right of the plaintiff to recover, in that case, was made to rest upon his uninterrupteif enjoyment of the water, for a term of time exceeding twenty years. [On the mineral lands of the public domain in the Pacific States and Territories, the doctrines of the Com- mon Law, declaratory of the rights of riparian proprietors respecting the use of running waters, are held to be inapplicable, or applicable only in a very limited ex- tent, to the necessity of miners, and in- 228 LAW OP WATERCOURSES. [chap. IV. fringemenfc of right), is a doctrine powerfully sustained by Amer- ican authorities.-' adequate to their protection ; there prior appropriation gires the better right to running waters to the extent, in quantity and quality, necessary for the uses to which the water is appUed. Atchison v. Peterson, 20 Wallace, 507 ; Irwin w.Phil- lips, 5 Cal. 140 ; Butte Canal and Ditch Co. V. Vaughn, 11 Cal. 143; Ortman v. Dixon, 13 Cal. 33 ; Hill v. Smith, 27 Cal. 483; Basey u. Gallagher, 20 Wallace, 670.] 1 So laid down by Wilde J., in Boliyar Manuf. Co. v. Neponset Manuf. Co., 16 Pick. 241 ; [Newhall v. Ireson, 8 Cush. 595 ; Cook v. Hull, 3 Pick. 269 ; Stowell V. Lincoln, 11 Gray, 434.] Also by the Supreme Court of Maine, Butman v. Hussey, 12 Maine, 407 ; Munroe v. Stick- ney, 48 Maine, 462. And see also Crooker V. Bragg, 10 Wend. 260; Baldwin v. Calkins, 10 Wend. 167; Heath v. Wil- liams, 25 Maine, 209 ; Whipple v. Cum- berland Manuf. Co., 2 Story, 661 ; Branch w. Doane, 17 Conn. 402; 18 Conn. 233; Parker v. Griswold, 17 Conn. 288 ; Chap- man V. Thames Manuf. Co., 13 Conn. 269; Hulme v. Shreve, 3 Green (N.J.) 116; Woodman v. Tufts, 9 N.H. 88; Bliss V. Eice, 17 Pick. 23 ; Blanchard v. Baker, 8 Greenl. 253; Pastorius i>. Fisher, 1 Rawle, 27 ; Alexander v. Kerr, 2 Rawle, 83 ; Ripka v. Sergeant, 7 Watts & S. 11 ; Plumleigh u. Dawson, 1 Gilman, 551 ; Webb V. Portland Manuf. Co., 3 Sumner, 189 ; [Harrop v. Hirst, L.R. 4 Exch. 43 ; Cooley J., in Dumont a. Kellogg, 29 Mich. 422 ; Wilts & Berks Canal Naviga- tion Co. V. Swindon Waterworks Co., L.R. 9 Ch. 451 ; s. o. L.R. 7 H.L. 697. See the judgments in Embrey v. Owen, 6 Exch. 371-373, in which case the ques- tion was, whether the defendant had infringed the plaintiff's right by using the water for irrigation ; Sampson v. Hoddi- nott, 1 C.B. N.8. 611, 612, in which the question was as to the right to impede the flow by occasionally shutting sluices; and the case put by Coleridge J., in Chase- more V. Richards, 2 H. & N. 190, of a man exhausting the running water by irri- gation, whicli would be clearly illegal, though the abstraction of the same amount of water from a large river might have been perfectly legal. The question in each case should seem to be, is the user such as to affect the natural flow of the water of the stream to an extent greater than that which is necessarily incident to the common enjoyment of the stream by all the riparian owners 1 If it be, then it may be made the subject of an action by any owner whose actual use of, or power to use, the water is affected by it. The question can arise in practice only with reference to some extraordinary use of the water. The result is that no actual damage need be shown if the right to the flow of the stream in its natural state be infringed by a use of it beyond that which every riparian owner is entitled to. The case of Elliot v. Fitch- burg R.R. Co., 10 Cush. 191, seems to hold a different doctrine. But the differ- ence does not appear to arise so much out of the question whether, on proof of a violation or infringement of the plaintifl's right, a recovery can be had without evi- dence of actual, perceptible damage, as out of the preliminary question, whether the particular use proved in the case which causes no actual, perceptible dam- age to the plaintiff is really a violation of the plaintiff's right. This was an action against the defendants, for diverting the water of a small brook, passing through land of the plaintiff in Shirley. The facts were briefly these : The plaintiff was the owner of certain land, and for more than sixty years a small brook, having its sources in several ponds, had, in its natural course, flowed through lands of various persons; viz., of one Clark, of one Furnin, and then through the plain- tiff's land, situated about half a mile below said Clark's, and from the plaintiff's land, through various other lands to the Nashua River. Said brook was in part supplied by a never-failing spring, on said Clark's land, near said brook, and having its out- let into it. The defendants — the Fitch- burg Railroad Company — pursuant to a warranty deed from said Clark, of a per- petual right to make and maintain a dam and reservoir, and draw and use the CHAP. IV.] . OP THE EFFECT OP PRIOB OCCUPATION. 229 [§ 135 a. But if a proprietor of land, which is bounded upon a natural stream, appropriates to his own use so much of the passing water as he is enabled to control, by means of structures water therefrom, erected such dam across said stream, below said spring, and made said reservoir upon and about the same, and inserted a lead pipe therein, by means of w!hich they have used and constantly taken water, from said reservoir, to their depot in Shirley, and used the same for furnishing their locomotive steam-engines with water, and for other similar purposes. The defendants offered evidence tending to prove that said Clark, where said brook ran through his meadow, which was wet and springy, had cut ditches across the meadow to the brook, thereby increasing the flow of water to the brook ; and it was further proved that there was no outlet for the water of said meadow, except into this brook. The meadow was situate below the dam. The plaintiff contended that if the jury were satisfied of the existence of the brook,- as alleged, and the diversion of the water therefrom by the defendants, he was entitled to a verdict for nominal damages, without proof of actual damage. But the presid- ing Judge instructed the jury that unless the plaintiff suffered actual, perceptible damage in consequence of the diversion, the defendants were not liable in the action. In connection with this instruc- tion, the Judge further instructed the jury that if they believed that the defend- ants, by excavating said reservoir and spring above the dam, or, that said Clark, by digging said ditches, had increased the flow of water in said brook, equal to the quantity of water the defendants had diverted therefrom, then the defendants were not liable in the action. The full Court decided that these instructions, given by the presiding Judge, were cor- rect. Shaw C.J. remarked, " The in- struction requested by the plaintiff is, we think, founded on a misconception of the rights of riparian proprietors in water- courses passing through or by their lands. It presupposes that the diversion of any portion of the water of a running stream, without regard to the fitness of the pur- pose, is a violation of the right of every proprietor of land lying below, on the same stream, so that, without suffering any actual or perceptible damage, he may have an action for the sole purpose of vindicating his legal right." After an elaborate discussion and statement of the rights of riparian proprietors to the water in a running stream, the Chief-Justice proceeds, " We think it was properly left to the jury to find, whether the defend- ants claiming in the right of Clark, had, by their diversion of the water for a valuable and highly beneficial use, caused any actual or perceptible damage, and, if not, to find for the defendants. It is very clear that here is no complaint of the total diversion of the stream from the plaintiff's land ; no such ground of com- plaint is set forth or relied on. The bed of the stream and the stream itself remain and pass through the plaintiff's land as they did before. The gravamen of the complaint is, not for diverting the stream itself, but for abstracting a part of the water of the stream. This is a right which each proprietor has, if exercised within a reasonable limit. The proper question therefore was, whether, in the mode of taking, in the quantity taken, and the purpose for which it was taken, there was a reasonable and justifiable use of the water by Clark. The use being lawful and beneficial, it must be deemed reasonable, and not an infringe- ment of the right of the plaintiff, if it did no actual and perceptible damage to the plaintiff; and, therefore, we think that question of fact was rightly left to the jury, who must have found that it did him no such damage." See Wadsworth V. Tillotson, 15 Conn. 366; Shaw C.J., in Cummings w. Barrett, 10 Cush. 189 ; Nor- way Plains Co. u. Bradley, 52 N.H. 86 ; Amoskeag Manuf. Co. v. Goodale, 46 N.H. 53, 56, and cases ; post, § 108, note. The Court, in the above case of Elliot V. Fitchbm-g R.E. Co., evidently do not mean to state a different doctrine from that laid down in the text. The same question was not before them. The same Court maintain the doctrine of the text in Newhall v. Ireson, 8 Cush. 595, 699 ; 230 LAW OP WATBRCOUESBS. [CHAP. IV. erected upon and within the limits of his own estate, even if it be the whole of it, he can thereby gain no prescriptive right to appropriate and use more than one-half of the same, so long as the opposite proprietor neither uses, nor seeks to use, nor makes any provision, nor has any occasion, for the use of any part of the stream to which he is entitled. The reason for this is, that, in fact, there is, in such a case, no adverse use, occupation, or possession whatever.^ In Pratt v. Lamson,^ Merrick J. said, " The dam was built and maintained wholly on the land belong- ing to those by whom it was built and maintained. They owned to the centre of the stream, and the rock upon which the dam abutted was several rods north of that line. As they occupied only their own land, they committed no disseisin, and were guilty of no infringement upon the right, or encroachment upon the property, of any other person. In relation to the stream itself, it is now a well-settled principle, that no one, neither the riparian proprietor, nor the owner of a mill, acquires, or has any property in the water flowing in it, except as to that portion which he actually withdraws and holds in his own possession ; but, instead of this, that he has a simple usufruct of it while it passes along. Under this general right, which is incident to the ownership of land bounded by, and therefore extending to the thread of, the stream, no exclusive right is acquired to one-half, or to any definite part, but, as is said by Story J., in Webb v. Portland Manuf. Co.,^ each of them is entitled, per my-et per tout, to the use of his proportion of the whole bulk and volume of the stream. Such being their relation to each other, it is obvious that the mere use by one of them of all the water, in Stowell v. Lincoln, 11 Gray, 434, and prored, nominal 'damages must be award- in other cases. See also Tillotson v. ed, whether actual damage were a con- Smith, 32 N.H. 90; Chatfleld v. Wilson, sequence o^ not. Phear on Eights of 28 Vt. 670; Gerrish v. New Market Water, 1Q7 ; 1 Smith, Lead. Gas. (5th Manuf. Co., 30 N.H. 478 ; Chasemore v. Am. ed.) '364 et seq. in notes to Ashby ». Richards, 5 H. & N. 982, 989 ; Crossley v. White. In cases where the right alleged Lightowler, L.K. 3 Eq. Gas. 296, 297 ; to be infringed is merely a right to be Sampson v. Hoddinott, 1 G,B. n.s. 590 ; protected from actual damage, manifestly Embrey v. Owen, 6 Exch. 353, 368, 369 ; no action can succeed, unless actual dam- Howell V. M'Goy, 3 Rawle, 256. 269; age be proved. Phear on Rights of ■ Pugh U.Wheeler, 5 Dev. & Batt. 50, 59 ; Water, 107. And see ante, § 96, in note ; "Van Hoesen v. Coventry, 10 Barb. 518; post, § 427, et seq.] Bower ;;. Hill, 1 Bing. N.G. 549. i [Pratt v. Lamson, 2 Allen, 275, 287.] Of course no action will lie either in 2 [Pratt v. Lamson, 2 Allen, 287.] trespass or nuisance, unless a right be ^ [Webb v. Portland Manuf. Co., 8 infringed; but if the infringement be Sumner, 189.] CHAP. IV.] INJURY BY CORRUPTING THE WATER. 231 unaccompanied by any act of exclusion against the other, or by the assertion of any superior or exclusive claim, is not in its nature adverse, does no injury, and affords no cause of complaint or action. He does nothing for which an action can be main- tained against him, or nominal damages recovered in the asser- tion and vindication of an invaded right. In such circumstances, they stand towards each other in the relation, and with substan- tially the rights, of tenants in common, where the possession of one is deemed to be the possession and for the benefit of all ; and their respective rights will continue to be protected and pre- served to them, until some positive act of actual and exclusive adverse possession, by which one of the parties is directly inter- fered with, and prevented from enjoying his equal privilege in the use of the water." — " The right to an exclusive use of the water may undoubtedly be acquired by adverse possession and enjoyment, where it is real and actual. Thus the proprietor who first lawfully erects his dam across the stream, to create a fall, by means of which he may operate his mill, has a right after- wards to maintain it against all other proprietors, both above and below him ; and to this extent priority of occupancy gives priority of title." ^J 9. Of the Injury ly rendering the Water Corrupt and Unwholesome. § 136. It is clearly the duty of riparian proprietors, upon a watercourse, to refrain from erecting upon its banks any works which render the water unwholesome or offensive.^ It was long 1 [Gary v. Daniels, 8 Met. 466 ; Thur- obstruction, diversion, or corruption, ex- ber V. Martin, 2 Gray, 394; Gould v. tends to the quality as well as to the Boston Duck Co., 13 Gray, 442 ; Pratt v. quantity of the water. If, therefore, an Lamson, 2 Allen, 288.] adjoining proprietor corrupts the water, 2 Aldred's case, 9 Co. R. 59 ; Dictum an action on the case lies for the injury, of Story J., in Tyler v. Wilkinson, 4 Holsman v. Boiling Spring Bleaching Co., Mason, 397, of Lord Ellenborough, in 1 McCarter (14 N.J. Ch.) 335, 842. Bealy u. Shaw, 6 East, 208, and of Lord O'Riley v. McChesney, 3 Lansing, 278; Denman, in Mason v. Hill, 6 B. & Al. 1 ; Richmond Manuf. Co. u. Atlantic De 7 Mon. (Ken.) 325; Call v. Buttrick, 4 Laine Co., 10 R.I. 106. A riparian pro- Cush. 345 ; [Gladfelt^r v. Walker, 40 prietor, in the absence of any express Md. 1 ; Attorney-General v. Steward, 5 C. grant or prescription, has no right to foul B. Green, 416 ; O'Riley v. McChesney, or corrupt the water of a running stream. 3 Lansing, 278. The right of every owner An injury to the purity or quality of the of land, through which a stream of water water, to the detriment of other riparian flows, to the use and enjoyment of the owners, constitutes, in legal effect, a water, and to have the same flow in its wrong and invasion of private right in natural and accustomed course, without like manner as a permanent obstruction 232 LAW OF WATERCOURSES. [chap. IV. ago adjudged to be illegal for a glover to set up a lime pit, for calf or sheep skins, so near the water as to corrupt it.^ Lord Coke saj^s, " If two several owners of houses have a river in common between them, and if one of them corrupt the water, the other shall have an action on the case." ^ Erecting a cess- pool near a well, and thereby contaminating the water, has been held to be actionable.^ The erection of a tan-yard, it has been or diversion of the water. D wight Print- ing Co. V. Boston, Suffolk Co. Mass. 1877, 5 Cent. Law Jourri. 71. If the water is polluted by a riparian proprietor higher up the stream, so as to occasion damage in law, though not in fact, to a proprietor lower down the stream, it gives him a good cause of action against the upper proprietor, unless the latter has gained a right by long enjoyment or grant. Wood V. Waud, 3 Exch. 748. See Merrifield v. Lombard, 13 Allen, 16 ; Wheatley v. Chrisman, 24 Penn. St. 298 ; Gladfelter V, Walker, 40 Md. 1. In Washburn v. Gilman, 64 Maine, 163, the plaintiff brought his action to recover for injury to his interval land by the drifting upon it, in consequence of a freshet, of the refuse cast out of the defendant's mill; and it was held, that the defendant, in operating his mill, should have guarded against freshets, which are always liable to occur. See Howell v. McCoy, 3 Rawle, 256 ; Crosby v. Bessey, 49 Maine, 539.] Where an action for polluting the water of a watercourse, was referred to an arbitrator, with power to him to regulate the enjoyment of the water; it was held, that an award directing a verdict to he en- tered for the plaintiff, and that defendant should, at all times, take all proper and reasonable precautions for preventing the water from being rendered unfit for plaintiff's use, and in particular, should use a process of filtering mentioned in the award, was bad for uncertainty. The direction as to the particular process was, that the water passing from defend- ant's to plaintiff's premises, should be passed through filtering lodges, made or to be made, by defendant, so as to be thereby purified and cleansed for plain- tiff's use, "so far as the same can be purified and cleansed by the ordinary and most approved process of filtering." It was held, that the description by refer- ence only to the "ordinary and most approved process," was uncertain, and the award bad in this respect also. Stonehewer v. Farrar, 6 Ad. & El. n.s. 7.S0. [In Stockport Waterworks v. Potter, 7 H. & N. 160, it appeared that the defendants were calico-printers, and had, for many years, been in the habit of using the water of a certain brook, for the pur- poses of their works. Arsenite of soda had latterly been used in large quantities in the process of dyeing calico, and arsenic from the defendants' works was traced in the mud of the reservoir of the plaintiffs' (the Stockport Waterworks Co.), which was eleven miles below the defendants' works, and also in the water supplied by them to the town. The plain- tiffs gave evidence that the defendants might have prevented the arsenic from escaping, if they had constructed a large settling reservoir below their works. The witnesses were cross-examined, to show that this would have been very expensive, but the defendants gave no evidence as to the mode in which they carried on their works. In answer to a question put by the Judge, the jury found that the defendants' trade was a lawful trade, carried on for purposes necessary or use- ful to the community, in a reasonable and proper manner, and in a reasonable and proper place ; and it was held : Jirst, that there was no evidence that the de- fendants' trade was carried on in a reasonable and proper manner, and in a proper place; and semble, that if such evidence had been given, it would have been no answer to an action by the plaintiffs. See Hodgkinson v. Ennor, 4 B. & S. 229; Snow u. Parsons, 28 Vt. 469.] 1 Year Book, Hen. 2, b. 6. 2 Co. Litt. 200; 18 Hen. 7,26; Cross- ley V. Lightowler, L.R. 8 Eq. Cas. 279. 3 Norton v. Scholefield, 9 M. & W. CHAP. IV.] INJURY BY CORRUPTING THE WATER. 233 held, is illegal, provided it has the effect of rendering the water unwholesome, whether the riparian proprietor below use it for distillation, or for culinary or domestic purposes.^ So the owner of a tannery situated upon a stream is liable for the injury, if he throws tan-bark and other refuse materials into the stream, so as to clog it and cause damage to the mills of a riparian propri- etor lower down the stream, although no injury was intended and the acts were done in a manner usual in tanneries.^ No user, for a less time than twenty years, wUl justify the letting off upon the neighboring land, water which has been used for the precipitation of minerals, and which is thereby rendered nox- ious.^ In the case of an artificial watercourse, made for the 565. ["A person should not place or negligently allow a deleterious substance to remain, where the useful waters of another may be corrupted either by the ordinary or extraordinary, and yet not Tery uncommon action of the elements." Shepley C.J. in Woodward v. Ahorn, 35 Maine, 271. This was said in an action on the case for placing manure near a well, by which, an extraordinary rain coming on, the water therein was dam- aged.] 1 Howell V. M'Coy, 3 Eawle, 397. 2 [Housee v. Hammond, 39 Barb. 89. Any use of a stream by a riparian pro- prietor which defiles and corrupts it to such a degree as essentially to impair its purity, and prevent the use of it for any of the reasonable and proper purposes to which running water is usually applied, such as irrigation, the propulsion of machinery, or consumption for domestic use, is an infringement of tne right of other owners of land through which a watercourse runs, and creates a nuisance, for which those thereby injured are entitled to a remedy. Bigelow C.J. in Merrifield v. Lombard, 13 Allen, 17; Washburn v. Gilman, 64 Maine, 163, 168-171. But the natural right of a ripa- rian proprietor to have the water descend to him in its pure state, fit to be used for the various purposes to which he may have occasion to apply it, must yield to the equal right in those who happen to be above him. Their use of the stream for mill purposes, for irrigation, watering cattle, and the manifold purposes for which they may lawfully use it, will tend to render the water more or less impure. Cultivating and fertilizing the lands bor- dering on the stream, and in which are its sources, their occupation by farm- houses and other erections, will unavoid- ably cause Impurities to be carried into the stream. As the lands are subdivided and their occupation and uses become multifarious, these causes will be ren- dered more operative, and their effects more perceptible. The water may thus be rendered unfit for many uses for which it had before been suitable; but so far as that condition results only from reasonable use of the stream in accord- ance with the common right, the lower riparian proprietor has no remedy. When the population becomes dense, and towns or villages gather along its banks, the stream naturally and necessarily suffers still greater deterioration. Roads and streets crossing it, or running by its side, with their gutters and sluices discharging into it their surface water collected from over large spaces, and carrying with it in suspension the loose and light material that is thus swept off", are abundant sources of impurity, against which the law affords no redress by action. Wells J. in Merri- field V. Worcester, 110 Mass. 219, 220. See Pollock C.B. in Cator v. Lewisham, 5 B. & S. 115, 143.] 8 Wright V. Williams, 1 M. & W. 77. [But a right to foul or corrupt a stream may be acquired by an adverse user for twenty years. Merrifield v. Lombard, 13 Allen, 16 ; Moore v. Webb, 1 C.B. n.s. 673 ; Carlyon v. Lovering, 1 H. & N. 784; Jones V. Crow, 32 Penn. St. 398, 406; 234 LAW OP WATERCOURSES. [chap. IV. purpose of draining mines, if the drainage water has flowed for twenty years, in a pure state, in consequence of the working of the mines having been discontinued, over premises of a person who has used it for that period, the working of the mines cannot be resumed, so as to render the water foul, and thus disturb his enjoyment.! [But the mere suspension of the exercise of a pre- scriptive right to foul a stream is not sufficient to destroy the right, without some evidence of an intention to abandon it ; but claim of right to foul a stream by using it for the tanning business was set up under the Act, and Stockport Waterworks Company v. Potter, 7 H. & N. 160.] '. 1 Magor 17. Chadwick, 11 Ad. & El. 371. [See remark of Parke B. upon this case, in Eawstron v. Taylor, 11 Bxch. 380. Where a prescriptive right to foul a stream has been acquired, the fouling must not be considerably enlarged to the prejudice of other people. Crossley v. Lightowler, L.R. 2 Ch. Ap._ 478; s.c. 3 Eq. Cas. 279. But a mere'change in the character of a material used in a par- ticular manufacture does not render lia- ble the manufacturer who has acquired a prescriptire right to foul a stream in the business of that manufacture, but who has not by such change increased the amount of pollution. Baxendale v. McMurray, L.R. 2 Ch. Ap. 790; post, § 219 d.] The act of the State of Ten- nessee of 1830, ch. 39, directed that the owners of mills should cut down and remove standing or decayed timber in their mill-ponds, west of Tennessee Eiver, and made such owners indictable if they faUed. And the act of 1832, ch. 79, authorized one, 6. by name, to build a dam without cutting down and removing the timber in his pond ; and it was held, that the act of 1832 only exempted the defendant G. from the penalty of the act of 1830, and left him liable as other per- sons to indictment, if his dam created a nuisance ; the Court, in giving judgment, saying, " The legislature should not be readily supposed as meaning to violate that fundamental principle of social, natu- ral, and municipal law, which prescribes to every one, in the use and enjoyment of his own property, the necessary limita- tion, that he shall not injuriously affect Hie rights of others." State v. Gainer, 3 Humph. (Tenn.) 39. Hayes ». Waldron, 44 N.H. 585 ; Mur- gatroyd u. Robinson, 8 El. &BI. 391. In Garlyon v. Levering, 1 H. & N. 797, the Court of Exchequer decided, that a right to use a natural stream for the purpose of washing ore, and carrying away sand, stones, rubble, and other stuif dislodged and severed from the soil in the working of a mine and winning the ore, and to cause the stream to overflow its banks, might be acquired by custom or prescrip- tion at the Common Law, or by user under Lord Tenterden's Act. In Murgatroyd V. Robinson, 7 El. & Bl. 391, it was argued that a right to use a natural stream for the purpose of washing away the ashes from a steam engine, and other sweepings of a mill on the bank of the stream, could not be acquired under Lord Tenterden's Act, as being unreasonable and destruc- tive of the property of the owners lower down the stream ; the Court pronounced no opinion upon the question, as the case went off on another point, but no valid distinction can be made between this and the case last cited. The owner lower down, clearly might grant the right claimed in one case as well as in the other, and if so, according to the judg- ment in Carlyon u. Levering, the statute would apply. In Carlyon v. Levering, the Court held that the right being lim- ited by reference to the necessary work- ing of the mine, could not be considered unreasonable, and might be claimed by prescription or custom ; although no doubt any objection, on the ground of the claim being unreasonable and destruc- tive, would be equally applicable to it if set up by way of custom, under Lord Tenterden's Act, as if set up by custom at the Common Law, as the second section is confined to such claims as might law- fully have been made at the Common Law. See also Moore u. Webb, supra, where a CHAP. IT.J INJURY BY CORRUPTING THE WATER. 235 where dye-works had not been used for more than twenty years, and had been allowed to go to ruin, it was held, that any right of fouling a stream attached to them was lost.^] § 137. Neither can a riparian proprietor use the water in a manner so as to corrupt the atmosphere. An action on the case was brought to recover special damages sustained by the plain- tiff and his family, in consequence of a mill-dam erected by the defendant ; and the plaintiff alleged in his declaration, that the dam, by overflowing the adjacent lands, rendered the atmosphere exceedingly impure and unhealthy, and thereby occasioned tlie sickness of himself and family, &c. It appeared, on the trial, that not only the plaintiff and his family, but the neighborhood generally, suffered by disease, occasioned by the defendant's dam, and it was insisted, that, as the injury was general, it was a bar to the recovery of individual damages. The Court held, that " every member of society is bound by the principles of natural justice, so to use his own property, as not to injure the rights of others ; and if an individual erects a mill-dam which creates disease and sickness, he must be responsible for the consequences." It was also held, that it was no defence to the action, that the injury affected the whole neighborhood, and that the civil remedy was not merged by an indictment and conviction.^ § 138. In Virginia, under the laws of which State, in relation to the. erection of mills, the finding of a jury, in a "mill-case," that probably the health of certain families who live near the pond, will be annoyed by the stagnation of the water, is conclu- sive against a petitioner to erect a dam.^ § 139. An indictment for a nuisance in erecting and main- 1 [Crossley o. Lightowler, L.R. 2 Ch. fact of great importance. But actual Ap. 478. This case was very fully dis- disuser of an easement of the above kind cussed by Sir W. Page Wood V.C., for twenty years, during which others L.R. 3 Eq. Cas. 279, where it was held have acquired adverse rights, destroys that mere non-user for less than twenty the right to the easement.] years, of a privilege or easement to ^ Story v. Hammond, 4 Ohio, 833. discharge foul dye-water into a stream, [And where in such cases an action at is not of itself a proof of abandonment, law does not afford an adequate remedy which is a conclusion to be drawn from to the land-owner, he is entitled to the all the circumstances ; amongst which the aid of a court of equity to have the nui- lying by, and permitting others to incur sance abated. Carlisle v. Cooper, 21 N.J. expense in preparing to do that which, if Eq., 576.] continued uninterruptedly for twenty 3 Mayo v. Turner, 1 Munf (Va.) 405. years, would destroy the easement, is a 236 LAW OF WATERCOUBSES. [CHAP. IV. taining a dam, upon the defendant's land, alleged that, by- reason of the dam, the animal and vegetable substances brought down the stream, were collected and accumulated in large quan- tities, 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.^ § 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, wiU not justify the pro- ceeding. 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.^ § 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.^ § 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 ' People V. Townsend, 3 Hill, 479. * Wood v. SutcUffe, 16 Jur. 75, and 2 Gates V. Blincoe, 2 Dana (Ken.) 158. s.c. 8 Eng. Law & Eq. 217 ; 2 Sim.' n s 3 Elmliirst v. Spenoer, 2 Mao. & G. 45 163. (1849). CHAP, IV.] INJURY BY CORRUPTING THE WATER. 237 enjoyment of that right, another person comes and erects machin- ery, or any manufacturing works, on that stream above the plaintiffs' works, and by his manufacturing process so fouls the water as that, instead of coming, as before, pure and unsullied to the plaintiffs' works, it arrives at the plaintiffs' works in a less pure and serviceable state than before, so as seriously and continuously to obstruct the effective carrying on of the plain- tiffs' 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 thej"- 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 sev- eral 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 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.' " 1 [§ 140 c. In Crossley v. Lightowler,^ it appeared that the plaintiffs had a large carpet manufactory at Dean Clough, on the banks of the river Hebble, and had lately purchased of the defendants a piece of land also on the banks of the Hebble and above Dean Clough. The defendants had established large dye- 1 [When a nuisance operates to de- by injunction, injury to watercourses by stroy health, or to diminish the eotafort obstruction, diyersion, or corruption, on of a dwelling, an action at law furnishes the principle of restraining irreparable no adequate remedy, and the party in- mischief. Holsman u. The Boiling jured is entitled to protection by injunc- Spring Bleaching Co., supra; Lewis v. tion. Holsman a. The Boiling Spring Stein, 16 Ala. 214.] Bleaching Co., 1 McCarter (14 N.J. Ch.) 2 [Crossley v. Lightowler, L.R. 3 Eq. 335. It is a familiar exercise of the Gas. 279; s.c. L.E. 2 Ch. Ap. 478.] power of a Court of Chancery to prevent, 238 LAW OF WATERCOURSES. [CHAP. lY. works still higher up the river, and the bill was filed to restrain the defendants from fouling the water of the river, both with respect to the carpet manufactory, and with respect to the piece of land. The plaintiffs had purchased the piece of land, wishing to prevent the water of the river from being fouled by the defendant's dye-works, but did not communicate their object to them. It was held that, in the absence of any express reserva- tion by the defendants — the owners of the dye-works — of the right of fouling the stream, the plaintiffs could maintain this suit to restrain it ; although, previously to the sale of the piece of land the defendants had the right to foul the stream in the use of their dye-works ; and it was not necessary to show that the fouling had actually injured the plaintiffs. Sir W. Page Wood V.C. said,i u j ^m of opinion that it is not competent for a person to sell property in front of a river, thereby constituting the person to whom he sells it the riparian proprietor, and then GO to affect and damage the river as to make it useless for the ordinary and legitimate purposes to which the water may be applied ; unless, indeed, there be reserved in the instrument conveying the land an express right to that user." The de- fendants claimed that the plaintiffs had no right to complain of any pollution of the Hebble occasioned by them, because there were many other manufacturers who poured polluting matters into the stream above the plaintiffs' works, so that they could never have the water in a fit state for use, even if the defendants altogether ceased to foul it. But the Court held that the fact that the stream was fouled by others was not a defence to a suit to restrain the fouling by one.^ Lord Chelmsford L.C. said,^ " Where there are many existing nuisances, either to the air or to water, it may be very difficult to trace to its source the injury occasioned by any one of them;* but if the defendants 1 [L.R. 3 Eq. Cas. 287.] joint action of both dams. Arimond u. 2 [Gladfelter v. Walker, 40 Md. 1 ; Green Bay &e. Canal Co., 35 Wis. 41.] Potter J., in Eichmond Manuf. Co. v. 3 [l.r. 2 Ch. Ap. 481, 482.] Atlantic De Laine Co., 10 R.I. 110. The * [Still a party cannot be held liable same principle was applied to a case of beyond the effect of his own acts in an action for flowage caused by defend- fouling or corrupting a stream ; to show ants' dam across one branch of a lake this the best proof the nature of the case outlet, where the defendants answered affords must be produced. Seely ti. that another dam two feet higher than Alden, 61 Penn. St. 302, 806 ; the Little theirs had been erected by another com- Schuylkill Nay. & E.R. & Coal Co. u. pauy across the other branch thereof, Richards, 57 Penn. St. 142.] and that the flowage was caused by the CHAP. IV.J INJURY BY CORRUPTING THE WATER. 239 add to the former foul state of the water, and yet are not to be responsible on account of its previous condition, this consequence would follow, that if the plaintiffs were to make terms with the other polluters of the stream so as to have water free from im- purities produced by their works, the defendants might say, ' We began to foul the stream at a time when, as against you, it was lawful for us to do so, inasmuch as it was unfit for your use, and you cannot now, by getting rid of the existing pollu- tions from other sources, prevent our continuing to do what, at the time when we began, you had no right to object to.' " i] [§ 140 d. It is not, however, under all circumstances, an un- reasonable or unlawful use of a stream to throw or discharge into it waste or impure matter. Whether such a use would be reasonable or not in any given case, would be a question for a jury upon its circumstances. The same circumstances would be open for consideration, and the same rules would govern, in this case, as in respect to the abstraction, detention, diversion, or obstruction of water in a stream. The size and character of the stream, the uses to which it can be or is applied, the nature and importance of the use claimed and exercised by one party, as well as the inconvenience or injury to the other party would be subjects involved in the inquiry. In the construction and repair of mills and dams, in the excavations required for their foundations, and in the frequent removal of the gravel used for tightening such dams, the water must for a time, and necessarily, be rendered so impure as to cause inconvenience occasionally to persons engaged in a kind of manufacture re- quiring pure water. But if such building and repairs are reasonably conducted, the inconvenience must be borne just the same, and for the same reasons, as the inconvenience caused by the temporary and reasonable detention of the water while filling the dam. So in the uses of a stream for purposes of agriculture, such as washing sheep, crossing it with teams, allowing cattle and swine to traverse it, the same principles will apply. So in the use of many kinds of mills, such as saw-mills, fulling-mills, cotton and woollen factories; there must be thrown into the stream more or less of the waste, such as saw-dust, soap-lees, 1 [See Tipping v. St. Helen's Smelt- o. Waud, 3 Exch. 772, 773 ; Attorney- ing Co., L.R. 1 Ch. Ap. 66; s.c. 4 B. & General v. Steward, 5 C.E. Green, 415, S. 608, 616 ; s.c. 11 H.L. Cas. 642 ; Wood 419 ; Hill v. Smith, 32 Cal. 166.] 240 LAW OP WATERCOUESES. [CHAP. IV. and other impurities, and no ordinary care or prudence could prevent it. In other cases, such disposition of the whole waste, although not absolutely indispensable, would add greatly to the productive value of the mill power. Whether, in either case, it may be rightfully done must depend upon the question whether, under all the circumstances of the case, it is or is not a reasonable use of the stream ; and in determining that ques- tion the extent of the benefit to the mill-owner, and of inconven- ience or injury to others, may very properly be considered. So in respect to the size and character of the stream, it is obvious that an amount of diminution or pollution which would be insignifi.cant in a large stream, might, in a small stream, be wholly destructive of the common right. So also, in determin- ing the reasonableness of suffering the manufacturer's waste to pass off in the current, much must depend upon the use to which the stream below can be or is applied ; whether as a mere high- way alone, or for purposes of manufacture, requiring pure water, or for the supply of an aqueduct to a large city, as in the case of the Croton River ; and in respect to the lands below adjacent to the river, the character of the banks, whether they are usually overflowed, or not, in high-water, should be considered.^ And in determining the reasonableness of such use, evidence of usage in the deposit of such waste is admissible.^ Upon this ' [Hayes v. Waldron, 44 N.H. 480; suffered to float down to the plaintiff's Snow V. Parsons, 28 Vt. 459. As to mill, evidence was offered to prove that casting waste materials &c. into public it had been the universal and uniform rivers, see post, § 554, note.] custom in all the counties of Vermont to 2 [Snow 0. Parsons, 28 Vt. 459. But discharge the spent bark of tanneries upon rules of law somewhat peculiar to into the streams on which they were New Hampshire, the contrary was held situated, ever since the country was first in Hayes v. Waldron, supra. In this settled, and that dam-owners situated last case the Court rested their decision below had never until now disputed the upon the ground that the jury may be right to do so; and that tanneries could presumed to be already sufl6.ciently in- not be conducted at any profit without formed as to what is a reasonable use of the means of disposing of their spent a watercourse, as they are supposed to tan-bark, and that the withholding such be as to what shall constitute a reason- use of the streams from tanners, would, able state of repair of a highway (Hub- in the belief of the witnesses, have ex- bard V. Concord, 35 N.H. 60 ; Patterson eluded that branch of industry from the V. Colebrook, 29 N.H. 94), or what shall State ; and that the same custom and be considered a reasonable use of it by the same practice had uniformly pre- the traveller. But in Snow v. Parsons, vailed in all the States and counties of supra, which was an action for the ob- New England, so far as the witnesses had struction of the plaintiff's water-wheel had opportunity of knowing; and the by the tan-bark discharged at the defend- Court held that this kind of testimony ants' tannery on the stream above, and was admissible.] CHAP. IT.] INJURY BY CORRUPTING THE WATER. 241 last point in Snow v. Parsons,^ the Court said, " It is settled law, that every riparian proprietor may use the water for the purposes of manufacture, but so use it as not unnecessarily to abridge the use to others ; i.e., every such proprietor may use it with care and prudence. What care and prudence are, in such case, must depend upon the facts of each case, the con- clusion to be drawn by the triers of the fact. And to assist them in making this conclusion, if they are not themselves ex- perts in the business, they are entitled to have the experience and wisdom of such as are experts, to enable them to judge of the reasonableness of the particular use. The measure of rea- sonable care and prudence in such cases, is that which prudent and careful men exercise in the management of their own busi- ness. And how are we to know this without proof, in those departments of business with which we are not familiar ? Proof that all prudent and careful men, in the management of the busi- ness of tanning, pursued a given course of discharging the spent tan into the stream, and that others acquiesced in that course, without objection, would seem to be of the very essence of the inquiry before the jury, in such cases." ^] 1 [Snow V. Parsons, 28 Vt. 459.] right to discharge the saw-dust, shavings, 2 [In Jacobs v. AUard, 42 Vt. 303, it and waste from it into the stream in the appeared that the plaintiii''s starch-mill ordinary course of using such mills, and was on the same stream with the defend- that he is not bound, as matter of law, ant's saw-mill, but a little lower down, to prevent them from going into the and the plaintiff complained that he was stream, and have them accumulate or disturbed in the use of his starch-mill, by draw them off and deposit them so that the saw-dust and waste from the defend- they cannot get into the stream. On the ant's mill. The defendant's right to use other hand he has not a right, wantonly his mill was unquestioned ; and the plain- and needlessly, and out of the ordinary tiff stood only on the common right of a course in such cases, and not in the serv- riparian owner not to be injured in the ice of his substantial interest and benefit enjoyment of his water privilege by other in the use of his mill in a reasonable riparian proprietors on the same stream, manner, to throw or permit them to go Barrett J. said, " It seems plain that into the stream, when, by so doing, the defendant, in the use of his shingle- injury will be caused to the plaintiffs in mill in a reasonable manner, has the the use of their starch factory."] 16 242 LAW OP WATERCOURSES. [CHAP. V. CHAPTER V. OF THE RIGHT TO THE USE OF WATER, AS DERIVED PROM 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 naturce, 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 to his water- course, would be real ; ^ but if he should purchase a water privi- lege, or a portion of water power, without any part of the bed of the river, he, in that case, would gain an incorporeal her- editament, or easement. The right to a watercourse in its natural 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 1 3 Kent, 441. cott v. Williams, 6 Met. 429; Ashley v. 2 See ante, § 90, et seq. Ashley, 6 Cush. 70 ; Soule v. Russell, 8 [See ante, §§ 8, 90 ; Wilde J., in Gary 13 Met. 436 ; Johnson v. Jordan, 2 Met. V. Daniels, 5 Met. 238 ; Hubbard J., in 234 ; Stout v. Kindt, 24 Penn. St. 449, Crittenton v. Alger, 11 Met. 284; Pres- 452.] CHAP. T.J OF NATURAL AND ARTIFICIAL EASEMENTS. 243 it back upon the land above, or of transmitting it altered in quality or quantity to the land below.i 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.^ Bracton appears to consider the obligation to re- spect 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 some- thing superadded to the ordinary rights of property ; and it may be said to wear a double aspect ; first, it destroys, fro 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. § 142. Easement is from the French word aise, and is defined to be a privilege or convenience which one neighbor has of another without profit,^ as a right of way, a right to bring water 1 Gale & AYhat. on Easem. 88. 5 Ad. & El. 764 ; 3 ib. 554 ; 3 Nev. & 2 Bardwell v. Ames, 22 Pick. 333. Per. 257. [In Race v. Ward, 4 El. & Bl. ^ Bract, lib. 4 fol. 221. 702, it was held that water, as it issues * Gale & What, on Easem. 89. [Where from a spring or well, is not to be consid- hydraulio privileges are created by con- ered as produce of the soil, so as to make ducting a stream across lands in an ar- the right to take it in alieno solo, for tificial channel, the proprietors of lots domestic purposes, a profit a prendre. crossed by the artificial channel, in the Owen v. Field, 102 Mass. 90, 103. Such absence of any stipulation to the contrary, right is an easement only, and may be have the same rights to the use of the claimed by custom. In Eitger v. Parker, Water on their respective lots as between 8 Cush. 145, the Court defined an ease- themselves, as would exist if the artificial ment or servitude to be " a right which were the natural channel of the stream, one proprietor has to some profit, benefit, Townsend ;;. McDonald, 2 Kernan, 381.] or beneficial use, out of, in, or over the ■' Easements are specifically distin- estate of another proprietor." But the guished from other incorporeal heredita- use of the word profit in this definition ments, by the absence of all right to was probably not intended to derogate participate in the profits of the soil. A from the correctness of the definition right of way, or the right to receive water, given in the text. The case did not re- passing across a neighbor's land, may be quire it. See Owen v. Field, 102 Mass. claimed as an easement; but the right 90,103; Bronson ii. Coffin, 108 Mass. 184 ; to take something out of the soil, as turf Gale, Easements (5th Eng. ed.) 5, 8; or coal, is a profit a prendre, and not an Martin B. in Mounsey v. Ismay, 3 H. & easement. Gale & What, on Easem. 5 ; C. 497. In Jamaica Pond Aqueduct 244 LAW OP WATERCOURSES. [chap. V. through another's land, &c. ; ^ and it may properly be called a right of accommodation on another's land, as distinguished from that which is directly profitable. Easements are treated of by the civilians, under the name of services, some of which they call real, and some personal. The former is a service which one estate owes to another ; or the right of doing something, or of having a privilege in one man's estate, for the advantage and convenience of the owner of another estate. It has the appel- lation of prcedial, because it cannot be constituted sine prcediis, that is, without lands and tenements. The estate unto which the service is due, is called prcedium dominans, or the ruling estate, and the other estate which suffers or jdelds the service, is called prcedium serviens, or an estate subject to a privilege or service. To constitute such service, it is therefore necessary that there be two estates, the one giving, and the other receiving, the advantage.^ By a personal service, is understood such as has Corp. V. Chandler, 9 Allen, 165, Bigelow C.J. said, " The elementary definition of an easement is ' a liberty, privilege, or advantage in land without profit distinct from an ownership in the soil.' "] 1 1 Bl. Coram. 20; Co. Litt. 19, 20; 2 Jac. Law. Diet. 332 ; Hewlins v. Shippam, 6 B. & C. 221 ; Downing v. Baldwin, 1 S. & Rawle, 298 ; [Mississippi Central Rail- road Co. V. Mason, 51 Miss. 254.] ^ Ayl. Civil Law, tit. 5, Of Services ; Domat, Civil Law, lib. 1, tit. 12; [Seymour V. Lewis,2 Beas. Ch. (N.J.) 439, 449, 450. Lord Cairns L.J. in Eangeley v. Midland Railway Co., L.R. 3 Ch. App. 306, 310, 311 ; Martin B. in Mounsey v. Ismay, 3 H. & C. 486, 497; Gale, Easements (5th Eng. ed.) 5, 13 note (d) ; Shuttle- worth V. Le Fleming, 19 C.B. n.s. 687, 710.] The Roman Law sets no limits to the number of prsedial servitudes ; but it prescribes the general conditions that are required to constitute such a servitude (§§ 307, 308). Under these conditions, therefore, all the various rights that one piece of land can enjoy over another, may be granted as priBdial servitudes. Accordingly, the prsedial servitudes ex- pressly mentioned in the Roman Law, and enumerated in §§ 310-316, are to be regarded only as examples of such servi- tudes as are of most frequent occurrence. 1 Kauff. Mack. 339. The general princi- ples with regard to prsedial servitudes, are as follows ; 1. The prsedial servitude must have a causa perpetua, i.e. the land servient must, from its natural condition, be permanently capable of affording the intended advantage to the land entitled ; and that too without any necessity for positive action on the part of the proprie- tor of the land servient. 2. The servi- tude is to be regarded as an appurtenance of the land entitled ; hence it can be neither alienated, mortgaged, nor leased without the land, nor can it be transferred from the same, to another piece of land. [See Seymour v. Lewis, 2 Beas. Ch. (N.J.) 439, 449, 450.] 3. Predial servi- tudes are indivisible, and, therefore, can- not be partially acquired, exercised, or lost; yet they may be restricted as to time and place, and also with respect to the mode of their exercise ; and their commencement and termination may like- wise be made dependent on conditions. 4. When no restriction has been made, a prsedial servitude may regularly be exer- cised over all the land servient ; but such exercise must always be confined to the real necessities of the dominant land. See 1 Kauff. Mack. 386, and Heinecoius, Diss. De Causa Servitutum Perpetua in his works, vol. 3, p. 177. Just. Inst. lib. 2, tit. 3, De Servitutibus rusticorum et urbano- rum prcedm-um. CHAP. V.J OP NATURAL AND ARTIFICIAL EASEMENTS. 245 not been constituted for the benefit of the estate, but which is created for the use of the person merely ,i and thus differs from an easement which is imposed upon corporeal property, and is attached to the soil of the servient tenement.^ The utmost ex- tent of the obligation imposed upon the owner -of the servient tenement, is not to alter the condition of it, so far as to interfere with the enjoyment of the easement by the dominant.^ [Applying this to watercourses, every riparian owner is by nature subject to the natural rights of those who are higher up or lower down on the same stream, which are in the nature of a servitude imposed on his land, — a servitude ne facias.^ This obligation, however, applies only to waters which flow naturally without the art of man.^] § 143. The service of a right of way (iter) ^ belongs to the most familiar and important class of easements. It is a com- prehensive class, and is susceptible of almost infinite variety. The right may be limited, as to intervals of time, as a way to be used on a certain day in the week ; or it may be limited as to the extent of the user authorized, as a foot-way, horse-way, or car- raige-way ; ^ or to a way for the purpose only of repairing a dam. The right of conducting water through one estate, for the use of an adjoining estate, is an easement, or a prsedial service known to the Romans by the name of service aquoeductus, and is of use, say the civilians, when S. has a scarcity of water, and requires it for his cattle, his lands, or his mills.^ Distinguished from this, is the per- sonal service, or, at Common Law, the right of profit, of taking water out of another's well or pond, which the civilians call service aqucehaustus ; and to this service is attached the prsedial service 1 See Domat, ut sup., 2 Fred. Code, 81. Jett, 12 La. 501 ; Delahoussaye v. Judice, '^ [Seymour v. Lewis, 2 Beas. Ch. 13 La. An. 587 ; Miller v. Laubacli, (N.J.) 450. In this case Green Cii. said, 47 Penn. St. 154.] " Easements are not rights distinct from * [KauflFman v. Griesemer, 26 Penn. the title of the land. They are imposed St. 407, 413; Martin v. Jett, 12 La. 501.] on corporeal property for the benefit of ^ To the rights of way by land and by corporeal property. They pass with the water, belong the servitus itineris, 1 Kauff'. title of the land itself. They cannot ex- Mack. 343 ; and concerning the Roman ist separate from it. The title to the land rights of way, see Biener, Diss., De dif- could not be in one person, and the ease- ferentiis itineris actus el vice genuinis- Leip- ment or right of diversion in another."] sic, 1804. 3 Gale & What, on Easem. 4. ' See the examples in Gale & What. * [Cresswell J., in Chasemore v. Rich- on Easem. 138. ards, 2 H. & N. 168, 182. See Martin v. » Jred. Code, 81. 246 LAW OF WATBRCOUESES. [chap. V. of a right of way, for going to, or returning from, the well or pond.^ [It has lately been held in Massachusetts, that a vendor of land may reserve an assignable right of taking water from a spring situated thereon through pipes of certain dimensions, with the right to enter upon the land to make repairs, upon payment of the damages caused thereby ; and such right need not be an- nexed to any particular estate, or be limited as to the place or manner of its enjoyment.^ Foster J. said, " In the case of rights 1 Fred. Code. To the servitudes that by the Roman Law relate to the conduct- ing and using of water, belong the aquae- ductus (servitus aquae ducendx) ; i.e., the right of leading water to one's premises, from, or at least through, another's land, whether beneath, upon, or above, the surface of the earth. As a general rule, the party entitled can lead the water only through pipes, and not through stone channels, and he must lead it in a certain direction. [See Austin ti. Cox, 118 Mass. 58.] The servitude, moreover, may refer to aqua quotidiana, in which case, the use of the ■water is not confined to any period of the year ; or only to aqua cestiva, where it is restricted to the summer. The aquoehaustus, or the servitus aquae hauriendae, i.e., the right of drawing water from an- other's spring or well, in which the iter, as far as it is necessary to the servitude, is tacitly contained. The servitude pecoris ad aquam appulsus, or the right of leading one's cattle to water on the servient ground, in wliich the actus, as far as re- quisite, is tacitly implied. The servitude aquce educmdm, or the right of leading oif the water from one's own, on to another's ground. See 1 KaufE. Mack. 345; Her- mann, Diss. De servituto aqucBductus, Leipslc, 1803; Winckler, Diss. De jure impertratm aquae. Leipsic, 1749. ^ [Goodrich v. Burbank, 12 Allen, 459. In this case a vendor of laud reserved to himself, his heirs and assigns, the right of taking, for ever, so much water from a spring situated thereon, from which water was then taken in a pipe to supply the grounds of a neighbor, as then ran in said pipe, so long as the same should last, together with the right to replace the same with a pipe of a certain size, and thereupon to take so much water as would run through the substituted pipe, and to enter and repair the aqueduct at all times, upon payment of the damages caused thereby. The neighbor received the water under a revocable license, and no part of the vendor's remaining land had the use of water from the spring, and the ruling was made as in the text. Where there is a grant of a right to take water from an aqueduct in actual existence and use at the time, the capacity of which is limited to a certain volume, the right of the grantee must be construed with reference to that limit. Within that limit it is to be exercised only as a right in common with the grantor. It is not a general right in the spring ; but a right to share in a limited supply of water, brought from the spring by an aqueduct. If the right reaches to the spring itself, it is only tlirough the common aqueduct. The grantee has no right to maintain and keep in repair any other aqueduct than that in which the common right exists. Wells J. in Cheney v. Pease, 99 Mass. 448, 452. S., while he was owner of the entire premises now owned by the plain- tiff and defendant in severalty, and while he was residing upon that portion thereof now owned by the defendant, conveyed the plaintiff 's portion thereof, with " the right to take water at our cistern at or near where it now is, when there is water in said cistern." At the time of said grant, water was supplied to said cistern by means of a pipe laid from a spring, and no other water came to S.'s place, and it was not contemplated that any other would be brought. This cistern was afterwards moved from the back room of the house to the outside of the house, and the plaintiff took water from it as before. The defendant subsequently brought water from another spring into a new cistern that he put into the back room CHAP, v.] OP NATURAL AND ARTIFICIAL EASEMENTS. 247 of profit a prendre, it seems to be held uniformly, that, if enjoyed in connection with a certain estate, they are regarded as ease- ments appurtenant thereto ; but if granted to one in gross, they are treated as an estate or interest in land, and may be assign- able or inheritable.! The right to take water from a well or spring is held to be an interest in land, although not a profit a prendre, and may be claimed by custom.^ And we are aware of no case which denies that the right to an aqueduct may be so created as to exist independently of any particular parcel of land owned by the grantee thereof, and be enjoyed by him and his heirs on any estate which he or they may own or acquire, and be capable of assignment or conveyance in gross. The water itself may not be the subject of property, but the right to take it and to have pipes laid in the soil of another for that pur- pose, and to enter upon the land of another to lay, repair, and renew such pipes, is an interest in the realty, assignable, de- scendible, and devisable." ^] where the old one had stood. Water froze in the pipe that supplied the old cistern, and no water ran therefrom into said cistern; it was held that the grant did not entitle the plaintiff to water from the new cistern. Hoiaington o. Grim- shaw, 48 Vt. 515.] 1 [Post V. PearsaU, 22 Wend. 425.] 2 [Race V. Ward, 4 El. & Bl. 702.] 5 [The same was held by Curtis J., in Lonsdale Co. v. Moies, 21 Law Rep. 664 ; Owen V. Field, 102 Mass. 90, 108 ; French u. Morris, 101 Mass. 68, 71. In Amidon II. Harris, 113 Mass. 59, it appeared that A., being tenant by curtesy of a house, entered into an indenture with B., the owner of a spring and of an aqueduct leading therefrom, which, after reciting that A. was desirous of obtaining the right of using the water upon his prem- ises, provided that he, his heirs and as- signs, might draw from the aqueduct as much water as might be necessary for the supply of the families resident in the house, as long as water should run from the spring through the aqueduct. After A.'s death his heirs conveyed this right to his widow, who continued to reside in the house. In an action by the widow to enforce the right, it was held, that the indenture conveyed an easement in gross which could be conveyed by the heirs, and enforced by an assignee residing in the house. Endicott J. said, " The in- denture conveys an easement in gross to take a certain amount of water from the pipe. It was assignable and inheritable, to him, his heirs and assigns, and the use was restricted to the particular house now occupied by the plaintifT. Such a right may be conveyed without being restricted to a particular locality ; and its character is not changed by reason of a restriction in this respect. A man may purchase such right restricted in its use to a particular house, or to a particular purpose, as for running a mill, although he may not own the house or mill ; he may do this in contemplation of owning or of building a house or mill, and when he does so, the easement to take the water becomes annexed to the house or mill, or in other words may be availed of to the extent granted," s.c. 113 Mass. 63, 64; Hankey v. Clark, 110 Mass. 262. Mr. Gale, in his work on Easements (p. 8, et seq.), says, "An easement, as such, can only be claimed as accessory to a tenement. This position was recognized as law by the judges in a very early case (21 Edw. 3, 2, pi. 5). ' Suppose,' said Shars J., ' I grant to you a way over 248 LAW OF WATERCOURSES. [chap. V. 2. Uxtent of the Bight Granted or Reserved. § 144. The accessorial rights or easements in running water, derived from special grants or reservations of riparian proprietors, upon a natural watercourse, are of course to be measured by the nature of the grant or reservation, and the express stipulations my land to a certain mill, and you are not seised of this mill at the time, but you purchase it afterwards : notwithstanding I disturb you in this way afterwards, you shall not have assize, although you may have a writ of covenant.' To which it was replied, ' In your case it is no marvel to me, although no assize lies, in- asmuch as he had not the frank tenement to which he claimed to have (dut avoir) the way, at the time the way was granted to him, and therefore he could not have had assize if he had been disturbed at the time when the grant was made ; and as he could not then have assize, the pur- chase of the frank tenement afterwards would not enable him to maintain this action.'" But the learned author adds, " Probably, however, in the English as in the Civil Law, the grant of an easement In respect of a house about to be pur- chased, or built, by the grantee, would enure as such. And it would no doubt be held in a case of a grant affecting a tenement with an easement in favor of a tenement, supposed to belong but not really belonging to the grantee at the time of the grant, that upon the grantee subsequently acquiring the tenement this grant would become effectual, but this is more properly a part of the law of estop- pel." " Many personal rights, which, in their mode of enjoyment, bear a great resemblance to easements, as, for instance, rights of way, may be conferred by actual grant, independently of the possession of any tenement by the grantee; but such rights, though valid between the contract- ing parties, do not possess the incidents of an easement. In case of disturbance of a personal right thus given, the remedy would appear to be upon the contract only." Gale, Easements {6th Eng. ed.) 13. This position seems, however, to be controverted by Mr. Willes, the editor, in a note. In llangeley v. Midland Railway Co., L.R. 3 Ch. App. 310, Lord Cairns L.J. said, " There can be no easement properly so called, unless there be both a servient and a dominant tenement. There can be no such thing according to our law, or according to the Civil Law, as what I may term an easement in gross. An easement must be connected with a dominant tenement." An easement, such as a right of way, is never presumed to be personal, when it can fairly be con- strued to be appurtenant to some other estate. Wells J., in Dennis i^. Wilson, 107 Mass. 592 ; Smith v. Porter, 10 Gray, 66 ; Case of a private road, 1 Ash. 417 ; Stearns v. Mullen, 4 Gray, 151 ; Peck v. Conway, 119 Mass. 549. It is to be ob- served that the law does not favor the annexation to property of incidents of a novel kind at the fancy or caprice of any owner. See Ackroyd v. Smith, 10 C.B. 164, 187, 188; Ellis o. Mayor of Bridg- north, 16 C.B. N.s. 78 ; Bailey v. Stephens, 12 C.B. N.s. 91; Keppell v. Bailey, 2 My. & K. 517, 535. A grant of a right of way not appurtenant to land is said to operate as a mere personal license, and is not assignable. Ackroyd v. Smith, 10 C.B. 164. It confers no right in the land to the grantee, but operates only as a contract between the grantor and grantee. Thus, the grantee of the exclusive privi- lege of having pleasure-boats on a canal cannot sue a stranger for the infringe- ment of his right. Hill v. Tupper, 2 H. & C. 121. A grant exceeding the powers of the grantor is within the same rule. Thus, a waterworks company who claim a right to take water from the river un- der a grant from a riparian proprietor cannot sue another proprietor for fouling the water of the river. Stockport Water- works Co. V. Potter, 3 H. & C. 300. See White K. Crawford, 10 Mass. 188; Bowen V. Conner, 6 Cush. 137 ; De Witt v. Hai- vey, 4 Gray, 486.] CHAP, v.] EXTENT OP EIGHT GRANTED OR RESERVED. 249 therein contained.^ The grant may be of a certain quantity of water, as much, for instance, as would pass through a pipe or a flood-gate, or a sluice-way of certain dimensions ; or it may be of a certain extent of water power, as much, and no more, as is required to operate certain specified machinery ; and there is an obvious and important distinction between a grant of the water itself, and a grant of water power.^ It has been already stated 3 1 [Thus, the owners of a mill-pond executed a deed to the owners of a grist mill situated below and supplied by a race-way from the pond, in which, after reciting the fact that the grantees and those under whom they held title " had been accustomed to take water from the pond for operating their said grist-mill," conveyed to them, their heirs and assigns " the right at all times hereafter of taking and using the water from said pond for operating any other mill which shall be hereafter erected upon the site of their present grist-mill, to the same extent that they now have a right to do, or have been accustomed to do, for the operating of their grist-mill ; " and it was held that the effect of the grant was not merely to extend to the new mill that might be substituted for the grist-mill the rights, already existing as such, with regard to the grist-mill, but to give the grantees a right to all the use of the water to which they and their grantors had been accustomed, without reference to the question whether such customary use had ripened into a right; and that parol evidence was admissible to show that the owners of the grist-mill, at and prior to the execution of the deed, had been accustomed to open a certain gate in the dam, at such times as it was necessary, and thus to furnish them- selves with water from the pond for their mill, for the purpose of applying the deed to the subject-matter. Avon Manuf. Co. v. Andrews, 30 Conn. 476. See Egremont «. WilUams, 11 Ad. & £11. N.8. 688, 701. But the use of a mill privilege purchased from the owner of a lower privilege on the same stream, is not regulated by the use made of it be- fore such purchase, but by what is rea- sonable and proper, conformably to the wants and usages of the community. Haskins v. Haskins, 9 Gray, 390.] 2 See Miller, ex parte, 3 Hill, 418; Bardwell v. Ames, 22 Pick. 333 ; Boston Water Power Co. v. Gray, 6 Met. 131 ; Kennedy v. Scovil, 12 Conn. 317. [A privilege in a spring of water was con- veyed by G. to B., in the year 1849, in the -following terms : " Do lease to the said B. the following right and privilege, the same to be a perpetual privilege to him and his heirs and assigns for ever. . Said privilege is, that the said B. shall have the right to lay a pipe one-half inch in diameter from the spring, which is on the lot of said G., and from said spring conduct the same by a pipe, as aforesaid, to the dwelling-house and barn of the said B., and his heirs for ever ; and the said B. shall have the right to dig a trench across the lot of said G. from said spring, for the purpose of laying said pipe. From 1849 to 1853, B. made no use of the water of the spring. From 1853 to 1863 he brought the water by an open trench to a tub about thirty rods from his house and barn, where it was used for watering his cattle. In 1863 he put a half-inch pipe into the spring, and brought the water by it to the tub. There was more water thus brought than he needed for his cattle, and a large part of it ran to waste. In a suit brought by B. against G. for disturbing the pipe, it was held. (1) That the easement con- veyed by G. to B. was not in gross, but appurtenant to the real estate then owned by B. (2) That B had a right to draw from the spring all the water that would run through a half-inch pipe, and that it was no abuse of the right to permit the water to flow continuously 3 See ante, § 94. 250 LAW OP WATERCOUESBS. [CHAP. T. to have been held, that the grant by a legislature of a State, of an exclusive right to the water power of a river does not pass a title to the corpus of the water. In the case referred to, it appeared that the legislature of Pennsylvania granted the privi- lege of all the water power of the river Schuylkill, and made a subsequent grant to the district of Spring Garden, and Northern Liberties, of the right to erect works, and supply their inhabi- tants with water from the river; and it was held, that the grant, and the acts done there under it, were not in derogation of the right under the previous grant of the water power. " Now," said Gibson C. J., " a grant of water power is not a grant of the water for any thing else than the propulsion of machinery ; and it consequently does not exclude the use of it by any one else, in a way which does not injure or decrease the power. It is not a grant of property in the corpus of the water, as a chattel." § 144 a. " A right may doubtless be granted, if a grant were necessary, to intercept running water, and confine it in reser- voirs for separate use ; but the grant of such a right would not be the grant of a water power. No two things can be more dis- tinct, and dissimilar." ^ By a deed between A., owner of Green- acre, and B., owner of Blackacre, it was agreed that A. should have, during the first ten days of every month, for the purpose of irriga- tion, all the water of a stream which flowed through Greenacre into Blackacre, and that at all other times the water should be under the control and at the disposal of B. and his heirs and assigns, and be allowed to flow in a free and uninterrupted manner towards and into Blackacre, through a channel therein particu- larly described ; and that the owner of Greenacre should cleanse and repair the said channel, with liberty to B., his heirs, &c., to do so on his default. It was held, that this deed operated as a grant to B, of an easement of the watercourse therein described at all times, except the first ten days of each month, and that he from the mouth of the pipe. (3.) That his house and barn, with the land con- it was no abuse of the right to use the neeted with them, to his children, re- water thirty rods from, instead of at, his serving to himself and wife the use of house and barn ; the owner of an ease- the premises for their'lives. The privi- ment, when not limited by words of ab- lege of the spring was not referred to in solute restraint, having the right to the deed. Held that the easement was change the mode of using it, if he does not extinguished, but remained in B., not make it more onerous to the servient as a part of the life-estate reserved.] estate. Bissell . Bigelow, 15 Gray, 156, Shaw thereto belonging, the soil in a way C.J. said : " It is a well-settled rule of passed which had been immemorially law, that the grant of a mill carries with used for the purpose of access to the it, by necessary implication, the right mill from the highway. The Court held, to the use of the watercourse coming to that the soil did not pass, but that the the mill and furnishing power for work- way, as an easement, might be appendant ing it, and also to the canal or race way or appurtenant to the mill. which carries the water from the mill 2 [Forbush v. Lombard, 13 Met. 109 ; to the full extent of the grantor's right Owen V. Field, 102 Mass. 102. See and power so to grant them." Presoott Morton u. Moore, 15 Gray, 578. " The v. White, 21 Pick. 341.] grant of a mill, eo nomine, will carry the ■* [By the grant of a mill, the land head of water by which it is driven with under it, indispensable to its use, unless CHAP, v.] " MILL AND APPURTENANCES." 277 § 157. The " saw-mill," without any further description, was set off by the commissioners appointed to dividp an estate, to one of the claimants. The Court held thus: "Doubtless by this term, the fee of the land upon which the mill stood would pass.^ Lord Coke enumerates a variety of terms, which, being used in a conveyance, carry lands ; and he states to what extent.^ The land passes, because included in the term used. The word mill, or molendinum, is not among those to which he adverts ; and probably no authority can be adduced, in which it has been held to convey, ex vi termini, any part of the adjoining land. That upon which it stands may be regarded as including land, over and upon which the slip, if it has one, or any other neces- sary projection from the mill, passes. The term may embrace the free use of the head of water, existing at the time of the conveyance, as also a right of way." {§ 157a. A deed conveying a mill, "together with the land and privilege where the same is situated, necessary for and at- tached to said mill, hereby meaning to convey all the land and mill privilege not heretofore sold by us, on the dam connected with said mill and privilege," may be construed to convey not only the land on which the mill stands, but land attached to it necessary for its existence.^] § 157 b. By a testator in his will : " I give and devise to my son W., his heirs and assigns, the houses, mills, and races which he now possesses, together with twenty-four feet from the mill to the dam to enable him to repair the race at pleasure, together with full and free liberty to keep the dam in repair, so as to furnish water to the mill devised to him ; " and by a subsequent clause in his will, the testator devised the land through which thp race and twenty-four feet were, to his grandson, without there is in the conveyance language In- Water Power Co., 36 Conn. 392 ; Frink dicating a different intention, passes by v. Branch, 16 Conn. 260 ] implication. The same rule applies to ^ Co. Litt. 4, b. exceptions in a grant. Peters, J., in ' [Esty v. Baker, 48 Maine, 495, 500. Moulton V. Trafton, 64 Maine, 222.] The Court say, " There might, from the 1 Blake v. Clark, 6 Greenl. 436 ; situation of the mill, be land necessary [Esty V. Baker, 48 Maine, 495, 500 ; for its existence, attached to it, and used Farrar v. Cooper, 44 Maine, 397 ; Moore and occupied with it at the time of the V. Fletcher, 16 Maine, 63 ; Crosby v. conveyance, which, it would seem, would Bradbury, 20 Maine, 61 ; Per Bigelow pass with it. Forbush v. Lombard, C.J., in Jamaica Pond Agu. Corp. v. 13 Met. 109; Moore «. Fletcher, 16 Maine, Chandler, 9 Allen, 164; Johnson v. Ray- 63."] ner, 6 Gray, 110; Smith v. Moodus 278 LAW OF WATERCOURSES. [CHAP. V. reservation. It was held, that the devise to the son of the twenty-four feet along the race, vested in him a fee-simple estate in the soil, and not a mere easement.^ [§ 157 c. A grant by indenture, in consideration of a fixed sum, of a right to build a dam upon the land of the grantor, the parties agreeing, that the amount of damages thereby done by flowing the grantor's land shall be determined by an arbi- trator, and the sum so determined shall be in full satisfaction of such damages, does not authorize the grantee, after building one complete dam, to increase its height so as to flow more land of the grantor. It was claimed on the part of the grantee that the structure originally erected was only the beginning of a higher dam afterwards built, and he offered oral evidence to prbve that it was expressly agreed, at the time of making the indenture, that the dam should be raised to the height to which it was ulti- mately raised, but it was held inadmissible.^] 4. Secondary Easements. § 158. The maxim of the law is, that whoever grants a thing, is supposed also tacitly to grant that without which the grant would be of no effect ; ^ and accordingly, whenever any thing is granted, all the means to attain it, and all the fruits and effects of it, are granted also, and will pass inclusive, together with the thing, by the grant of the thing itself, without the words cum pertine.ntiis, or with appurtenances, or any like words.* Hence the rule, that by a grant of a piece of ground, there is also granted a right of way to it over the grantor's land, as incident to the grant ; and so it has been observed, that, when the use of a thing is granted, every thing is granted by which the grantee may have and enjoy such use ; as if a man gives to another a license to lay pipes of lead in his land, to convey water to his 1 Harlan v. Moore, 9 Watts, 360. v. Hampton, 4 McCord (S.C.) 96 ; [Tabor 2 [Goodrich v. Longley, 4 Gray, 379.] v. Bradley, 18 N.Y. 109. " The grant of 3 Cuicumque aliquis concedit concedere a principal thing carries all things neees- videtur, et id sine quo res ipsa non potuit, sary to the use and enjoyment of the 11 Rep. 52 ; [Tourtellot u. Phelps, 4 Gray, thing granted, which the grantor had power 378, per Shaw C.J.] to convey." Per Shaw C.J., in Tourtellot 1 See Evans v Rees, 12 Ad. & Ell. v. Phelps, 4 Gray, 878. See Hadley v. 57; Shep. Touch. 81; Broom's Legal Hadley Manuf. Co., 4 Gray, 143 ; Virgin Maxims, 198; and see Co. Litt. 307, a; J. in Butler ?>. Huse, 63 Maine, 453; Hathorn v. Stinson, 10 Maine, 224; Stevenson v. Wiggin, 56 N.H. 308, 312, Oakley v. Stanley, 5 Wend. 523; Taylor 313.] CHAP, v.] SECONDARY EASEMENTS. 279 cistern, the grantee may afterwards enter, and dig the land, in order to mend the pipes, though the soil is still in the grantor.^ In a very modern case in England, it was held, that a certain coal-shoot, water, and other pipes, all which were found by spe- cial verdict, to be necessary for the convenient and beneficial use and occupation of a certain messuage, did, under the particular circumstances, pass to the lessee, as integral parts of such mes- suage ; and it was further held, that the right of passing and repassing over the soil of a certain passage, for the purpose of using the said coal-shoot, and using, clearing, and repairing the said pipes, likewise passed to the lessee, as a necessary incident to the subject-matter actually demised, although not specially named in the lease.^ In the case of the United States v. Apple- ton,s reliance was placed on the language of the grant, " with all the ways," &c. But this was held by Mr. J. Story, to be wholly unnecessary ; for whatever, said he, are properly incidents and appurtenances of the grant, will pass without the word " appur- tenances," by mere operation of law.* A grant of a right to build a dam, carries with it a right to enter and repair the dam, and cleanse the pond.^ It was contended in Kent v. Waite,^ that a right of way which had been acquired by prescription, did not pass by a deed of the land, without the words cum pertinentiis ; but the Court held otherwise. § 159. Agreeably to the above doctrine, a water right which has been used with a mill, together with all secondary ease- ments, will pass by a grant of the mill without the words " with the appurtenances." ^ Mr. J. Bayley puts the illustration, " Suppose the owner of two fields sells one, having a stream of water flowing through it, can the vendee stop the watercourse ? Primd facie no exception in the conveyance could be presumed." ^ 1 Per Twysden J., Porafret v. Rycroft, gill v. Porter, 8 Allen, 1 ; Hollenbeck v. 1 Saund. 323; Hodgson c/. Keld, 7 East, McDonald, 112 Mass. 247, 250.] 622. ' Pickering v. Staples, 5 S. & Rawle, 2 Hinchcliffe v. Earl of Kinnoul, 5 107 ; Swartz v. Swartz, 4 Barr, 353 ; Bing. N.C. 1. Vermont Central Railroad Co. v. Hills, 23 ' United States v. Appleton, 1 Sura- Vt. 681. [The conveyance of a dam and ner, 491. mills, by necessary implication, carries * See also Grant v. Chase, 17 Mass. with it the right to flow the grantor's 443 ; Hazard o. Robinson, 3 Mason, 272, land then flowed by such dam, and which 278 ; Preble v. Reed, 17 Maine, 169. inevitably must be flowed by a fair and 6 Fraily v. Waters, 7 Barr, 221 ; ante, proper use of the dam and mills. Butler § 157 c. » V. Huse, 63 Maine, 447.] « Kent V. Waite, 10 Pick. 138 ; [Oliver » Canham v. Eisk, 2 Tyrw. 155. V. Dickinson, 100 Mass. 114, 117 ; Pettin- 280 LAW OP WATERCOURSES. [chap. T. [In Dodd V. Burchell,^ Martin B. said, " If the owner of land which has a natural stream flowing through it, grants to one per- son a part of the land, and the remainder to another person, neither has the right to stop the flow of water through the land of the other."] So in the converse case, the law gives a common- sense construction, and supposes, that each field has the appur- tenances thereof in statu quo, notwithstanding the grant.^ A grantor conveyed by deed a tract of land, described by metes and bounds, with a mill upon the same ; and, at the time of the con- veyance, there was a raceway to conduct the water from the mill, running along the side of the natural stream, beyond the land granted, into other land of the grantor, and there discharging the water into the natural stream. The raceway had been used with the mill several years, and was necessary to the convenience of it. It was held, that a right to have the water flow off through the whole extent of the raceway, passed, as appurtenant to the mill.3 The " saw-mill," without other description, was assigned to 1 [1 H. & C. 118.] 2 Story J. in United States v. Ap- pleton, 1 Sumner, 501. A., the owner of a tract through which a stream of water runs, and on wliich a mill was erected, purchased of the supra-riparian owner, the right of diverting the water, by means of a dam, of the height of any former dam. A. then sold part of his land on the stream below the point of division. It was held, that, as against his grantee, A. has the right to divert the whole of the stream, for the use of his mill, and for that purpose to erect a dam higher than that stipulated for in the grant, by the supra-riparian owner. Frey V. Whitman, 7 Penn. St. 449. ' New Ipswich Woollen Factory v. Batchelder, 3 N.H. 190 ; [Perrin v. Gar- field, 37 Vt. 304, 312; ante, § 153 o; Johnson v. Jordan, 2 Met. 240. In Hall V. Lund, 1 H..& C. 676, it appeared that in 1855, the owner of two mills leased one of them to one P., who carried on therein the business of a bleacher. The refuse from his works was discharged through a drain, partly open and partly covered, into a natural stream or watercourse, three hundred or four hundred yards dis- tant, and upon which the other mill was situate. This discharge of the refuse took place about seven times a fortnight, and polluted the stream. In 1858, P. surrendered his lease, and the lessor granted a new lease to the defendant. In this lease the defendant was described as a " bleacher," and the demise was of the premises "late In the occupation of P." There was a clause that all buildings erected by the defendant for the purpose of bleaching, should, at the end of the term, become the property of the lessor. In 1858, the plaintiff purchased both mills. The defendant discharged the refuse from his works through the drain into the stream in the same manner that P. had formerly done. The plaintiff who carried on in the other mill the business of a paper maker, brought an action against the defendant for polluting the stream. It was held, that the lease might be ex- plained by the state of the premises at the time it was granted, and the mode in which they had been previously enjoyed ; and that, thus explained, there was an implied grant by the lessor to the defend- ant to use the stream for the purpose of his business of bleaching, and therefore the plaintiff, who was in the position of the lessor, could maintain no action against the defendant. But where it ap- peared that the Holland Land Company CHAP, v.] SECONDARY EASEMENTS. 281 one of the heirs to an estate, and it was decided, that the use of the water, and any easement used with or necessary to its enjoy- ment, passed.i The term "dam," in a grant of land, with a stream of water running through it, and on which there is a dam, flurhe, and conductor, is construed as including the flume, or as be- ing of equivalent import.^ In these, and in all cases of a grant of water right, there is implied by the grant, all such use of the land, as is necessary for the enjoyment of the right granted." ^ § 160. In Dyer v. Depui,* in Pennsylvania, the question was, under a grant of water, in respect to the right of entering upon land, as being included in the grant. J. D., who was the owner of a large tract of land, 'conveyed a part of it to the plaintiff, " together with the privilege of a part of the water flowing along a certain ditch or watercourse, flowing from J. H.'s line, through and across the said J. D.'s other land, on condition that the said M. D. (the plaintifp), his heirs and assigns, will at all times be subject to, and defray one-half the expense of keeping or repairing the dam, and clearing out the said ditch or water- course." There had existed previously to this deed on the land of J. D. a dam, by which the water was diverted to that part of it sold to the plaintiff. J. D. afterwards died, having by his will de- vised to S. D. (his son) a tract of land, being between the plain- tiff's land, and the defendant's, " together with a drain or water- course, from J. H.'s line, through and across the lot of land hereinafter devised to my son J. D." (the defendant), " as the same now runs, with a privilege on each side of the drain or watercourse, one perch in width, for the purpose of passing and repassing to mend and repair and clear out the said drain or conveyed to the defendant, by metes and 584. The grant of a saw-mill, " with a bounds, without any mention of a mill, convenient privilege to pile logs, boards, dam, or water privilege of any kind, cer- or other lumber," conveys an easement tain land, part of a large tract of wild in the land used for piling. Thompson v. land, upon which he had previously con- Proprs. of Andover Bridge, 5 Greenl. 62. structed a mill and a dam, which flowed An injury to the raceway is an injury to other land of the company, and there was the mill. Butz v. Shrie, 1 Rawle, 281. no evidence that the grantors had notice Wetraore v. White, 2 Gaines' Ca. 87 ; of the existence of the mill or dam when Blake v. Clark, 6 Greenl. 436 ; Strickler the deed was executed, it was held, that a. Todd, 10 S. & Rawle, 63 ; Hall v. Ben- it did not convey the right of flowing the ner, 1 Penn. 402 ; Rackley v. Sprague, 17 other land of the grantors. Tabor v. Maine, 281; Maddox v. Goddard, 15 Bradley, 18 N.Y. 109.] Maine, 218 ; Moore v. Fletcher, 16 Maine, 1 Blake v. Clark, 6 Greenl. 436. 63. 2 Kennedy v. Scovil, 12 Conn. 817. * Dyer v. Depui, 5 Wharton, 584. \ 5 Conwell«.Brockhart, 4Mon. (Ken.) 282 LAW OP WATERCOURSES. [CHAP. V. watercourse, as often as the same may be necessary, and without any let or hindrance of him the said J. D., his heirs or assigns," " with the water drain and privilege aforesaid, to him the said S. D., and his heirs and assigns, subject to the water drain now open and running through and across the first-mentioned lot, to M. D.'s line." He then devised to the defendant, J. D., another portion of land, adjoining and " subject to the aforesaid drain or water- course, from J. H.'s line, through and across the first-mentioned lot of land, with the privilege granted to my son S. D., his heirs and assigns, of a passage or court-way, one perch wide, on each side of said drain, for cleansing or repairing the same." It was held, that the right conveyed to the plaintiff by the deed of J. D. was not restricted to the watering of cattle, but that it was a right to use a portion of the water in the way it was customary and necessary to use it for the benefit of the land conveyed ; and that, if to do so, it was necessary to conduct it on or along the defendant's farm by a trench, if that was the only way in which he could beneficially use the privilege, he might cut the trench to conduct the water, and might renew and repair the dam for the purpose. The court considered, that the grants and liabilities evinced the clear understanding and determination of the testator, that the drain was to subsist and remain in perpe- tuum as a matter of importance to the enjoyment of the properties by the respective owners. ^ § 161. In a division of real estate, under the statute of de- scents, if a mill-site is assigned to one of the heirs, he or she takes it with the easements and privileges before attached to it, and with which it had been used. Where A. died intestate and seised of a tract of land on which there was a grist-mill then in 1 [The owners of a mill-pond executed extent that they now have a right to do, a deed to the owners of a grist-mill, situ- or have been accustomed to do, for the ated below and supplied by a raceway operating of their said grist-mill." It was from the pond, in which, after reciting held, that the effect of the grant was not the fact that the grantees, and those merely to extend to the new mill that under whom they held title, "had been might be substituted for the grist-mill the accustomed to talce water from the pond rights, already existing as such, with for operating their said grist-mill," con- regard to the grist-mill, but to give the veyed to them, their heirs and assigns, grantees a right to all tli& use of the "the riglit, at all times hereafter, of water to which they and their grantors taking and using the water from said had been accustomed, without reference to pond for operating any other mill which the question whether such customary use shall be hereafter erected upon the site had ripened into a right. Avon Manuf. of their present grist-mill, to the same Co. v. Andrews, 30 Conn. 476.1 CHAP. V.J SECONDARY EASEMENTS. 283 operation, and on a division of the land, under the Maryland statute of direct desceiits, amongst his heirs, the mill was on the part allotted to B., and the dam of which covered a portion of the part allotted to C, it was held, that B. had a right to use the mill and dam in the same way, and to' the same extent, as they had been used by A. in his lifetime. The dam, said the Court, was appurtenant to the mill, and if the intestate had con- veyed the mill with the appurtenances, it could not be contended that he could have sustained an action against the purchaser for the injury in question ; and if he could not, it was difficult to perceive on what principles a suit could be maintained against the assignee of the mill by the other heir ; and the assignee of the mill could not be supposed to stand in a worse situation than a purchaser would have done. Besides, it was the duty of the commissioners (and it was to be presumed they did it) in dividing the estate of the intestate, to take into consideration all the advantages and disadvantages attending the respective parts ; and it was presumable that they gave to the part allotted to the heir to whom was assigned the land covered by a portion of the dam, an equivalent for the injury and inconvenience occa- sioned by the mill-dam. ^ § 162. The owner of land through which a stream of water passed, had erected thereon a grain-mill, and had raised near it a dam to furnish a water power to drive the mill, and also further up the stream, had erected another dam to preserve water for the use of the mill below, and afterwards had built a shingle-mill on the lower dam near the grist-mill, which was driven by the same 1 Kilgour V. Ashcom, 5 H. & John. 82. no easement in the land quitclaimed to [See Pearson v. Spencer, 3 B. & S. 761 ; the other heir, and that the latter could Elliott V. Sallee, 14 Ohio St. 10 ; Morgan maintain an action against him for divert- V. Mason, 20 Ohio, 401. A brickmaker, ing the course of the brook. Macomber who owned and occupied a tract of land v. Godfrey, 108 Mass. 219. Chapman for his business, was accustomed to vary C.J. in this case said, " The use whicli the course of a brook across it, from time the ancestor had been accustomed to to time, to suit the convenience of the make of the water would give the defend- business, but never varied it so as to ant no easement in the plaintiff's' lot. prevent its traversing the whole tract. The defendant took no grant, and made Upon his death, his two heirs, who no reservation of such easement, and knew of this custom, divided the tract therefore obtained no right to the water, between themselves by mutual deeds of However useful or necessary the water quitclaim, after which the heir who took might be to his business of brickmaking, the upper portion of it diverted the brook neither utility nor necessity would au- from flowing through the lower portion ; thorize him to take what belonged to the it was held, that the first-named heir took plaintiffs."] 284 LAW OP WATERCOURSES. [CHAP. V. water power. He then, first granted to the plaintiff the grain- mill and the land whereon it stood, " with the privilege of draw- ing water from the mill-pond sufScient for this or any other grist-mill that may be built on the ground that this mill stands on, the grist-mill having the privilege of drawing water over every other machinery on the dam ; " secondly, he granted to the defendant the shingle-mill and the land whereon it stood, " with the privilege of water sufficient for a shingle saw-mill at all times, except when the water is so low that the grist-mill will require it all, and then the shingle-mill must stop, and not till then." Thirdly, he conveyed to the plaintiff the land on which the upper dam had been erected. It was held, that the defendant acquired the right to the use of the M^ater from the upper as well as from the lower dam, when it could be taken without injury to the rights previously granted to the plaintiff for the use of the grist-mill ; that the defendant had the right to draw water for the use of his shingle-mill, whenever such draw- ing did not thereby injure the plaintiff in the use of his grist-mill, although there were " reasonable grounds " to believe the water would be needed for the use of the grist-mill ; that when the grant of the right of water for the use of the shingle-mill was made in express terms, there was granted, by operation of law, the right to use the means necessary to the enjoyment of the right, and therefore, by the grant to the defendant, he had the right to enter upon any land then owned by the grantor, when and where necessary, to enable him to obtain his just supply of water. The principal grounds in this case upon which the denial of the right of the defendant to claim water from the upper dam, rested, was that the upper dam was erected to re- serve the water for the grain-mill ; that it was wholly owned by the owners of that mill ; and that the defendant, by the con- veyance to him, acquired no interest in it. But the Court con- sidered, that these positions, if admitted, did not authorize the conclusion, and that when the grantor of the land and stream erected the upper dam to preserve the water for his grain-mill, the whole head of water, for whatever purpose created, became " a common fountain of life " to any machinery to which it might be his pleasure to impart it.^ 1 ElUott V. Shepherd, 25 Maine, 871. CHAP. T.] SECONDARY EASEMENTS. 285 § 163. In Prescott v. White, in Massachusetts, it was held, that where one is the owner of an ancient mill, to which there has been attached a raceway, being an artificial canal for con- ducting off the water, and without the free and unobstructed current of which the mill could not be worked, and such canal has, from time immemorial, passed through the land of another, and there is no grant or contract regulating the rights of the parties, the owner of the mill has a right to enter upon the land, through which the raceway passes, and to clear out the obstruc- tions therefrom in the mode, if any, hitherto practised for clear- ing out the raceway ; otherwise, in the usual and ordinary mode of clearing such canals, doing no unnecessarj' damage.' But there is obviously a material difference between such a case, and that in the same Court, of Prescott v. Williams, administrator.^ The jury in the latter case found, that the stream of water pass- ing through Prescott's land was a natural watercourse, and not an artificial raceway or canal, as was assumed in the trial of the former case, which materially changed the features of the case, and presented the inquiry, whether the existence of an easement, in the land conveyed, of a mill-owner above, in a natural stream passing through such land, accompanied by the farther fact, that such mill-owner above had for more than thirty years, as occa- sion and necessity required, entered upon the land conveyed, to remove obstructions- in the stream, — shows such an incumbrance upon the premises conveyed, as to subject the grantor of such premises, who conveys them with the usual covenants of warranty and against incumbrances, to an action for a breach of his cove- nants. It was held, that the existence of the right in the mill- owner to remove the obstructions of the free flow of the water from the mill was not an incumbrance within the meaning of such covenants.* 1 Prescott V White, 21 Pick. 431 ; ^ In this case, Dewey J., in giving the [White u. Chapin, 12 Allen, 621, 522; judgment of the Court, considered it Daniels v. Chaffin, 28 Iowa, 827 ; Beals somewhat remarkable, that there should V. Stewart, 6 Lansing, 408 ; Roberts v. be found so little direct authority bearing Roberts, 56 N.Y. 275. This is on the upon the interesting question involved ; principle, that when the use of a thing is and he relied upon general principles, as granted, every thing essential to that use follows : " Now we find it stated in books is granted also. Such right carries with of authority, that ' the express or implied it the implied authority to do all that is grant of an easement is accompanied by necessary to secure the enjoyment of such certain secondary easements necessary easement. Tenney C.J. in Hammond v. for the enjoyment of the principal one.' Woodman, 41 Maine, 177, 202, 203.] Gale & What, on Easem. (Am. ed.) 231. ^ Prescott V. Williams, 5 Met. 429. So also, ' in the Civil Law, the right to 286 LAW OF WATERCOURSES. [chap. V. § 164. In 1777, A. received a lease of land on a watercourse opposite the site of a saw-mill about to be erected, with the privilege, to him and his heirs, of flowing and building the dam over a part of the lessor's land, during the duration of the saw- mill. In 1809, A. conveyed to his son B. a tract of land on the same watercourse, including a pond, and the saw-mill connected with it, together with a piece of land below, on which a fuUing- mill was afterwards erected. In May, 1815, A. conveyed, with covenants of warranty, to C, his heirs and assigns for ever, the a servitude drew with it a right to such secondary servitudes as were essential for its enjoyment.' lb. Again, it is said, that ' by the Civil Law, the owner of the dominant tenement had a right to do whatever was requisite to secure to him- self tlie fullest enjoyment of his servitude.' lb. 232. 'But in entering upon the neighboring soil for the purpose of doing these necessary works, the owner of the dominant tenement was bound not only to exercise ordinary care and skill, but also to repair, as far as he could, whatever damage his labors might have caused to the servient tenement.' lb. 235. The decision of this Court, in the case of the present plaintiff against White, already referred to (21 Pick. 341), seems to have recognized and adopted fully the prin- ciple, that where the use of a thing is granted, every thing is granted essential to such use. Such a right carries with it the implied authority to do all that is necessary to secure the enjoyment of such easement. There are otiier well-settled legal principles, that have a bearing upon this question. The duty of making re- pairs, and the labor necessary for keeping the watercourse in a state fit for use, rests wholly upon him who claims an easement on his neighbor's land ; and, as a general rule, easements impose no obligation upon tliose whose lands are thus placed in servitude, to do any thing. Gale & What, on Easem. 215; Taylor v. White- head, 2 Doug. 745. The owner of the land below, through which the stream passes, being thus free from all obligation to cleanse the stream, or remove any ob- structions that may arise without fault on his part, and wliich may impede the free passage of the water ; if the right to cleanse such watercourse, or remove such obstructions, rests exclusively with him, the consequence will be, that the same may never be done ; and whether done or not, will depend upon the will or caprice of tlie owner of the land below, who may have no interest in the matter, rather than upon the wishes of the owner of the mill above, whose interests may be deeply affected by it. We are satisfied that in the present case the owner of the mill privilege above, having this natural 'easement in the land below, would, inde- pendently of any right acquired by com- pact or by prescription, have a right to enter upon the land below, and in a rea- sonable and proper manner do all acta necessary to secure the enjoyment of his easement. This right to enter upon the land of another, to cleanse a natural stream, or remove any casual obstructions therein, is one doubtless to be held to the strictest and narrowest limits compatible with the enjoyment of the principal ease- ment. It is to be considered as a privi- lege arising from the necessity of the case, and, like a way of necessity, to be enjoyed only when the party has no other reasonable and suitable mode of effecting this object. It is to be done in such a manner as shall cause no unnecessary damage to the owner of the land below. The incumbrance, occasioned by the easement in the present case, does not appear, by the evidence relied upon to estabUsh the nature and extent of it, to be other and different from the secondary easement embraced within the principles we have stated." CHAP. V.J SECONDARY EASEMENTS. 287 latter piece with the fulling-mill thereon, and the appurtenances thereunto belonging, for carrying on the fulling business ; grant- ing also to C. certain privileges reserved by A., to himself and heirs, in a deed of adjoining land previously sold by A. to R. ; granting also to C. the privilege of supplying himself with water for the iise of the fulling-mill, at all times, from the saw-mill dam, whenever it should be wanted for carrying on his business; C. to have ingress and egress through the road laid across the grantor's land to the public highway ; hahendum to C, his heirs, &c. In June, 1815, B. released to A. his interest in the fulling- mill site, as deeded by A. to C. The water of the saw-mill pond had always been used for the fulling-mill, and was, in fact, essen- tial to its enjoyment. The dam of the saw-mill pond becoming leaky, D., the heir of C, after a fruitless application to B. to repair it, took stones and earth from the bed of such pond, for this purpose, doing no unnecessary damage. In an action of trespass qiiare elausum fregit, brought by B. against D. for such act, it was held, first, that the privilege granted to 0. was not a mere personal privilege to him, but extended to his heirs and assigns ; secondly, that the release from B. to A. inured to the benefit of C, not only as to the land and fulling-mill, but also as to the privilege granted by A. to C. ; thirdly, that the lease to A. in 1777, limiting the privilege therein granted to the duration of the saw-mill, had no effect upon the construction of A.'s deed to C. ; fourthly, that C, having, by the express terms of A.'s deed to him, the privilege of supplying himself with water, was empowered to do those acts, which were neces- sary to obtain a supply ; and consequently the act complained of was rightfully done.^ [§ 164 a. A conveyance of one of two ancient mills, which comprise the entire mill privilege of a stream, carries with it such a proportion of the whole right in the stream as the water used to drive the mill conveyed bears to that used by the other mill.2 " In such a case," said Bigelow J., " where the right of a party is traced back to an ancient privilege, embracing the entire water in a stream, described and designated by the kind of mills to which it was originally appropriated, the conveyance of a grist-mill or a saw-mill, eo nomine, passes the entire propor- 1 Miller ;;. Soholfield, 12 Conn. 335. ■ [Crittenden v. Field, 8 Gray, 621.] 288 LAW OP ■WATERCOTJESBS. [CHAP. T. tion or share of the water in the river belonging to such mill." This would be otherwise, if the right of the party rested on a modern grant of a mill, situated on a stream where there were several mills of different kinds, all drawing from the same level, and where there was only sufficient water to supply the power necessary to drive each mill.^] § 165. In short, under the grant of a thing, vrhether it be water or any thing else, whatever is parcel of it, or of the essence of it, or necessary to its beneficial use, or in common intendment is included in it, passes to the grantee.^ But the doctrine, in its application to water rights, must be understood as applying to such things only as are incident to the grant, and directly necessary for the enjoyment of the thing granted. If, for instance, a person grant to another the fish in his ponds, the grantee cannot cut the banks to lay the ponds dry, for he may take the fish by nets or other engines.^ Again, if a person, upon a lease for years, reserve a way to himself, through the house of the lessee to a back-house, he cannot use it but at seasonable times, and upon request.* A way of necessity to a watercourse would be, therefore, limited to the necessity which created it, and when such necessity ceases, the right of way will also cease ; and if at any subsequent period, the party formerly entitled to such way can, by passing over his own land, approach the place to which it led, by as direct a course, as he would have done by using the old way, the way ceases to exist as of necessity.^ § 166. The distinction between what is necessary, and what is merely convenient, or desirable, in the class of cases above con- sidered, was taken in Howell v. M'Coy.^ In that case, there vras 1 [Crittenden v. Field, 8 Gray, 627.] * Tomlin o. Fuller, 1 Ventr. 48 ; and 2 Per Story J., in Whitney v. Olney, see also Morris v. Edginton, 8 Taunt. 24, 3 Mason, 272. [But mere convenience cited 6 M. & W. 189 ; Wilson v. Bagshaw, and usefulness are not sufficient to estab- 5 Man. & Ry. 448 ; Osborn v. Wise, 7 C. lish a way of necessity. In order to es- & P. 761 ; Broom's Legal Maxims, 201. tablish an implied reservation of such a ' Holmes v. Goring, 2 Bing. 76 ; [Viall way, there must be, at the time of the v. Carpenter, 14 Gray, 126; Collins v. grant, a reasonable necessity for its ex- Prentice, 16 Conn. 39, 423 ; Pierce v. istence. Chapman C.J., in Oliver v. Pit- Selleck, 18 Conn. 321 ; Nichols v. Luce, man, 98 Mass. 60 j Pettingill «. Porter, 24 Pick. 102 ; White v. Leeson, 5 H. & n! 8 Allen, 1 ; Parker v. Bennett, ll Allen, 63 ; Holmes v. Seely, 19 Wend. 607 • 888 ; Brigham u. Smith, 4 Gray, 297 ; Seeley v. Bishop, 19 Conn. 128.] Leonard v- Leonard, 2 Allen, 543.] •> Howell «, M'Coy, 3 Rawle, 256. i* 1 Wms. Saund. 232, n. 6; and see [See per Shepley C.J., in Trask ti. Patter- Hodgson V. Field, 7 East, 613. son, 29 Maine, 508; Pearson v. Spencer, CHAP, v.] SECONDARY EASEMENTS. 289 a lease of a piece of ground for a tan -yard, with the use of so much of the water of a stream as might be necessary for conduct- ing the business of tanning ; and it was held, that this did not give to the lessee the privilege of emptying the contents of the tan-yard into the stream. The Court in this case were clear that the rule was, that whatever is claimed as passing as an ap- purtenance must be necessary to the enjoyment of the thing devised, and not merely convenient. It would be extremely convenient if the party possessed the right asserted, of emptying the contents of his tan-yard on the stream below, or disposing of his surplus tan in the land adjoining Ms land, but that this was necessary was a matter of doubt. There were various ivays of disposing of the matter of the tan-yard, and it was for the grantee to consider of this at the time of the demise. If the grantee did not choose to purchase more land, it was certainly not the fault of the grantor. [§ 166 a. It is to be observed that so long as two estates or the different portions of an entire estate are the property of the same owner, there can be no easement or servitude, technically so considered, annexed to one part or imposed upon another.^ The owner can make such arrangements and dispositions of the material properties of the whole, for the enjoyment of one part or the other as he pleases, and change them at his pleasure. But the cases already cited and discussed, and those hereafter referred to and considered, go to establish the doctrine, which may be considered the prevailing one, that whenever the owner of an estate divides it into two parts, granting away one of them, he is taken, by implication of law, to include in his grant all those benefits or advantages in the nature of easements over the remaining part, which are practically annexed to the granted premises at the time of the grant, and are necessary for the rea- sonable enjoyment of them in the condition of the estate at that 8 B. & S. 761 ; Carbrey v. Willis, 7 Allen, other way. It seems to me that it would 869; Nichols u. Luce, 24 Pick. 102; be most dangerous to hold, that where Thayer v. Payne, 2 Cush. 827. In Dodd a deed is silent as to any reservation of V. Burchell, 1 H. & C. 113, 122, Wilde B. a way, because it is more convenient to said, " It is said that the way now claimed use than another way, it must exist as is more convenient than the other. Then a way of necessity. There is no founda- comes the question whether the plaintitf tion whatever for such a doctrine. "] can claim it as a way of necessity on ac- ' [White v. Chapin, 12 Allen, 516, 520 count of its great superiority over the Eitger v. Parker, 8 Cush. 145.] 19 290 LAW OP WATERCOURSES. [CHAP. V. time, and which the grantor has the power to grant.^ This principle has already been partially discussed, and will be more fully illustrated hereafter.] [§ 166 h. But a much broader doctrine has been stated and earnestly supported by Judges eminent for wisdom and ability ; which is, that if the owner of an estate makes or uses upon it artificial arrangements and dispositions of the material properties of the estate in regard to watercourses, drains, gutters, and the like,^ which are apparent and continuous, i.e., of an open, visible, and permanent character, whereby and in respect of which, one of the parts thereof becomes adapted to another, and dependent upon it for its reasonable enjoyment in the condition into which it has been put or used and enjoyed by the owner ; and, in this state of things, such owner sells the dependent part and thereby severs the ownership of the estate, by a conveyance silent as to the continuance of such artificial arrangements and dispositions, the purchaser of the dependent portion will take with it the benefit of them, as easements, by implication of law ; and there- after, to this extent, the two parts of the estate will bear to each other the relation of dominant and servient tenements. If the grantor has already treated this portion as separate property, the mode in which he has enjoyed it, or allowed it to be enjoyed, affords, it is said, a very proper indication of what rights, over the remaining land, he intends to pass as accessory to it.^ These 1 [See per Hoar J., in Philbrick o. an authority that the same rule in this Ewing, 97 Mass. 133, 134, 135; cited respect applies to a will as to a deed, ante, § 153, note.] But see Pettingill v. Porter, 8 Alien, 1, 2 [This rule has never been applied in in which this distinction is not noticed. England to rights of way. In Pearson i'. See also other American cases. United Spencer, 1 B. & S. 571, 583, Blackburn J. States o. Appleton, 1 Sumner, 500 ; Sei- ■ said, " We do not think that on a sever- bert v. Levan, 8 Penn. St. 383, per Gib- ance of two tenements, any right to use son C.J. ; Kieffen v. Imhoif, 26 Penn. St. ways which during the unity of possession 442; Smyles v. Hastings, 22 N.Y. 220. have been used and enjoyed in fact, passes Huttemeier v. Albro, 18 N.Y. 48 ; Carlin to the owner of the dissevered tenement, v. Paul, 11 Mo. 32; Gillis v. Nelson, 16 unless there be something in the convey- La. An. 275] ance to show an intention to create the ' [See Hazard i^. Robinson, 3 Mason, right to use these ways de novo. We 272; United States v. Appleton, 1 agree with what is said in Worthington Sumner, 500 ; New Ipswich Factory u. 4). Gimson, 29 L.J. Q.B. 116 ; 6 Jur. N.s. Batchelder, 3 N.H. 190; Dunklee o. 1053, that in this respect there is a dis- Wilton Railroad, 24 N.H. 489 ; Harwood tinction between continuous easements, v. Benton, 32 Vt. 724; Thayer v. Payne, such as drains &c. and discontinuous 2 Gush. 327 ; Kenyon v. Nichols, 1 R.I. easements, such as a right of way; and 427; Huttemeier v. Albro, 18 N.Y. 48; Pheysey v. Vicary, 16 M. & W. 484, is Lampman v. Milks, 21 N.Y. 506 ; Smyles CHAP, v.] SECONDARY EASEMENTS. 291 propositions have, of course, no application to watercourses in their natural state, the rights of parties to which depend upon an entirely different principle.] V. Hastings, 22 N.Y. 220; Brakeley v. Sharp, 1 Stockt. (N.J.) 10; Seibert v. Leran, 8 Penn. St. 383; McTavish v. Carrol, 7 Md. 352; Shaw v. Etheridge, 3 Jones (N.C.) 32 ; Elliott v. Rhett, 5 Eich. 415; Curtiss v. Ayrault, 47 N.Y. 73.] In an elementary treatise of deservedly high reputation, it is said that the im- plication of the grant of an easement may arise upon the sererance of an heritage by its owner into two or more parts. Upon the severance of an heritage a, grant will be implied, — first, of all those continuous and apparent easements which have in fact been used by the owner during the unity, though they have had no legal existence as easements ; and secondly, of all those easements without which the enjoyment of the several por- tions could not be fully had. Gale & What, on Easem. 49. The rule of the French Law upon this subject, with the incidents of which the Common Law is said to agree, is thus laid down in the French Civil Code : "If the proprietor of two estates, between which there exists an apparent sign of servitude, disposes of one of these estates without inserting in the contract any stipulation relative to the servitude, it continues to exist ac- tively or passively in favor of the land alienated, or over the land alienated." Code Napoleon B. 2, tit. 4, § 694. The oldest case upon this point appears to be that of Coppy, 11 Hen. VII. 25 b.; 1 Bro. Abr. 324, which was as follows : A. was the owner of a tenement, to which there was an ancient gutter running through an adjoining tenement, and af- terwards he bought the adjoining tene- ment, and then sold the first tenement to the plaintiff, who brought his action for stopping the gutter. It was adjudged, that the easement of the ancient gutter was not extinguished by the unity of ownership, but remained as before ; but that it would have been otherwise, if A., during the unity of ownership, had de- stroyed the gutter, or cut it off. This case shows that if the owner of an entire estate wishes to put an end to a burden, v^hich has been imposed upon one portion for the benefit of another, he must do so before he sells the portion benefited. If he does so, he sells without the burden ; if he does not, the burden remains. This supposes that the conveyance is silent in . regard to it. But the leading case bear- ing directly upon watercourses, and the one which has been generally treated as settling the law upon this subject, is Nicholas o. Chamberlain, Cro. Jac. 121, which is cited and stated, ante, § 153. In this case the unity of ownership was not admitted to destroy the right to the easement, because it was annexed to the messuage, and in use at the time of the grant. The authority of this case has never been shaken, but, on the con- trary, it has generally been referred to with approbation in all the subsequent cases in which the question has been involved. The same doctrine was laid down in Robins v. Barnes, Hobart, 131. See Kent J., in Warren v. Blake, 54 Maine, 288 ; Jackson J., in Grant v. Chase, 17 Mass. 447, 448; Philbrick v. Ewing, 97 Mass. 133, 134. The case of Sury v. Pigott, Palm. 444 ; s.c. Latch. 153 ; Pojih. 166 ; 3 Bulst. 339, was sub- stantially this : One owned a, rectory, a part of which was a close, in which there was a watering-place, supplied by a stream, which flowed from a, brook through another parcel of land purchased by him called the hop-yard. He sold the hop-yard, and afterwards the owner of the hop-yard obstructed the stream by erecting a dam across it within the limits of the hop-yard. The Court were unani- mously of opinion that the right to the watercourse was not extinguished by the unity of ownership, but that it remained to the owner of the rectory after the sale of the hop-yard. Dodridge, one of the justices, put this case ; " A man owns a mill, and afterwards purchases the land upon which the stream goes, which runs the mill, and afterwards alienes the mill, the watercourse remains." This case. Story J. says, in Hazard v. Robinson, 3 Mason, 278, " proceeds upon this plain 292 LAW OP WATEECOURSBS. [CHAP. V. [§ 166 c. As the doctrine, which has been stated in the pre- ceding section, is held to furnish a rule of law governing the operation of all conveyances of property similarly situated, and not merely a rule for the construction of the terms of each par- ticular conveyance, favorable or unfavorable to parties as they are grantors or grantees, if it be a correct doctrine, when applied in favor of a grantee, it has been contended, that there is no good reasop, why it should not be reciprocally applied in favor of a grantor in cases where he retains the dependent portion of the estate, and sells that which is burdened for its support ; and so it has been laid down in several cases of eminent authority, that the rule is entirely reciprocal, and not for the benefit of pur- chasers only. Hence, if instead of a benefit conferred, a bur- den has been imposed upon the portion sold, the purchaser, provided the burden is in its character apparent and continuous, principle, that a privilege, which was annexed to, and in actual use with, the rectory during the unity of possession, and was not a parcel of the other land or a profit a -prendre out of that land, was to be considered as still existing as an appurtenance or priyilege annexed to the rectory, notwithstanding the unity of possession. The running water over the hop-yard was not a parcel of the hop-yard, or an easement growing out of it. But if, during the unity of possession, the privilege had been disannexed by the owner, as if the owner had during that period stopped the watercourse aud thus destroyed the privilege, the case would have been otherwise. A subsequent grant of the rectory would then have conveyed only the privileges actually in existence and use at the time of the conveyance." — " Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant, passes -as parcel of it." In Pear- son ■^. Spencer, 3 B. & S. 761, it was maintained that there is a class of implied grants by devise where there is no necessity for the right claimed, but where the tenement is so constructed as that parts of it involve a necessary depend- ence, in order to its enjoyment in the state it is in when devised, upon the ad- joining tenement; and it was decided that, where the owner of a farm divided it by his will into two portions, devising them to A. and B., respectively, and the portion of B. was land-locked, so that in order to reach it, it was necessary that he should have a right of way over the property of A., and the devisor during his life had used a way in a certain di- rection over that property, a right to use that way passed to B. by the devise. Erie C.J. said, " The testator had a unity of possession of all this property ; he in- tended to create two distinct farms with two distinct dwelling-houses, and to leave one to the plaintiff, and the other to the party under whom the defendant claims. The way claimed by the de- fendant was the sole approach that was at that time used for the house and farm devised to him. Then the devise of the farm contained, under the circumstances a devise of a way to it, and we think the way in question passed with that devise." The case was held to fall within the class of implied grants stated at the beginning of this note. It is held in Louisiana, that if the proprietor of two estates, between which there exists an apparent sign of servitude, sells one of those es- tates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist actively or passively in favor or upon the estate which has been sold. Gillis V. Nelson, 16 La. An. 275. This is the rule of the French Law. Code Napoleon B. 2, tit. 4, § 694.] CHAP, v.] SECONDARY EASEMENTS. 293 and the marks of it are open and yisible, tabes the property with the servitude attached. The parties are presumed to con- tract with reference to the condition of the property at the time of the sale, &c., and to intend that all apparently permanent arrangements then existing and necessary for the reasonable enjoyment of the portion sold or retained, are to remain, unless there is some provision to the contrary ; and neither party has a right, by altering such arrangements, to change materially the relative value of the respective parts.] [§ 166 d. It will be convenient to notice, first, the cases which ■develop or bear upon the doctrine above stated in regard to implied grants of easements ; and, second, those which bear peculiarly upon the subject of implied reservations of easements, as connected with running water.] [§ 166 e. New Ipswich Factory v. Batchelder,i was a case in which the owner of an estate had made a change in the course of a stream in favor of one part of the estate as against the other, the benefit of which was held to remain to the purchaser of the former part, upon the sale thereof to him, as it was used and enjoyed before the sale. It appeared in that case, that a tract of land had b.een conveyed by metes and bounds, having upon it a mill ; and, at the time of the conveyance, there was a raceway to conduct the water from the mill, running along the side of the natural stream beyond the bounds of the land granted, into other lands of the grantor, and then discharging the water into the natural stream. This raceway had been used with the mill several years, and appeared to be necessary to the convenient use of the mill. The Court held, that the right to have the water flow off uninterruptedly, through the whole extent of the raceway, passed as appurtenant to the mill ; or "passed with the mill as an incident." The deed, through which the plaintiff claimed the right to the use of the raceway, mentioned " water privileges and all other privileges annexed to or belonging to said premises ; " but no stress is laid upon this language by the Court in deciding the case. On the con- trary the decision is put expressly upon the principle of Nicho- las V. Chamberlain, cited and stated in a preceding section.^ The Chief Justice quotes that case at length, and then remarks 1 [New Ipswich Factory v. Batchelder, 3 N.H. 190.] ^ [Ante, § 153.] 294 LAW OP WATBRCOUESEa. [CHAP. V. that "the rule here laid down seems to be founded in sound reason and good sense, and to apply in all its force, to the case now before us." He also remarked, " As both the plaintiff and the defendant claim through the same person, it seems to us, that as between them, this raceway is to be considered as the natural channel of the river." ^ Dunklee v. The Wilton Rail- road Company ,2 decided by the same Court, was another case where water was turned from its natural course into an artificial channel. In this case the plaintiff was the owner of a valu- able mill, connected with which was an artificial raceway to conduct the water from the mill in the most direct way to the stream below. This raceway was constructed by the consent of all parties interested, at much expense, because it was regarded as necessary for the operation of the mill in the most advanta- geous way. The water of the brook or stream was turned from its original channel to the mill, and thence through this new race- way or watercourse, in which the whole water of the brook con- tinued to run until the obstruction complained of in the action. It had been in use for several years, and until the old channel through the plaintiff's land had grown over with bushes and grass, had become filled up, and in many places difficult to trace. The plaintiff became the owner of the land through which both the old channel of the brook and the new raceway passed, from the point where they separated, to the point where they again united. He then conveyed by deed of warranty in the usual form, with covenants against incumbrances, a parcel of the land, through which the lower part of the old and new channels passed till they became united, to one Kidder, who conveyed to the defendants. The defendants obstructed this raceway or water- course. The Court held that the plaintiff was entitled to recover. Bell J. said, " Property conveyed, passes with all the incidents then rightfully belonging to it, or actually and usually enjoyed with it at the time of the conveyance, so far as they are neces- sary to the full benefit and perfect enjoyment of the property, without any specification of them, and without the usual phrase, ' with all the privileges and appurtenances to the same belong- ing.' " The cases which relate to streams and mills, generally 1 [The aboTe decision seems to be ^ [Dunklee v. Wilton Railroad Co., approved by Shaw C.J., in Johnson v. 24 N.H. 489.] Jordan, 2 Met. 240.] CHAP, v.] SECONDARY EASEMENTS. 295 " support the principle that a conveyance of a mill, or of land on which a mill is situated, carries with it, as incidents of the mill, the right to raise the mill-pond, and to flow the lands above as high as the dam has been usually kept up, and to maintain the dam and flume which are necessary to support the water at that height, and to support and use the penstocks, aqueducts, and channels which are necessary to convey the water to the mills, and the channels and raceways which are necessary to con- duct the water from the mill to the stream below, in the manner in which they have been kept and used immediately previous to the conveyance, so far at least as the grantor has a right to con- vey such privileges. The same rule applies in the case of the reservation of a mill or mill privilege in a conveyance of land." The learned Judge cites many cases to these points, and says they are usually supported by the doctrine of implied grant, and may well stand upon that ground. He adds, " The case of ways of necessity are within the same principle. They are burdens of the nature of easements, which are apparent, and which natu- rally result from the relative situation of different parts of the property. Ways of necessity are usually spoken of as exceptions to the general rule that easements are extinguished by unity of possession. But it seems more correct to regard them as new rights, impliedly granted or reserved by the conveyance. The principle that such ways of necessity are not extinguished by unity of possession affords a clear solution of this class of cases, as far as it applies ; but it is by no means broad enough to reach all the cases. It is immaterial, whether there has been an ease- ment of the kind before. The way is implied, not because an easement has previously existed, but because without it the grantee cannot have the enjoyment of the thing granted ; or the grantor would be deprived of the enjoyment of the property which he detained." In this case the Court treated the artificial arrangement for the flow of the water of the brook in a new course the same as the natural stream, as between the parties.] [§ 166/. This same subject has been discussed and similar views taken in the late case ^ in New York, which was an action for changing the course of a stream and flooding the plaintiff's land. It appeared that on the 27th of March, 1850, one Ches- 1 [Lampman v. Milks, 21 N.Y. 505; 202; Roberts v. Roberts, 55 N.Y. 275, Hammond v. Woodman, 41 Maine, 201, 277.] 296 LAW OP WATEBCOUESES. [CHAP. T. bro owned forty acres of land on Elk Creek, through which there was a small brook running. In its natural course it would have run over half an acre of low ground, part of the forty acres, which Chesbro on that day conveyed to the plaintiff for a build- ing-lot, and upon which the plaintiff immediately thereupon erected a house and barn. Several years previously, the owner of the forty acres had diverted the stream through an artificial channel, carrying it into Elk Creek in such a manner as not to flow over land conveyed to the plaintiff. On the 1st of April of the same year, Chesbro conveyed the forty acres to the grantor of the defendant. In 1854 the defendant dammed up the entrance to the artificial channel, so as to cause the stream to run in its original bed, and to overflow the plaintiff's yard. Selden J., in a carefully considered opinion, said, " The owner of real estate has, during his ownership, entire dominion and con- trol over its various natural qualities, and may dispose of and arrange them at will. He may alter the natural distribution of those qualities, so as essentially to change the relative value of the different parts ; and may, in a great variety of ways, make one portion of the premises subservient to another. The precise question in this case is, whether an owner, who, by an artificial arrangement of the material properties of his estate, has added to the advantages and enhanced the value of one portion, can, after selling that portion with those advantages openly and visibly attached, voluntarily break up the arrangement, and thus destroy or materially diminish the value of the portion sold. The rule of the Common Law on this subject is well settled. The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the bene- fits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, re-arrange the qualities of the several parts. But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases ; and easements or servitudes are created, corresponding to the benefits or burdens mutually existing at the time of the CHAP, v.] SECONDARY EASEMENTS. 297 sale." " These principles are obviously just in themselves, and they are also sustained by ample authority." The learned Judge notices, but he does not rely upon, that large class of cases in vs^hich various privileges and easements have been held to pass as appurtenances,,, where the conveyance uses some comprehen- sive viTord, such as manor, messuage, farm, mill, and the like, as descriptive of the whole subject of the grant, because those cases are explained upon the ground that all the privileges in use, as parts of the thing conveyed, are virtually included in the general designation of the thing as a whole.] [§ 166 g. The subject under discussion was very fully and elaborately examined by Chancellor Green in a late case in New Jersey,! in which it was held, that where the owner of a tract of land with a spring upon it, who was also the owner of another tract, having on it a paper-mill, by an artificial arrangement conducts the water from the spring to the mill, and then sells the spring lot, the purchaser takes it subject to the burden ; upon the principle, that where the owner of two tenements sells one of them, the purchaser takes the tenement or portion sold, with all the benefits which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. It appeared in the case, that, in 1857, one Gaunt was the owner of two parcels of real estate in Trenton. The first consisted of an extensive and valuable paper-mill, and the second consisted of a lot of land upon which were two brick dwellings. Upon the latter lot there was a valuable spring, which furnished a copious supply of water. The water of the spring was di- verted from its natural channel, and was conveyed to the mill, to be used in the manufacture of paper, by a former proprietor of both lots, at least as early as the year 1846. The water was conducted from the spring to the mill, a distance of eight or nine hundred feet, by means of iron pipes or conduits laid under ground. The diversion of the water was effected by the propri- etor at great expense, for the exclusive benefit of the mill. It continued to be so used and enjoyed by the successive proprie- tors of the two lots for several years, and so long as the title to the two lots was united in the same person. It was so used and enjoyed in 1857, when Gaunt conveyed to one Green, the 1 [Seymour v. Lewis, 2 Beas. Ch. (NJ.) 439.] 298 LAW OF WATERCOURSES. [CHAP. V. grantor of the defendant, the lot on which was the spring, re- taining the paper-mill, which was afterwards conveyed to the plaintiff. The deed from Gaunt to Green, by which the owner- ship of the two lots was severed, was in the usual form of a deed of bargain and sale, and contained no express reference to the spring, or the water flowing in or from it, either by way of grant or reservation. The suit was brought for the purpose, among other things, of restraining the defendant from diverting or obstructing the flow of water from the spring to the mill ; and the material question in the cause was, whether the right to the water flowing from the spring to the mill remained in Gaunt, the grantor, as an appurtenance or parcel of the mill, after his conveyance of the spring lot. The learned Chancellor, after an able discussion of the principles, and a careful examination of the authorities relating to the subject, decided that Gaunt, after the sale of the spring lot, retained the right to take the water from the spring for the benefit of the mill, in the same manner he used and enjoyed it at and before the time of the sale ; and a perpet- ual injunction was granted to restrain the defendant from divert- ing the water of the spring upon the spring lot from the plaintiff's paper-mill, and from interfering with the flow thereof, as before used. In delivering his opinion in this case, the Chan- cellor said, " It is admitted that the doctrine adopted in this case applies in its fullest extent in support of all easements claimed by the grantee of that part of the premises first sold by the common owner. Thus it is said, if Gaunt had retained the lot upon which the spring is, and conveyed the mill, the right to use the water would have passed by the conveyance as appurtenant to the mill ; but, having retained the mill, and conveyed the lot upon which the spring is, the spring passes by the grant, and the grantor, or those claiming under him, cannot claim the ease- ment of having the water for the use of the mill, for that would be in derogation of the grant. There is no doubt that several of the reported cases are made to rest upon this ground, and the principle may be safely invoked against the grantor in support of the broader right arising from the actual condition of the premises at the time of the severance of the ownership. But there are cases which do not rest upon this principle, nor can it be invoked in their support ; " and he instances cases of what are termed easements of necessity, and states the cases of Kil- CHAP, v.] SECONDARY EASEMENTS. 299 gour V. Ashcom, cited in a preceding section,^ and Brakely v. Sharp,2 and proceeds to say, " These cases show clearly that an easement may be created by the disposition made by the owner of an estate, and that upon the severance of title the owners will take their respective shares as they existed in the hands of the former owner." He then cites and quotes with approbation from the case of Lampman v. Milks, the principles above quoted, and adds, " The easement in question, being apparent and con- tinuous in its character, comes within the operation of the principle. The water flows naturally and continuously from the spring to the mill, the fall between .the two points being about one foot. Owing to the length of the pipe, and the consequent obstruction to the flow of the water, it was found that the full benefit of the spring was not obtained. The owner, therefore, to overcome the difficulty, applied the pump, driven by machinery, directly to the pipe, and thus obtained the full advantage of the supply of water. It has thus been used nearly from the time that the pipes were first introduced." ^ ] [ § 166 h. The same rule holds in cases of partition and simul- taneous conveyances of different parts of the same estate.* As in the case of Kilgour v. Ashcom,^ which is stated in a preceding section,^ and in Brakely v. Sharp,^ cited above, in which it ap- peared that the owner of a farm, upon which there was a spring .of water, conveyed the water from the spring to two dwelling- houses upon the premises. The owner died intestate. That part of the land upon which were the spring and one of the dwellings was assigned, by order of the Orphan's Court, to the widow and one of the heirs. The part of the farm on which the other dwelling was, was sold by the commissioners under the order of the Orphan's Court, and came, by sundry mesne conveyances, to the plaintiff. The bill was filed to protect him in the enjoy- 1 [Ante, § 161.] the case even if it is the servient part 2 [1 Stockt. 1 ; s.c. 2 Stoekt. 206.] that is sold. But the rule is confined to 3 [In Denton v. Leddell, 8 C. E. Green, the case of an apparent and continuous 64, it was decided, that if the owner of a easement. See Fetters v. Humphreys, tract of land, of which one part fias had 3 C. E. Green, 260; B.C. 4 C. E. Green, the benefit of a drain, waterpipe, water- 471.] course, or other artificial advantage in * [See Pearson v. Spencer, 3 B. & S. the nature of an easement through or in 761.] the other part, sells or devises either ^^ [5 H. & John. 82.] part, an easement is created by implica- ^ [Ante, § 161.] tion in or to the other part. And this is ' [Ante, § 166 g.] 300 LAW OF WATERCOURSES. [CHAP. V. ment of the water flowing through the pipe to his dwelling. It was held by Chancellor Williamson, that the aqueduct and the right to use the water, as it was held and enjoyed by the former owner, being essential to the beneficial enjoyment of the prem- ises, vested in the plaintiff, and a perpetual injunction was granted to protect him in the enjoyment.] [ § 166 i. Elliott V. Sallee ^ was a case in which it appeared that an estate was severed by simultaneous conveyances to differ- ent persons, of different parts, some of which, when all were in the possession of the owner of the whole, were burdened for the benefit of other parts. On a patural mill-stream there were three successive dams and mills. E., being the owner of the upper and lower mills only, dug and opened a raceway on his own land from the dam of his lower mill to the stream above the dam of the middle mill, which belonged to another person, so as to tap the stream there, and partially to divert its waters from the middle mill. He afterwards purchased the middle mill, and be- came the owner of the three mills, and of all the lands affected by them, their dams, races, and appurtenances, and continued to use said raceway as an actual appurtenance to the lower mill, until by deeds of even date, he conveyed said mills with their appurtenances to his three sons, the upper mill to A., the middle mill to B., and the lower mill to C. In an action by the owner of the middle mill, who was the grantee of B., against the owner of the lower mill, who was the grantee of C, to recover damages for the continued partial diversion of the water from the middle mill, by means of said raceway, it was held, that the grantees of E., and those holding under them respectively, each took and was entitled to hold his mill with its appurtenances, as it actually existed in fact and in use at the time of the conveyances from E.^ Thurman, of counsel for the defendant in error in this case, made the following pertinent statement and inquiry : " Noth- ing," said he, " is more common than for the owners of land lying on small streams, like White Oak Creek, to straighten the course of such streams through their lands, by means of dams and ditches. Suppose that a proprietor, after thus diverting the stream into a new channel, and thus causing the old channel to become dry land, aliene a portion of his farm embracing the old 1 [Elliott V. Sallee, 14 Ohio St. 10.] 2 gee Morgan v. Mason, 20 Ohio, 401, note. CHAP, v.] SECONDARY EASEMENTS. 301 channel, by ordinary deed, — who will pretend that the alienee has any right to require that the stream be restored to its ancient bed ? or, which is the same thing, that he can maintain an action for the diversion ? Such a claim would be preposterous." The Court, in their decision, say, " On this state of facts, it seems to us clear, on every principle of reason and common sense, that he [E.j must have intended to grant to his sons respectively, and they must have expected to receive, each his mill with its appur- tenances as it actually existed iu fact and in use at the time of the conveyances — no more, and no less; and this obvious inten- tion on the part of the grantor, and reasonable expectation on the part of the grantees, furnish the exact measure of the rights of the grantees inter se, and of all parties holding under them respectively. This seems to us to be the reason of the case, and the authorities bearing upon the question are uniformly accord- ant to the same effect." He quotes the case of Nicholas v. Cham- berlain, and says, " It fully justifies the ruling of the Court in this case."] [§ 166 y. The cases thus far considered on this subject, relate chiefly to easements claimed as growing out of changes in the course or current of natural streams ; and, to this extent, there seems to be no direct conflict of authority, that, upon the sever- ance of an estate embracing them, those dispositions effected by changes of an apparent and permanent character in the natural flow of the stream, creating a dependence of one part of the es- tate upon the other for the reasonable enjoyment of the former, which dependence exists at the time of the conveyance, will remain as easements in favor of the dependent estate, the con- tinuance of which, for the use of the purchaser thereof, he will be entitled to claim. But in cases in which, upon the severance of an estate into parts, the grantee of a part claims a right to the use of an artificial drain, constructed through the part re- tained before the division, for the benefit of the tenement pur- chased by him, by which a dependence is created of the part purchased on the part retained, the authorities are conflicting, aud cannot well be reconciled.] [§ 166 k. The leading English decision upon this latter point, is Pyer v. Carter,^ in which it was held, that, if the owner of 1 [Pyer v. Carter, 1 H. &. N. 916.] 302 LAW OP WATERCOURSES. [CHAP. V. two or more adjoining houses sells and conveys one of them to a purchaser, such house is entitled to the benefit, and is subject to the burden, of all existing drains communicating with the other house, without any express reservation or grant for that purpose. The necessity for a drain being established, that which was found to exist in the case supplying that necessity was deemed to be the one to the use of which the purchaser was entitled. This case of Pyer v. Carter, important and prominent in itself, has been rendered still more so by frequent reference to it, and by criticisms upon it in other cases favorable or unfa- vorable to its doctrines. The authority of it has never been shaken in the English Courts of Common Law. It has been noticed sometimes to distinguish it, but generally with entire approval, or, at least, without dissent. It was pressed upon the Court in Dodd v. Burchell,i which was a controversy respecting a right of way to which it was sought to apply the doctrines of Pyer v. Carter, Martin B. said it " went to the utmost extent of the law; but, if considered, that decision cannot be com- plained of ; for if a man has two fields, drained by an artificial ditch cut through both, and he grants to another person one of the fields, neither he nor the grantee can stop up the drain, for there would be the same right of drainage as before, since the land was sold with the drain in it. I agree with the law as laid down in that case, and I think it may be supported without ex- tending the doctrine to a right of way." " If the owner of land, which has a natural stream flowing through it, grants to one person a part of the land, and the remainder to another person, neither has a right to stop the flow of water through the land of the other. In fact Pyer v. Carter was no more than an implied grant of a right analogous to that of flowing water." And as reported in another work,^ he said, " In that case the drain was held to be a part of the house." And Pollock C.B. said, " A drain is corporeally attached to a house ; it is otherwise with a right of way." " There is a wide difference between that which ' [Dodd V. Burchell, 8 Jur. n.s, 1180; purchaser, the conveyance may be sup- 1 H. & C. 113. In this case Wilde B. laid posed to be made with an intention of down the rule of law upon the subject of reservation on the part of the grantor, implied easements, in these words ; and the land passes subject to such a " Where a man has used his premises in use."] a certain way for some time, and it can ^ [25 Law Eep. 302 (March, 1863) ; be brought home to the knowledge of the 40 Eng. Law & Eq. 413.] CHAP. V.J SECONDARY EASEMENTS. 303 is substantial, as a conduit or watercourse, and that which is of an incorporeal nature, as a right of way." In Pearson v. Spen- cer,i Channell B. said, " In Ewart v. Cochrane,^ it was held by the House of Lords, following what is said in Gale on Ease- ments,^ that the doctrine of Pyer v. Carter applies to any drain or easement necessary for the enjoyment of the property." Martin B. said, "I thought that" — Pyer v. Carter — "a strange decision; but it has recently been confirmed by the House of Lords." And in Hall v. Lund,* Channell B. again said, " In Ewart v. Cochrane, the House of Lords confirmed the principle of the decision in Pyer v. Carter." — "I should have come to the same conclusion independently of authority, but the case of Pyer .v. Carter, which was confirmed and its prin- ciple explained by the House of Lords in Ewart v. Cochrane, compels me to come to this conclusion." In the case of Ewart V. Cochrane,^ above referred to, the rule of law is thus stated in the opinion of the Court : " Where two properties are pos- sessed by the same owner, and there has been a severance made of part from the other, any thing which was used, and was neces- sary for the comfortable enjoyment of that part of the property which was granted, must be considered to follow from the grant." It is said^ that " the only possible distinction between this prop- osition and the case of Pyer v. Carter, consists in the fact that in one case the implied easement is attached to the portion first conveyed, and in the other it attaches to the portion reserved ; in other words the distinction consists in the difference between the construction of a grant and a reservation. This distinction has long since become practically obsolete in the law, except that in a case precisely equally balanced in point of construction, between the grantor and the grantee (a contingency which sel- dom or never occurs), the equipoise is determined in favor of the grantee. It is idle, at the present day, to claim that any essen- tial distinction between the construction of a grant and a reser- vation can be maintained."] § 166 I. But in the English Chancery Courts the doctrine maintained in Pyer v. Carter, has met with the most pointed dissent. Lord Westbury refused to accept that case as au- 1 [3 B. & S. 762.] 4 [1 H. & C. 681.J 2 [4 Macq. 117.] ^ [7 Jur. n.s. 925; 4 Macq. 117.] 8 [3d ed. 87.] , ^ [4 Am. Law Keg. n.s. 186.] 304 LAW OP WATERCOURSES. [CHAP. T. Ihority in Suffield v. Brown ;V and in Crossley v. Lightowler,^ Lord Chelmsford quotes with express approval, the remarks in which Lord Westbury expresses his dissent from Pyer v. Carter in reference to the implied reservation of an easement to the grantor over property sold by him ; and adds, " It appears to me to be an immaterial circumstance that the easement should be apparent and continuous, for non constat that the grantor does not intend to relinquish it unless he shows the contrary by ex- pressly reserving it." But in neither of these chancery cases was the easement in controversy apparent, or continuous in its character, nor did the facts of either of these cases furnish occa- sion for overruling Pyer v. Carter, or for deciding authoritatively upon the correctness of that decision in reference to the facts in- volved in it. Suffield v. Brown ^ was the case of a dock and wharf owned by the same party, where the bowsprits of vessels in the dock had to project over the corner of the wharf in order to enter the dock, if they were of any considerable size. The wharf was sold to one, without any reservation of the right claimed, and the dock to another. The bowsprits of vessels con- tinued to be run over the edge of the wharf, for a time, after the severance, when the owner of the wharf proposed to make such erections as would interrupt that use, and the question was brought before Sir John Romilly M. R., who decreed in favor of the right to continue such easement, as being necessary to the full and reasonable enjoyment of the dock. The learned Judge said, in giving judgment, " If, therefore, it be true, that the dock can still be used, it is equally true that it cannot be used exactly as it has been heretofore; and my opinion is, that this projection is necessary to the due enjoyment of the dock, in the ordinary sense of that term. What is meant by the use of that word in these and analogous cases is, in my opinion, the full and complete use of the tenement, as it stands, when the joint owner of the two ad- joining tenements grants one of them to one person, and the other to another."* But when this case came before the Lord Chan- cellor (Westbury) on appeal,^ the doctrine of the case o£ Pyer V. Carter was dissented from as stated above, and the decree of 1 [Suffield «. Brown, 10 Jur. n.s. Ill ; * [To this he cites Hinchcliffe v. The B.C. 4 DeG. J. & S. 185.] Earl of Kinnoul, 5 Bing. N.C. 1 ; and 2 [L.R. 2 Ch. Ap. 486.] Pyer v. Carter, 1 H. & N. 916.] 3 [10 Jur. N.8. lll;B.c.4DeG.J. &S. ^ [10 Jur.N.a. Ill; s.c. 4 DeG. J. & S. 185.] 185.] CHAP, v.] SECONDARY EASEMENTS. 305 the Master of the Rolls reversed, upon the ground that mere knowledge of the manner in which property conveyed was used by the vendor for the convenience of an adjoining tenement, will not affect the purchaser, if the property is conveyed with- out reservation, and the continuance of the former use is not indispensable.^ [§ 166 m. The precise degree of favor with which the decision in the case of Pyer v. Carter is to be met in this country is quite unsettled.^ In Leonard v. Leonard,^ Chapman J. cites that case. ' [It has been said that the true ques- tion upon which all such cases should turn, no doubt, is, whether the continu- ance of the existing use is indispensable to the future enjoyment of that portion of the premises reserved, so that the pur- chaser of the portion first conveyed, as a reasonable man, must be presumed to have taken his conveyance with the ex- pectation that such use would be there- after continued the same as before ; if so, the continuance of the use becomes by the assent of the purchaser an implied servitude upon the portion conveyed, which a Court of Equity will enforce by perpetual injunction ; otherwise not. The decision of the Lord Chancellor, in Suf- field V. .Brown, and especially In dis- regarding, and, as far as lay in his power, overruling, the case of Pyer v. Carter, has been strenuously dissented from by the bar in England. 4 Am. Law Eeg. N.s. 135. In Watts v. Kelson, L.R. 6 Ch. App. 166, it appeared that the owner of two closes, having made an artificial watercourse for the supply of cattle-sheds, first conveyed the cattle-sheds to the plaintifi) and aftefwards the close through which the watercourse ran to the defend- ant. The Lords-Justices, after citing the judgment of the Exchequer Chamber in Polden V. Bastard, L.R. 1 Q.B. 161, say, " There is a distinction between ease- ments, such as a right of way, or ease- ments used from time to time, and easements of necessity, or continuous easements. The cases recognize this dis- tinction, and it is clear law that, upon a severance of tenements, easements as of necessity, or in their nature continu- ous, will pass by implication of law with- out any words of grant ; but with regard to easements which are used from time to time, they do not pass, unless the owner, by appropriate language, shows an intention that they should pass." They were clearly of opinion that the easement in the case before them was in its nature continuous. " There was an actual construction on the servient tene- ment extending to the dominant tenement, by which water was continuously brought through the servient to the dominant tenement for the use of the occupier of the dominant tenement. According to the rule as laid down by Chief-Justice Erie, the right to such an easement as the one in question would pass without any words of grant, and we think that this is the correct rule." The easement was claimed through the land of the grantor. The case, therefore, is the same as Ewart V. Cochrane, ante, 166 k. In the course of the argument, Mellish L.J. said, " I think that the order of the conveyance in point of date is immaterial, and that Pyer V. Carter is good sense and good law. Most of the Common Law Judges have not approved of Lord Westbury's ob- servations on it." James L.J. said, " I also am satisfied with the decision in Pyer u. Carter."] 2 [For American cases which give countenance to the, doctrine of Pyer Carter, see Lampman v. Milks, 21 N.Y. 507; Curtiss v. Ayrault, 47 N.Y. 73 Roberts v. Roberts, 7" Lansing, 55 ; Sim- mons V. Cloonan, 2 Lansing, 346 ; Butter- worth V. Crawford, 3 Daly, 97 ; Seymour V. Lewis, 2 Beas. (N.J.) 437; Fetters 3 [Leonard v. Leonard, 2 Allen, 543.] 20 306 LAW OF WATEBCOURSBS. [CHAP. V. with others, to the following statement of the law : " The ques- tion whether an easement passes from a grantor to his grantee as appurtenant to the land conveyed is not precisely the same as the question whether a right of way across the land of a stran- ger is created by necessity. The grantor's deed is to be most strongly construed against him, and if an easement properly be- longs to the granted premises, and has been used by him in connection with the premises, it ought to pass as appurtenant to the land granted, though it is not mentioned in the deed, and though it subjects his other land to the servitude. The fact that the easement has been thus used and is merely convenient, is not sufficient. Its use in connection with the land conveyed must be reasonably necessary. And any easement, as, for example, a right of way or of drainage, which can be thus regarded, passes as an appurtenance without being named." This language of the learned Judge goes far to recognize the principle of the deci- sion in Pyer v. Carter. In Carbrey v. Willis, ^ Hoar J., noticing the case of Pyer ■;;. Carter, says of it, that " the terms of the deed are not given in the report of the case, and the decision may per- haps be supported on the ground that the conveyance was of part of a house, having obvious relations to and dependencies upon the other part of the building." And in the later case of Randall v. McLaughlin ^ the same learned Judge again notices that case, but only to observe that the authority of it was wholly denied by Lord Westbury in the opinion given in Suffield v. Brown.2 In a late case in Maine,* the Court refer to Pyer v. Carter, but dissent from the doctrine of it as applicable to rights of way.^] [§ 166 n. Several important cases have lately been decided in Massachusetts, having a material bearing upon the doctrine under discussion. The subject received the elaborate considera- 0. Humphreys, 3 C.E. Green, N.J. 260; 8.c. * [Warren v. Blake, 54 Maine, 276.] 4 C. E. Green, 471; Denton v. Leddell, 8 * [A way comes within the descrip- C. E. Green, 64 ; Coolidge v. Hager, 43 Vt. tion of a non-apparent easement. Fetters 9. For other cases showing the extent to v. Humphreys, 4 C. E. Green, 471. Dis- which the. doctrine has been recognized in continuous easements not constantly theAmerican States, see Sutfieldt). Brown, apparent, are continued or created upon 4 DeG. J. & S. (Am. ed.) 185, note 1.] a severance only when they are necessary, 1 [7 Allen, 369.] and that necessity cannot be obviated by 2 [10 Allen, 366, 368.] a substitute constructed on or over the 3 [10 Jur. N.s. Ill, B.C. 4DeG. J. & S. dominant premises. Fetters u. Hum- 185. See Watts v. Kelson, L.R. 6 Ch. phreys, 3 C. E. Green, 260.] App. 166, cited supra 166 I, in note.] CHAP, v.] SECONDARY BASEMENTS. 307 tion of Shaw C.J., in Johnson v. Jordan ;^ in which it appeared that the owner of two adjoining messuages and lots of land, one of which he occupied, and the other of which he leased, constructed a drain from the messuage which he leased, through the land which he occupied, into a common sewer, and permitted his tenants to use it for several years, and then sold both mes- suages and lots, on the same day, to different purchasers, and in his deed to the purchaser of the messuage and lot which he formerly leased, did not mention the drain. The drain was used for the purpose of carrying off the waste water from the sink in the house, the owner of which claimed the benefit of the drain. The learned Chief Justice said, "It is very clear that, whilst both estates were held by the same owner, he had a right to carry his drain as ^he pleased, through any part of his own grounds ; and so long as both tenements were owned and occupied by the same person, no easement was created, or began to be created, in favor of one, and operating as a service or bur- den upon the other." — " If such an owner will convey one of the tenements and retain the other, he may grant the right of dr&in, or not, to pass with the estate convej^ed, or may re- serve such right over the estate conveyed, for the benefit of the one retained, as he pleases. It is matter of contract, and must depend entirely upon the construction of the convey- ance. Supposing this to be clear, the question recurs. What construction will the law put upon a conveyance, where the in- tention of the parties in this respect is not expressed in terms ? In the first place it is proper to distinguish an artificial gutter of this description, made for the purpose of draining, from a natu- ral watercourse, the rights of parties to which depend upon a different principle. Every person, through whose land a natural watercourse runs, has a right, publioi juris, to the benefit of it, as it passes through his land, to all the useful purposes to which it may be applied." " It is inseparably annexed to the soil, and passes with it, not as an easement, nor as appurtenance, but as par- cel." " This case is also to be entirely distinguished from one wherein the declivity of the land and the relative position of the tenements are such, that a drain cannot be formed for the benefit of one without passing through the other. Such a case might stand on a different ground." After stating certain of the rules of construction to be adopted, he says, " Another 1 [2 Met. 234.] 308 LAW OF WATERCOURSES. [CHAP. V. well-settled rule of construction is, that a grant of any principal thing shall be taken to carry with it all which is necessary to the beneficial enjoyment of the thing granted, and which it is in the power of the grantor to convey." — " Under these rules, it might perhaps be held, that if a man owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be, de facto, annexed as an appurtenance, and pass with it ; and because such construction would be most beneficial to the grantee." After noticing the fact that the two conveyances from the owner of the whole, under which the parties claimed, were sim- ultaneous, he adds, " It is, therefore, much more like a partition between tenants in common, where each party takes his estate with the rights, privileges, and incidents inherently attached to it,i than like the case of grantor and grantee, where the grantor conveys a part of his land, by metes and bounds, and retains another part to his own use, and where the question is, upon the terms of the deed, whether an easement for drainage has been granted with the estate conveyed over that retained, or reserved over that conveyed, for the benefit of that retained." — "The well-known maxim of construction, and a very sound one is, Expressio unius exclusio est alterius. Here was a division of these two tenements intimately connected with each other, with detailed provisions in respect of the rights which each should have in the other, and the duties to which should be subject in favor of the other. If it was intended that one should have a perpetual right of drainage through the other, with a right of entry at all times to repair and relay such drain, especially where it is found not to be necessary to the enjoyment of the estate granted, it seems reasonable to suppose it would have been expressed. As no such right was expressed, we are of opinion that it was not intended to be granted ; and as it was not necessary to the enjoyment of the estate, and had not been, de facto, annexed, so as to pass by general words as parcel of the es- tate, it did not pass to the defendant's grantor by force of the deed." It was also held, in this and subsequent cases, that the 1 [In Elliott V. Sallee, 14 Ohio St. 10, of partition, these circumstances seemed a case of simultaneous conveyance, and rather to turn the decision in the opposite Kilgour V. Ashcom, 6 H. & John., a case direction.] CHAP. V.J SECONDARY EASEMENTS. 309 question of necessity for the use of the drain involved the inquiry, whether or not a drain could be conveniently made, with reason- able labor and expense, without going through the plaintiff's land. These extended quotations have been made from the opinion, because every statement of the principles of law coming from Chief-Justice Shaw is worthy of attentive consideration ; and this decision is the foundation of several others of a simi- lar character which have followed it. But it will be observed that the easement claimed in the case was not of a watercourse running in its natural, or turned from that into an artificial, fehannel ; but a trench into which water was poured or thrown or collected from sources which would not otherwise have yielded a flow of water in any particular course or direction. It will also be observed that the case was not rested entirely on mere general words of grant common to all conveyances, but chiefly on the construction of certain specific provisions, sup- posed to show that the easement was not intended to pass. Besides, the " necessity " required is not positive and absolute, but one admitting of degrees. The position is, that if the per- son claiming the easement could not supply another for a certain sum, then the parties did intend that the easement claimed should pass with the grant ; but, if. for a certain other less sum, then the easement claimed was not intended to pass. It will also be observed that, in regard to the test of necessity, the case is directly opposed to the decision in Pyer v. Carter, in which it was held, that the necessity for the easement is to be considered in reference to the state of things as existing at the time of sever- ance, without alteration.-'] [§ 166 0. The case of Thayer v. Payne,^ in which the opinion of the Court was given by Mr. Justice Fletcher, is important in this connection, as showing ah inclination towards some of the doctrines maintained in Pyer v. Carter. It appeared in Thayer v. Payne that the plaintiff and defendant were owners and occupiers of adjoining lots of land, the defendant having derived his title from the plaintiff. At the time of the convey- ance from the plaintiff to the defendant, there was a drain from 1 [The rule, for testing the necessity See the case of Pettingill u. Porter, 8 by the amount of expense, even if theo- Allen, 1.] retically wise, has been observed in prac- ^ [Thayer v. Payne, 2 Cush. 327.] tice to produce extremely variant results. 310 LAW OP WATERCOURSES. [CHAP. V. the defendant's cellar leading through the plaintiff's premises to an outlet beyond. This drain was not mentioned in the deed. The drain being out of repair, the defendant entered upon the premises of the plaintiff for the purpose of opening it ; and for this entry the action was brought. It was held, that the defend- ant had a right to maintain the drain, and to enter upon the plaintiff's premises for the purpose of repairing it, notwith- standing the deed contained the following clause : " To have and to hold the aforegranted premises, with the privileges and appurtenances thereto belonging at the time of the purchase thereof by the said T. & F.," and notwithstanding the drain had no existence at the time referred to in this clause, it having been constructed afterwards, but before the conveyance to the defend- ant, if the drain appeared to be necessary to the beneficial enjoy- ment of the defendant's premises. The decision was put upon the ground that, as the plaintiff owned both lots at the time of his conveyance to the defendant, and as the drain was then in existence and use, it passed as an appurtenance without being mentioned, and without even the use of the word " appurte- nances ; " and hence it could not be affected by the clause in the deed. Fletcher J. said, " What rights, therefore, the defend- ant acquired under and by virtue of the conveyance of the house and land to him by metes and bounds, must be determined by the general principles of law, as there is nothing in the deed to prevent or restrict the operation of these general principles." " The conveyance by the plaintiff to the defendant of the house and land particularly described in the deed carried with it what- ever was necessary to the beneficial enjoyment of the estate granted, which it was in the power of the plaintiff to convey. At the time of this grant, the plaintiff owned the locus in quo through which the drain then passed, and, of course, had the power to convey to the defendant the right to use the drain; and it follows, therefore, that if the use of the drain was neces- sary to the beneficial enjoyment of the premises granted, the right to the use of the drain passed by this conveyance." The same test of necessity was applied as in Johnson v. Jordan. But it will be observed that the course of reasoning was not disturbed by any special provisions in the deed showing any intent other than that to be gathered from the general words CHAP. Y.] SECONDARY EASEMENTS. 311 of the grant. In Carbrey v. Willis,^ the Court manifested much less inclination to adopt the doctrines of Pyer v. Carter, which was cited and commented upon by Hoar J., in giving the opinion. The case of Johnson v. Jordan was referred to as having re- viewed and carefully stated the whole doctrine on this subject. Randall v. McLaughlin,^ another later and similar case in Massachusetts followed in the same direction, apparently with a stronger and more unhesitating inclination against Pyer v. Carter, in consequence of the attack on the latter case made by Lord Westbury, in Suffield v. Brown,^ "which," as the Court say, " contains an elaborate view of the whole doctrine, result- ing in conclusions substantially like those to which we came in Carbrey v. Willis." The case of Suffield v. Brown has itself been strengthened by the accession of Lord Chelmsford, in Crossley v. Lightowler,^ as noticed in a preceding section. [§ 166 p. It will be observed that this doctrine of an implied right to drainage in favor of one of two tenements or portions of an estate conveyed, over other land of the grantor, on the ground of necessity, has never gone to the extent of author- izing a purchaser of the tenement or portion in favor of which the right is claimed, to build or construct a new drain through the land of his grantor, .but only to use a particular drain already in existence ; and to this extent the case differs from a right of way, by necessity, to land purchased, over other land of the grantor, because it does not follow from the fact that the owner of the two estates, when united under one owner, used and enjoyed a particular way across his other land for the benefit of the part sold, that the way so used and enjoyed is to be con- sidered the way of necessity to which the purchaser is entitled.^ In the one case no particular way passes by force of the neces- sity ; in the other, the particular drain open and in use is the only one impliedly granted. Besides, in the case of the way by necessity, it may be that the grantor never- had used any particu- lar way over the premises retained for the benefit of the prem- 1 [7 Allen, 364.] ' [See Pearson v. Spencer, 3 B. & S. 2 [10 Allen, 366. See Philbrick v. 761; s.c. 1 B. & S. 571, 584, 585; Holmes E wing, 97 Mass. 183, cited ante, § 153 in v. Seely, 19 Wend. 510; Smyles v. note.-] Hastings, 24 Barb. 49 ; s c. 22 N.Y. 220; 3 [10 Jur. N.s. Ill ; 4 DeG. J. & S. Hart v. Cramer, 25 Conn. 331 ; Russell v. 185.] Jackson, 2 Pick. 578.] 4 [L.R. 2 Ch. Ap. 478, 486.] 312 LAW OP WATERCOURSES. [CHAP. V. ises sold, so that an entirely new way must necessarily be adopted.^] [§ 166 q. Again, it has been held upon eminent authority that the rule stated in a preceding section^ does not exist for the benefit of purchasers alone, but is entirely reciprocal, so that, whenever the owner of an estate severs it into two parts, grant- ing away one of them, he is taken by implication of law to re- serve out of his grant all such easements connected with the flow of water over the part sold as are necessary for the reasonable enjoyment of the part which he retains, in the form which it assumes at the time of the severance. This rule is deduced from the early case of Nicholas v. Chamberlain,^ which has already been cited and stated ; * and the same principle was declared by Twisden J., in Palmer v. Fletcher,^ and by Doddridge J., in Sury V. Pigott.^J [ §' 166 r. This point was very elaboratelj'^ discussed in Dunk- lee V. The Wilton Railroad Company,'^ lately decided in New Hampshire. This case had reference to an easement growing out of a change in the natural stream by turning it into an arti- ficial channel. The facts of the case are stated fully in a former section.^ Bell J. said, " Our next position is, that property con- veyed passes in its existing state, subject to all existing ease- ments and burdens of a similar nature, in favor of other lands of the grantor, which are apparent, and which result naturally from the relative situation of the land, and from the nature, con- struction, and intended use of the buildings, mills, &c., upon it, and their situation and connection with other property as they were usually enjoyed at the time of the conveyance." — "Every easement connected with the flow of water necessarily implies a duty upon the owner of the servient tenement, and every such duty implies a corresponding right in that owner. Thus the owner of land upon a stream has an easement upon the land above, that the water of the stream shall flow down upon his land at a certain place, at a certain level, and in a certain quan- tity. This right imposes upon the owner of the land above, the 1 [See Pearson v. Spencer, 1 B. & S. ' fCro. Jac. 121.] 571, 584, 585; Trask v. Patterson, 29 « [Ante, § 153.] Maine, 503; Leonard v. Leonard, 2 Allen, 5 [i Lev. 122.] 543 ; Collins o. Prentice, 15 Conn. 39 ; « [Palm. 444 ; s.c. 3 Bulst. 339.] Pierce v. Selleck, 18 Conn. 321.] 1 [24 N.H. 489.] 2 [Ante, § 166 a.] 8 [Ante, § 166 e.] CHAP, v.] SECONDARY EASEMENTS. 313 duty and obligation of suffering the water to flow agreeably to this privilege of the owner below ; and it confers upon the same owner the right to discharge the water in that place and in that way, and imposes upon the owner of the land below the duty and obligation to receive the water in that place and in that manner. These rights and duties are reciprocal, and necessarily «o-existent. The creation of one necessarily creates all the others. If one estate has an easement upon that above, to dis- charge the water in a particular manner, the estate above has a reciprocal easement upon that below, to receive the water in that particular manner. Each estate is in turn the dominant tene- ment, as to the easement from which it derives a benefit, and the servient tenement, as to the corresponding easement of which the other estate has the advantage. Thus, if a man has a dam extending across a stream, with a mill on each side of it, and he sells to another person one mill, with the land on which it stands, without specifying or reserving any incidental right, the purchaser of the mill has, agreeably to the cases before cited, the right to keep the water raised to its usual height. The grantor is bound to permit the water to flow at the height which is necessary to operate the mill. He cannot build a dam to pre- vent such flow of the water. He cannot remove his part of the dam, and thus prevent it; but, as a necessary consequence, he has the reciprocal easement upon the land he has conveyed, — the right to require the purchaser to receive the water at the level he is bound to discharge it, and to do no act by which this right may be impaired ; which is, in effect, that the purchaser shall maintain the water on his part at the same level his grantor is bound to keep it, of which the mill he has retained will, of course, have the benefit ; and, if the purchaser opens his gates or removes his dam, and thus permits the water to flow at a less height, he is answerable to his grantor for diverting the water.^ The result of this view is, that in every case where there is an implied grant of an easement in favor of the grantee of a mill or water privilege, the same grantee takes the mill or privilege, subject to the corresponding easement in favor of the grantor." ^ — " As the owner of land, having the only interest in the mat- 1 [Runnels v. BuUen, 2 N.H. 532.] Whitney v. Eames, 11 Met. 517 ; Tucker 2 [See Cary u. Daniels, 8 Met. 466; d. Jewett, 11 Conn. 311 ; Seibert w. Levan, 8 Penn. St. 883.1 314 LAW OP WATERCOURSES. [CHAP. V. ter, can make no grant to himself, and can execute no instrument in writing, by which a change in the property can be made while he remains owner, and as he has the right, by virtue of his owner- ship, to make any disposition of the property which he pleases, it seems to follow, that if he does make any change in the prop- erty, those who claim under him, and derive their titles from him, must take the property in the state it is in at the time, pre- cisely as if it had been its natural state, and no other had ever existed."] [§ 166 s. Similar views of the law were taken by Selden J., in Lampman v. Milks,^ in which he said, " The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains." ^ " This is not a rule for the benefit of purchasers only, but is entirely recip- rocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the burden upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts." These observations were made in a case, where the owner of land, across which a stream flowed, had diverted it through an artificial channel, so as to relieve a por- tion of it formerly overflowed, which portion he then conveyed ; and it was held, that neither he, nor his grantees of the residue, could return the stream to its ancient bed to the damage of the first grantee. Seymour v. Lewis ^ is a direct decision upon the point under discussion, and in favor of an implied reservation to a grantor of an easement respecting the flow of water turned from its natural course into an artificial channel, through land con- veyed by him, in favor of other contiguous property retained by him, no mention being made of the easement in the conveyance. 1 21 N.Y. 507. The facts of this case stated ante, § 166 g. See Denton v. Led- are stated, ante, § 166/. dell, 8 C. E. Green, 64 ; Fetters «. Hum- 2 [Seymour c. Lewis, 2 Beas. (N.J.) phreys, 3 C. E. Green, 260; s.o. 4 C. E. Ch. 439. The facts of this case are Green, 471.] CHAP, v.] SECONDAEY EASEMENTS. 315 It appeared in the case, that the owuer of a lot of land with a spring upon it, and of a paper-mill on another tract, by an arti- ficial arrangement conveyed the water from the spring through the spring lot to the mill, and then sold the spring lot, making no mention in the deed of the use of the water from the spring ; it was held, that the purchaser took it subject to the burden of the use of the water from the spring in the manner it was used and enjoyed at the time of the conveyance. Green Ch. said, " At the time of the grant of the spring lot, the stream was diverted from its natural course through the land granted by an artificial channel to the mill of the grantor. The grantee took the land as it then stood, with the water diverted from it. Lampman v. Milks is an express authority that the grantor could not return the water to its natural channel against the consent of the grantee. The grantee has a right to insist that it shall be continued as it was at the date of the grant ; viz., in the arti- ficial channel. He cannot have a right to elect in which channel it shall go. If the grantee have a right to insist upon its being continued in the artificial channel, the grantor must have an equal right to keep it there." The water flowed naturally and continuously from the spring to the mill ; but the fall between the two points was so slight that it became necessary to attach an artificial arrangement in order to obtain the full advantage of the supply of water. It was regarded as an important feature in the case, that the easement in question was apparent and con- tinuous. Elliott V. Sallee ^ is another case of a similar character, in which the question of reservation by implication arose out of the existence of a stream of water turned from its natural into an artificial channel. It maintains the doctrine of the last pre- ceding cases. The conveyances which caused the severance and raised the question were simultaneous.^ Pyer v. Carter,^ the facts and authority of which have already been stated and discussed at length,* applies the same doctrine to the case of drains, and holds, that where an owner of an estate divides it into two tenements, and constructs a drain from one under the other and thence into a common sewer, and then sells the latter tenement without any express reservation of the use of the drain, he will 1 [Elliott V. Sallee, 14 Ohio N.s. 10.] 3 [1 H. & N. 916.] 2 [See Johnson v. Jordan, 2 Met. 234 ; * [Ante, § 166 k, et seq.] Kilgour V. Ashcom, 5 H. & John. 62.] 316 LAW OF WATERCOURSES. [CHAP. V. still be entitled to the benefit of the drain in favor of the tene- ment retained by him. The principle as stated in the language of the Court is, " that, where the owner of two or more adjoin- ing houses sells and conveys one of the houses to a purchaser, such house in his hands should be entitled to the benefit of all the drains from his house, and subject to all the drains then necessarily used for the enjoyment of the adjoining house, and that without any express reservation or grant, inasmuch as he purchases the house such as it is." ^ It did not appear that there was any descent, either natural or otherwise, from one house to the other ; that either was the upper or the lower tenement. The case rather indicates that the flow of water in the direction taken, was caused by the mode of constructing the drain. But it did appear that the water from the eaves of the house under which the right of drainage was claimed fell upon the house claiming the easement, and from thence flowed down a spout into the drain on the tenement embracing the latter house, and so into the common sewer. In Dodd v. Burchell,^ Martin B., said, " In fact, Pyer v. Carter was no more than an implied grant of a right analogous to that of flowing water." — " If a man has two fields, drained by an artificial ditch cut through, both, and he grants to another person one of the fields, neither he nor the grantee can stop up the drain, for there would be the same right of drainage as before, since the land was sold with the drain in it."] § 166 t. Before the decision of Pyer v. Carter, this sanie subject had been examined to some extent in Johnson v. Jordan, ^ here- tofore referred to and stated,* in which Shaw C.J., having laid down the rules governing the case said, "Under these rules, it might perhaps be held, that if a man, owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it ; and because such construction would be most beneficial to the grantee ; whereas, if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that as the right of > [See GiUis v. Nelson, 16 La. An. s [2 Met. 234.] 275, cited ante, § 166 b, note.] * [Ante^ § 166 n.] 2 [1 H. & C. 118.] ■ CHAP, v.] SECONDARY EASEMENTS. 317 drainage was not reserved in terms, when it naturally would be if so intended, it could not be claimed by the grantor. The grantee of the lower tenement, taking the language of the deed most strongly in his favor and against the grantor, might reasonably claim to hold his granted estate free from incumbrance." The Chief Justice also said, " This case is also to be entirely distin- guished from one wherein the declivity of the land and the rela- tive position of the tenements are such, that a drain cannot be formed for the benefit of one, without passing through the other. Such a case might stand upon a different ground. But in the pre- sent case it was found by the jury, that a drain could be con- veniently made, with reasonable labor and expense, from the defendant's house, without going through the plaintiff's land." ^ But it was added that these rules did not apply to the case then before the Court, which was a severance of two messuages by two simultaneous conveyances to different parties by the owner of the whole. And in Carbrey v. Willis,^ Hoar J. quotes the above extract, and speaks of it as merely an intimation of the opinion of the Court. He however, distinguishes it from the case then before him, on the ground that the grants in Johnson v. Jordan were simultaneous, and adds, " But where, as in the case at bar, the grant of the lower estate precedes that of the other,, we think the true rule of construction is this, that no easement can be taken as reserved by implication, unless it is de facto annexed and in use at the time of the grant, and is nec- essary to the enjoyment of the estate which the grantor retains." ^ And this necessity cannot be said to exist, if a similar privilege can be secured by reasonable trouble and expense. The learned Judge then refers to " some recent cases in England," in which " a different doctrine seems to have prevailed " from that main- tained in Massachusetts, and adds, as showing the tendency of these recent English cases, that " even in the case of the grant of a part of an estate, an easement has been held to be reserved to the grantor as parcel of the remainder, without an express res- ervation, if it were c^e/acto used in connection with it, at the time of the grant, and were necessary to its enjoyment in the condition 1 [This same consideration was acted ^ [7 Allen, 364.] on in Carbrey ... Willis, 7 Allen, 364; » [Parker y. Bennett, 11 Allen, 388, Thayer Fentinam v. Smith, 4 East, 109. CHAP, v.] HOW EASEMENTS ARE CREATED. 323 or by contract with him ; and if by liceiise, it was revocable at any time." In Hewlins v. Shippam,' where the question was whether a right to a drain running through the adjoining land could be conferred by a parol license, and under the Statute of Frauds ; in an elaborate judgment delivered by the Court, it was held, that such an interest could only be created by deed. The doctrine laid down in this case was fully recognized in Cocker V. Cowper,^ where an action was brought for stopping up a watercourse. It appeared from the award of the arbitrator, that the channel in question consisted of a drain and tunnel, which had been constructed on the defendant's laud by the plain- tiff, in the year 1815, with the verbal consent only of the then tenant and of the defendant, and that the water had flowed through it up to the year 1833, when, upon the plaintiff 's re- fusal to pay for the use of the water, the defendant diverted the channel. It appeared perfectly clear to the Court of Exchequer that the plaintiff was not entitled to recover. " With regard to the question of license," said the Court, " the case of Hewlins 1 Hewlins v. Shippam, 5 B. & C. 221. 2 Cocker v. Cowper, 1 Cr., M. & R. 418. And the same has teen decided by prior authorities, in reference to different easements, as Monk v. Butler, Cro. Jac. 574, where the plaintiff in replevin an- swered an avowry for damage feasant by a plea of license from a commoner who had right for twenty beasts ; it was ob- jected, that, if the commoner could li- cense, he could not do so without deed, and of that opinion was the whole Court. So in Hoskins o. Robins, 2 Ventr. 123, an objection was taken to such a license on account of its not being stated to be by deed, and although the objection was overruled on the ground, that, after ver- dict, it must be taken that the license . was by deed, yet the Court were unani- mous in thinking that such a license could not be granted without deed. So, in Harrison v. Parker, 6 East, 154, where liberty and license were given to the plaintiff and his heirs to build a bridge across a river, from the plaintiff's close to the close of A., and liberty and license to plaintiff to lay the foundation of one end on A.'s close, the grant was by deed. The right to be buried In a particular vault, was held in Bryan v. Whistler, 8 B. & C. 298, to be an easement which could be created by deed only. A legal right of way cannot pass except by deed. Per Lord Denman C.J., in Tickle u. Brown, 4 Ad. & EI. 369. The questions as to what are deemed interests in land or otherwise, within the Statute of Frauds, have arisen in England in a variety of cases relating to rates and water-com- panies. Tolls have not been held ratable as real property (Rex v. Eyre, 12 East, 416), unless where connected with some tangible real property, as sluices, engines, or the like. Rex v. Cardington, Cowp. 682. So pipes laid in the ground for the conveyance of gas, have been held to come within the denomination of real property. Rex o. Brighton Gas Co., 5 B. & C. 466. And on the same principle, pipes for the conveyance of water have been held to constitute an interest in land (Rex v. Bath, 4 East, 609); and the reservoir with the water would all descend to the heir. Ibid. See Pliilbrick v. Ewing, 97 Mass. 133, 136. Shares in water-companies have also been deemed real estates (2 P. Wms. 127 ; 1 M. & Sel. 634; 5 B. & Aid. 156; 2 Ves. 182; 2 Dick. 545) ; unless, as is usually the ease, provision Is made by act of the legisla;- 324 LAW OF WATERCOURSES. [CHAP. Y. V. Shippam, is decisive to show that an easement, like this, can* not be conferred unless by deed." ^ § 170. Such, it has positively been decided, is the law in this country ; and in this country, an owner of land may have granted to his neighbor a right of way by parol, and even on a valuable consideration, and the neighbor may have enjoyed it for a very considerable length of time ; and although it may be very unjust for the owner or his assignee, with a knowledge of these facts, to repudiate the grant and cut off the way ; yet if he will, he may, because ita lex scripta est? Therefore, the claim of a right to enter upon the land of another, to repair a dam and embankment, necessary to the working of a mill, and originally erected with the consent of the owner of the soil, cannot be maintained without deed.^ And the doctrine has been, in this country, applied directly to water-rights.* Thus in BuUen v. Runnels, in New Hampshire,^ the deed described the premises as " a certain part of a stream of water," and it was held, that whether all the interest in the soil beneath the water passed for every purpose, or whether it passed only so far as was necessary for the use and enjoyment of the water, the interest was of such a character, that, under the Statute of Frauds of that State, it could not be conveyed without a deed duly executed and recorded. § 171. In Thompson v. Gregory,^ the Court say, " It is not nec- essary to examine whether the witness was or was not com- petent, because, assuming him to have been so, his testimony ture for making the shares personalty, shall be shut up or altered." This, exe- See You. & Coll. 281. And see 1 Crabb, cuted under the hand and seal of the Eeal Property, § 83, owner of the land, is a grant of an in- 1 See also Williams v. Morris, 8 M. & corporeal hereditament, and which must W. 488 ; [Stevens v. Dennett, 51 N.H. be acknowledged and recorded agreeably to 831.] the acts of registration. Hays v. Rich- 2 Per Shaw C.J., in Fitch v. Seymour, ardson, 1 G. & John. 366. The same doc- 9 Met. 462. And see Cliapin v. Noyes, 6 trine was maintained in Wright v. Free- Wend. 461. An instrument was of the man, 5 H. & John. 467. following tenure : " I hereby authorize * Cook v. Stearns, 11 Mass. 533. R. to open and continue open a road * Russell v. Scott, 9 Cowen, 279 ; through my field, beginning at, &c., as Morse v. Copeland, 2 Gray, 302 ; Houston also to build, keep in repair, and use a v. Laffee, 46 N.H. 505, 507, 508. See bridge over the branch in tlie field in Curtis v. Jackson, 13 Mass. 517; Anon, which the said road will pass; said road v. Deberry, 1 Hayw. (N.C.) 248; Hull v. and bridge being intended as well for the Chaffee, 18 Vt. 150. public use as for the use of R. ; and to ^ BuUen v. Eunnells, 5 N.H. 255. continue until R. and myself shall agree it ^ Thompson v. Gregory, 4 John. 81. CHAP, v.] HOW EASEMENTS ARE CREATED. 325 would have been of no avail, since the right in question could not pass by parol. The right reserved by the lease to the grantor, and his heirs and assigns, to erect mills or dams, was an incorporeal hereditament. It was not the land itself, but a right annexed to it, and it could only pass by grant. The appropri- ate subject-matter of grants is these incorporeal rights, of which livery cannot be had, and a grant is, in general, good only by deed. This was the rule of the Common Law ; and were it other- wise, no such interest could be assigned or granted, without writ- ing, according to the express provision of the Statute of Frauds." Even a written declaration indorsed on a lease after the date, by the lessor, that he intended to demise a greater interest in the use of the water than the lease expresses, is not operative, it has been held, to convey any interest.^ § 172. A grant of the right of flowing land, without paying damage, as provided by statute, is an easement and an interest in land, and can only be made by deed.^ In a, case in Massa- chusetts, A. orally requested B. to erect a mill-dam, and orally promised him, that if the dam should flow his land, he would not claim damages for the flowing ; and accordingly B. built a dam and mill, and flowed A.'s land ; and afterwards conveyed the dam and mill to C, who continued to flow the land. To recover damages from C. for this flowing, A. entered a complaint against him, and it was decided, that he had waived his right to damages by his agreement with B., and could not recover. But A. after- wards conveyed his land to D., with a covenant that it was free from all incumbrances, and D. brought an action against him for a breach of this covenant, alleging the right of C. to flow the land without payment of damages. It was held, that C. had no such right as against D., by virtue of A.'s oral agreement with B. ; and that no breach of the covenant was shown. In giving 1 Bussell V. Scott, 9 Cowen, 279. statute permitting leases for a year to be 2 [Morrill v.. Mackman, 24 Mich. 279, created by parol, and a parol lease for 284. In this case it was decided that an more than a year, under which tlie lessee agreement properly evidenced, giving has been put in possession, being good as the owner of a mill site the right, for a a lease from year to year until terminated stipulated annual compensation, to flow by notice, an action cannot be maintained the adjoining lands of another for an in- against one in possession under such an definite period, by the erection of a dam agreement, created by parol, except for . upon his own premises, creates a tenancy the agreed compensation, without notice in such lands, and such an agreement is to quit. Morrill v. Mackman, supra, within the Statute of Frauds ; but that 826 LAW OP WATERCOURSES. [CHAP. V. the opinion of the Court, Shaw C.J. said, " The grantee of a right, privilege, or easement in land must secure it in the manner the law provides ^ otherwise the law vs'ill not guaranty it to him.i A claim for mere damages caused by flowing land by means of a mill-dam, may undoubtedly be waived by parol ; inasmuch as it is always a good defence to a claim for a sura of money, that it has been paid, or satisfied by agreement, or waived ; and proof of payment, satisfaction, or waiver, may be made by parol." ^ This is, however, different from a permanent right, privilege, or ease- ment in another's land, which is a much more important interest, and which, by the Common Law, and by the Statute of Frauds, cannot pass without writing. 7. Reservations and Exceptions of Water Rights in Grants of Land. § 173. An easement may also be reserved in a deed of convey- ance of the land, or retained by an exception in such deed ; and, as where an easement is granted, whatever is essential to the enjoyment of it passes to the grantee, so in a reservation or exoejjtion of an easement, every thing is withheld by the grantor which is essential to its enjoyment ; for, notwithstanding a deed contains the words grant, &c., such words are to be limited by the general tenor of the context, the subject-matter, and more especially by the express declaration or intent of the grantor contained in the deed itself.? A person, may, therefore, accept a deed from a riparian proprietor on a watercourse, in which there is reserved or secured to his grantor an easement, with the 1 Fitch V. Seymour, 9 Met. 462. way, either in gross, or as annexed to 2 Seymour v. Carter, 2 Met. 520 ; lands owned by him, so as to charge the [Smith V. Goulding, 6 Gush. 154. An lands granted with such easement or agreement to take a certain annual com- servitude, as by a deed from the owner pensation for damages occasioned by of the land to be charged, granting such flowing land by a mill-dam is not an way, either in gross or as appurtenant to agreement for the sale of an interest in other estate of the grantee." Shaw C.J. lands, within the Statute of Frauds, in Bowen v. Conner, 6 Gush. 132, 137 ; Short V. Woodward, 13 Gray, 86.] And Peck v. Conway, 119 Mass. 546, 549 ; see post. Chap. VIII., in which the sub- Barnes v. Lloyd, 112 Mass. 224, 232. ject of parol licenses is fully considered. The grantee, by his acceptance of a deed- 3 Wade V. Howard, 6 Pick. 492 ; poll, becomes bound by all the restrictions, Cocheoo Manuf. Go. v. Whittier, 10 N.H. limitations, reservations, and exceptions • 305. [" A right of way may be as well contained in it. Newell u. Hill, 2 Met. created by a reservation or exception, in 180; Shaw C.J. in Bowen v. Conner, 6 the deed of the grantor, reserving or re- Gush. 136, 137 ; Peck v. Conway, 119 taining to himself and his heirs a right of Mass. 546.] CHAP, v.] RESERVATIONS, ETC., OF WATER RIGHTS. 32? privileges secondary thereto, in the premises ; and by the use of the words " brook to remain to the use of the proprietor for ever," if the volume of water has been for many years artificially increased for the use of the mills, it is for ever so to remain ; the soil passes to the grantee, the grantor reserving the right to the use of the water, as formerly.^ § 174. In order to ascertain what is granted in the case of an exception in a deed, it must first be ascertained what is in- cluded in the exception ; for whatever is included in the excep- tion is excluded from the grant.^ The words exception and reservation are often used indiscriminately, though there is a distinction recognized between them. An exception is sepa- rating part of that embraced in the description, and already existing in specie ; as excepting a particular parcel of land from a 1 Vickerie ». Buswell, 13 Maine, 289. [The grantee in a deed-poll by its accept- ance, becomes bound by all its restrictions, limitations, reservations, and exceptions ; and the deed may charge with a servitude other lands than those which were the subject of conveyance. Winthrop v. Fairbanks, 41 Maine, 307 ; Vickerie v. Buswell, 13 Maine, 289 ; Newell v. Hill, 2 Met. 180. When, in such a deed, it was stipulated that the grantee should guaranty to the grantor a sufficient quan- tity of water at certain places described, and the deed was accepted by the grantee, it was held that he and his assigns were estopped to deny the grantor's title, al- though the instrument was a deed-poll and was not signed by the grantee. Emerson v. Mooney, 50 N.H. 315.] 2 Greenleaf v. Birth, 6 Peters, 310; Case V. Haight, 3 Wend. 632. [Blake V. Madigan, 65 Maine, 529. Where the plaintiff by deed conveyed to the grantee a certain well and aqueduct leading therefrom, excepting a certain branch before conveyed, and the plaintiff's right of using all necessary water at certain places which are described, it was held, that the right so excepted always re- mained in the grantor, and would enure to the benefit of his heirs and assigns, although there were no words of limita- tion. Emerson v. Mooney, 50 N.H. 315. See Wheeler v. Brown, 46 Penn. St. 197 ; Keeler v. Wood, 30 Vt. 242; Bowen v. Conner, 6 Cush. 132 ; Winthrop v. Fair- banks, 41 Maine, 307. But the contrary doctrine seems to be maintained in Massa- chusetts. In a case where there was a grant of land, with full covenants of war- ranty, accompanied with a proviso that, whereas the grantee intends to flow some part of the premises, the grantor shall have the right to improve and cultivate the part of the premises which shall not be so flowed, a life-estate only is excepted. Jamaica Pond Aqueduct Corp. o. Chand- ler, 9 Allen, 159, 170. In this case, Bige- low C.J. said, " On looking at this proviso to ascertain the nature of the incumbrance which is excepted from the warranty, it is plain that it is nothing more than an exception, in favor of the grantor, of a right to improve and cultivate and to take the emoluments to his own use of such part of the granted premises as the cor- poration did not flow or cover with water. This was a personal right excepted out of the grant in behalf of the grantor only, and not for his heirs or assigns. The same rule of interpretation applies to an exception out of a grant as to a deed, in respect to the limitation of the estate thereby created. If the whole fee is granted, and an exception be made to the grantor himself, without words of in- heritance, a life-estate only is excepted. Shep. Touchstone, 100 ; Curtis v. Gardner, 13 Met. 461." See Buffum v. Hutchinson, 1 AUen, 58.] 328 LAW OF WATEECOUHSES. [CHAP. V. farm granted by general words. A reservation is something newly created, out of the granted premises, by force and effect of the reservation itself, as an easement out of land demised.^ The effect of the deed, it has been said, does not depend upon the use of the one or the other of these terms, but on the facts which they represent.^ In Case v. Haight,^ a party who owned land on one side of a stream, and also the bed of a stream, con- veyed to another party owning land adjoining the stream on the other side, the land under water to the middle of the stream, reserving to himself the right to butt a dam on both sides of the stream as he should think necessary ; it was held, that the reser- vation had not the effect of an exception, it being indispensable to a good exception, that the thing excepted should be part of the thing granted, and not of any other thing ; that the parties were entitled to an equal participation of the use of the water, notwithstanding the reservation. The reservation was, however, held to be operative as an implied covenant, or by way of estoppel, securing the right provided for in the reservation. § 175. It is laid down, that an exception must be of a par- ticular thing out of a general one, and must be described with certainty.* If the exception be not set down with precision and accuracy, as if one grant a house, excepting one chamber, or grant a manor, excepting one acre, but does not designate what chamber, or which acre, the exceptions are void.^ A 1 Per Sliaw C.J., in Hurd v. Curtis, 7 object designed to be secured may not be Met. 94. [Per Davis J., in Garland v. lost. In Bowen v. Conner, 6 Gush. 132, Hodsdon, 46 Maine, 515, 516 ; Wintlirop v. 135, Shaw C.J. said, " We know there is Fairbanljs, 41 Maine, 807; Gray J., in much nicety in the technical distinction Hill V. Cutting, 107 Mass. 597.] An between an exception and a reservation, exception is always a part of the thing In our own conveyancing, this distinction granted, but a reservation is of a thing is not so precisely observed, but a clause not in esse, but newly created or reserved, of reservation is construed to be an ex- Per Parker C. J., in Cocheco Manuf, Co. ception, if that will best effect the intent V. Whittier, 10 N.H. 305, referring to Co. of the parties. And so in the English Litt. 47, a ; Siiep. Touch. 80 ; Cutler v. cases, the term reservation is often con- Tufts, 3 Pick. 272; Jackson w. Smith, 9 strued to be a good exception. But the John. 100. [But in Maine, it was ob- distinction between an exception and a served, in the case of Wlnthrop v. Fair- reservation is often very uncertain."] banks, 41 Maine, 307, that exception and '^ Per McLean J., in Bowman v. reservation have often been used indis- Wathen, 2 McLean C.C. 766. criminately, and the difference between ^ Case k. Haight, 3 Wend. 362 (Court them is so obscure in many cases, that it of Errors), is not regarded ; that wliich in terms is * See Co. Litt. 142, a. a reservation in a deed is often construed * See Darling v. Crowell, 6 N.H. 421, to be a good exception, in order that the and the authorities tliere adduced. CHAP, v.] RESERVATIONS, ETC., OP WlTER RIGHTS. 329 description in a deed of a certain tract of land, excepting one acre, which is retained for the use of flowing water, is void for uncertainty. 1 § 176. An exception or reservation, of something which the premises granted do not comprise, is void, as having nothing to operate upon.^ Where the owner of an acre of land adjoining a river, and upon which one end of a dam abutted, conveyed the land by metes and bounds, and the water privilege, reserving to himself the privilege of drawing such a portion of water from the pond, as he might have occasion for, for fulling skins ; and it appeared that there was no mill in existence there for such purpose, and that the grantor owned no other land in the vicin- ity ; but there was other land adjacent owned by third persons, upon which a fulling-mill might with convenience be erected, and the water conducted through the premises conveyed ; it was held, that a right to erect a mill upon the" land conveyed was not included in the reservation. There was nothing about the erection of a building upon the land, or any possession of it except so far as the drawing of water from the pond was con- cerned. If the party at the time had been the owner of the land adjoining, upon which he had erected, or was then erecting a fulling-mill, there would have been no doubt as to the meaning of the parties. The Court, in fact said, that if the party had been at that time the owner of the land immediately adjoining the acre conveyed, upon which a mill might coveniently have been erected, it could hardly have admitted of a question.^ § 177. In Hurd v. Curtis,* A. conveyed to B. by deed of release, a parcel of land, " with a paper-mill privilege on the premises, and flumes, watercourses, dams, right of way and pas- sage, with the right of water for one paper-mill with two engines, 1 Darling v. Crowell, supra. In Hull because I desire the said W. should be V. Leonard 1 Pick. 31, it is said, if a sure of a shelter during the time she may grant be made to a father and his son, live." It was held, that this reservation and the father has several sons, it is void ; vests in W. an estate in the two rooms and so if made to a man's cousin. And for life, of which she may make any dis- it was held in the case just cited, that a position. It does not create a mere ease- grant to the heirs of an individual, is void ment for her personal use. Wasthoff v. for uncertainty. In a devise of a house, Dracourt, 3 Watts, 240. " reserving, however, two rooms of said ^ Hurd v. Curtis, 7 Met. 94. house, for the use and during the life of ^ Cocheco Manuf. Co. v. Whittier, 10 W., I desire by this fourth article, that N.H. 305. the widow W. may have the choice of * Hurd v. Curtis, ub. sup. ' those two rooms which shall best suit her, 330 law' op watercourses. [chap. v. being one of the six paper-mill rights and privileges established and agreed upon by certain articles of agreement," referred to; said conveyed paper-mill privilege "to be entitled to all the rights, and none other, and subject to all the restrictions, terms, and conditions " in said articles of agreement contained. A. also, in the same deed, granted, assigned, and conveyed to B. " all the rights, privileges, benefits, and interest in and to the excep'tions and reservations, which said A. accepted and reserved by his deed to C." of a prior date : By said prior deed of A. to C, A. conveyed to C. a parcel of land, " together with a paper-mill privilege, with the flumes, watercourses, and dam, to the same belonging, with the right of water for one paper-mill with two en- gines, being one of the six paper-mill rights and privileges estab- lished and agreed upon by certain articles of agreement " [the same which were referred to A.'s deed to B.J " except the reserve of the right and privilege of conveying water through the premises hereby granted and convej^ed, in the channel now open, in which water used to run to a saw-mill ; for the purpose of carrying such water works as he (A.) may wish to erect on his premises adjoin- ing the premises hereby conveyed, with the right of widening said channel, not exceeding sixteen feet, and of deepening the same," &c. Held, that A.'s grant to B. of the rights, privi- leges, benefits, and interest, in and to the exceptions and reser- vations which A. excepted and reserved in and by. his deed to C. did not enlarge the water power and privilege released to B. in the former part of A.'s deed to him. § 178. Still, as there was occasion in the preceding part of the work to state,^ if it be the intention of a grantor of land cov- ered by a watercourse, to withhold the water from the grantee, he may easily do so by the use of proper words in the instrument of conveyance to that effect. On the same principle, and by the same means, he may impose in his own favor and for his own purposes, any conditions and limitations, and restrictions in the use of the water by the grantee.^ Thus, the grantor of a tract of land, without having mentioned a watercourse included within the prescribed limits, declared it to be the understanding 1 Ante, § 9 ; Claremont v. Carleton, 2 to a reservation of the water by bound- N.H. 371 ; Hayes v. Bowman, 1 Eand. ing in a, particular manner on a water- (Va.) 420; note to Jennings, ex parte, 6 course, see ante, §§ 17-44. Cowen, 548 ; Opinion of Kent C.J., in 2 Pettee v. Hawes, 13 Pick. 323. Palmer u. Mulligan, 3 Caines, 319. As CHAP, v.] EESEBVATIONS, ETC., OF WATER EIGHTS. 331 of the grantor, and the intention of the deed, to convey to the grantee as much of the privilege of the water as should be suffi- cient for the use of a fulling-mill, whenever there was a sufficiency therefor ; and it was held, that this clause was not repugnant to the grant, but was a good reservation of the surplus water.i In this case it was urged that the whole of the stream passed by the con- veyance of the land, and that the restraining clause, being subse- quent, was void for repugnance, whether considered in the light of an exception or reservation, or as an explanation of the pre- ceding words of the conveyance. The Court admitted, that the principle on which the objection rested was correctly stated, but were clear it did not apply to the instrument of conveyance in question. The doctrine advanced by the Court was, that if there be an explicit and unambiguous grant of a thing, any exception or reservation, which is manifestly contradictory, is to be rejected ; as if a man conveys twenty acres, excepting one ; or where the conveyance is construed to be of a moiety, and in a subsequent clause the grantor said, that he meant to con- A^ey a fourth part, which was obviously contradictory and to be rejected.^ § 179. By a grant of a mill, it has been seen,^ the land under the mill, and adjacent land necessary for its use, passes by the force of the grant ; and so it is eo converso, if a mill is excepted or reserved in a grant of a tract of land, the land upon which it stands, and adjacent land necessary for its use, will not pass. Thus, where land was conveyed, with all the buildings standing thereon, except the " brick factory," it was held, that the grantor's title to the land on which the factory stood, and the water privi- lege appurtenant thereto, did not pass by the deed ; for, as the Court say, "when properly is granted, all that is necessary for the enjoyment of the grant is impliedly granted, as incident to the express grant ; and the same rule of construction applies to an exception in a grant." * 1 Sprague v. Snow, 4 Pick. 54. 65 Maine, 522, 529 ; Shep. Touchstone, 2 Cutler V. Tufts, 3 Pick. 272; and 100; Bowen v. Conner, 6 Cush. 132; see Piatt on Gov. 313, et seq. ; [Denton Hammond v. Woodman, 41 Maine, 203. V. Leddell, 8 C. E. Green, 64.] In Moulton v. Trafton, 64 Maine, 218, 8 Ante, § 157. the defendant, being the assignee of Clark 4 Allen V. Scott, 21 Pick. 25. [" What Trafton, claimed to hold premises thus will pass by words in a grant will be ex- described in a deed from another party cepted by the same words in an excep- to the plaintiff: " Excepting by this con- tion." Libbey J., in Blake v. Madigan, Teyance a saw-mill and a shingle-machine, 332 LAW OP WATERCOURSES. [CHAP. V. § 180. So, an exception of a particalar mill-site operates as an exception of the soil of the mill-site (just as a grant of a mill- site will convey the soil) ; and so much land as is necessary for the mill-pond, and for erecting and carrying on the business of the mill ; and such a reservation is not of a mere easement, but of the soil itself.^ § 181. A general reservation of all watercourses on the de- mised premises, suitable for the erection of mills, together with the right of erecting mills and other works thereon, with a cer- tain number of acres of land adjoining thereto, will give to the lessor a right to all the mill-sites, whenever he chooses to make a location ; it is the same as reserving all the mill-sites on the demised premises, with the number of acres of land specified.^ But such a reservation or exception extends only to natural mill- sites, and not to artificial ones, such as where water is brought to the land by means of sluices.^ § 182. If two persons, being tenants in common of a lot of land embracing a mill privilege, make partition of the lot by mutual deeds of release, and in each of the deeds make a res- ervation " of one-half of the mill privileges on said land, with the right of using the same," the effect is to divide the land, but to leave the mill privileges in common as before ; and where such owner of half the mill privileges on the whole lot conveys to a third person certain mills not in controversy, and also conveys in the same deed " one-half of all the water for a grist-mill, on said lot, below the mills before mentioned," the grantee takes one-half of all the water, if so much be necessary, for the use of a grist- mill to be erected below the mills then existing.* and land enough around said mill to carry pancy of Clark Trafton. A grant or on the lumbering business at said mills, reservation of " the whole of the cider- and a right of way from said mill to the house and cider-mill standing on land " road leading from Thorndike to Unity not otherwise included, " so long as the Village, conveyed to Clark Trafton, as said cider-house shall stand thereon, and long as said Trafton occupies said privi- no longer," gives a freehold in the land lege with mills." It was held that these under the building, so long as it stands words created an exception, and not a thereon, even after it has ceased to be reservation merely ; and that the land used as a cider-house or cider-mill. Esty under the mills was included in the ex- v. Currier, 98 Mass. 500.] ception ; and that the exception consti- i Jackson v. Vermilyea, 6 Cowen, 77. tuted a determinable or qualified fee, 2 Russell o. Scott, 9 Cowen, 299; which could be assigned ; and that the Butz v. Ihrie, 1 Rawle, 281. duration of the excepted estate was lim- 3 Jackson v. Lawrence, 11 John. 191. ited by the existence of mills upon the * Bailey v. Rust, 16 Maine, 440. premises, and not by the personal ocou- CHAP, v.] EESERTATIONS, ETC., OP WATER EIGHTS. 333 § 183. If a proprietor of land, on which are a mill and mill privilege, grant to one son the use and. benefit of one-half of a saw-mill, and on the same day grants to another son a tract of land, including that whereon the mill stood, " excepting the privi- lege of one-half of a saw-mill conveyed to the other son, and. his AeiVs ;" the grant and. the reservation are to be considered to- gether, to ascertain the intention of the parties ; and. one-half of the mill and mill privilege, paos by the grant.^ § 184. Where the premisses in a deed were described " a cer- tain grist-mill and bank, wherever the same is situated, with the appurtenances thereof, lying, &c., and adjoining a bridge cross- ing a river ; " it was held, that the bank between such grist-mill and bridge on which a carding-mill stood, was conveyed by such deed ; but that a reservation in such deed of the " building ad- joining on the east end of the mill," wherein the carding machine was then in operation, with the use of water for certain purposes, and on certain conditions, included the mill only, and not the land on which it stood ; and that the right so reserved was also restricted to the buildings then existing, and did not extend to any other building subsequently erected on the same site ; the Court said, " The intention of the parties is obvious, and the terms of the grant are too plain to admit of a doubt. Were they otherwise, they are to be taken most strongly against the grantors."^ § 185. For the purpose of ascertaining what parties really in- tend, by a reservation in a grant of a watercourse, it is undoubt- edly proper to take into consideration the condition of the property, and the circumstances of the parties. Such was the view taken by the Court in Kennedy v. Scovil, in Connecticut.^ In that case, it appears, that in June, 1822, and before, B. owned two pieces' of land with a watercourse running through both of them, and on each side of which he had a mill propelled by the watercourse. On the upper piece he had a dam, mill-pond, flume, and conductor ; and the water for the use of both mills passed from the dam through the flume. For the use of the upper mill, the water was taken from the flume by means of two orifices in it ; and for the use of the lower mill, the water was taken by the means of a conductor inserted in the flume, and extending from 1 Moore v. Fletcher, 16 Maine, 63. ' Kennedy v. Scovil, 12 Conn. 817. 2 Marshall v. Niles, 8 Conn. 361. 334 LAW OP WATERCOURSES. [CHAP. T. it to the mill. On the 8th of June, 1832, B. conveyed to S. the upper mill-site, and one-half of the pond flowed by the dam, by a deed containing the following clause : " Always provided, and this deed is given on condition, that the grantor is to have and re- tain the privilege of conveying water from said dam through a conductor similar to the one now in use, till the same shall arrive at the east end of the new shop [the upper mill], and thence, either by a conductor, race, or otherwise, to the shop [lower mill] lying east of the new shop." The rights of B. in the lower mill afterwards became vested in K. and S. ; K. owning two-thirds, and S. one-third. In November, 1835, S. made a new orifice in the flume, lower than any former one, and thereby drew off so much of the water as not to leave sufficient to keep the lower mill in operation. It was held, that B., at the time of the convej'ance from him to S., had a right, and was bound to take the water for the use of the lower mill in the accustomed manner, and that, by such conveyance, B. retained to that mill all the privileges which it then enjoyed ; and that the term " dam " in the reservation was to be construed as including the flume, or as being of equivalent import. § 186. Where A. let a fulling-mill, together with the water- course and flood-gates, to a trustee for ninety-nine years, if either his daughter or wife should so long live, for their use, and in order to make provision for them ; with an exception of free liberty for the lessor, heirs, &c., his servants, and tenants, at all times, to divert the water from the mill for watering all meadows which they should think proper, and to put up and take down all proper sluices; and part of the profits of the mill consisted of water rents for flooding meadows, with water which was wholly diverted from the mill ; it was held, that by the exception, the heir of the lessor was entitled to the water rents, the exception not being repugnant to the grant.^ § 187. An exception in a grant in these words : " excepting and reserving out of the said piece of land so much as is neces- sary for the use of a grist-mill on the east side of the road, at the west end of the saw-mill dam," is held to be a good excep- tion ; although until the grantor or his assigns exercised the right reserved and built the mill, it was inoperative, so that the whole premises so far vested in the grantee as to enable him to 1 Lambert v. Bennet, 8 Smith, 84, in K.B. Geo. III. CHAP, v.] RESERVATIONS, ETC., OF WATER RIGHTS. 335 maintain trespass against a stranger ; or even against the grantor and his assigns, for an entry on the land for any purpose other than that specified in the reservation.^ § 188. An absolute power of revoking the easement of taking and using water for hydraulic purposes reserved in a demise thereof, is not invalid as being repugnant to the demise ; and the easement may be resumed at any time. The canal commis- sioners in the State of New York, demised to one M. the right of taking and using, for hydraulic purposes, the water which should flow from a waste wear at a prescribed height, so far as the same might be taken without interfering prejudicially with canal navigation ; reserving the right to the State wholly to re- sume the subject of the demise at any time the commissioner should think fit, without being liable in damages, or to make compensation for improvements and erections. The lessee trans- ferred all interest in the lease, and the assignee had erected and nearly completed an expensive flour-mill on the premises, when the commissioners caused the waste wear to be raised beyond the height mentioned in the lease. It was held by the Supreme Court of that State, that the power reserved in the lease ex- tended as well to a partial as to a total resumption of the privilege demised ; and that the act of raising the waste wear was, under the terms of the reservation, lawful. Neither was any formal opinion on the part of the commissioners, as to the necessity of resuming the subject of the demise, requisite as a preliminary to the exercise of the right of resumption.^ § 189. An instance of an implied reservation was where E. mortgaged a strip of land, including mills thereon, and running a distance along the river ; but three years afterwards, having sold a small portion of the mortgaged premises for a hide-mill and lime vats, he obtained a release from the mortgagee, for a nominal consideration, of what he had sold, described thus: " Beginning at the end of a dam, running up the river two rods, and so round to the bank of the river." The mortgagee after- wards having foreclosed, one question .was, whether the release gave a right to the centre of the river; and it appeared, that ' Dygert v. Mathews, 11 Wend. 35. case just before cited. And see Provost The case of Thompson v. Gregory, 4 u. Calder, 2 Wend. 517. John. 81, was a reservation of a right to ^ Miller, ex parte, 2 Hill, 418. flow, but was within the principle of the 336 LAW OP WATEECOURSES. [CHAP. V. if it was to have that effect, it would destroy the value of the mortgagee's mill privileges. The Court held, that it was not to be inferred that the mortgagee intended to release every thing valuable in the mortgaged premises, for which a large consid- eration had been given ; and they considered the release in ques- tion, under all the peculiar circumstances, as being no more than a mere exception in the mortgage ; and that it excluded any part of the stream. 1 § 190. In a case in Pennsylvania, it appeared that W. S., the father of J. S., had purchased a tract of land, and in 1797, or 1798, erected a mill, and diverted a watercourse from its natural channel into the mill-race, by means of a dam erected on that part of the tract which, at the time of the action commenced, was owned by the defendant. This race had been used with the .mill, since the time of its erection. In 1813, W. S. made his will, whereby he directed the mill and twelve acres of land to be laid out adjoining for its use, to be sold to pay debts and legacies ; " the right and privilege of the water to remain unmo- lested and entire for the benefit and use of the mill, whoever may hereafter own said mills." The residi^e of the farm, excepting twenty-eight acres previously " let'' to his son A. S., he devised to his son J. S., and directed him to pay the purchase-money due on the whole tract. J. S. (the plaintiff) had occupied and used the mill and race, and cleared the latter, when necessary, since the death of his father in 1813, and had repaired the dam which diverted the stream when necessary. On the 21st February, 1831, the plaintiff, by a deed recorded, conveyed twenty-eight acres, parcel of the larger tract, with its appurtenances, to A. S., with a covenant of seisin, and that the same was clear of all incumbrance. In 1836, A. S. conveyed to trustees, who, in the same year, conveyed to the defendant. When J. S. conveyed to A. S., without expressly reserving the water right, he left room for a question whether he could show it to have been impliedly reserved by parol. It was held, that a purchaser from A. S. had notice of a parol reservation of the right to the race, from the fact of the subsequent occupation of the mill, and user of the race by J. S. It was settled, said Gibson C.J., that a trust was not within the Statute of Frauds of Pennsylvania ; and that 1 Hatch V. Dwight, 17 Mass. 28D. CHAP, v.] UNITY OP POSSESSION. 337 the statute was docked of those sections of the English statute which require declarations of trust to be put in writing.^ 8. Unity of Possession. § 191. The strong resemblance between the prsedial servi- tudes of the Civil Law, and the easements of the Common Law, has already been pointed out.^ One other respect in which they are alike, is, they become extinguished by unity of possession ; or, in other words, the servitude or easement becomes extin- guished when the estate to which it is due, and the estate owing it, are united in the same person. The language of the Civil Law is, " Servitutes prsediorum confunduntur, si idem utriusque prsedii dominus esse coeperit." ^ So it is an established rule 1 Randall v. Silverthorn, in error, 4 Barr, 173. An implied reservation : If the owner of land build houses upon it, adjoining each other so as to require mu- tual support, there is, either by presumed grant or by presumed reservation, a right to such mutual support, and such right ia not affected by subsequent subdivision of the property. No man who becomes possessed of one of the houses by any means whatever, can be in a situation to say to his neighbor, " You are not en- titled to the protection of my house. I will pull it down, and let the houses on each side collapse and fall into the ruins of my own." Pollock C.B., and the rest of the Court were of this opinion. Rich- ards V. Rose, Law Jour. Rep. Vol. XXIII. of the New Series, January, 1854. 2 See ante, §§ 141-144. 3 1 Kauff. Mack. 350. The Civil Code of Louisiana has the following provisions on the subject of the extinction of servi- tudes : — Art. 801. Every servitude is extin- guished, when the estate to which it is due, and the estate owing it, are united in the same hands. But it is necessary that the whole of the two estates should belong to the same proprietor ; for if the owner of one estate only acquires the other in part, or in common with another person, confusion does not take effect. Art. 802. If the union of the two es- tates be made only under a condition, or if it cease by legal eviction; if the title be thus destroyed, either by the happen- ing of the condition or by legal eviction, the servitudes revive, which in the mean time will have been rather suspended than extinguished. Thus the exercise of redemption, the happening of the condi- tion on which the estate terminates, the eviction from a succession by a nearer heir, the abandonment or relinquishment of an estate on account of mortgages, will re- vive all the servitudes, active and passive. Art. 803. Confusion takes place by tlie simple acceptance of an inheritance, if there be but one heir. If the heir who has thus accepted an inheritance, dispo,.ies of any estate belonging to the succession, which is subject to any servitude towards his estate, without any stipulation for tlie preservation of liis right of servitude, the estate thus alienated, which owed the servitude, remains free from it, in conse- quence of the confusion which had taken effect while the estate remained in his hands. Akt. 804. But if the heir, under a sim- ple acceptance, sell to a person the wliole of his rights in the succession he has re- ceived, the sale prevents the confusion, and the estate belonging to the succession will continue to have the rights of servi- tude previously due to it, or be charged with the servitudes imposed on it, in tlie same manner as if it had not passed through the hands of the heir ; because. In this case, the purchaser is not presumed to have purchased more or less than all the ancestors possessed. Art. 805. Confusion does not take ef- 22 338 LAW OP WATERCOUESES. [chap. T. of the Common Law, that every easement becomes extinguished when the two estates, the one claiming the easement and the other owning it, are united in the same hands ; or when both pieces of ground become the property of one owner.^ [The law is clear, that if the same person becomes absolute owner of the land from which a stream of water flows, and also of the land into which it flows, the easement which the latter might have claimed, is extinguished. 2] Then the special kind of property which the right to the easement conferred, so long as the tene- ments belonged to different owners, are merged (e* tunc mori- untur') ^ in the general rights of property.* This doctrine was discussed as far back as the reign of Henry VII., when it was held that " if a man hath a stream of water which runneth in a leaden pipe, and he buys the land where the pipe is, and cuts the pipe, the watercourse is extinct, because he thereby declares his intention and purpose that he does not wish to enjoy them to- gether." 5 In Nicholas v. Chamberlain, before cited,^ it appeared that if a person erect a house, and build a conduit thereto in an- fect if the heir has only a temporary possession of the estate, subject to the servitude, or enjoying it for the purpose of ' delivering it to anotlier person to whom it has been bequeathed, or when his right in it terminates at a certain fixed time. Art. 806. If the heir has accepted the succession under benefit of inventory, the confusion does not take effect ; and if the heir is obliged to abandon the suc- cession at tile instance of the creditors, the servitudes resume their former state. Art. 807. The acquets, whicli the hus- band and wife make during tiie marriage, do not become confused witli the private property of each ; and if these acquets are sold during the marriage, the servi- tudes, active and passive, which existed previous to their being acquired by the husband and wife, continue to exist, with- out any stipulation to that effect. Art. 808. Except in the cases herein mentioned, and similar cases, servitudes extinguislied by confusion do not revive, except by a new contract ; with the ex- ception of continuous and apparent servi- tudes, with respect to which the disposi- tion made by the owner of both estates is equivalent to a title. Art. 809. The renunciation or aban- donment of the land extiuguislies tlie servitudes charged on it, of whatever na- ture they may be, because tlie owner of the estate to wliich the servitude is due, is bound to accept the abandonment, which produces in his hand a confu- sion which puts an end to the servi- tude. Art. 810. It is not necessary to pro- duce a discharge of the servitude, that the proprietor of the estate which owes it, should abandon the whole estate ; it suffices, if he abandon the part on which the servitude is exercised. ' Co. Litt. 318, a ; [Ritger v. Parker, 8 Cush. 145; Keiffer v. Imhoflf, 2ti Penn. St. 438, 443 ; Caniiam v. Fisk, 2 Cr. & J. 126 ; Thomas v. Thomas, 2 Cr. M. ,& R. 34; Pearce v. M'Clenaghan, 5 Rich. 178; Atwater v. Bodfish, 11 Gray, 152; Ste- vens V. Dennett, 51 N.H. 330.] 2 [Per Lord Cranworth L.C., in Ivimey v. Stocker, L.R. 1 Ch. App. 407.] 3 Gale.& What, on Easem. 553. * 1 Crabb. Real Property, § 425. 5 Lady Brown's case, cited in Sury v. Pigott, Poph. 170, Palm. 446. « Ante, § 163. CHAP, v.] UNITY OP POSSESSION. 339 other part of his land, and convey water by pipes to the house, and afterwards sell the house with the appurtenances, the con- duits and pipes pass with the house.^ Here it will be observed, the right to the easement was not destroyed by the unity of pos- session, and for the reason that it was annexed to the messuage, and in use at the time of the grant ; and, as in the preceding case, the pipes had not been cut 'off. If the conduit and pipes had been . actually severed before the grant, there then could be no pretence for saying that the conduit and pipes passed as appurtenances.^ The case of Morris v. Edginton,^ though differ- ent in its circumstances, has been considered to establish in its reasoning the foregoing conclusion. § 192. The above doctrine has been applied in this country in the following case : A. owns an upper mill, and B. a lower mill on the same stream. The lower mill has a dam, which ob- structed the free use of the upper mill. B. lowers his dam two feet, and allows it to remain in that state for thirty-eight years ; and during that period the upper mill is free from obstruction. B. then sells the lower mill to A., who afterwards sells it to C. The Court decided, that, on the ground of unity of possession, the right of raising the dam two feet was gone, and that the upper mill had acquired a right to use the water without back-flowing.* [The use of a mill privilege purchased from the owner of a lower privilege on the same stream, is not regulated by the use made of it before such purchase, but by what is reasonable and proper, conformably to the wants and usages of the community.^] § 193. The riglit to a natural watercourse, it has been held,^ is not extinguished by unity of possession in any case, and this 1 [See Elliott w. Sallee, 14 Ohio St. 10, Ch. (N.J.) 439; Philbrick ... Ewing, 97 17 ; Morgan v. Mason, 20 Ohio, 401, cited Mass. 133 ; ante, § 153.] ante, § 161, note ; Pyer i'. Carter, 1 H. & ^ Hazard v. Robinson, 3 Mason, 278; N. 9ie ; Philbrick v. Ewing, 97 Mass. 133. ■ 11 Hen. VII. 25. In Doddt). Burchell, 1 H. & C. 117, Pol- ^ Morris v. Edginton, 3 Taunt. 24; lock C.B, said, "A right to the enjoyment and see the opinion of Story J., in Hazard of a conduit is very different from a right «. Robinson, 3 Mason, 172 ; Perry v. I'ar- of way." Wilde B. said, "A conduit is ker, 1 Woodb. & M. 280; Manning v. a thing actually enjoyed with a house, Smith, 6 Conn. 289 ; Grant v. Chase, 17 and passes with a grant of the house ; Mass. 443. but it is not so with a right of way." * Hazard v. Robinson, 3 Mason, 272, " There is a wide difference between that 278. which is substantial, as a conduit or water- * [Haskins v. Haskins, 9 Gray, 390 ; course, and that which is of an incorporeal Barrett v. Parsons, 10 Cush. 367. See nature, as a right of way." Pollock C.B. , Bruce k. Yale, 4 Allen, 393.] p. 120. See Seymour v. Lewis, 2 Beasley " See ante, § 141.j 340 LAW OP WATERCOURSES. [CHAP. V. arises from the necessity of the case and the nature of the suh- ject.i This was settled, after a very elaborate discussion, in Sury V. Pigott.2 That was an action for stopping a watercourse which had been used to have its current run into the plaintiff's yard, and fill a pond with water, and it was held, that a unity of possession of the land of the house and place to which, and of the land through which, &c., was no bar ; and there is, said Whitelocke J., " a difference between a way or common and a watercourse. These begin by private right, by prescription, by assent, as a way or common, being a particular benefit to take part of the profits of the land ; this is extinct by unity, because the greater benefit shall drown the less. A watercourse doth begin ex jure naturce; having taken this course naturally, it can- not be diverted." ^ This case was accurately examined, and delib- erately confirmed in all its parts,* in Hazard v. Robinson ;°and Mr. Chitty, in considering this subject, remarks, " that there is a peculiarity relating to a claim of this nature ; viz., that it never is destroyed by unity of seisin of the land and water, and of the place in respect of which the use of the water was claimed ; the law admitting an exception on account of the uncontrollable nature of water ; and that the claim to water is not strictly by grant or prescription, but ex jure naturce."^ § 194. But can any thing of absolute necessity to a building, a gutter for example, in the soil of another, to carry off water, be extinguished by unity of ownership ? ^ The above case of ^ 3 Kent, 448 ; [Shaw C. J., in Johnson not exist durant the unity ; but it is other- V. Jordan, 2 Met. 239 ; Bui. N.P. 74 ; wise of a tiling which exists notwith- HazarJ u. Robinson, 3 Mason, 277. "It standing the unity ;" and a case of warren will be found upon examination, that is cited from Year Book, 35 Hen. VII. f. some principles of extinguishment which 65, 56. afEect other rights, do not apply to water- * 3 Kent, 448. courses. The latter are incorporeal here- ' Hazard v. Robinson, ub. sup. ditaments of a very perdurable nature; " 1 Chit. Gen. Pr. 216. The same law they survive, notwithstanding alteration recognized in Tucker v. Jewett, 11 Conn. or non-user equally with rights of com- 311, [and in Johnson v. Jordan, 2 Met. mon or rights of way; while, on the 239; ante, § 90, notes] other hand, unity of possession, which is ' [Hazard v. Robinson, 3 Mason, 278, fatal to the other privileges, leaves the 279 ; 11 Hen. VII. 25 b. The case in 11 watercourse subject, upon a division of Hen. VII. 25, was as follows: A. was the properly, to the same claims as before." owner of a tenement to which there was Woolrych, Waters, 293, 294.] an ancient gutter running through an ad- 2 Sury 0. Pigott, ub. sup. joining tenement, and afterwards he 8 In the report of tliis case in Latch, bought the adjoining tenement, and then 53, is said, " Kent shall be extinguished sold the first tenement to the plaintiff, by unily, and also a way, because it does It was held that the ancient gutter was CHAP. V.J UNITY OF POSSESSION. 341 Sury V. Pigott distinguishes watercourses and ways of necessity from other ways and easements which do not become thus ex- tinguished ; "and if," says Parke B., "it is necessary to the safety of a house, that water should flow down a drain, the right of watercourse through it is reserved by implication in every grant of the house ; " and many other cases, says he, recognize the distinction taken in Sury v. Pigott. In that case, Doddridge J. puts the way of necessity on the same footing as a water- course or gutter ; and, says Mr. B. Alderson, " Its principle seems to be, that nothing of absolute necessity to the tenement is ex- tinguished by unity of possession." i [§ 194 a. Two persons had tenements adjoining to each other, the one had an ancient gutter in the land of the other, and both tenements subsequently fell into the same hands. They were then again divided, and the defendant having stopped the gutter, the plaintiff brought the action against him. It was considered that the ancient gutter was not extinguished by the unity of pos- session, but had revived after the severance, because it was a necessary and subsisting easement ; but that it would have been- otherwise if, during the unity of possession, the owner had destroyed the gutter, or cut it off.^ A gutter like this is of not extinguished by the unity of pos- opening only into the high-road, and a session ; but that it would have been back entrance into the same. After A.'s otherwise if A. during the unity of pos- death, C. made a fence across so mucli of session, had destroyed the gutter or cut the carriage drive as passed immediately it off. The reason is, that it was a neces- in front of his house, and across the oval sary and subsisting easement. Hazard garden, leaving the farther way to B.'s o. Robinson, 3 Mason, 278.] front door by the same carriage drive 1 Pheysey u. Vicary, 16 M. & W. 484. open; B. brought trespass, claiming the . In tills case, A., being a termor of land, way as appurtenant to his house and gar- built two houses on it. The whole was den. It was held, first, that the way as then released to him in fee, "with all used in A.'s time, during the unity of owner- ways, easements, advantages, and appur- ship in him, immediately in front of C.'s tenances tliereunto belonging, or there- house, did not pass to B. with the house with usually used, leased, held, occupied, devised to him, under the word " appur- and enjoyed." By his will, he devised tenances" in A.'s will; and secondly, one house, and the appurtenances there- comme semble, that it did not pass as a way unto belonging, to B., and the other to C, of necessity, whether taken in the strict in similar terms. During A.'s ownership sense, or as a way without which the of both, the entrance from the high-road most convenient and reasonable mode of to the principal door of the house after- enjoying every part of B.'s premises . wards devised to B., was a set-out car- could not be had. riage drive or sweep, entering from a ^ [Coppy v. I. de B., 11 Hen. VII. 25, higli-road, passing immediately in front pi. 6; Sury v. Pigott, Poph. 166; s.c. 3 of the house afterwards devised to C, to Bulst. 339 ; Pyer v. Carter, 1 H. & N. B.'s door, and then the same point of en- 921 ; Hazard o. Robinson, 8 Mason, 278 ; trance ; B.'s house had a coach-house Robins v. Barnes, Hob. 131.] 342 LAW OP WATERCOURSES. . [CHAP. V. necessity. Its existence is several, and, like a watercourse, is independent of the soil, and is thus unlike a common way, or rent, which latter perish by the unity of possession. The sheriff ■ cannot give possession of the gutter, nor can ejectment be brought for it,i and, although it does not begin like a stream ex jure naturoe, it yet partakes of the necessity above mentioned. It can only be extinguished by a manifestation on the part of the owner of the united property, that he will no longer enjoy both together.^ Things which have an existence during the unity are not extinguished by the unity. And thus a common or a way or a rent become thereby extinct, since their existence ceases upon the union of estates. But this is not so with a watercourse.^] § 195. It is an expression not uncommon, that w;ays of conven- ience are extinguished by unity of possession, but ivays of neces- sity are not; but, as it has very properly been said, " it appears to be more correct, as well as more in accordance with the gen- eral principles of the law of easements, as recognized both by the English and the Civil Law, to consider all easements, whether of convenience or necessity, as extinguished by unity ; but, that upon any subsequent severance, easements which previous to such unity were easements of necessity, are granted anew in the same manner as any other easement which would be held by law to pass as incident to the grant." * The language of Best C. J. fully supports this view of the law, that all ways are extin- guished by unity of ownership ; and that ways of necessity are in reality new easements incident to the grant or reservation. " If," says he, " I have four fields, and grant away two of them over which I have been accustomed to pass, the law will presume that I reserve a right of way to those which I retain. But what right ? The same as existed before ? No ; the old right is extin- guished, and the new way arises out of the necessity of the thing. It has been argued, that the new grant operates as a prevention of the extinguishment of the old right of way, but there is not a single case which bears out that proposition, or which does not imply the contrary. By the grant a new way is created, and that way is limited by necessity."^ [Blackburn J., in Pearson v. 1 [Challoner v. Thomas, Yelv. 143.] < Gale & What, on Easem. (Am. ed.) 2 [Woolrych, Waters, 295; Pheysey 60. V. Vicary, 16 M. & W. 484, 489, 490. » Holmes v. Goring, 2 Bing. 83 ; [ Viall Parke B. and Alderson B.] v. Carpenter, 14 Gray, 126, 128; Hazard 3 [Woolryoh, Waters, 295.] v. Robinson, 8 Mason, 276. Per Bell J., CHAP, v.] UNITY OP POSSESSION. 343 Spencer,^ remarking upon this subject, said, " We do not think that, on a severance of two tenements, any right to use ways which, during the unity of possession, have been used and en- joyed in fact, passes to the owner of the dissevered tenement, unless there be something in the conveyance to show an inten- tion to create a right to use these ways de novo. We agree with what is said in Worthington v. Gimson,^ that in this respect there is a distinction between continuous easements, such as drains, &c., and discontinuous easements, such as a right of way." ^ — "It seems to us settled by modern authority, that the ground on which the way of necessity is created is, that a convenient way is impliedly granted as a necessary incident. It is observed by Parke B., in Proctor v. Hodgson,* that the extent of the author- ity of Holmes v. Goring is that, admitting a grant in general terms, it may be construed to be a grant of such a right of way as from time to time may be necessary. I should have thought it meant as much a grant for ever as if expressly inserted in a deed, and it struck me at the time that the Court was wrong." Alderson B. : " Probably, if this case be taken to a court of error. Holmes v. Goring raaj' be reviewed. We certainly do not feel inclined to extend the authority of Holmes v. Goring so far as to hold that the person into whose possession the servient tenement comes, may, from time to tinle, vary the direction of the way of necessity at his pleasure, so long as he substitutes a convenient way. We think we must hold that the way of neces- in Dunklee v. The Wilton Railroad, 24 occasional, and does not embrace the en- N.H. 504. Broke, in his Abridgment, tire beneficial occupation and improve- Bays, " The way is revired ; tamen videiur, ment of the land." " Among the most that it is a new way (noiwel cliimine)." prominent of this class of easements is a Bro. Abr. tit. Extinguishment, fol. 15. way." Another definition is, " Continu- And see, to the same effect, Clarke v. ous easements are those of which the en- Cogge, Cro. Jac. 170; Jordan v. Atwood, joyment is or may be continual, without Owen, 121 ; Morris v. Edginton, 3 Taunt, the necessity of any actual interference 24; Hazard v. Robinson, 3 Mason, 276, by man, as a waterspout, or right to per Story J.] light and air. Discontinuous easements ' [Pearson v. Spencer, 1 B. & S. 583 ; are those the enjoyment of which can B.C. 3 B. & S. 767.] only be had by the interference of man, 2 [29 L.J. Q.B. 116 ; 6 Jur. n.s. 1053 ; as rights of way, or a right to draw s.c. 2 Ellis & Ellis, 618.] water." Code Civil, Art. 688 ; Gale & 3 [In Jamaica Pond Aqu. Corp. v. What, on Easem. 17 ; Lampman v. Milks, Chandler, 9 Allen, 164, Bigelow C.J. de- 21 N.Y. 505 ; Durel v. Boisblanc, 1 La. fines a " non-continuous " easement to be An. 407.] one " where the use of the premises by * [Proctor o. Hodgson, 10 Exch. 824, the grantee for the purpose designated in 828.] the deed will be only intermittent and 344 LAW OP WATERCOUESES. [CHAP. V. sity, once created, must remain the same way as long as it con- tinues at all." " That, however, would not be itself a continuous or permanent easement, but one to be exercised from time to time while the necessity continued to occur." ^ ,§ 196. Had there been unity from time immemorial, the law would clearly imply a right of way as incident to a grant, if there existed no other means of such grant taking effect ; and it has, therefore, very naturally provoked the question, " Why should this anomaly of non-extinguishment be held to be law, when the same result can be obtained from the ordinary principles regulat- ing other easements of the same class ? " ^ Treating the right to a watercourse as a corporeal hereditament, or a right inherent in the land, attaching to each parcel through which the stream, in its natural course, passes ; and the right to have the water run to and from each proprietor over that of all others, as a natural easement,^ each parcel is in turn a dominant tenement and a ser- vient tenement ; * dominant, to secure the proprietor's own right, and servient, to secure the rights of others. If, therefore, such easement is extinguished by unity of ownership, it is created aneiv by every new division or severance of ownership ; and this consequence, it is held, necessarily results from the nature of their rights.^ § 197. In Gary v. Daniels,^ it appeared that certain tenants in common of an ancient mill and water privilege erected, below their mill, a new dam and a smaller mill, on their own land ; and while they owned both mills, it was the practice, whenever the lower dam so raised the water as to obstruct the upper mill, for a workman in the upper mill to go down, over the land, owned by the tenants in common, and open the waste-gate of the lower dam, and thus relieve the upper mill from backwater. After- wards each of the tenants in common, by a separate deed, con- veyed his undivided part of the upper mill, and the land near it to W., in these terms: "A certain parcel of land [described], together with an undivided " fractional " part of the privilege of 1 [Parke B., in Pheysey v. Vicary, 16 2 gale & What, on Easem. (Am. ed.) M. & W. 496. A way of strict necessity 60. ceases with the necessity. Viall v. Car- ' See ante, § 90, et seq. penter, 14 Gray, 126 ; Collins v. Prentice, * See ante, § 141, et seq. 15 Conn. .39, 423; Pierce v. Selleck, 18 ^ Cary u. Daniels, 8 Met. 466. Conn. 321 ; Seeley u. Bishop, 19 Conn. « Ibid. 128.] CHAP. V.J UNITY OP POSSESSION. 345 water creek, factory, saw-mill, dwelling-houses, and other build- ings situate on the premises, and of water-wheels, main gear, and main drums connected with the said factory and saw-mill, and of all the privileges and appurtenances thereunto belonging." W. conveyed all the upper land and buildings, with all the privi- leges and appurtenances, to C, who was one of the tenants in common. W. and D. afterwards became the owners of the lower land, dam, and mill, and W. released all his right therein to D., who abandoned the dam, and erected another for the use of the lower mill, lower down the stream, and by means thereof, threw back the water upon the wheel of C.'s mill, whereby its movements were obstructed. In a suit by C. against D. for this obstruction, it was held, that C. took the upper dam, mill, and privileges, as they existed, and were modified and appropriated by the lower dam, when the conveyance was made to W. ; and that he did not acquire a right to the unobstructed flow of the water from his mill ; and that D., bj^ removing his dam lower down the stream, exercised his rights justly and with- out injury to C, if he thereby made only the same appropriation of the stream that was made by his dam and mill as they stood before ; but that if B. raised his new dam, higher than his old dam, he was answerable to C. for the consequences. It was argued, that if the proprietors of the lower mill ever had a right to keep up their dam to tlie height at which it stood at the time of the conveyance, it was an easement ; that it became extinct by unity of ownership ; that, consequently, when they conveyed the upper mill without reserving an easement anew for their lower mill, the easement was gone. But the Court considered that the water had been used and enjoyed at the lower dam con- sistently with the general rights of other riparian proprietors, and that it was not used and enjoyed as a mere easement which has been extinguished by unity of ownership, but was parcel of the estate.^ And for the same reason, the Court held, that there was no breach of the covenant of warranty by the grantors against all incumbrances. § 198. Where the tenant holds by a defective title, and an easement in it by a valid title, the easement is not extinguished merely by unity of possession, but there must be a unity of own- ership. In Tyler v. Hammond, in Massachusetts,^ it was argued, 1 See ante, §§ 8, 90, et seq. ^ Tyler v. Hammond, 11 Pick. 193. 346 LAW OP WATERCOURSES. [CHAP. V. that by the purchase of the tenant, the right of passage merged in the fee. " Such," said the Court, " would have been the legal effect if both rights had been derived from the same title. But the tenant had the fee and the easement by different titles, the one legal and the other defective ; and there was, therefore, no merger. Nor can the tortious entry of the tenant under a defec- tive title, claiming the fee, work a forfeiture of his legal rights, nor is he estopped to assert his rights by his having set up this defective title in defence." [§ 198 a. In order to extinguish an easement by the unity of title and possession, both of the dominant and servient tene- ments, in the same person, he should have a permanent and enduring estate, an estate in fee in both.^ In the case of a gut- ter, where a party was seised in fee of the place where the eaves were, and was possessed of a term of five hundred years in another place where the easement was enjoyed, it was held, that this unity of possession did not destroy the privilege, but it was merely suspended, ready to revive upon the severance. And although the plaintiff in this case had raised a wall from whence the water fell upon the defendant's land, it was held to make no difference.^ " Since the alteration, the drops have to fall from a greater height." 3] § 199. A unity of ownership may be created by act and opera- tion of law.* In 1832, the mayor and aldermen of Boston, being duly empowered, caused " Mill Creek " (which was a broad and deep watercourse flowed by the tide) to be filled up and laid out as a highway ; and it was held, that the easement was taken away by act of law, and that for the disturbance or destruction of the easement, the tenant was entitled to compen- sation, in proportion to the injurj sustained as the owner of the land.s 1 [Ritger v. Parker, 8 Cush. 145, 147. s [Alderson B., in Thomas v. Thomas, Litt. § 561 ; Co. Litt. 313, a, 813, b ; Gale supra, Woolryoh, Waters, 295.] & What, on Easem. 349.] 4 Wright v. Freeman, 5 H. & John. P Thomas v. Thomas, 2 Cr., M. & R. 467. 84-] . 5 Hancock v. Wentworth, 5 Met. 446. CHAP. TI.] PRESCRIPTION. 347 CHAPTER VI. OP THE EIGHT TO THE USB OP WATER, AS DERIVED FROM PRE- SCRIPTION, OR PROM PRESUMED GRANTS. 1. Foundation of Prescriptive Right. 2. Grant as Presumed by Analogy to Act of Limitations. 3. Adverse Enjoyment. 4. Right acquired commensurate with the Extent of Enj03'ment. 5. The Presumption as relates to Parties not in Possession. 6. Disabilities. 7. Extinction of Presumed Water Rights. 8. Public Eights. 1. Foundation of Prescriptive Right. § 200. The existence of the evidence, which was stated in the preceding chapter^ to be necessary to prove an actual grant of a special right to a watercourse may be inferred from a long enjoyment without interruption .^ The foundation of this rule is, that mankind, from the necessity and infirmity of their situ- ation, must, for the preservation of their property and rights, have recourse to some general principle to take the place of in- dividual and specific belief; upon which a conclusion can be formed from particular and individual knowledge.^ The pre- ' See ante, 168, et seq. junction. Finch v. Rasbridger, 2 Vern. 2 A man v^ho has been in possession 390 ; Per Bell J., in Wallace v, Fletcher, of a watercourse for sixty years, may 30 N.H. 444-447. So in Massachusetts, bring a bill in equity against a mortgagee, in the year 1798, when the evidence was, who foreclosed the equity of redemption, that at the time the town of Concord was to be quieted in his possession, although first settled, one hundred and fifty years he had not established his right at law. before the action was brought, a small Bush u. Western, Free. Ch. 530. See stream was reserved for the use of the Duke of Dorset v. Girdler, Prec. Ch. 531 ; mill there ; that its natural course was Hillary v. Waller, 12 Ves. 261, 266. After through the defend_ant's estate, and that a long enjoyment of a watercourse by he had diverted and wasted the water; the plaintiff through the land of another, the Court held, that the use of the stream it was held by the Lord Keeper, that a to the plaintiff's mill for sixty years, wlth- grant was to be presumed, unless dis- out interruption, established his right, proved by the other side ; and the plain- Sullivan on Land Titles, 278 tiff was quieted in his enjoyment by in- 3 Hillary v. Waller, 12 Ves. 261, 266. 348 LAW OF WATERCOURSES. [chap. VI. sumption is made for the purpose, and from a principle of quieting a long possession.^ § 201. It is laid down in Bracton, that all incorporeal rights, or services, may be acquired by acquiescence and use, and lost by neglect and disuse.^ Indeed all the writers upon the Common Law of England, as well as the civilians, have recognized the principle that a right to any incorporeal hereditament may be acquired by lapse of time. This mode of acquisition has been by both denominated " prescription," which they say is founded on usage longa, continua, et pacifica,? They also state, that every prescription supposes a grant once made, and afterwards lost ; * and that therefore nothing can be claimed by prescription, which in its nature could not have been granted.^ To constitute a prescription, according to the old writers on the Common Law, the enjoyment must have existed time out of mind ; or, in other words, its commencement must be proved to have been anterior to the reign of Richard I.^ But in order to make persons on 1 Eldridge v. Knott, Cowp. 215 ; and see 2 Stark, on Ev. 1023 ; [Townsend v. McDonald, 2 Kernan, 381, 391 ; Gray J., in Edson v. Munsell, 10 Allen, 568 ; Ricard V. Williams, 7 Wheat. 59, 109.] 2 Bract, lib. 4, c. xxxviii. s. 3 ; [Hazard V. Robinson, 3 Mason, 275, 276 ; post, § 240; Jennison v. Walker, 11 Gray, 423. The term prescription is in strictness ap- plied to incorporeal hereditaments, and not to lands. Ferris v. Brown, 3 Barb. 105; Caldwell v. Copeland, 37 Penn. St. 431 ; Carlyon v. Lovering, 1 H. & N. 784.] 8 [Per Bell J., in Wallace v. Fletcher, 30 N.H. 444, 449, 450.] * [A right by grant may be increased by twenty years' use in another way. Wheatley v. Chrisman, 24 Penn. St. 298.] 5 [Carlyon v. Lovering, 1 H. & N. 784; Rochdale Canal Co. v. Radcliffe, 18 Q.B. 287, 314; Davis v. Brigham, 29 Maine, 391; Hill V. Lord, 48 Maine, 96; Per Bell J., in Wallace v. Fletcher, 80 N.H. 450. In Edson v. Munsell, 10 Allen, 567, 568, Gray J. said, " The ground on which prescription has generally been put in Massachusetts has been the presumption of a previous grant or agreement, which has been lost by lapse of time. But a grant cannot be presumed against a per- son legally incapable of making it."] ^ Bract, lib. 2, c. xxii. ; 1 Bla. Com. 75 ; 2 ib. 268 ; [Per Bell J., in Wallace v. Fletcher, 30 N.H. 445.] By the Common Law, an enjoyment to confer a title to an easement must have continued for a period co-extensive with the memory of man ; or, in legal phrase, " during time whereof the memory of man runneth not to the contrary." To this expression a definite meaning was originally attached, as comprising the period elapsed since the year 1189. Now, according to Black- stone, "time of memory," has been used and ascertained by the law to commence from the reign of Richard I., a period adopted by analogy to the stat. 3 Edw. I. c. 29, which fixed that as the date for alleging seisin in a real action. When the shorter time of sixty years was filed for a writ of right, and fifty for a posses- sory action, by 38 Hen. VIII., it has been said, that a similar extension of the statute was not made by Courts of Law, and that the time of prescription for incor- poreal rights remained as before (1st Report of English Real Property Com- missioners, p. 61). It is considered (see Gale & What, on Easem. p. 64) difficult to see upon what ground this distinction is made, as the enacting words of the two statutes are almost identical in expression, CHAP. VI. J FOUNDATION OP PRESCRIPTIVE EIGHT. 349 the alert in guarding their rights, and to prevent disputes re- specting privileges, that have been long and peaceably enjoyed, the Courts have not required positive testimony that the enjoy- ment commenced at the remote period we have mentioned, and have even held that forty years' enjoyment is presumptive evi- dence that the right has existed time out of mind, and conse- quently is a good prescription .1 By the modern rule, which we shall next proceed to consider, the period has been limited to twenty years. § 202. The extreme difficulty of giving proof of enjoyment for so long a time as that established in the earlier periods of the English law, was lessened by its being held, that evidence of enjoyment during a shorter time raised a presumption that such enjoyment had existed for the necessary period.^ In Bury v. Pope,^ " it was agreed, that if two men be owners of two parcels of land adjoining, and one of them doth build a house upon his land and makes windows and lights looking into the other's lands, and his house and lights have continued for the space of thirty or forty years ; yet the other may enter upon his own land and soil, and lawfully erect a house or other thing against the said lights or windows, and the other can have no action, for it was his folly to build his house so near the other's lands ; " * and and the latter has been considered only was held peculiarly sacred by the Romans ; as an addition to the former, restricting and thus they regarded an old possession the period ot prescription to sixty years, as in itself lawful by virtue of its long before action brought, and making no standing. On the same foundation the other alteration. The traces of immemo- modern doctrine is based; viz., on the rial prescription to be found in the lioman principle that the uninterrupted exercise Law are scanty, and the greater part of of a right beyond the memory of man this doctrine, as now used in Germany, supplies the want of a legal title, and has been introduced by practice. The establishes the right on the part of the term prcescriptio immemorialis (for which possessor. Ibid. [See Wallace y. Fletcher, prmsa'iptio indefiuata is now often used) 30 N.H. 444, 445, per BellJ.] does not appear in the Roman Law, but ^ Hill v. Smith, 10 East, 476. See was first employed by the glossators ; the also Child v. Tilsed, 2 13. & B. 40ii. From expressions by which it is denoted in the an user of thirty-five years of a ferry, the Corpus Juris, are : vetustas, longmvus usus, jury may presume a grant. Trotter u. quodme})ioria?nexcedit,cuJusongomeinoriam Harris, 2 You. &Jer. 285, Exeh. 1828. excedit, contrarii memoria non extat. Sa- ^ Jackson v. Harvey, 1 Cr., M. & K. 51. vigny (System, Vol. 4, Berlin, 1841, ' Bury v. Pope, Cro. Eliz. 118. p. 481) speaks in favor of the technical * [The presumption of a grant from exprebsion, tempus immemoriate ; but long-continued enjoyment only arises learned practitioners have, with more where the person against whom the right reason, recommended the term, possessio is claimed might have interrupted or pre- immemorialis (1 Kauff. Mack. 300, n.) vented the exercise of the subject of the Every thing sanctioned by long usage supposed grant. It was, therefore, held. 350 LAW OF WATERCOURSES. [CHAP. TI. this doctrine appears to have been held down to the time of the passing of the Statute of Limitations, 21 Jac. 1, c. xvi. 2. G-rant as presumed hy Analogy to Act of Limitations. § 203. The rule now practised upon, is an improvement upon the former rule ; because, as it limits the enjoyment to a certain and precise period, viz., to the period limited by the Statute of Limitations for entry upon lands, it leaves less room for dispute. Certainty is one of the grand objects of the law ; and it is pe- culiarly important in that branch of the law which concerns the conflicting claims to a watercourse. § 204. That a title to any incorporeal hereditament may be supported by an uninterrupted enjoyment for the period limited by statute for the right of entry upon land, was first laid down as law in England by Mr. C. J. Wilmot, in the year 1761. The case we refer to is Lewis v. Price, at Nisi Prius.^ In this case, the rule just mentioned was adopted, in analogy to the Statute of Limitations, 21 Jac. 1, c. xvi. s. 1, which enacts, that no per- son who has any right or title to entry upon land, shall enter, but within twenty years next after his right or title shall accrue.^ There is no positive law, however, which says that no ejectment shall be brought, by any person who has not by himself, or by that a grant of a right to the free and long-continued possessions. 2 Saund. uninterrupted passage of the currents of 176, note ; Hillary v. Waller, 12 Ves. 239 ; wind and air to the plaintitf's wind-mill Coolidge v. Learned, 8 Pick. 508." Per from over the soil of another, cannot be Gray J., in Edson o. Munsell, 10 Allen, presumed from an uninterrupted user of 568. In Tracy v. Atherton, 36 Vt. 511, the mill for twenty years. Webb v. Bird, Poland C.J. said, " The general language 13 C.B. 841. See Chasemore v. Eichards, of the books, found in innumerable cases, 7 H.L. Cas. 349.] is that from such a possession, continued 1 Lewis V. Price, 2 Wm's Saund. 175. for the period of the statute, the law will 2 [" Tile fiction of presuming a grant presume a grant, or courts will direct from twenty years' possession or use was juries to presume a grant. But this is invented by the English Courts in the purely a legal fiction. The doctrine pro- eighteenth century to avoid the absurdi- ceeds wholly upon the ground of pre- ties of their rule of legal memory, and suming a right after such length of was derived by analogy from the limita- possession, and not at all upon the ground tion prescribed by the statute of 21 Jac. I. that there ever was a grant made, but c. 21, for actions of ejectment. It is not which has been lost ; and though it may founded on a belief that a grant has actu- be shown ever so clearly that no grant ally been made in the particular case, was ever made, the case is not at all but on the general presumption that a varied." The same view of the subject man will naturally enjoy what belongs is taken by Wilde J., in Coolidge v. to him, the difiiculty of proof after lapse Learned, 8 Pick. 504.] of time, and the policy of not disturbing CHAP. VI.] PREStTMPTION OP GRANT. 351 some other under whom he claims, been in possession of the estate for which the ejectment is brought, within twenty years ; but as a person cannot enter, he of course cannot maintain an ejectment, which is founded on an entry supposed to have been made Ijy the lessor of the plaintiff. So in an action on the case lor the disturbance of an easement appurtenant to the estate, the plaintiff cannot recover if there has been an uninterrupted en- joyment of it for twenty years by another person ; and as twenty years' possession of land is considered a bar to an ejectment, so the possession of an easement attached to it for the same period, is by analogy deemed evidence of right in the party possessing it. Indeed, it would seem absurd to acknowledge a right to a greater interest, as having been created by an enjoyment for any given space of time, and to deny it to a lessor, as omne major continet in se minus} The doctrine has not only frequently been applied in subsequent eases in England to lights, but frequently also to ways and rights of common, and watercourses, and in fact to all easements and profits arising from or issuing out of laud.^ ' The case just referred to, of Lewis v. Price, was respecting the obstruction of lights. It was said by Wilmot J., that twenty years is sufficient to give a man title in ejectment, on whicli he may re- cover the house itself, and he saw no reason why it should not be sufficient to entitle him to any easement belonging to the house. In the case of Dougal v. Wilson, 2 Wm's Saund. 175, which also came before Wilmot, when he was Chief Justice of the Common Pleas, the defend- ant attempted to show, that the lights did not exist more than sixty years, which would have been sufficient to re- but the evidence of a right by prescrip- tion. But it was answered by the Chief Justice, that if a man has been in posses- sion of a house, with lights belonging to it, for fifty or sixty years, no one can stop up those lights. Possession, he said, for such a length of time amounts to a grant of the liberty of making them, and is evi- dence of an agreement to make them. The possession of an estate, he continued, for so long a period as sixty years, cannot be disturbed even by a writ of right, the highest writ in the law ; and as the ten- ant's possession of the house cannot be disturbed, it would be absurd that he should be disfiirbed in his lights. [It is said by Gray J., in Brooks v. Reynolds, 106 Mass. 32, that " it is now well settled that, by the Common Law of Massachu- setts, a deed of land passes no right of light and air over other lands, without express words." And, in Randall v, Sanderson, 111 Mass. 119, it is said by Morton J. that it is the established law in Massachusetts that an easement of light and air cannot be acquired by pre- scription. Rogers o. Sawin, 10 Gray, 376 ; Carrig o. Dee, 14 Gray, 583 ; Rich- ardson V. Pond, 15 Gray, 387. For cases showing the extent to which the English law respecting ancient lights has been recognized or repudiated in the American States, see 2 Chitty PI. (16th Am. ed.) 479, 480; Powell v. Sims, 5 W. Va. 1.] ^ SeeDarwin V.Upton, 2 Wm's Saund. 175 (a.) ; Holcroft v. Heel, 1 B. & P. 400; Campbell v. Wilson, 3 Bast, 294 ; Daniel V. North, 11 East, 371 ; Bealy v. Shaw, 6 East, 208 ; Balston v. Bensted, 1 Campb. 463; Barker v. Richardson, 4 B. & Aid. 578 ; Gray v. Bond, 2 Brod. & Bing. 667 ; Cross V. Lewis, 2 B. & C. 686 ; Wright v. Howard, 1 Sim. & Stu. 203; Drewett u. 352 LAW OF WATERCOURSES. [CHAP. VI. § 205. The case of Bealy v. Shaw ^ has been a leading case in England, on the subject of the acquisition of an adverse right to the use of a natural watercourse ; and it was decided in conform- ity to the doctrine above laid down. It was an action on the case, wherein the plaintiff declared that he was possessed of cer- tain lands, mills, &c., and that a stream of water used to flow out of the river Irwell through his land, and was used to work his said mills ; and that the defendants injuriously widened, deepened, and enlarged certain sluices leading out of a part of the river Irwell, higher up than the commencement of the plain- tiff's stream, and thereby drew off and diverted from the said river, a greater quantity of water than they had done previously, by which it was prevented from flowing to the premises of the plaintiff. The question presented to the Court was, as to the quantity of water to which the defendant was entitled, by vir- tue of his uninterrupted enjoyment. Lord Ellenborough C. J. : " The general rule of law, as applied to this subject, is, that independent of any particular enjoyment used to be had by another, every man has a right to have the advantage of a flow of water in his own land without diminution or alteration, but an adverse right may exist, founded on the occupation of another.^ And although the stream be either diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking and using it, have existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right. I take it, that twenty years' exclusive enjoyment of the water, in any particular man- ner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of Parliament." Again, in Balston v. Bensted,^ the defence intended to be set up in that case was, that the plaintiff" had no exclusive right to the supply of certain water to which he laid claim, inasmuch as the principle on which twenty years' running water confers a right, appeared from the cases to be, that after an adverse possession for so long Sheard, 7 C. & P. 465, and 32 Eng. Com. "What, on Easera. 64, et seq. [Pliinizy v. Law Rep. 585 ; Mason v. Hill, 3 B. & Ad. City Council of Augusta, 47 Geo. 260.] 76, and 23 Eng. Com. Law Rep., and 5 i Bealy v. Sliaw, 6 East, 208. B. & Ad. 1, and 27 Eng. Com. Law Rep. ^ y^er Denio J., in Townsend v. 11 ; and see for other English authorities, McDonald, 2 Kernan, 391.] Matthews on Pres. Ey. 296-316; Gale & 3 Balston v. Bensted, 1 Campb. 463, and ante, § 111. CHAP. VI. J PRESUMPTION OP GRANT. 353 a time, a grant was to be presumed from the owners of the land farther up the stream. Such a grant could not here be presumed, as previously to the drain being made, probably no individual knew that the plaintiff's spring was fed by water percolating through the strata in the close ^ now occupied by the defendant. But Lord Ellenborough observed early in the trial, that " the only question was, whether the diminution of the supply of water to the plaintiff's bath had been caused by the drain being dug by the defendant ; and that there could be no doubt, but that twenty years' exclusive enjoyment of water, in any particular manner, affords a conclusive presumption of right in the party so enjoying it." ^ § 206. In the absence of a special custom, it has been held, that artificial watercourses are not distinguished from natural ones ; ^ and that a title may be gained by twenty years' user as well to the former as the latter.* The important case of Ark- wright V. Gell ^ turned upon the right of the party receiving 1 As to subterranean diversion, see ante, §§ 109-115. ^ [Note the remarks of Wightman J., and of Lord Clielmsford, upon this ob- servation of Lord Ellenborough, in the late case of Chasemore o. Richards, 7 H.L. Cas. 349; s.c. 5 H. & N. 982, 984 988; of Cresswell J., in Chasemore v Richards, 2 H. & N. 183 ; of Brinkerhoff J, in Frazier o. Brown, 12 Ohio St. 300 ante, § 111, note. See per Maule J., in Smith V. Keiirick, 7 M., G. & S. 546 Townsend v. McDonald, 2 Kernan, 381 391 ; Shields v. Arndt, 3 Green Ch. (N.J.) 246.] 8 [See Townsend v. McDonald, 2 Kernan, 381; Dunklee o. The Wilton R.R. Co., 24 N.H. 506; New Ipswich Factory v. Batchelder, 3 N.H. 190.] i Magor V. Chadwick, 11 Ad. & El. 571; [Earl v. De Hart, 1 Beas. (N.J.) 280; 285 ; Gaved v. Martyn, 19 C.B. n.s. 732 ; Ivimey v. Stocker, L.R. 1 Ch. Ap. 396. A party cannot gain a right to the flow of surface water over his neighbor's land by collecting it in drains or culverts, or artificial channels, unless he maintains them for a length of time sufficient to acquire a right or easement by adverse user. Dickinson v. Worcester, 7 Allen, 19, 22; White v. Chapin, 12 Allen, 518. But if the face of the country is such that it necessarily collects in one body so large a quantity of water, after heavy rains and the melting of large bodies of snow, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined chan- nel, which the force of the water has made for itself, and which is the accus- tomed channel through which it flows, and has flowed from time immemorial, such channel is an ancient natural water- course. Earl V. De Hart, 1 Beas. (N.J.) 280, 28.3, 284.] 5 Arkwright v. Gell, 5 M. & W. 220. See Wood w. Waud, 3 Exch. 748, 776, 777. It would appear from the facts of this case, that there was no "perpetua causa," the flow of water being of a temporari/ nature only ; it also seems by no means clear, that the easement claimed would not have imposed the obligation not only " pati aut nonjacere" but also to do some- thing positive, to continue the mining operations. If this be so, if the flow of water could not have continued in the manner desired by the plaintiff, supposing the mines to be abandoned, it is clear that the obligation thus sought to be im- posed was directly opposed to the legal constitution of easements. Gale & What, on Easem. 127. See ante, § 4. 23 354 LAW OP WATERCOURSES. [CHAP. VI. water drained from a mine, to compel the owners of the mine to continue such discharge ; and the Court decided that in that case no such right existed. The party would only have a right to use the water in question so long as it continued there ; and an user for twenty years or longer time, would afford no pre- sumption of a grant of the right to the water in perpetuity ; for such a grant would in truth be nothing more nor less than an obligatipn on the mine owner not to work his mines, by the or- dinary mode of getting minerals, below the level drained by that sough, and to keep the mines flooded up to that level, in order to make the flow of the water constant, for the benefit of those who had used it for some profitable purpose. " How can it be supposed," said Parke B., " that the mine owners could have meant to have burdened themselves with such a servitude, so destructive to their interests ; and what is there to raise an in- ference of such an intention ? The mine owner could not bring an action against the person using the stream of water, so that the omission to bring an action could afford no argument in favor of the presumption of a grant ; nor could he prevent the enjoy- ment of that stream of water by any act of his, except by at once making a sough at a lower level, and thus taking away the water entirely, — a course so expensive and inconvenient, that it would be verj' unreasonable, and a very improper extension of the principle which applies to the case of lights — to infer, from the abstinence of such an act, an intent to grant the use of the water in perpetuity, as a matter of right." ^ 1 [Shields v. Arndt, 3 Green Ch. (N.J.) Wood v. Waud, 3 Exch. 748. A. had 234, 249; Pollock C.B., in Solomon v. been in possession of land for nearly Vintners' Co., 4 H. & N. 593 ; and in thirty years, above which on a stream Wood o. Waud, 3 Exch. 777, 778. See was a dam, by which the water was kept Smith V. Miller, 11 Gray, 145, stated from overflowing A.'s land until it could post, § 216, note. Where water has be carried ofi by ditches tlirougli the flowed, in an artificial and covered water- same. The owner of the dam cut it course for more than sixty years, from a through and thereby A.'s land was over- colliery into an immemorial and natural flowed as it had been before the dam stream, upon whose banks the plaintiff's was constructed. In an action by A. for mills are situated, the plaintiff, in such damages, it was held, that there was here case, has no right of action for diversion no subject of a grant and no adverse pos- of the water of such artificial watercourse session by A., and therefore no easement, against a party through whose land it whose interruption would give a claim passes, but who does not claim under, for damages. Felton v. Simpson, 11 Ired. or who is unauthorized by, the colliery (N.C.) 84. But see Middleton v. Grego- owners. The case would, however, be rie, 2 Rich. 631, 638. diflFerent if the waters were polluted. In Jessup v. Laucks, 56 Penn. St. 850, CHAP. VI.] PRESUMPTION OP GRANT. 355 [§ 206 a. In White v. Chapin,i Foster J., noticing the point stated in the preceding section said, " There is a class of English cases in which it has been held, that where an owner above on his own land has, for his own purposes, collected the water and discharged it upon the land of his neighbor below, the latter does not by length of time acquire an easement entitling him to a continuance of the supply thus created.^ In the case of Great- it appeared that a navigation company had a right, under their charter, to build and maintain dams for the purpose of their navigation and to sell surplus water. They granted to a predecessor of the defendants, his heirs and assigns for ever, the full use of the water not wanted for the navigation, with privilege to keep the dam in question in good order. The works fell into entire disuse, the defend- ants rebuilt the dam and claimed to maintain it under the grant. It was held, that the company had no power to grant the right claimed. Thompson J. said, " The grant under which the defendants claim the right to maintain the dam in its height and efficiency, as it existed when used by the company, fails in effect for two reasons. The first is, that the user by the company having ceased, and the works being abandoned, the authority of the company over tliem ceased with the user, and the easement acquired, reverted to the owners of the property from whom taken. Secondly, the grant itself, being of an incident connected with or arising out of the principal object in granting the charter to the company, must neces- sarily expire with the principal, and cease when tliat ceases. In the nature of things there could be no fee-simple estate in it. The grant might be perpetual if the works continued to be so, but its perpetuity would depend upon that. The company could not be compelled to keep up their works in order to furnish a surplus of water to fill the terms of the grant. This was held, in Cass o. Penn. K.R. Co., 51 Penn. St. 351. Such a grant, in its enjoyment, is as permanent only as the creation of which it is an in- cident, and necessarily as unstable ; like the natural phenomenon of the shadow cast by a substance, it vanishes when the substance disappears." In Mason v. Shrewsbury & Hereford Railway Co., L.R. 6 Q.B. 578, it appeared that a natu- ral watercourse, called Ashton Brook, flowing through the plaintiff's land, had been diverted for upwards of forty years by a canal company under the powers of their act, and the bed had become silted up, and was no longer adequate to carry oflF the flood water in its natural state. The canal was discontinued and the waters restored to their former course, and the plaintiff's land was thereby flooded and damaged. The Court held that he had no legal ground of complaint. Blackburn J. said ; " He had the ordinary rights and liabilities of a riparian owner on the banks of a natural stream. He was entitled to have the water flow to him in its natural state, so far as it was a benefit, and was bound to submit to receive it^so far as it was a nuisance." He held that the enjoyment de facto of the relief from the water for more than forty years did not give a right to the continuance of that relief, because no obligation was imposed on the canal company to continue to take the water, and that his enjoyment was not a right, but only so long as the particular pur- pose for which it was taken was served. Cockburn C.J. gave judgment for the defendants, on the ground that the ease- ment of the watercourse existed for the benefit of the dominant tenement above, and could not operate to make a new right for the benefit of the servient tene- ment. Like any other easement, it might be discontinued if it became oner- ous, or ceased to be beneficial to the party entitled.] 1 [White V. Chapin, 12 Allen, 516, 520.] 2 [Arkwright v. Gell, 5. M. & W. 203; Wood V. Waud, 3 Exch. 748 ; Greatrex V. Hay ward, 8 Exch. 291 ; Parke B., in Rawstron v. Taylor, 11 Exch. 378; 356 LAW OP WATERCOURSES. [chap. YI. rex V. Hayward,! it was held, that the flow of water from an agricultural drain for twenty years did not give the adjacent pro- prietor below such a right to the use of the water as to preclude the owner of the upper lot from cutting oif the supply to improve his own land. But these cases have been repeatedly explained. The servitude which subjects the lower land to the continued discharge of water from an artificial cut above may be created under circumstances which do not establish a correlative right to the continuance of the discharge for the benefit of the lower estate. The submission to the exercise of an easement by the owner of the dominant estate, for his own purposes and in his own way, does not necessarily give the servient owner a right to the continuance of the easement imposed, because it is attended with incidental advantages to the latter.^ The case of Beeston Alderson B. in Broadbent u. Ramsbo- tham, 11 Bxch. 610 ; Solomon u. Vint- ners' Co., 4 H. & N. 593 ; Sampson u. Hoddinott, 1 C.B. n.s. 590, 606 ; Yale v. Brace, 99 Mass. 488, 492, 493. The right to artificial watercourses, as against the party creating them, depends upon the character of the watercourse, whether it be of a permanent or tempo- rary nature, and upon the circumstances under which it is created. The flow of water for twenty years from the eaves of a house could not give a right to the neighbor to insist that the house should not be pulled down, or altered so as to diminish the quantity of water flowing from the roof The flow of water from a drain, for the purposes of agricultural improvements, for twenty years, could not give a right to tlie neighbor so as to preclude the proprietor from altering the level of his drains for the greater im- provement of the land. The state of circumstances in such eases shows that the one party never intended to give, nor the other to enjoy, the use of the stream as a matter of right. Per cur. Wood v. Waud, 3 Exch. 779. If a farmer, by some system of drainage, draws ofi' the rain-fall from his lands, and pours it into the plauitiff"8 ditch, and so creates a new and artificial supply of water, and the latter uses the water for more than twenty years, and after that the farmer adopts a new mode of drainage, and in so doing cuts off the artificial supply of water, the plaintiflT has no remedy for the loss of the water, the supply being of a temporary character, and the circum- stances showing that the one party never intended to give, nor the other to enjoy, the use of the artificial drainage-water as a matter of right. Greatrex v. Hay ward, 8 Exch. 291; Bawstron v. Taylor, 11 Exch. 369. In cases of this sort no right is acquired as against the owner of the property from which the course of water takes its origin, though as between the first and any subsequent appropriation of the watercourse itself such a right may be acquired. Arkwright i-. Gell, 5 M. & W. 282 ; Addison, Wrongs &c., 44, 45.] t [8 Exch. 291.1 2 [Magor ■•■. Chadwick, 11 Ad. & El. 571 ; North-eastern Kailway v. Elliot, 1 John. & Hem. 164 ; Beeston v. Weate, 5 El. & Bl. 986. And in Yale v. Brace, 99 Mass. 488, it was held, that if the use of the water of a stream, in its natural flow, would be of no value to the owner of a mill situated between the reservoir and the mill of another who has a pre- scriptive right to draw from the reservoir, for the purpose of working his mill, more or less than such natural flow at his plea ure, the former is not entitled to relief in equity against the latter for making a different use of the water, by raising and tightening his dam ami by different machinery at his mill, from that which he made while gaining his pre- scriptive right. In this case Hoar J. said, CHAP. VI.] PRESUMPTION OP GRANT. 357 V. Weate ^ recognizes the principle as we have now stated it. And we are aware of no authority, English or American, which gainsays the doctrine that the upper proprietor, by use for a sufficient time, may acquire the right to keep open an ancient agricultural ditch through land below for the purpose of draining his own premises." That there may be a prescriptive easement to enjoy the run of water from the dominant estate through the servient by such an artificial ditch, drain, or watercourse, is well settled in Massachusetts. In relation to a raceway conducting off the water from a mill, Mr. Chief-Justice Shaw said, " It must be taken, according to established rules of the law, that the run of such a canal through the land of another for the time stated is evidence of an antecedent grant." ^ And in another case: " It is immaterial whether the watercourse be natural or arti- ficial." ^ The same doctrine has been applied to an ancient watercourse leading from the meadow of one party through the land of- another, in which the water from the meadow, and the rain which fell upon the same, had been wont to run, thereby draining the meadow land, and rendering it arable and of great value.* In the recent case of Smith v. Miller,^ where such a right of drainage was claimed, but in the facts as found by the " The question is raised whether the fact diverting the water of a natural stream that the defendant by raising and tight- flowing along it, so as to cause it to pass ening his dam, and putting different through that tenement by an artificial machinery into his mill, makes a differ- cut to the dominant tenement, for the ent use of the water from that which he purpose of supplying cattle with water. made while he was gaining his prescrip- The right claimed was not to a continual tive right, gives the plaintifit any right flow of the water, and in that respect the to have the flow of the water from the case differs from the ordinary one of the reservoir regulated for his benefit. The owner of a mill not upon the bank of a acquisition of the prescriptive right to river, who has acquired by user the right use the reservoir bj' the defendant cer- to divert the river to his mill by an arti- tainly gave the plaintiff no right to It. ficial cut through a neighbor's land. The plaintiff might use it or not at his The use of artificial aids, as mill leats pleasure." " He is not injured by being &c., by a riparian owner, does not in deprived of it and is not therefore entitled any way affect his natural right to the to any equitable relief. His real ground use of the water, if the rights of the other of complaint is that the defendant does proprietors are not infringed thereby, he not use the prescriptive right to his ad- may employ such means as he thinks vantage, which he is not bound to do. proper.] He may omit to exercise it entirely." 2 [Prescott v. White, 21 Pick. 342.] 1 [Beeston v. Weate, 5 El. & Bl. 986. 3 [Gary v. Daniels, 5 Met. 238 ; This case is an instance of a right ae- Crittenton v. Alger, 11 Met. 281.] quired by the owners of the dominant * [Ashley v. Ashley, 6 Gush. 70 ; s.c. tenement to go from time to time upon 4 Gray, 197.] the servient tenement, for the purpose of ^ [Smith v. Miller, 11 Gray, 145.] 358 LAW OP WATERCOURSES. [CHAP. VI. verdict of a jury was decided not to exist, because the use had not been adverse, but permissive and in accordance with the original agreement of the parties, the Court said, " A right to an easement of that kind in the land of another may undoubtedly be acquired by the actual enjoyment of it, provided that the en- joyment is adverse, uninterrupted, and of sufficient continuance and duration." i] § 207. In Bealy v. Shaw,^ Lord EUenborough, in giving his opinion, observes, that less than twenty years' enjoyment of the water of a watercourse, may or may not afford a conclusive pre- sumption of right. It is very certain, that an adverse possession for less than twenty years requires some other proof in support of the right ;^ but although in general a grant cannot be presumed less than twenty years, yet a license may. Thus, an inclosure made from the waste twelve or thirteen years before, and seen by the steward of the same lord from time to time, without objec- tion made, may be presumed by the jury to have been made by the license of the lord ; and hence, ejectment cannot be brought against him as a trespasser, without previous notice to throw it up.* § 208. The doctrine that easements of every sort may be ac- quired by an adverse user, for the period of time limited by the Statute of Limitations for the right of entry upon land, has been adopted and been very frequently applied by the Courts of the United States.^ In Ricard v. Williams, in the Supreme Court of 1 [Where a riparian proprietor, below extend to incorporeal rights, but it has a mill upon the stream, changed the flow now become universally settled that an of the stream into an artificial channel, uninterrupted use of a way or other ease- and it continued to flow there without ment, under a claim of right, for the period interruption for flfty years, it was held of time fixed by the statute as a bar to that the mill-owner had thereby acquired the recovery of lands held adversely, a right to have the channel kept open for gives the person so using it a full and ab- the flow of water from his mill. Delaney solute right to such easement, as much as u. Boston, 2 Harr. (Del.) 489.] if granted to him. This has been settled 2 Bealy v. Shaw, 6 East, 215. by a long course of judicial decisions, 3 Rex V. Wardroper, 4 Burr. 2024; and is founded primarily on the ancient and see 4 Esp. 69 ; Rrcard u. Williams, doctrine of prescriptions, but has finally 7 Wheat. 59. In Halght c. Morris by the Court been made to conform, by Aqueduct, 4 Wash. C.C. 607, it seemed analogy, to the Statute of Limitations to be considered by the Court, that an applicable to lands, in all substantial par- enjoyment short of twenty years, under ticulars, so far as the difference in the particular circumstances, may create the subjects will allow. Per Poland C.J., in presumption of a grant. Tracy v. Atherton, 36 Vt. 510, 5U ; 4 Doe d. Foley v. Wilson, 11 East, 56 ; Barnes a. Haynes, 13 Gray, 188 ;' Blake and see post. Chap. VIIL v. Everett, 1 Allen, 248; Pillsbury „. 5 [The Statute of Limitations does not Moore, 44 Maine, 164.] CHAP. VI.] PRESUMPTION OP GRANT. 359 the United States/ that Court declared, that it was the policy of Courts of Law to limit the presumption of grants to periods anal- ogous to those of the Statutes of Limitation, in cases where such statutes did not directly apply ; and that there was no difference in the doctrine, whether the grant relates to corporeal or incor- poreal hereditaments. Where the right to a ferry was in ques- tion, the Court just mentioned considered, that the complainants had so long slept upon their rights, that they were without remedy, whether they knew of an adverse possession, or through negli- gence, and a failure to look after their interests, permitted the title of another to grow into maturity .^ In Hill v. Crosby, in Massachusetts,^ the controversy was respecting a right of way, the action being for a disturbance of a way over a river, by throwing down the abutment of a bridge which the plaintiff had rebuilt. The counsel for the defendant admitted, that, in Eng- land, a grant might be presumed from an adverse enjoyment of twenty years unexplained ; but they contended, that, the prin- ciple was inapplicable in Massachusetts, in consequence of the statute of 1783, which requires a conveyance of any interest in land to be by deed, and to be recorded ; and that the statute of 1786, which provides for laying out private ways, and making them matters of record, negatived the principle, that twenty years' enjoyment shall afford a presumption of a grant. C.J. Parsons, after remarking, that in point of law the facts did not show a title to the way in the plaintiff, observed, " The con- tinued use of the way and bridge by the plaintiff's father and himself, for more than twenty years, the keeping up and repair- ing the bridge, and the passing the river in the same place in a boat when the bridge was down, show a continuity of possession suflBcient to warrant the presumption of a grant ; and we have no doubt, a right to an easement may be so proved in this country, as well as in England."^ — " It is a general and highly salutary 1 Ricard v. Williams, 7 Wheat. 59. delivered the opinion of the Court. He 2 Bowman v. Wather, 1 How. (U.S.) considered it extraordinary that the time 189. of legal prescription should continue to 8 Hill V. Crosby, 1 Pick. 466. be reckoned from so distant a period as * The question arose in Coolidge o. the reign of Richard I., and it seemed, he Learned, in Massachusetts, as to the length said, to the Court, that, for all practical of time requisite to create a prescriptive right purposes, it might as well be reckoned to a parcel of land for a landing-place from the creation. The limitation was adjoining Charles River. This question founded on the equitable construction of was fully considered by Wilde J., who the statute West. 13 Edw. I., c. 89, which 860 LAW OP WATERCOURSES, [chap. VI. rule of law," says Mr. C.J. Shaw, in a much later case in Massachusetts, " that a right or easement which may be acquired provided, that no writ of riglit should be maintained except as a seisin from the time of Richard I. When the limitation of a writ of right was reduced by the statute 32 Hen, VIII., c. 2, to sixty years, a similar reduction should have been made in tlie limitation of the time of legal memory. This was required not only by public policy, to quiet long-con- tinued possessions, but by a regard to consistency, as it would hare been follow- ing up the principle upon which the first limitation was founded. No solid and satisfactory reason appeared, why the opinion of RoUe (2 Abr. 269), that an un- disturbed enjoyment of an easement for a period of time sufiicient to give a title to land by possession, was not adopted by the Courts. But it did appear, that the principle on which his opinion was founded was respected and carried into operation in another form ; for although the Courts continued to adhere to the limitation before adopted, yet the long enjoyment of an easement was held to be a sufficient reason, not only to authorize but to require a jury to presume a grant. In the one case, the grant is presumed by the Court, or rather is presumed by the law, and in the other case, it is presumed by the jury under the direction of the Court. As Starkie remarks, " it seems to be very difficult to say, why such pre- sumptions should not at once hare been establisiied as mere presumption of law, to be applied to the facts, without the aid of a jury." Coolidge v. Learned, 8 Pick. 504. The views of the Court in this case are sanctioned in the subsequent case of Melvin v. Whiting, 10 Pick. 297. See ante, § 201, n. 4. [In Wallace «. Pletcher, 30 N.H. 446, Bell J., remarking on this subject, said, " The natural, and, indeed, necessary consequence of a rule so ab- surd (as that of extending the time of prescription back to the reign of Richard I.) and one necessarily productive of so unjust consequences, was that the Courts were driven to evade it by refinements and fictions. It seems by the case of Guernsey u. Rodbridge, Gil. Eq. Cas. 4, B.C. 2 Vern. 3&0, under the name of Finch V. Rosbridger, in 1707, that the Court of Chancery first adopted the principle of presuming the former existence and loss of a deed, where a long and uninterrupted possession of an easement was shown. It was not until 1761, that this principle was adopted in the Courts of Common Law in England. Some of the Judges then were, at times, inclined to give to this presumption the effect of a presumptio juris et de jure, a \ega,l presumption binding on both Courts and juries, as a rule from which neither had a right to depart, — a presumption of a right constituting a per- fect title or bar, as the case might be." — " But the current of English decisions has gone no farther than to hold that long-continued and uninterrupted pos- session is evidence from which a jury may presume a deed." — "The instruc- tion given to the jury that such proof is competent evidence, from which they may infer the existence and loss of a deed, is understood to be accompanied by a recommendation so to find the fact, whatever may be their individual im- pressions of its truth, and it seems that verdicts rendered in conflict with such recommendations would be set aside. Bealy v. Shaw, 6 East, 214, per Lord Ellenborough C.J. ; Bright v. Walker, 1 Cr., M. & R. 217, per Parke B. ; Jackson V. Harvey, 1 Cr., M. &. R. 894, per Alder- son B. Many cases, in this country, have followed in the track of the English decisions, though it is apparent, that in a newly settled country like ours, where, to a great extent, every thing is of recent date, and the history of our towns, of our roads, farms, mills, and dwellings are known, a rule like that adopted in Eng- land is in no respect adapted to our situ- ation. On other subjects, the Common Law has been everywhere modified, to adapt it to the wants of our community. The English decisions on this subject have been but modes of evading the efiect of early decisions of their Courts, which have been found inconsistent with the principles of justice, and it is clearly as much within the legitimate sphere and customary action of the Courts to dis- regard or to overrule such decisions, as it can be to evade them by nice presump- CHAP. VI.] PRESUMPTION OP GRANT. 361 by grant, may be acquired by long-continued peaceable use and enjoyment, without contest or claim on the part of those who would have an interest in denying or contesting it." ^ § 209. The enjoyment and exercise must be adverse in the exact sense that the possession of the land must be so, to war- rant the application of the Statute of Limitations, in an action of ejectment.2 Most of the statutes of limitations in the United States, like the English statute of James I., c. 16, prescribe the period of twenty years for the right of entry upon land held ad- versely ; 3 in Connecticut and Vermont, fifteen years ; ^ and in tions, either of fact or of law. It was the wise course, prescribed by principle as well as by public convenience, to over- rule the absurd decisions which sanctioned a fixed point in the early history of Eng- land, as the limit of legal memory, and at the same time to restore the principle upon which that decision appears to be made, tliat in cases where the legislature have not fixed a precise rule of limita- tion, rights shall be acquired and barred by a prescription of such length of time as has been fixed by the legislature as the proper limitation in analogous cases. Ricard v. Williams, 7 Wheat. 110 ; Hunt V. Hunt, 3 Met. 185." And in a late case in Massachusetts, — Edson V. Munsell, 10 Allen, 557, 565,— Gray J. said, " The reasons indicated by Bracton, and which controlled the Eng- lish Courts in the construction of the statute of West. I., and our own in the construction of the statutes of 1786 and 1807, are sufiicient to show that since writs of right have been abolished, and writs of entry substituted as the proper form of action to recover the freehold, the limitation of writs of entry should be held the legal limit of prescription of in- corporeal rights. And the period of twenty years has been assumed and de- clared by this Court to be the term of prescription in many recent cases. Ash- ley V. Ashley, 4 Gray, 200 ; Lawrence v. Fairhaven, 5 Gray, 114; Sibley u. Ellis, 11 Gray, 417; Currier v. Gale, 3 Allen, 330; Leonard v. Leonard, 7 Allen, 277."] 1 Williams v. Nelson, 23 Pick. 141; [Bigelow C.J., in Brace v. Yale, 10 Allen, 44.3. For cases showing the effect of contest, denial, or claim on the part of those against whom the easement is claimed, see post, § 215, note.] 2 Colvin V. Burnet, 17 Wend. 562; Hart V. Vose, 19 Wend. 365; Dyer v. Depui, 5 Wharton, 584. ' [So it is in South Carolina, Cuthbert V. Lawton, 3 M'Cord, 194; in New Jersey, Campbell v. Smith, 3 Halst. 140 ; in North Carolina, Felton v. Simpson, 11 Iredell, 84 ; Grifiin v. Foster, 8 Jones (Law), 339 ; Powell V. Lash, 64 N. Car. 456 ; in Ken- tucky, Manier v. Myers, 4 B. Mon. 514; in Maine, Pierre v. Fernald, 26 Maine, 436 ; in Massachusetts, Sargent v. Ballard, 9 Pick. 251 ; in New York, Parker v. Foote, 19 Wend. .309 ; Miller v. Garlock, 8 Barb. 153.] In South Carolina the law on the subject of prescription does not seem to take from the Act of Limitations of 1712, for in Sims v. Davis, 1 Cheves' Law & Eq. 2, it was assumed as settled law that twenty years' enjoyment of a way over another's land, was presumptive evidence of right. In Louisiana, the time of prescription varies according to the subject, from three to thirty years. ( Civil Code of La. 3435-3476.) In that State, the right of drip is acquired by prescrip- tion on an enjoyment of ten years without complaint. Vincent v. Michel, 7 La. 52. ^ Ingraham v. Hutchinson, 2 Conn. 584; Mitchell v. Walker, 2 Aik. (Vt.) 266; Rogers v. Page, Brayt. (Vt.) 169; Norton v. Valentine, 14 Vt. 239 ; Rogers V. Bancroft, 20 Vt. 250; Parker v. Hotch- kiss, 25 Conn. 321 ; Perrin v. Garfield, 37 Vt. 308, 309. In Texas it is two years, Haas V. Choussard, 17 Texas, 588 ; so in Louisiana, Delahoussaye v. Judice, 13 La. An. 587. In California, it is five years. Campbell v. West, 44 Cal. 646. 362 LAW OP WATERCOURSES. [CHAP. VI. Pennsylvania twenty-one j^ears.^ Yet, although the periods of limitation be different in different countries or States, as the statutes are drawn with slight variations of phrase, and all being in pari materia, the object and intention being the same, they require a uniform construction.^ The mere change in phrase- ology in an act of limitations before in force, in a revision of it, will work no alteration in the law previously declared ; unless it indisputably appears that such was the intention of the legisla- ture.3 It is certain, that whatever may be the period of time which the Act of Limitations may prescribe for enforcing a right of entry upon land, an adverse enjoyment of a watercourse, in any particular manner, will, in this country, be presumptive evidence of a grant. For example, the exclusive use of water flowing through an aqueduct by the owners and occupants of a house, for the term of twenty years, furnishes, in New Hamp- shire, evidence of a grant from the owner of the land through which it is brought, of a right to have it flow in the manner it has been accustomed to flow during that time ; * and in Penn- sylvania, no shorter space of time than twenty-one years (and that is sufficient) will create a right in one riparian proprietor to the privilege of abutting his dam upon the land of another.^ 3. Adverse Enjoyment. § 210. It appears, that, in order to raise the presumption of a grant of an easement in a watercourse, the user or enjoyment must have been adversefi The doctrine of the Common Law, 1 Cooper V. Smith, 9 S. & Eawle, 26. must be under a claim of right, with the 3 Murray v. E. India Co., 5 B. & Aid. knowledge and acquiescence of the owner, 204. and uninterrupted. Wallace v. Fletcher, 3 Taylor a. Delancey, 2 Caines Ca. in 30 N.H. 434 ; Burnhara u. Kempton, 44 Err. 143 ; Yates' case, 4 John. 359 ; Brown N.H. 88 ; Bow v. AUenstown, 34. N.H. (matter of), 21 Wend. 316; Theriat u. 374; Winnipiseogee Lake Co. «. Young, Hart, 2 Hill, 380. 40 N.H. 433. The presumption of title, 4 Watkins v. Peck, 13 N.H. 360. [In or of grant, as the case may be, except subsequent cases in New Hampshire it so far as time is concerned, is in the na- has been held that an adverse, exclusiye, ture of a prescription, and is so recog- and uninterrupted enjoyment for twenty nized. Watkins v. Peck, 13 N.H. 377 ; years of an incorporeal hereditament, Wallace v. Fletcher, 30 N.H. 450.] affords a conclusive presumption of a » Beidelman v. Foulke, 5 Watts, 308. grant, or right, as the case may be, which 6 [Trask v. Ford, 39 Maine, 437." The is to be applied as a, presumptio juris et de general rule is that the enjoyment of an jure, wherever by possibility a right can easement of this character is presumed to be acquired in any manner known to the be adverse, unless something appears to re- law. The enjoyment, to have this effect, but that presumption. This is the general CHAP. VI.J ADVERSE ENJOYMENT. 863 as cited by Lord Coke from Bracton, exactly agrees with the Civil Law, which expressed the essential qualities of the user by the clear and concise rule, that it should be " neo vi, nee clam, nee preeario"^ — the possession must be peaceable, open, and as of right. When it is said, that the possession must be long, it is during the time required by law ; when it is said it must be continuous, it is meant that it must be uninterrupted by any law- ful impediment.^ § 211. As it respects the pacific and uninterrupted character of the enjoyment or user by the Civil Law, any enjoyment or user was deemed forcible to which opposition was offered either by word or deed, by the owner of the servient tenemeYit.^ Any acts of interruption or opposition, from which a jury might infer that the enjoyment was not rightful, were, at Common Law, sufficient to defeat the effect of the enjoyment ; the question being, whether, under all the facts of the case, such enjoyment had been under a concession of right.* The principle on which rule, where there is no express evidence that the user was accompanied by a claim of right, and no express evidence of a dis- claimer of the right by the party enjoying the easement. There are some cases where the user is of such a character, and the circumstances attending it are such, as to show that it was a mere privi- lege enjoyed by leave of the proprietor of the servient tenement, express or im- pUed, and not adverse. These cases are exceptions to the general rule, and pe- culiar in their character. The fact that the party claiming the easement incurred the expense of erecting a mill, which would be almost worthless without the easement claimed, tends strongly to show that he either had or claimed the right to the easement, or intended to enjoy it in defiance of the owner of the servient tenement." Per Peck J., in Perrin v. Garfield, 37 Vt. 310; post, § 221, note. See Brace v. Yale, 10 Allen, 441.] 1 Co. Litt. 113, b ; Bracton, lib. 2, f. 51 ; Co. Litt. 1 ff. de serv. lib. 10, ff. si serv. vind. ; Gale & What, on Easem. 83 ; Wood V. Kelley, 30 Maine, 47. In Mas- sachusetts, the term of twenty years is tempus longum. Sargent v. Ballard, 9 Pick. 251. ^ Gale & What, on Easem. 84. 3 Lib. 1, §§ 5, 6, ff. quod vi aut clam ; [White V. Chapin, 12 Allen, 519 ; Smith V. Miller, 11 Gray, 145 ; Pollard v. Barnes, 2 Cush. 191 ; Monmouth Canal Co. o. Harford, 1 Cr., M. & R. 614. The en- joyment should be exclusive. Davis u. Brigham, 29 Maine, 391, 403 ; Kilburn v. Adams, 7 Met. 33; Nash o. Peden, 1 Speers, 22.] * See Ang. on Lim. Chap. XXX. §§ 10, 11 ; [Perrin v. Garfield, 37 Vt. 308, 309, per Peck J. An easement in tlie land of another can be acquired by ad- verse user only with the acquiescence of the owner of the land in such user under a claim of right, p«r patientiam veri domini, qui scivit et non prohibuit, sed permisit de consensu tacito. Bract, lib. 2, c. 23, § 1 ; 2 Greenl. Ev. § 539 ; Sargent v. Ballard, 9 Pick. 254 ; Arnold v. Stevens, 24 Pick. 112. From such use of an easement for twenty years, the law will presume a non-appearing grant. But before the lapse of that period, if the owner of land, by a verbal act on the premises in which the easement is claimed, resists the exercise of the right, and denies its existence, the presumption of a grant is rebutted, his acquiescence in the right claimed is dis- proved, and the essential elements of a title to an easement by adverse use are 364 LAW OF WATERCOURSES. [CHAP. VI. the Statute of Limitations is- predicated, is, that when an action of ejectment is not brought until after the time limited has expired, it is incumbent on the lessor of the plaintiff to prove an actual entry, accompanied with an intention of making claim (^animo clamandi) within such time ; that is, there must be an entry upon the land in question ; and if by force or fraud the party is prevented from making such entry upon the land in question, his intent to do so, declared as near the land as possible, is equiv- alent to an actual entry. The entry must, at all events, be such as to challenge the right of the occupant, and such as to amount to unequivocal evidence of an intent to resume possession. The apphcation of this general doctrine to the enjoyment of easements in watercourses, it is presumed, will not be questioned ; but still, there may be occasional interruptions of such enjoyment, which under peculiar circumstances, will not be conclusive of a superior right to control and limit the entire use of the water, to suspend it at pleasure, or destroy it at discretion. ^ If the interruption is occasioned by the excessive dryness of seasons, or from some other cause over which the plaintiff has no control, it cannot be held that his right is by such means lost.^ [So where the ease- ment claimed is a right to flow land, and it appears that during the twenty years of enjoyment claimed, a suspension of the flow- ing has been rendered necessary for the purpose of making repairs upon the dam which caused the flowing, this has been held not to be such an interruption of the use and enjoyment as to prevent the acquisition of the right.^ Shepley C.J. said, " When land is not flowed, because the dam occasioning it must be repaired or rebuilt that it may be useful, the very act of rebuild- ing or repairing, is the exhibition of an intention to maintain and to resume the exercise of the former use of it." * In Winnipiseogee Lake Company v. Young,^ which was a bill in equity to protect an easement of flowing land. Bell C.J. said, " It is said the bill does not allege any certain height at which the water was kept shown not to exist. Per Bigelow J., iu Tracy v. Atherton, 36 Vt. 503, 514, Powell V. Bagg, 8 Gray, 443 ; post, § 215, 515.] note. The title to an easement by ad- i Tyler v. Wilkinson, 4 Mason, 397. verse use rests chiefly on the acquiescence ^ jj^U v. Swift, 6 Scott, 167. of the owner of the land in such use, and » [Wood v. Kelley, 30 Maine, 47. See evidence which disproves the acquies- Gerenger u. Summers, 2 Ired. (N.C.) 229.] cenee, rebuts the title to the easement. * [Wood u. Kelley, 30 Maine, 47.] Powell o. Bagg, 8 Gray, 443. See the ^ [Winnipiseogee Lake Co. v. Young, remarks of Poland C.J. upon this case, in 40 N.H. 420, 436.] CHAP. VI.] ADVERSE ENJOYMENT. 365 up at any time. It is not, perhaps, necessary to state such a fact. The water may be liable to great fluctuations, and if in substance it is alleged that it was kept up as high as their dam would raise it, when there was water, its being drawn by the plaintiffs for their own purposes would not prevent their acquiring a right to the extent of their claim. There is an easement of drawing water from a well. In the nature of things there cannot ordina- rily be any continuous use of such an easement ; but if it ap- peared that a party had claimed the right of drawing water, at all times, at his pleasure, and had exercised the right of drawing, as he had occasion, for twenty years, that would establish his right. Rights of way, and some other easemenls, are not con- tinuously exercised ; but the right is acquired by an uninterrupted use of the right at all times, at the pleasure or convenience of the party claiming the right. On the same principle, if the plain- tiffs claimed the right to keep the water in their dam at its full height, whenever they chose, and had water to fill it, and exer- cised that right for twenty years, agreeably to their claim, it would be conclusive that they possessed the right." ^] § 212. It has been held by Mr. J. Story, that, " the nature, object, and value of the use are very material ingredients to ex- plain and qualify the effect of such interruptions. It is not, for instance, to be presumed that valuable mills will be erected to be fed by an artificial canal from a river, and the stream be indis- pensable for the support of such mills, and yet that the right to the stream is so completely lodged in another, that it may be cut off, or diminished, or suspended at pleasure ; but, if there should not be water enough for the progressive wants of all, the riparian proprietor should reserve to himself the power of future appro- priation for his own exclusive use. In such cases, reasonable presumption must be made from acts in their own nature some- what equivocal and susceptible of different interpretations. The interruptions may arise from resistance to an attempt by the canal owner to extend the reach of his dam further into the river for the purpose of appropriating more water, or from a desire to pre- vent undue waste, in dry seasons, to the injury of the riparian 1 [See Carr v. Foster, 3 Q.B. 581; Hough, 1 Jones (N.C.) 39; Battishill v. Lanev. Carpenter, 6 Exch. 825; Winship Reed, 18 C.B. 696; Bodflsh v. Bodfish, V. Hudspeth, 10 Exch. 5; Bsling v. Wil- 105 Mass. 317; Norway Plains Co. v. Uams, 10 Penn. St. 126 ; Ingraham o. Bradley, 52 N.H. 103.] 366 LAW OP WATERCOURSES. [CHAP. YI. proprietor. But the presumption of an absolute and controlling power over the whole flow, a continuing power of exclusive appropriation from time to time, in the riparian proprietor, as his wants or will may influence his choice, would require the most irresistible facts to support it. Men who build mills, and invest valuable capital in them, cannot be presumed, without the most conclusive evidence, to give their deliberate assent to the accept- ance of such ruinous conditions." ^ § 213. Where the enjoyment has been, under permission asked from time to time, this, upon each occasion, amounts to an admis- sion that the asker had then no right.^ The very mode, indeed, in which this etijoyment, under constantly renewed permission, operates in defeating the previous user, is, that it breaks the con- tinuity of the enjoyment ;^ and it is expressly laid down, that the breaking the continuity is inconsistent with the enjoyment during the period of twenty years, and that, for that very reason, evidence of the breaking of such continuity is admissible on the traverse of the enjoyment.* [But where a right has been ac- quired by adverse enjoyment, it will not be defeated by asking for and obtaining a license for a continued use from the owner of the servient tenement ; but this would be evidence tending to prove that the previous user was not adverse, or under a claim of right.5] § 214. In Sargent v. Ballard, in Massachusetts,^ the plaintiffs claimed a right of dockage upon the land of the defendant. It was claimed by what the civilians call a prsedial service, due from the estate of the defendant to the estate of the plaintiffs, which is analogous to the right of watering cattle, conducting water, &c.^ It appeared that a former owner of the land had enjoyed 1 [Tyler v. Wilkinson, 4 Mason, 397. Beaaley v. Clark, 2 Blng. N.C. 705; See per Peck J., in Perriu u. Garfield, Sargent v. Ballard, 9 Pick. 251. 37 Vt. 310.] 5 [Perrin v. Garfield, 37 Vt. 304 ; Wat- 2 [See Brace o. Yale, 10 Allen, 444 ; kins v. Peck, 13 N.H. 360. So in Tracy Watkins v. Peck, 13 N.H. 360; White v. u. Atherton, 36 Vt. 503, it was held, that Chapin, 12 Allen, 521,522; Bachelder «. a right of way, having become established Wakefield, 8 Gush. 248; Howard v. by adverse use, will not be divested by O'Neill, 2 Allen, 210 ; Kilburn v. Adams, an application for, and obtaining of, a 7 Met. 33; Polly v. M'Call, 37 Ala. license to use it from the other party. 20 ; Pierce v. Cloud, 42 Penn. St. 113.] But it would be strong evidence that the 8 Gale & What, on Easera. 63, citing previous use had not been under a claim 1 Cr., M. & R. 614. of right.] 4 Tickle V. Brown, 4 Ad. & El. 383 ; '9 Pick. 251. ' See ante, §§ 141-144. CHAP. TI.J ADVERSE ENJOYMENT. 367 the easement in question for less than twenty years, when the land to which it was attached was confiscated by the government. The cause was tried before Parker C. J., who instructed the jury, that the plaintiffs, in order to establish their claim to the right they set up, as an easement, it was not requisite for them to pro- duce a deed, or to prove that one ever existed ; the rule being, that twenty years' occupation alone is sufficient ground of pre- sumption that the occupation began in virtue of a compact between the parties ; but this rule was to be applied only in cases where all the legal qualities of such right are proved to exist.^ One of these legal qualities, said the learned judge, is, " that the occu- pation must be uninterrupted by the owner of the land." Upon a motion for a new trial, one of the reasons for which was, that the instructions to the jury were erroneous, Putnam J., who delivered the opinion of the court, said, " The Chief Justice instructed the jury, that the plaintiffs could not join the period of the occupation of Governor Hutchinson, before the Kevolution, to their own subsequent occupation, because the occupation was interrupted from 1774 to 1780. The objection to this part of the charge has been involved in the consideration of the other. For if it is an essential fact, that the use should be continued as well as peaceable for twenty years, the time of the interruption from 1774 to 1780 could not be counted to make out the requisite time of twenty years. Such an interruption would be what the civilians call a usurpation;^ which is a discontinuance given to prescription, in point of time and possession, ' for upon a com- mencement of usurpation, prescription is destroyed or annihilated, and must begin again;' which usurpation may be by 'an extra- judicial denunciation or claim of right,' and especially ' by a con- testation of suit.' But the time which an ancestor possessed may be extended and allowed to his heirs ; and the same rule applies to buyers and sellers, and to devisors and devisees. ' Inter vendi- torem quoque et emptorem conjungi tempora.' * All that would be 1 [See Doe v. Butler, 3 Wend. 149, different parties exercising the adverse 153.] use or enjoyment for twenty years, no ^ Ayl. Civ. Law, 321, 324. right or easement vpill be acquired thereby. 3 Inst. Just. lib. 2, tit. 6, § 8 ; [Leonard Sargent v. Ballard, 9 Pick. 251 ; Melvin V. Leonard, 7 Allen, 277 ; Kent v. Waite, v. Whiting, 13 Pick. 184 ; MTarlin v. 10 Pick. 138 ; Hill v. Crosby, 2 Pick. 466 ; Essex Co., 10 Cush. 304 ; Okeson v. Pat- Williams b. Nelson, 23 Pick. 142; Sawyer terson, 29 Penn. St. 22; Sawyer v. Ken- V. Kendall, 10 Cush. 241. But if there dall, 10 Cush. 244, 245. Thus in Benson be no such relation or priority between v. Soule, 32 Maine, 39, it was held, that 368 LAW OP WATERCOURSES. [CHAP. VI. required by the jiossessor would be, evidence that the possession had been legally continued from one owner to another.^ It was therefore a correct instruction which was given by the Chief Justice, that the plaintiffs could not lap on Governor Hutchinson's time to Parsons's, because of the interruption from 1774 to 1780. But the plaintiffs might avail themselves of the continued pos- session of their ancestors as well as of their own. And if Governor Hutchinson acquired the right before he went away in 1774, it would have passed with the estate in virtue of the confiscation and the deed of the Commonwealth to Sargent and Parsons." [§ 214 a. So where a plaintiff claimed an easement in land adjoining his mill, on the ground that from the year 1822 to the year 1846, the premises had been used by him as a part of his mill-yard, for the purpose of laying logs, lumber, and boards thereon; and evidence was introduced, on the part of the de- fendant, tending to show that from the year 1829 to the year 1834, both inclusive, no such use had been made of the premises ; it was held, that the omission, if proved, would be such an in- terruption of the use as would prevent the plaintiff from acquiring a title to the easement by prescription ; notwithstanding that the premises had remained unoccupied, during the whole period from 1822 to 1846, except by the plaintiff; that no notice had been given to him to cease occupying ; and that no act had been done during that period, by the owner of the land, indicating an in- tention to interrupt or disturb the plaintiff in his use of the premises.^ Wilde J. said, " The evidence tended to prove a total cessation of the enjoyment of the easement, and that for a long time ; and the owner had good reason to believe, that the claim was abandoned ; and, if so, it seems immaterial whether the plain- tiff had in fact abandoned his claim or not." — " Whatever breaks the continuity of the possession and enjoyment of an easement', whether by a cessation to enjoy it, or by any act of the owner of the servient tenement, destroys altogether the effect of the pre- vious user." — "And we are all of opinion, both upon principle although a dam may have flowed land grantee, devisor and devisee, or ancestor more than twenty years, a prescriptive and heir. See Winahip v. Hudspeth, 10 right is not established unless the adverse Exch. 6; Perrin v. Garfield, 37 Vt. 309.] enjoyment has been had by the same i See Kowland v. Wolfe, 1 Bailey, 56. person all the time, or by different per- 2 [Pollard v. Barnes, 2 Cush. 191.] sons having the relation of grantor and CHAP. VI.] ADVERSE ENJOYMENT. 369 and authority, that the plaintiff cannot entitle himself to the privilege claimed, unless he can prove a continual enjoyment of it for twenty consecutive years, without interruption." ^ So in M'Farlin v. Essex Co.,^ it was held, that an adverse occupation of a fishery by A., for a number of years, which was afterwards interrupted or abandoned, cannot be added to a subsequent occu- pation by B. to give B. a prescriptive right, although A., after such interruption or abandonment, released all his right in the fishery to B.] § 216. The enjoyment must, in the second place, be nee clam, nee preoario, but open and notorious."* By the Civil Law, it was sufficient to do away or vitiate the user, if, from the acts of the party claiming by virtue thereof, an intention of concealment could be inferred;* and the user, by the Civil Law, might be secret, either from the mode in which a party enjoys it, or from the nature of the easement itself. Instances of the former kind are where the right is exercised by stealth, or in the night. Talis usus non valebit, cum sit clandestinus et idem erit si nocturnus ; ^ and instances of the latter occur where a claim is made to an ex- traordinary degree of support to a house from the neighboring soil, in consequence of an excavation on the party's own land, not visible to the neighbor.^ The Common Law also proceeds upon the ground that there has been an acquiescence on the part of the servient owner ; ^ a ground of supposition which can never 1 [This decision is botli a declaration Donnell v. Clark, 19 Maine, 174; Morse of the doctrine of the Common Law, and v. Williams, 62 Maine, 445. This rule a construction of the statutes of Massa- was applied to the case of a drain running chusetts, in regard to the acquisition of from one house under another, but not easements. See Monmouth Canal Co. v. known to exist by the owner of either. Harford, 1 Cr., M. & R. 614, 631; Tickle Carbrey v. Willis, 7 Allen, 368. V. Brown, 4 Ad. & El. 869, 383 ; Beasley < Lib. 3, § 8, ff. quod vi aut clam ; V. Clark, 2 Bing. N.C. 705; Pierre v. Gale & What, on Easem. 85. Fernald, 26 Maine, 436, 442; Edson «. ^ Bract, lib. 2, f. 52. [See Eaton v. Munsell, 10 Allen, 557, 567; Rogers v. Swansea Waterworks Co., 17 Q.B. 267, Sawin, 10 Gray, 379 ; Stevens v. Dennett, 269.] 51 N.H. 329 ; Mansur v. Blake, 62 Maine, " Lib. 1, §§ 5, 6, ff. ; lib. 6, ff. de adq. 38.1 vel, amit. poss. ••i M'Farlin u. Essex Co., 10 Cush. 304. ' [As to the effect of a denial of the See Mansur v. Blake, 62 Maine, 38. right by the person, against whom the 3 Eaton V. Swansea Waterworks Co., easement is claimed, during the twenty 17 Q. B. 2t)7, 269. " An enjoyment must years, see Stillman v. White Rock Co , neither be vi, fyrecario nor clam: it must 3 Woodb. & M. 549; Smith v. Miller, 11 be open." Bramwell B,, in Solomon v. Gray, 148; Nichols v. Ayler, 7 Leigh, Vintners' Co., 4 H. & N. 602. See Perrin 546, 665 ; Powell v. Bagg, 8 Gray, 441 ; V. Garfield, 37 Vt. 304; Wilde J., in Eaton v. Swansea Waterworks Co., 17 Thomas u. Marshfield, 13 Pick. 248; Q.B, 267, 269.] 24 370 LAW OP WATERCOURSES, [chap. VI. exist, if an occupation be so clandestinely taken, as not to afford notice of the same.^ The same principle will apply, as is ap- plied to the adverse possession of land under the Statute of Limitations, and which has been very clearly and fully expressed by Mr. C.J. Shaw ; viz., " One point seems to be well settled, which is, that very strong acts of exclusive possession, such as building, inclosing, and cultivating, and that for a long time, and openly and notoriously, are necessary, in order to constitute an actual ouster of the true owner, who has no notice of such actsJ"^ In the case of uncultivated lands in new settlements, the party claiming title by possession must show an occupation of that nature and notoriety, that the owner may be presumed to know of it ; otherwise, length of time would run against a man when he had no ground to believe that his rights had been infringed.^ Cattle ranging at large, in North Carolina, it has been held, is 1 [In Perrin v. Garfield,. 37 Vt. 304, it appeared that, in 1833, F. erected a mill about a mile from the defendants' pond, and entered into the use and occupancy of a dam and flume, previously built by C, at the outlet of the pond, to supply his mill which formerly stood near the site of F.'s mill, and continued so to use it for a period of time sufficient to estab- lish a title by prescription. His mill was almost wholly dependent on the water obtained by means of the dam and flume for its supply ; and it was held, that in the absence of proof that P., or C, or his successors, ever procured any license to erect or keep up said dam, or ever ac- knowledged any title in any one, these circumstances warranted the finding that F.'s use was adverse. Upon the question of notice. Peck J. said, " It is insisted that the case shows no notice to the owners of the servient tenement or lands, and that without proof of such notice no such acquiescence on the part of such owners is shown, as is necessary to the acquirement of an easement. The cases are rare and peculiar where proof of notice has been held necessary. The general current of the authorities is the other way." — " The erection of a struct- ure so obvious and palpable as a dam and flume, and the use of it such length of time by means of a gate at the outlet, to supply the mill, could hardly be other- wise than notorious in the vicinity, and would not be likely long to escape the observation of the proprietor of the lands on which they were situated and which were thereby injuriously aflfected. It is true the lands about that pond were wild and uncultivated till 1850, but this is not sufiicient to rebut the presumption of no- tice." In a case where the right claimed was the percolating of water under ground, Wightman J. said, " The presumption of a grant only arises where the person against whom it is to be raised might have prevented the exercise of the sub- ject of the presumed grant; but how could he prevent or stop the percolation of water?" Chasemore v. Richards, 7 H.L. Gas. 349; 6 H. & N. 985. See Webb V. Bird, 13 C.B. n.s. 843. In Smith v. Kenrick, 7 Man., G. & S. 546, Maule J. said, " As to surface flows, parties acquire rights to them because there is the acquiescence of everybody who has any interest in the matter. But, as to underground percolations, no rights are gained, because nobody knows any thing about them." See Cooper v. Barber, 3 Taunt. 99.] See Ang. on Lim. Chap. XXX. § 13, et seq., and the au- thorities there cited in reference to the doctrine of adverse possession of land. 2 Blood V. Wood, 1 Met. 528. ' Proprietors of Kennebec Purchase v. Skinner, 4 Mass. 416. CHAP. VI.] ADVERSE ENJOYMENT. 871 not such an occupation, as will give notice to the adverse claim- ant ; and neither, for the same reason, is the overflowing of land remotely situated. i [§ 215 a. In Wheatley v. Baugh,^ it appeared that the plaintiff was a tanner, and occupied a tan-yard with its appurtenances from about 1824 to 1853, and carried on his business during the whole of that time. ■ Upon the property, thus occupied by him, there was a spring of water, which he constantly used for the purposes of his business. The spring was fed by subterranean waters, percolating through the strata of the earth, which were diverted by the mining operations of the defendant on his ad- jacent land. Among other grounds of title, the plaintiff claimed that this use of the spring for his tannery for so many years raised the presumption of a grant of a right to have this sub- terranean flow or percolation of water through the adjacent land to his spring, continue. The Court decided otherwise. Lewis C.J. said, " The prior occupancy of the spring for the uses of the tannery gave no right of servitude over or through the land of the adjacent proprietor. No man, by mere prior enjoyment of the advantages of his own land, can establish a servitude upon the land of another. This is shown in a satisfactory manner by Mr. Justice Rogers, in Hoy v. Sterrett.* But it seems to be thought that the enjoyment of the spring by the plaintiff below and those under whom he claims, for the period of twenty-one years, gives him a right to its continued existence, although the neighboring proprietor may thereby be deprived of the chief value of his own land. This depends upon the question whether the enjoyment of the spring was of such a character as to have invaded his neighbor's rights, so as to enable the latter to maintain an action for the injury. No man can be barred by a statute of limitation for not bringing his action within the prescribed period, until it is first shown that he had a cause of action which he could have maintained. In analogy to the statute, no presumption can arise against a party on the ground of long enjoyment of a privilege by another, until it is shown that the privilege, in some measure, interfered with the rights of the party whose grant is proposed to be presumed, and that he had a legal right to prevent such 1 Andrews «. Mulford, Hajw. (N.C.) ^ [Wheatley v. Baugh, 25 Penn. St. 811. 628.] 3 [2 Watts, 330.] 372 LAW OP WATERCOURSES. [CHAP. TI. enjoyment by proceedings at law." ^ — " The owner of the mine had no right to complain of his neighbor below for making use of the spring on his own lands. As long as it flowed there, he had a right to make use of it, and the owner of the land through which the supply of water came, was not in any manner injured by such use of the water. Silence or acquiescence, where one is not injured and has no cause of complaint^ can never deprive him of his rights on the ground of presumption of a grant. No man can be said to have granted a right about which it would have been an impertinent interference to utter a complaint.^ Besides, it was impossible for him to know from whence the supply of water came. He had no knowledge that it was de- rived from percolations through his own land. In this respect there is a material difference between hidden veins of water un- der ground and watercourses flowing on the surface. The latter are apparent, and if appropriated in such a way as to injure the rights of the owner through whose land they flow, he can take cognizance of th,e wrong, and is bound to redress it by action within the period prescribed by law. But the former are not apparent, and the owner of the land is not bound to resort to an action to redress a wrong of which he cannot by any possibility have notice. In a case like the present, therefore, there is no reason. whatever for depriving the plaintiff in error of the enjoy- ment of his rights of property on his own land, on the ground of any servitude established by time, or acquiescence for the benefit of the tannery on the adjacent tract. If it could be shown that any distinct watercourse leading to the spring had been cut off or diverted, and it should also appear that it could have been pre- served without material detriment to the owner of the land through which it flowed, the destruction of it might be attrib- uted to malice or negligence. In that case the law would furnish redress, because the injury would be unjustifiable."] § 21c». Thirdly, and above all, the enjoyment must be as of right? The fact of a peaceable and open enjoyment or user, 1 [Union Mill &c. Co. v. Ferris, 2 sumption of a grant, the possession must Sawyer, 176.] be such as to render such a presumption 2 [Hoy V. Sterrett, 2 Watts, 331.] reasonable. It must, therefore, be ad- 3 [Per Bigelow C.J., in Brace v. Yale, verse or under a claim of right, and not 10 Allen, 444. In Thomas u. Marshfield, by the voluntary permission of the owner 13 Pick. 248, Wilde J. said, " As a title of the land. If the use of an easement by prescription is founded on the pre- is under a parol consent given by the CHAP. VI.] ADVERSE ENJOYMENT. 373 may be said to be per se only an introductory fact to a link in the chain of right to an easement, and which will not simply of itself, though long continued, bar the title of him seised of the land in which the easement is claimed. The reason is, the enjoy- ment or user may not have been originally commenced, or sub- sequently continued, with an intention to claim the easement ; but, on the contrary, may have been, with an entire understand- ing between the parties, that no such claim is to be set up. The reason, in other words, is that it may have been a permissive occupation, which, in the language of the Master of the Rolls, in Cholmondeley v. Clinton,^ " However long it may in point of fact have endured, could never ripen into a title against anybody ; for it was not considered as the possession of the precarious occupier, but of him upon whose pleasure its continuance de- pended." In reference to the effect of possession in questions under the Statute of Limitations (and we have seen that the claim of title to an easement by virtue of twenty years' enjoy- ment, is analogous to a claim of title to the land itself by virtue of possession for the time prescribed by that statute), Marshall C.J. says that it has not only been recognized in the courts of England, but in all other countries, where the rules in those courts have been adopted, that a possession which was permis- sive and entirely consistent with the title of another, should not bar that title ; and that it would shock the sense of right, which must be felt by all legislators, and all judges, were it otherwise.^ The enjoyment of an easement had under the license or permis- sion from the owner of the servient tenement, is consistent with the right of the owner of the servient tenement, and consequently confers no right to the easement. Each renewal of the license rebuts the presumption which would otherwise arise, that such enjoyment was had under a claim of right to the easement.^ The owner of the servient tenement to use it opposite shore, without claim of right to as if it were legally conveyed, it Is a use the land, may create an easement after as of right. Ashley v. Ashley, 4 Gray, its continuance for twenty years, but will 197. So an occupation of land under a not divest the owner of the shore of his parol gift from the owner is an occupation title. Trask v. Ford, 39 Maine, 437.] as of right. Sumner v. Stevens, 6 Met. i Cholmondeley v. Clinton, 2 Jac. & 337. And in Stearns M. Janes, 12 Allen, W.I. 582, it was held, that the use of an ease- ^ United States r. Arredendo, 6 Peters, ment under elaina of right, by virtue of a 743. [See Brace v. Yale, 10 Allen, parol contract, is adverse ; and If contin- 444.] ued for twenty years will create a right. ' Monmouth Canal Co. v. Harford, 1 Merely abutting one's mill-dam upon the Cr., M. & R. 614 ; ante, § 213 ; Blaisdell 374 LAW OP WATERCOURSES. [chap. VI. " precarious enjoyment " of the Civil Law, by wMch, as has been already seen, no prescriptive right could be acquired, is identical with the permissive enjoyment of the Common Law.^ If, therefore, the enjoyment is shown to have originated in mis- take, license, or favor ; or if it was commenced and continued in a manner which has not indicated a claim of right, the enjoy- ment is not adverse.^ So if within twenty years from the time an adverse user first commenced, the person using it adversely has applied to the owner of the land to purchase the privilege or easement ; this, if explained, raises no presumption of a grant.^ But if such easement has been possessed and used for the term of twenty years, in a manner to furnish evidence of an advei'se U.Portsmouth, Great Falls and Conway Railroad, 51 N.H. 483; Dodge v. Mc- Clintock, 47 N.H. 383. 1 Gale & What, on Easem. 85. 2 Campbell v. Wilson, 3 East, 294. [Thus in Smith v. Miller, 11 Gray, 145, where it appeared that a land owner, for his own sole benefit, dug a drain or water- course from a pond on the land of a Neighboring proprietor, with the permis- sion of the latter, through his own land to an outlet, and the water afterwards flowed uninterruptedly from the pond through tliis drain or watercourse, and continued thus to flow more than twenty years after the plaintiff had purchased the land, in which the pond was, from such neighboring proprietor, it was held that the plaintiff had gained no pre- scriptive right to hare his pond drained through this watercourse, in consequence of the use thus made of it, because the enjoyment did not appear to have been had under any claim of right. Merrick J. said, " A right to an easement of this kind in the land of another may un- doubtedly be acquired by the actual enjoyment of it, provided that the etijoy- ment is adverse, uninterrupted, and of sufficient continuance and duration. But tlie use, the adverse possession, and un- interrupted enjoyment, which are facts necessary to establish the right, must be shown by competent and satisfactory evi- dence, and are therefore necessarily open to denial, contradiction, and disproof by the party against whom they are asserted. The actual exercise or enjoyment of the right contended for may be prima facie evidence of prescription, and therefore, if uncontrolled, sufficient to show title to the easement which is claimed. Dare v. Heathcoate, 36 Eng. Law & Eq. 564. But it is after all only evidence, which may be encountered and controlled by accom- panying facts and circumstances, or by proof derived from other and distinct sources." Gray v. Bond, 2 B. & B. 667 ; Livett V. Wilson, 3 Bing. 115; Doe v. Reed, 5 B. & Aid. 232. " In this com- monwealth it has been expressly deter- mined, that in order to make the use of an easement in another's land for twenty years conclusive of the right, it is incum- bent upon the party who claims it, to prove that the use was adverse, uninter- rupted, and with the knowledge and ac- quiescence of the owner of the land ; and that each of these qualities or ingre- dients essential to the maintenance of the claim is open to contradiction and liable to be disproved. Sargent v. Ballard, 9 Pick. 261 ; White v. Loring, 24 Pick. 319 ; Stevens v. Taft, 11 Gray, 38. In the present case, therefore, the judge who presided at the trial very properly refused to rule, in conformity to the request of the plaintiff's counsel, that the plaintiff had acquired a prescriptive right to the use of the channel dug on the defendant's land, by the mere flowing of the water through it from his own for a period of twenty years, without regard to the ac- companying facts and the other evidence in the case."] 3 Watkins v. Peck, 18 N.H. 860. CHAP. VI.J ADVERSE ENJOYMENT, 375 eiijoj'ment, and raise the presumption of a grant ; and the owner, after the expiration of that term of time, denies the right, and there is thereupon a negotiation for a purchase, and an agreement which is not perfected ; such attempt to purchase will not preclude the party from relying upon the presumption of grant by reason of the previous adverse possession. ^ The enjoy- ment without interruption for the length of time for the right of entry upon land, is so strong evidence of a right, that the jury should not be directed to consider small circumstances as founding a presumption, that it arose otherwise than by grant.^ § 217. Lord Ellenborough, in Bealy v. Shaw,^ speaks of twenty years' enjoyment of water, in any particular manner, as affording a " conclusive " presumption of a grant.* It has been thought that the word " conclusive " is rather oddly joined to the word presumption, it being of the very essence of presumptive evi- dence, that it must yield to stronger proof. Lord Ellenborough must undoubtedly be understood as meaning, by a " conclusive " presumption, one, which unexplained or uncontradicted, will con- clusively authorize a jury to find the fact. This construction is necessary to reconcile that learned Judge to his own course of decision ; for, in Campbell v. Wilson,^ determined only two years before this, he and the whole Court held, that twenty years' enjoyment was merely presumptive evidence to be ex- plained or rebutted like any other presumption.^ In Livett v. Wilson,'' upon a question of twenty years' possession. Best C.J. says, " I do not dispute, that if there had been uninterrupted usage for twenty years, the jury might be authorized to presume it originated in a deed ; but even in such a case, a Judge would not be justified in telling a jury that they must presume a deed. If, however, there are circumstances inconsistent with the exist- ence of a deed, the jury should be directed to consider them, 1 Watkins v. Peck, 13 N.H. 360. [See ^ Campbell v. Wilson, ub. sup. ante, § 213 ; post, § 252 ; Perrin v. Gar- •> Such was the view taken by the field, 37 Vt. 304 ; Tracy v. Atherton, 36 Court of Appeals in Virginia, in Nichols Vt. 503.] V. Ayler, 7 Leigh (Va.) 546, and another 2 Campbell v. Wilson, ub. sup. case in Virginia, therein cited ; and by 8 Bealy v. Shaw, 6 East, 215, and the Supreme Court of Connecticut, in ante, § 205. Branch v. Doane, 18 Conn. 233. * [See per Bigelow C.J., in Brace v. ^ Livett v. WilSon, 3 Bing. 115. Yale, 10 Allen, 445.] 376 LAW OP WATERCOURSES. [chap. VI. and decide accordingly ; " and the rest of the Court were of the like opinion.^ § 218. The words used by Mr. Justice Story, in Tyler v. Wilkinson,^ are, " By our laws, upon principles of public con- venience, the term of twenty years' exclusive, uninterrupted enjoyment, has been held a conclusive presumption of a grant or right." But by this language, he is not understood to have intended an enjoyment, which had been by the favor and at the will of the owner for twenty years.^ In two instances, in which the subject of the conclusiveness of the presumption was fully considered by the Court of Appeals of Virginia,* it was held, that the presumption of a right or of a grant arises from the long acquiescence of the party, and does not arise where the enjoy- ment is contested ; and the Court rely on the authority of Camp- bell V. Wilson.8 § 219. The Supreme Court of Massachusetts hold, that, in order to raise the presumption of a grant, the enjoyment " must 1 [See 2 Greenl. Ev. § 539 ; Miller v. Garlock, 8 Barb. 153 ; Hoyt «. Carter, 6 Barb. 219 ; Valentine v. Piper, 22 Pick. 93 ; Littlefield v. Maxwell, 31 Maine, 140 ; Oilman v. Tilton, 5 N.H. 231, per Rich- ardson J. ; BuUen v. Runnels, 2 N.H. 255; Wallace u. Fletcher, 30 N.H. 434; ante, § 209, note. In Edson v. Munsell, 10 Allen, 568, 569, Gray J. said that the fiction of presuming a grant from twenty years' possession or use " is not founded on a belief that a grant has actually been made in the particular case, but on the general presumption that a man will naturally enjoy what belongs to him, the difficulty of proof after lapse of time, and the policy of not disturbing long-con- tinued possessions. In order to require the jury to presume a grant, the pos- session or use must have all the qualities of a prescription : it must be open, ad- verse, uninterrupted, and with the acqui- escence of the owner. Any fact which directly affects the probability of such acquiescence must be submitted to the jury to assist them in determining whether such a presumption should or should not be made." See post, § 223a,- Coolidge V. Learned, 8 Pick. 509, per Wilde J.; Tracy v. Atherton, 36 Vt. 611, per Poland C.J.] 2 Tyler v. Wilkinson, 4 Mason, 402. s Sargent v. Ballard, 9 Pick. 251. « See ante, § 217, note. 5 On a, stream of water, issuing from a large natural pond, were mills owned respectively by A. & B. ; the mill nearest the outlet of the pond being owned by B., and that below by A. Both claimed under C., who, in 1800, owned the land at the outlet of the pond and below, and erected mills on the site of A.'s mill. About the same time, C, in conjunction with other mill-owners below, erected a dam, flume, and gate, at the outlet of the pond, deepening and widening the chan- nel, for the purpose of controlling the water there, for the more advantageous use of it for their mills. B.'s mill was erected in 1834, before which C. and the other mill-owners had claimed and exer- cised the exclusive right to dam up and control the water at the outlet of the pond, without obstruction. In an action brought by A. against B. for obstructing the water at B.'s mill, it was held, that the acts of C. for such a, period, unex- plained by any circumstances which de- prived them of an adverse possession, constituted a conclusive presumption of a grant. Hickox v. Parmelee, 21 Conn. 86. CHAP. VI.] ADVERSE ENJOYMENT. 377 be under a claim of right, and contrary to the interests of the owner. An enjoyment with the consent of the owner, or con- sistently with the rights of the true owner, has no tendency to prove a conveyance from him ; for the very ground of the pre- sumption is the difficulty or impossibility of accounting for the grant, or some other lawful conveyance. But, if the possession can be accounted for consistently with the title, no presumption arises." ^ A learned Judge of the Supreme Court of the United States, has expressed a like opinion, in which he says, that pre- sumptions (of the nature we are considering) can never arise where all the circumstances are perfectly consistent with the non-existence of a grant.^ [§ 219 a. It must be some use inconsistent with, and therefore adverse to, the right of others, which can be acquired by pre- scription, such as diverting the water from its natural course, or fouling the stream to an injurious extent. So far as one riparian proprietor uses the water equally, and in a manner consistent with the equal and common right of others, he makes no adverse use, and acquires no right adverse to theirs. He gives them no right of action against him and his use of the water has no ten- 1 Arnold v. Stevens, 24 Pick. 106; [Bigelow C.J., in Brace v. Yale, 10 Allen, 444 ; Smith v. Miller, 11 Gray, 145.] 2 Ricard v. Williams, 7 Wheat. 109. The same doctrine is maintained expressly in Brandt v. Ogden, by Mr. J. Spencer, 1 Johns. 156. [" Such a presumption will be made when it is necessary to clothe a rightful possession with a legal title, but the Court must first see that there is nothing but the form of a con- veyance wanting." Doe v. Butler, 3 Wend. 149, 153. In Nelson v. Butter- field, 21 Maine, 220, 234, Shepley J. said, " All presumptions rest upon experience, and are founded upon a knowledge of man and of his motives of conduct. K a person for a long course of years claims the right to possess or enjoy estates or easements, and exercises that right with- out being molested, it is to be presumed that he has done so lawfully. And if an- other person permits it, when it would be injurious to him, without interruption, it is to be presumed, that he knows that the person has a legal right to do so. It would be against man's experience, and contrary to his motives of conduct, to account for it so satisfactorily in any other manner. Omnia rite esse acta is a maxim of the law ; and it also attributes such conduct rather to the exercise of a legal right, than to an encroachment. If this be the true foundation of presump- tions, it will follow, that if the continu- ance of the possession or enjoyment can be accounted for without presuming any thing to favor it, and without imputing a conscious want of right or negligence to him who does not interrupt, the presump- tion cannot arise. It has no foundation to rest upon ; or, in the language of the law, it is rebutted; These positions are not inconsistent with the best adminis- tration of justice. They will work no wrong, and will secure to all their rights, unless they have been guilty of negli- gence in asserting them. And this is believed to be the doctrine relating to presumptions in the decided cases."] 378 LAW OP WATEBCOUHSES. [CHAP. VI. deney to prove a grant from them to him.^ Thus the erection of a dam across a stream of water to raise a head for the purpose of driving wheels and machinery in a mill, and the cutting of canals, sluices, and water ways to conduct, apply, and discharge the water, although they may change in some degree the natural flow of the stream and cause a temporary obstruction to the pas- sage of the water, yet, if they do not essentially affect the rea- sonable use of the current by riparian proprietors above and below for similar purposes, would not be inconsistent with the rights of such proprietors in the stream, and could not be deemed to confer any right or to take away any title or privilege. So, too, the erection of a dam, for the purpose of forming a reservoir by flowing a large tract of land, by which the water would be obstructed only until such reservoir should be filled, and would then resume its natural flow, could not be deemed to be adverse or inconsistent with the rights of other proprietors below on the same stream. The obstruction in such case would be only slight and temporary, and would afford no ground for a presumption that any right of others to the use of the stream had been thereby impaired or lost.^] [§ 219 h. So, where a proprietor of land upon one shore appro- priates and applies to his individual use so much of the passing water as he is enabled to do, even if it be the whole of it, by means of structures erected upon and within the limits of his own estate, and the proprietor of the land on the opposite shore neither uses nor seeks to use, nor makes any provision nor has 1 [Shaw C.J., in Gould v. Boston Duck 245, Chancellor Zabriskie said, " The Co., 13 Gray, 451 ; Holsman v. Boiling word dam is used in two different senses. Spring Bleaching Co., 1 MeCarter (N.J.) It properly means the work or structure, 335, 845 ; Parker v. Hotchkiss, 25 Conn, raised to obstruct the flow of the water 321 ; Webb ;;. Bird, 13 C.B. n.s. 838 ; in a river, but by a well-settled usage it Chasemore v. Richards, 7 H.L. Cas. 349.] is often applied to designate the pond of 2 [Bigelow C.J., in Brace v. Yale, water created by this obstruction." And 10 Allen, 441, 444 ; Pitts v. Lancaster in this case it was held that an act wliich Mills, 13 Met. 156. A dam is an instru- authorizes the owner of a mill-dam, " to ment for turning the water of a stream raise, the dam and waterworks " to the to the use of a mill, as a bulkhead is the height of the natural surface of the water means of drawing the water from a dam, at the line of his lands, will be construed but neither may, in fact, have been used to authorize raising the water in the dam for either purpose at all, or if at all, in to that height, and not to authorize the such a way as to change or affect the raising of the structure of the dam, by original rights of the riparian owners on which the water would be made to flow either hand. Burnham v. Kempton, back upon the lands of the adjoining 44 N.H. 78, 89. In Colwell v. The May's proprietor.] Landing Water Power Co., 4 C. E. Green, CHAP. VI.] ADVERSE ENJOYMENT. 379 any occasion for the use of any part of the stream or proportion of the water to which he is entitled, there is nothing adverse in the action of the former. He does nothing for which an action can be maintained against him, or nominal damages recovered in the assertion and vindication of an invaded right. In such cir- cumstances, they stand towards each other in the relation, and with substantially the rights, of tenants in common, where the possession of one is deemed to be the possession and for the ben- efit of all ; and their respective rights will continue to be pro- tected and preserved to them, until some positive act of actual and exclusive adverse possession by which one of the parties is directly interfered with, and prevented from enjoying his equal privilege in the use of the water.^] [§ 219 0. The above cases show clearly that the time of pre- scription, or that time which is necessary to raise the presump- tion of a grant or right, does not begin to run until there has been an actionable invasion or infringement of a right, although it is not necessary that actual damages should have been suf- fered.2 A late case ^ in New Jersey forcibly illustrates the same doctrine ; the plaintiffs alleged that chemicals and other foreign and offensive matters were discharged into the stream at the defendants' bleaching works, of such a character and in such quantities as to render the water of the stream on the lands of the plaintiffs, who were proprietors below, unfit for household use and for other purposes to which it was applied by the plain- tiffs. Tlie defendants alleged that the site occupied by them was used and occupied as a mill-site more than twenty years before the plaintiffs purchased ; that the business of fulling and dyeing had been carried on for more than twenty years, and that the owners ''had consequently a right to use the stream for manu- facturing purposes, although the same might taint and color the 1 [Merrick J., in Pratt v. Lamaon, & S. 9 ; ante, §§ 135, 136, and notes ; post, 2 Allen, 275, 288, 289. See Corning v. § 428. The presumption of a grant from Troy Iron &c. Co., 39 Barb. 311 ; Howe long-continued enjoyment only arises Scale Co. v. Terry, 47 Vt. 109, 125, 126.] where the person against whom the right 2 [See Polly !'. McCall, 37 Ala. n.s. is claimed might have interrupted or 20; Holsman u. Boiling Spring Bleaching prevented the exercise of the subject of Co., 1 McCarter (N.J.) 335 ; Cooper v. the supposed grant. Chasemore v. Rich- Barker, 3 Taunt. 99 ; Donnell «. Clark, ards, 7 H.L. Cas. 349 ; V?ebb v. Bird, 19 Maine, 174; Crosby v. Bessey, 49 13 C.B. n.s. 843.] Maine, 539; Wood v. Waud, 3 Exoh. ' [Holsman v. The Boiling Spring 748, 772, 773 ; Alexander v. Kerr, 2 Bleaching Co., 1 McCarter, 835.] Kawle, 83; Bipka v. Sargeant, 7 Watts 380 LAW OF WATERCOURSES. [CHAP. VI. water. The chancellor in discussing the case, said, " The exist- ence of the defendants' mill, or the discharge of dyeing materials or drugs into the stream, om the defendants^ lands, constitutes no injury to the plaintiffs, if their usufructuary right to the stream is not interfered with. The defendants have a right to use the water upon their own soil in such manner as they may deem for their interest, provided they discharge it upon the soil of the plaintiffs, in its accustomed channel, pure and unpolluted. They can therefore acquire no right by prescription until they show that the acts which are claimed to constitute the adverse user injured the plaintiffs, and gave to them, or to those under whom they claim title, a right of action. The very ground of title by adverse enjoyment, is that the party against whom it is set up has so long permitted the adverse enjoyment, and failed to vindi- cate his rights, that the presumption of a grant is raised. But there can be no such presumption, and consequently no title by adverse enjoyment, where no violation of a right is shown to exist. Thus where an action is brought for overflowing the plaintiffs' land by backwater from the defendants' mill-dam, it establishes no title by adverse enjoyment to prove that the defendants' mill has been in existence over twenty years, or that the dam has been in existence for that period. The question is not how high the dam is, bat how high the water has been held, whether it has been held for twenty years so high as to affect the land of the plaintiffs as injuriously as it did at the time of the action brought. To prove, therefore, that there was a fulling and dyeing mill or other manufactory for twenty years on the defendants' land, and that they discharged drugs and dye- stuffs into the stream during that period, proves nothing, unless it is shown that the materials discharged into the stream were of such character and of such an amount as to pollute the water which flowed upon the plaintiffs' land, and rendered it unfit for use. If the evidence stops short of that, it proves no adverse enjoyment in the defendants or those under whom they claim." i Where a tanner has thrown his ground bark into a stream for more than twenty years, he does not thereby acquire a right by prescription to do so, to the injury of an owner of land on the same stream below, on which the natural action of the water deposits the bark, unless it appears that the bark has been depos- 1 [Holsman v. The Boiling Spring Bleacliing Co., 1 McCarter (N.J.) 335.] CHAP. VI.] ADVERSE ENJOYMENT. 381 ited on the same land, and the owner thereof annually injured thereby, for the whole term of twenty years.^ So where one claimed the right, by twenty years' user, to throw cinders and other refuse into a stream, which injured the occupiers of a mill below, it was held, that until the occupiers of the mill sustained some injury from the user, no right as against them began to be acquired.^ A similar doctrine has been maintained in other cases.^] [§ 219 d. But, on the other hand, if the owner of land on one side of a river erects a mill-dam entirely across it, without ob- taining permission from the owner of the land on the opposite shore, this is an adverse and injurious invasion of the rights of the latter, for which he may presently maintain an action, al- though he has no immediate occasion to make use of the water for any purpose of his own, and suffers no actual loss thereby. And if the dam be continued for a sufficient length of time, this will authorize a jury to presume a grant of the right to abut the dam on such opposite shore, and to use, to the exclusion of all other persons, the whole of the water held back and accumulated by and above it.* So, where the owner of a mill, situated upon a small stream, has erected a reservoir dam a short distance above, and exercised control of the water of the stream, under claim of right, by means of gates built in the reservoir dam, drawing some- times more and at other times less than the natural flow of the stream, as he had occasion, for more than twenty years uninter- ruptedly, it was held that he might thereby acquire a right so to use the water, as against the intermediate owners of the land over which the stream passes ; and might maintain an action to recover damages against any such an intermediate owner, who substantially interferes with this right.^ Such was the decision 1 [Crosby v. Bessey, 49 Maine, 539. 99 Mass. 488, that the owner of a mill See Baxendale v. McMurray, L.E. 2 Ch. on a stream, who has a right to draw App. 790; Moore v. Webb, 1 C.B. n.s. down from his reservoir more or less than 673.] the natural flow of the stream, at hia 2 [Murgatroyd o. Robinson, 7 El. & pleasure, to work his mill, is entitled to Bl. 391.] relief in equity against the owner of an ' [See Polly v. McCall, 37 Ala. n.s. intermediate dam which delays the pas- 20; Roundtree v. Brantley, 34 Ala. n.s. sage of the water by the time necessary 54'4 ; Cooper v. Barber, 3 Taunt. 99 ; to fill the defendant's pond, and by its Donnell v. Clark, 19 Maine, 174.] leaky condition allows the water to run * [Merrick J., in Pratt v. Larason, so to waste, when the plaintiff's mill is 2 Allen, 288 ; Bliss v. Rice, 17 Pick. 23.] not at work, as to make it necessary to 5 [And so it was held in Brace v. Yale, fill the pond from day to day.] 382 LAW OF WATERCOURSES. [CHAP. VI. in Brace v. Yale,' which was an action brought by the plaintiff to recover for an interruption of a prescriptive right to the use of water thus acquired, and in which Bigelow C. J. said, " The reservoir has thus been used to collect water for the immediate purpose of operating the plaintiff 's mill, and the water in it has been drawn out, either partly or wholly, whenever it was re- quired for the working of the machinery of the plaintiff. This mode of controlling and regulating the use of the water in the stream, as it essentially interrupted the original and natural flow of the water, and interfered materially with the right of the riparian owners of lands, between the reservoir dam and the plaintiff's mill, to appropriate and use the water, was in its nature adverse, and, having been continued under a claim of right for forty-five years and upwards, affords a conclusive pre- sumption of a grant, from such intermediate owners to the plain- tiff and his grantors, of such appropriation and use." " As a riparian proprietor, the defendant has lost the right to use the water in its natural flow or passage through his land, by the long- continued adverse user of the plaintiff and those under whom he claims, not only to control the quantity of water which should be allowed to pass down the natural channel through his land, but also to regulate the time when it should be drawn out of the reservoir, in order to pass down to the plaintiff 's mill. He must therefore use the water in subordination to this superior right of the plaintiff." — " If it is asked what is the measure or standard by which the defendant's right is to be regulated and governed, the answer is obvious. He can make a reasonable appropriation of the water as it is let down from the reservoir and passes through his land, having regard to the proper and reasonable use by the plaintiff of the prescriptive right which he has acquired. He can neither retard the water so as to prevent the plaintiff 's mill from running for any considerable period of time when the water is let down from the reservoir, nor can he hold it back for the purpose of collecting water which is to be drawn down in such quantities that the plaintiff cannot by the reasonable and ordinary use of his mill properly appropriate and apply it to the driving of his works, and thus cause the water to run to waste." — " It is immaterial that the defendant uses no more water than is ad- vantageous for the working of his mill. He is bound to use the 1 [10 Allen, 441.] CHAP. VI.] ADVERSE ENJOYMENT. 383 water with a due regard to the rights of others, and not merely with reference to the profitable employment of his own works."] § 220. In delivering the judgment of the Court of Exchequer, in a case in which the qualities of an enjoyment necessary to in- vest it with right by lapse of time were considered,^ Mr. Baron Parke said, " In order to establish a right of way, and to bring the case within this section,^ it must be proved that the claimant has enjoyed it for the full period of twenty years, and that he has done so m of right ; for that is the form in which, by section 5,^ such claim must be pleaded ; and the like evidence would have been required before the statute, to prove a claim by pre- scription or non-existing grant. Therefore, if the way shall ap- 1 Bright H. Vfalker, 1 Cr., M. & R. .219. 2 Of the Act commonly called the " Prescription " Act of 2 & 3 Will. IV. c. 71, which is as follows : " Sect. 2. And be it further enacted, that no claim which may be lawfully made at the Common Law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water to be enjoyed or derived upon, over, or from any land or water of our said Lord the King, his heirs or successors, or being parcel of the Duchy of Lancaster, or of the Duchy of Cornwall, or being the property of any ecclesiastical or lay per- son, or body corporate, when such way or other matter as herein last before mentioned shall have been actually en- joyed by any person claiming right thereto, without interruption, for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years ; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated ; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing." ' Of the above act, which is as fol- lows : " And be it further enacted, that in all actions upon the case and other pleadings wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such gen- eral allegation shall still be deemed suffi- cient, and if the same shall be denied, all and every the matters in this act men- tioned and provided, which shall be ap- plicable to the case, shall be admissible in evidence to sustain or rebut such allegation ; and that in all pleadings to actions of trespass, and in all other plead- ings, wherein before the passing of this act It would have been necessary to allege the right to have existed from time immemorial, it shall be sufiicient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this act as may be applicable to the case, and without claiming in tlie name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agree- ment, or other matter hereinbefore men- tioned, or on any cause or matter of fact or of law, not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in an- swer to the allegation of the party claim- ing, and shall not be received in evidence on any general traverse or denial of such allegation." 384 LAW OP WATERCOURSES. [chap. VI. pear to have been enjoyed by the claimant, not openly and in the manner that a person rightfully entitled would have used it, but by stealth, as a trespasser would have done — if he shall have occasionally asked permission of the occupier of the land — no title would be acquired, because it was not ' enjoyed as of right.' " ^ The authority of this case and the doctrines laid down by the Court were fully recognized in the cases of the Monmouth Canal Co. V. Harford,^ and Tickle v. Brown.^ § 221. It is clearly, therefore, an enjoj^ment, with an intent to claim against the true owner which renders it adverse to his rights, and upon this the decision in every case is made to de- pend. The question of adverse enjoyment or not is a question on which the Court may instruct the jury ; but the jury must be left to their own view of the effect of the evidence of the intent (gwo animo') which has attended the enjoyment. That, as Lord Mansfield said of disseisin, "is a fact to be found by a jury."* The burden of proving the adverse possession is on the party claiming the easement ; and if he leaves it doubtful whether the enjoyment was adverse, known to the owner, and uninterrupted, it is not conclusive in his favor? But if he shows a well-known. 1 [Smith V. Miller, 11 Gray, 145.] 2 Monmouth Canal Co. v. Harford, 1 Cr,, M. &R. 614. 3 Tickle 11. Brown, 4 Ad. & El. 369. 4 Taylor v. Horde, 1 Burr. 60. That tlie question of adverse enjoyment should be left to the jury as one of intention, see the tbllowing cases : Tyler u. Wilkin- son, 4 Mason, 397 ; Haight v. Morris Aqueduct, 4 Wash. C.C. 601; Cooper v. Smith, 9 S. & Kawle, 26 ; Strickler v. Todd, 10 S. & Kawle, 63 ; Butz v. Ihrie, 1 S. & Rawle, 218 ; Hepburn v. M'Dowell, 17 S. & Rawle, 383; Smith a. Smith, 3 Halst. (N.J.) 140; Ingraham v. Hutchin- son, 2 Conn. 584; Gleason v. Gray, 4 Conn. 418 ; Manning v. Smith, 6 Conn. 289; Sherwood a. Burr, 4 Day, 244; Curtis V. Jackson, 13 Mass. 514 ; Cook V. Hull, 3 Pick. 269; Reid v. Gifford, 1 Hopk. Ch. 416; Stiles v. Hooker, 7 Cowen, 266 ; Coalter v. Hunter, 4 Rand. 68; BuUen «. Runnels, 2 N.H. 256; MitolifiU V. Walker, 2 Aik. (Vt.) 266; Blanchard v. Baker, 6 Greenl. 263 ; Corning v. Gould, 16 Wend. 531 ; Bald- win !). Calkins, 10 Wend. 167 ; Rogers V. Mabe, 4 Dev. (N.C.) 180; Buddington V. Bradley, 10 Conn. 213; Tucker v. Jewett, 11 Conn. 311 ; Kennedy v. ScoVil, 12 Conn. 317 ; Rogers v. Page, Brayt. (Vt.) 169; Norton v. Valentine, 14 Vt. 239; Davis v. Fuller, 12 Vt. 178; Wilson V. Wilson, 4 Dev. (N.C.) 154; Sargent V. Gutterson, 13 N.H. 467; Whittier ti. Cocheoo Manuf. Co., 9 N. H, 456 ; Dyer V. Depui, 5 Wharton, 584 ; Branch «. Doane, 18 Conn. 233; Darlington v. Painter, 7 Penn. St. 473 ; Shreve v. Voor- hees, 2 Green (N.J.) 25; Chapman v. Thames Manuf. Co., 13 Conn. 269; Middleton v. Gregorie, 2 Rich. (S.C.) 631; Odiorne v. Lyford, 9 N.H. 502; Beidelman v. Foulke, 6 Watts, 308; Corning w. Gould, 16 Wend. 631 ; Cary V. Daniels, 8 Mete. 466; McDougal v. Clark, 7 B. Mon. (Ken.) 448; [Edson V. Munsell, 10 Allen, 568, 569 ; Valentine V. Piper, 22 Pick. 93; Stevens v. Taft, 11 Gray, 33; Smith v. Miller, 11 Gray, 145; Biddle v. Ash, 2 Ashm. 211, 221.] s 2 Greenl. Ev. § 539 ; Sargent v. Ballard, 9 Pick. 251 ; Davies v. Stephens, 7 C. & P. 670 ; Jarvis c;. Dean, 3 Bing. CHAP. VI.] ADVERSE ENJOYMENT. 385 an open, and uninterrupted enjoyment, proof must come from the other side to show, that it was by license or permission, or that it was to be restrained or limited in point of time.^ The claim of an easement is in derogation of the ordinary rights of prop- erty, and looking at the subject in this view, it appears clearly, that it lies upon the party asserting such claim in opposition to common right, to support his case by evidence. In Cross v. Lewis,- the absence of any evidence as to the earlier state of the windows was indeed held to operate in favor of the plaintiff, — the party claiming the easement; but the substantial proof (that is, proof of a user for twenty years) had already been given by the claimant ; and this, unrebutted hj any evidence to take the case out of the ordinary rule, was of course sufificient to establish the easement.^ § 222. A grant upon condition may be presumed from the use and enjoyment for twenty years adversely, and also the perform- 447; [Smith „. Miller, H Gray, 145; White V. Loring, 24 Pick. 319 ; Stevens V. Taft, 11 Gray, 33 ; Polly v. McCall, 37 Ala. N.s. 20.] 1 Per Lord Keeper Wright, Finch !'. Eesbridger, 2 Vern. 391 ; [Per Foster J., in White v. Chapin, 12 Allen, 519, 620. In Perrin v. Garfield, 37 Vt. 310, Peck J. said, " The general rule is that the en- joyment of an easement of this character," — that of maintaining a dam, and thereby flowing land, — " is presumed to be ad- verse, unless something appears to rebut that presumption. This is the general rule, when there is no express evidence that the user was accompanied by a claim of right, and no express evidence of a disclaimer of the right by the party enjoying the easement. There are some cases where the user is of such a charac- ter, and the circumstances attending it are such, as to show that It was a mere privilege enjoyed by leave of the proprie- tor of the servient tenement, express or implied, and not adverse. These cases are exceptions to the general rule, and peculiar in their character."] 2 Cross V. Lewis, 2 B. & C. 686, and Gale & What, on Easem. 79, and 1 Crabb, Real Property, § 450. 3 [See Smith v. Miller, 11 Gray, 148, per Merrick J.; Peck J., in Perrin o. Garfield, 37 Vt. 310. In White v. Chapin, 12 Allen, 519, 520, Foster J. said, " Wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under a claim of right and adverse, and be sufficient to establish a title by prescription, and to authorize the presumption of a grant; and it is incumbent upon the owner of the land to prove that the use of the ease- ment was under some license, indulgence, or special contract inconsistent with a claim of right by the other party." Mil- ler V. Garlock, 8 Barb. 163 ; Chalk i'. Mc- Alily, 11 Rich. 163; Williams v. Nelson, 23 Pick. 141, 147; Blake v. Everett, 1 Allen, 248 ; Hammond v. Zehner, 21 N.Y. 118; Esling v. Williams, 10 Penn. St. 126; Steffy u. Carpenter, 37 Penn. St. 41; Ingraham v. Hough, 1 Jones (N.C.) 39; Polly v. McCall, 37 Ala. 30; Garrett V. Jackson, 20 Penn. St. 331 ; Pierce v. Cloud, 42 Penn. St. 102 ; Trask v. Ford, 39 Maine, 437. In White «. Chapin, supra, it was held, that the right to the use of a ditch through the land of another for the purpose of drainage, may be es- tablished by adverse use. An actual use of such a ditch for that purpose for twenty years together, if unexplained, will be sufficient to establish the right] 26 386 LAW OP WATERCOUESES. [CHAP. TI. ance of the duty connected with the easement.^ Repairs made upon an aqueduct, which is laid through the land of another, cannot be regarded as in the nature of rent, or as an acknowl- edgment that the easement is held at the pleasure of the owner of the land, without some other evidence tending to show an agreement to that effect. Nor will the fact, that the owner of the water takes ^ part of the water from the aqueduct, show, that the use by the party who takes the rest, and repairs, is merely permissive ; though it may be evidence that the party repairing takes the water, and the privilege of entering- and repairing, on the condition of furnishing the owner of the land with a portion of the water ; and the performance of the condition may be essen- tial to the continuance of the right.^ § 223. It has not unfrequently happened in England, that the same presumption has been spoken of by some learned judges as a rule of law, whilst by others it has been treated as above men- tioned ; that is, merely as proper to be recommended to a jury, or as one which a jury might properly make.^ The mode of carry- ing out the policy of the law by the intervention of a jury, has been strongly objected to. A very distinguished writer has objected to it.* 1 Prescriptions may be upon condition, artificial presumption, whicli, for want Gray's case, 6 Co. 79; Cro. Eliz. 546;. 2 either of inclination or authority, could H. Bl. 224. A grant, upon condition that not be established and applied directly, the grantee shall perform certain acts. It seems very difficult to say, why such may be presumed from a usage of more presumptions should not at once have than twenty years to exercise the right been established as mere presumptions adversely, and perform the duty con- of law, to be applied to the facts by the nected with it, as well as an absolute Courts, without the aid of a jury. That grant may be presumed. Mitchell v. course would certainly have been more Walker, 2 Aik. ("Vt.) 270. simple; and any objection as to Ihe want 2 Watkins v. Peck, 13 N.H. 360. of authority would apply with equal, if 3 Phillips & Amos on Evidence, 460 not superior, force to the establishing (8th ed.) ; Gale & What on Easem. 67 ; such presumptions indirectly through the [Keymer v. Summers, Bui. N.P. 74 ; medium of a jury." 2 Stark, on Ev. 675. Campbell v. Wilson, 3 East, 294 ; Gray Again, " Notwithstanding the admission V. Bond, 2 B. & B. 627 ; Cross ■/. Lewis, of tlie presumptions," says the same 2 B. & C. 686 ; Darwin v. Upton, 2 Wms. learned author, " which appear now to Saund. 175 a; Wallace v. JFletcher, 80 be established and necessary rules of law, N.H. 434.] this branch of jurisprudence cannot but * Mr. Starkie says, " The practice of be considered as imperfect and inartificial, requiring juries in any case to be mere more especially if it be contrasted with passive instruments in finding facts upon the labored distinctions of the Roman their oaths, in the existence of which the Law upon the same subject. The pre- Court itself did not believe, although sumption being one of law, arising out now established, is of singular origin, of the fact of continued and adverse pos- The effect is indirectly to establish an session unrebutted, ought, as a rule of CHAP. YI.] ADVEESE ENJOYMENT. 387 [§ 223 a. It was decided in Tracy v. Atherton,^ that the pre- sumption, unrebutted, arising from the adverse possession and enjoyment of an incorporeal right, continued for the length of time fixed by statute as a bar to the recovery of land held ad- versely, is a presumption of law, and is conclusive evidence, or sufficient evidence to warrant the Court in holding that it con- fers a right on the possessor to the extent of his use.^ Poland C. J. observed, " It is said in many of the cases that this length of possession is only evidence to be submitted to the jury. If by this is meant, that where it is conceded or proved that there has been an uninterrupted possession under claim of right for the requisite time, and this is not encountered by any evidence to rebut the legal effect of it, that it is a proper question to be sub- mitted to the jury to say whether this gives a right, or not, it is law, to be applied whenever the facts to which it is applicable arise ; and yet, unless the jury strain their consciences BO far as to find a grant, in the actual existence of which the Court itself may not believe, the rule of law is inapplica- ble; in other words, the rule is useless, unless the j ury , upon the recommendation of the Court, find a fact, which, in all human possibility, never existed, and which is perfectly unconnected with the real merits of the case ; surely, so heavy a tax upon the consciences and good sense of juries, which they are called on. to incur for the sake of administering substantial justice, ought to be removed by the assistance of the legislature." Ibid. 669. The stat. 2 & 3 Will. IV. c. 71 (commonly called the Prescription Act), " was intended," said Mr. Baron Parke, " to accomplish this object, by shortening in effect the period of prescription, and making that possession a bar or title of itself, which was so before only by the intervention of a jury." Bright b. Walter, 1 Cr., M. & R. 217. [See Wallace v. Fletcher, 30 N.H. 434, 446; Edson v. Munsell, 10 Allen, 568, 569.] 1 [Tracy v. Atherton, 36 Vt. 503. Kimball v. Ladd, 42 Vt. 747, was » suit between two mill-owners on the same stream, one above the otlier, in which the lower mill-owner claimed that his grantors had gained the right to draw water from a dam at the upper- mill, by fifteen years' adverse use under a claim of right growing out of a parol arrange- ment between the grantors of the re- spective parties, by which the then lower mill-owner was to pay the expense of the flowage of lands in consequence of build- ing said dam, and in consideration was to have the right of drawing water there- from. The ruling in the case, that if the former owners of the lower mill, under claim of right by virtue of that contract, had , exercised the right in the manner necessary to gain a right by adverse use, they would not be prevented from ac- quiring the right, even if the owner of the upper mill did occasionally, while the owners of the lower mill were thus enjoy- ing the right, object or deny the right, if he did not in any way interfere with or interrupt that enjoyment, and they en- joyed it in spite of such objection, as fully as if there had been no objection or denial, was held to be correct ; and in the same case it was held, that it was competent to prove that the former lower mill-owner, who was a party to said arrangement, and while he was using the water from said dam, told the witness about the ar- rangement and what it was, as tending to prove he claimed a right so to draw the water, but not as evidence that such arrangement was made or that any thing was done under it.] 2 [See Sibley v. Ellis, 11 Gray, 417.] 388 LAW OF WATERCOURSES. [chap. VI. not in our opinion correct. If there be any conflict of evidence as to the length, or character of the use, or any evidence proper to rebut the acquiring the right, it then becomes proper to sub- mit it to the jury.i But where it stands solely upon the con- ceded or proved possession under claim of right for the ^quisite time, it is never submitted to a jury to find the right established or not, according to their judgments. And whether it is more proper for the Court to tell the jury that it is their duty from this to presume a grant, or to tell the jury that from this the law presumes a grant, is mere idle speculation. In fact, and in sub- stance, it is a verdict directed by the Court, as a matter of law. And if it were submitted to the jury, and they were to return a verdict against the right, no Court would ever accept the verdict." ^] 1 \See the remarks of Gray J., in Ed- son V. Munsell, 10 Allen, 568, 569 ; ante, § 217, note; White v. Chapin, 12 Allen, 616, 522.] ' [The same view of the law was taken by the Court in Townsend v. Downer, 32 Vt. 183. Aldis J., in giving the judgment of the Court in that case, says, " When from long possession, with or without auxiliary circumstances, a grant is pre- sumed as matter of law, and without re- gard to the fact whether such a grant was really made or not, then it may with tlie strictest propriety be said that the law presumes a grant. In such a case, under the practice of the Court in Ver- mont, it would be the duty of the Court to direct a verdict." He then proceeds to speak of the class of cases where lapse of time and long possession are relied upon with other circumstances, as evi- dence to establish that a grant has been made in fact. And thereupon he con- tinues to remark, " We do not understand that there is still a third class of cases in which, although the grant is not presumed by the Court as pure matter of law, and is not found by the jury as a fact, still the Court may direct the jury to presume a grant, and thus by the intervention of the jury, but without the exercise of their judgment upon the evidence, establish the grant as if it were a mere inference of the law. Language may be found in some books and decisions favoring such a view, but the doctrine is clearly against the whole current of English and Ameri- can decisions, and tends to confound the proper and separate jurisdictions of Court and jury. This erroneous view, we think, has arisen from the want of precision in language, when treating of presumptive evidence and the grants proved by or presumed from it." See the remarks of Bigelow J., in Powell v. Bagg, 8 Gray, 443 ; and of Gray J., in Edson v. Munsell, 10 Allen, 568, 569 ; Wilde J., in Coolidge V. Learned, 8 Pick. 504. It is clearly the province of the jury to decide whether the facts which are necessary to constitute the foundation for the presumption of a grant, are fully established ; and it is the province of the Court to instruct them that if those facts are satisfactorily proved, or are admitted, by the rules of law a grant is to be presumed, or the right is thereby established ; and it is their duty in this, as in other cases, to take the law as it is stated by the Court, so far as the rule of law is one of the elements in the case. If the requisite facts are not ad- mitted, but clearly proved, or if they are admitted, and still the jury should find against the presumption or right, the Court ought to set their verdict aside, as stated by Poland C.J., in the above quo- tation in the text. If the facts should appear to be really doubtful, but the jury should be controlled in their decision of them by a desire to avoid the result to which the law would lead them, this would constitute a defect in the adminis- tration of the law, not chargeable to the law itself, but to a want of intelligence or moral sense in the jury.] CHAP. TI.J EXTENT OF THE ENJOYMENT. 389 4. Right acquired commensurate with the Extent of the Enjoyment. § 224. The extent of the presumed right is determined by the user on which is grounded the presumed grant, the right granted being commensurate with the right enjoyed.^ If one has ancient pits, which are replenished by another, the pits cannot be lawfully enlarged •,^ and if the enjoyment of the water has been limited to certain days in the week, it cannot lawfully be used on any other day.^ So, a right to a sufficiency of water power to carry a certain number of spindles, cannot be extended to water power sufficient to carry a larger number.* In Darlington v. Painter, in Pennsylvania,^ in which it appeared, that the defendant, for more than twenty years, had been in the habit of using a certain ditch to pass off waters running over or accumulating upon his lands, and that in 1844 he built a mill, and at the same time, entered upon the plaintiff's land and cleansed the ditch, saying he intended to use it for a tail-race ; but at the time of the action brought, the mill had not commenced working ; it was held, that the defendant could not use it for any purpose, that would in- crease the flow, enlarge the ditch, or affect the water in any way different from that use for which the watercourse was granted. 1 Bealy v. Shaw, 6 East, 208 ; Alder The right acquired will be commensurate V. Savill, 5 Taunt. 424 ; Russell v. Scott, in character and extent with the enjoy- 9 Cowen, 279 ; Dyer v. Depui, 5 Wharton, ment. A user of throwing sawdust into 584; Watkins «. Peck, 13 N.H. 360; a stream cannot establish the right of Cowell V. Thayer, 5 Met. 253 ; Chapman discharging into it poisonous and noxious V. Thames Manuf. Co., 13 Conn. 269 ; drugs. Holsman v. Boiling Spring Bleach- Manier v. Myers, 6 B. Mon. (Ken.) 132; ing Co., 1 McCarter (N.J.), 335, 346. Bigelow V. Battel, 15 Mass. 313; Strong One may hare aright for the rain-water V. Benedict, 5 Conn. 210 ; Baldwin v. to fall from the eaves of his house into a Calkins, 10 Wend. 167 ; Simpson v. yard belonging to another person, and Seavey, 8 Greenl. 138; Rogers w. Bruce, yet cannot justify putting up a spout, 17 Pick. 184 ; [Wright v. Moore, 38 Ala. and thus collecting the water in a larger N.8. 693; Stein v. Burden, 24 Ala. n.s. body to fall into that yard. Reynolds 130; Morris v. Commander, '3 Ired. 610; v. Clarke, 2 Ld. Ray. 1399; s.o. 1 Str. Whittier v. Cocheco Manuf. Co., 9 N.H. 534 ; s.c. 8 Mod. 172; Woolrych, Waters, 464 ; Bolivar Manuf. Co. v. Neponset 180,] Manuf. Co., 16 Pick. 241 : Gerenger v. ^ Brown v. Best, 1 Wils. 174. Summers, 2 Ired. N.C. 229 ; Hulme v. ' Strutt v. Bovingdon, 5 Esp. 56. Shreve, 3 Green Ch. (N.J.) 116; Burn- * Bigelow .,. Battel, 15 Mass. 318. ham V. Kempton, 44 N.H. 78, 91; Winni- [See Wheatley v. Chrisman, 24 Penn. St. piseogee Lake Co. v. Young, 40 N.H. 298.] 420; Powers v. Osgood, 102 Mass. 454, * Darlington u. Painter, 7 Pefln. St. 457; Powell v. Lash, 64 N. Car. 456; 473. Carlisle v." Cooper, 6 C. E. Green, 594. 390 LAW OP WATERCOURSES. [CHAP. VI. i [Where one has used a drain from his own land over that of his neighbor for a period of over twenty years, but during those years, the drain has been enlarged, deepened, and varied in its course and termination, no right to the continued use of the drain is thereby acquired. Such right will be acquired only by the use of the drain for twenty years after the enlargement.^] § 225. The rule that the mode or manner of using the water shall not be materially varied to the prejudice of others, was applied in an important case in the State of New York (an appeal in equity, confirming the decision of the court below), in which it was held, that if the proprietor of land, at the head of a stream, changes the natural flow of the water, and continues such change for twenty years, he cannot afterwards restore the flow of the water to its natural state, when it will have the effect to destroy the mills of other proprietors below, which have been erected in reference to such change in the natural flow of the stream. It appeared, that the complainants were the several owners of dif- ferent mills situated upon the same stream, which mills depended upon the particular use of the waters of a pond at the head of the stream for the running thereof; and, as such mill-owners, had been in the uninterrupted enjoyment of the water in a particular manner for more than twenty years ; it was held, that a Court of Equity had jurisdiction to establish the right of the lower pro- prietors to the use they had made of the waters of the pond, and to restrain the defendant from disturbing them in the enjoyment thereof, by an alteration made at the outlet of the pond.^ 1 [Cotton 0. Pocasset Manuf. Co., 13 or without the denial of right by any one. Met. 429 ; Stein v. Burden, 24 Ala. 130.] The defendant admitted, that at the time, 2 Belknap v. Trimble, 3 Paige, 677. he had no waterworks at the outlet, or This case may require a little more ex- on the stream ; did not pretend that the planation. The plaintiffs made out that pond was of any value to his farm ; and they were the owners and occupiers of it was considered by the Court evident, ancient mills on the stream issuing from that in purchasing it, he did it with the the pond, and the question was, whether view of rendering the property of the the defendant, by assuming the control plaintiffs useless, until they bought him of the waters at the pond, to the great out, or made terms with him. See Bul- and acknowledged damage of the plain- len v. Runnels, 2 N.H. 255; Whittier v. tiffs, had not acted in violation of their Cocheco Manuf. Co., 9 N.H. 454. In a rights. For more than forty years the case in the English Court of Exchequer, plaintiffs and their predecessors were in in 1846, the substance of the declaration the liabit of constantly resorting to the was, that before and at the time of com- pond for water when they needed it, and milling the grievances, the plaintiff was, of scouring, altering, and improving the and from hence hitherto had been, pos- oullet, without the permission of any one, sessed of a rolling-mill, with the appur- CHAP. VI.] EXTENT OF THE ENJOYMENT. 391 § 226. But although the extent of the right is to be measured and regulated by the enjoyment upon which the right is founded, the party is yet allowed freedom in the manner of exercising it. It was contended in Luttrel's case/ that the plaintiff by taking down old fulling-mills, and by erecting new mills of another nature and for another object, had destroyed his prescription, and could not prescribe to have any water to the new mills ; and it was said, " If a man grants me a watercourse to my fulling- mills, I cannot convert them to corn-mills, nee e contra." Yet, "forasmuch as in general the mill was the substance, and the addition demonstrates only the qualitjs and the alteration was not of the substance, but only the quality or name of the mill, and that without any prejudice in the watercourse to the owner thereof; for these reasons it was resolved, that the prescription remained." So, in Saunders v. Newman,^ where the claim in the declaration was for a mill generally, it was held, that the right to the discharge of the water was not lost by an alteration in the dimensions of the mill-wheel. " The owner," said Mr. Justice Abbott, in that case, " is not bound to use the water in the same precise manner, or apply it to the same mill ; if he were, that would stop. all improvements in machinery." In Hall v. Swift,^ where the plaintiff had a right to water, flowing from the defend- tenances, and by reason thereof, ought to the water for irrigation, at the times have had and enjoyed the benefit of the when irrigation was necessary for the water of a certain watercourse, which close ; wherefore, the defendant removed until the diversion of the water, had run the said part of the wear, and placed and and flowed by means of a certain wear, kept it at such lower height, to such an therein erected, a little above the said extent, and for such time, and no more mill, being kept at a certain height, for or longer than was necessary for divert- supplying the same with water. The ing the water for the irrigation of the breach, in substance, was, that the de- close. It was held, that this plea was fendant pulled down the said wear, and good ; and that it was not an argumenta- placed and fixed the same at a much tive traverse of the right alleged in the lower height than it ought to have been, declaration, inasmuch, as it set up a right, and so continued the same. It was which, under the stat. 2 isb 3 Will. IV. u. pleaded, that the defendant was the 71, was not complete, until the com- occupier of a certain close, next adjoining mencement of the suit ; and, therefore, to the watercourse, and that he and all was not inconsistent with the plaintiffs' other occupiers of the same, for the right to have the wear at a greater period of twenty years, "next before the height, at the time of the act complained commencement of this suit," enjoyed as of of Ward v. Robins, 15 M. & W. 237. right, and without interruption, the right i Cottel v. Luttrel, 4 Co. 87 a; and as occasion required, of removing a part see ante, § 149 a, et seq. of the said wear, and fixing the same at ^ Saunders o. Newman, 1 B. & Aid. a lower height, and of keeping at such 258. lower height, for the purpose of diverting ' Hall v. Swift, 6 Scott, 167. 392 LAW OF WATERCOURSES. [CHAP. VI. ant's land across a lane, to his own land, and it appeared that, " formerly the stream meandered a little down the lane before it flowed into the plaintiff's land; and that, in the year 1835, the plaintiff, in order to render its enjoyment more commodious to himself, a little varied the course, by making a straight cut direct from the opening or spout under the defendant's hedge, across the lane, to his own premises ; " and this, it was contended, negatived the right claimed in the declaration. Tindal C.J., in delivering his opinion, said, " If such an objection as this were allowed to prevail, any right, however ancient, might be lost by the most minute alteration in the mode of enjoyment, — the making straight a crooked line or footpath would have this result. No authority has been cited, nor am I aware of any prin- ciple of law or common sense upon which such an argument could base itself." ^ § 227. In this country the doctrine is as well settled, that where a right has been acquired by virtue of twenty years' enjoyment, to use a certain quantity of water, a change in the mode and objects of use is justifiable ; and here, as in England, the only restriction is, that the alterations made from time to time shall not be injurious to those whose interests are involved.^ It cannot be doubted, says Gibson O.J., that the nature of the user cannot be changed in any case, unless the flow remain the same as to 1 See also Thomas v. Thomas, 2 Cr., cellor Walworth, in Belknap v. Trimble, M. & R. 34 ; [Wright v. Moore, 38 Ala. 3 Paige, 606 ; Johnson u. Rand, 6 N.H. N.s. 593 ; Baxendale v. MeMurray, L.R. 22. [An appropriation of water for a 2 Ch. App. 790.] saw-mill allows the party to use the same 2 Strickler v. Todd, 10 S. & Kawle, amount for a grist-mill instead. Mc- 68; Blanchard v. Baker, 8 Greenl. 253. Donald v. Bear Rirer &o. Co., 13 Cal. In Hulme v. Shreve, in New Jersey, it 220. See Kaler v. Beaman, 49 Maine, was held, that if waste-gates be con- 207 ; Deshon v. Porter, 38 Maine, 289 ; structed by the defendants, and used by Hynds v. Shultz, 39 Barb. 600; Marcly them for a course of years, with the v. Shultz, 29 N.T. 352. Where a pre- complainants' assent, the complainants scriptive right to foul a stream has been cannot have relief by injunction, so long acquired, the fouling must not be consid- as the use of the gates is confined to their erably enlarged to the prejudice of other original purpose ; but if an attempt is people. Crossley v. Lightowler, Law Rep. made to apply them to a different pur- 2 Ch. App. 478; s.c. Law Rep. 3 Eq. pose, injurious to the complainants, the Cas. 279. The right to foul must be Court will, by injunction, prohibit the measured by the enjoyment ; it cannot use of the gates. 3 Green (N.J.) Ch. 116. be used in a different and more extensive All that the law requires is, that the manner. McCallum v. The Germantown mode or manner of using the water Water Co., 54 Penn. St. 40; Crosby v. should not have been materially varied Bessey, 49 Maine, 207.] to the prejudice of others. Per Chan- CHAP. VI.] EXTENT OP THE ENJOYMENT. 393 quantity and rapidity.^ "Where the plaintiff erected a dam across the outlet of a pond, and acquired a right by prescription to use the water, it was held, that the erection of a new dam by the defendants higher than the old one, was not, in itself, an infringe- ment of the plaintiff's rights ; for the plaintiff had a right to adopt and use the new dam to the height of the old one ; but that the defendants were entitled, as against the plaintiff, to use the water when raised by means of the new dam, above the top of the old dam, provided thej' did not thereby prejudice in any manner the rights of the plaintiff.^ § 228. Where a right exists to use a certain quantity of water for propelling machinery, a change may be made not only in the mode and objects of the use, but in the place of using it, if the quantity of water used is not increased, and the change is not to the prejudice of others.^ Thus, a party had for more than twenty years used a certain quantity of water at a particular dam ; it was held, that he might open his gates and draw that quantity, with- out using it there, in order to use it at other works below on the same stream. And the owner of a mill may even draw a larger quantity of water through his gates than he has been accustomed to use, if he has lawfully provided the surplus, for his own use, by means of a reservoir above, and causes no injury thereby to the owner of another mill situated upon the same dam, or to other persons having rights in the stream.* 1 Darlington t). Painter, 7 Penn. St. 473. * Whittier v. Cocheco Manuf. Co., 9 2 Kogers v. Bruce, 17 Pick. 184. [See N.H. 454. And see Bracegirdle v. Burnham v. Kempton, 44 N.H. 90.] Peacock, 10 Jur. 9 ; [Baldwin v. Calkins, 8 [Carlisle v. Cooper, 6 C. E. Green, 10 Wend. 167 ; Morris v. Commander, 595. So a right to an easement of flow- 3 Ired. (N.C.) 510; Gerenger v. Sum- ing lands may be acquired by prescrip- mers, 2 Ired. (N.C.) 229; VPright v. tion, although the flowing was occasioned Moore, 28 Ala. 598 ; Carlisle v. Cooper, by diflerent dams, owned by different 6 C. E. Green, 595. So if a grant is persons, provided the extent of flowing made to a person, owning a dam and mill is, at all times, the same. Davis v. erected at a particular place, of a right to Brigham, 29 Maine, 391. So in Stackpole flow the lands of the grantor, the grantee V. Curtis, 32 Maine, 383, it was held, that is not necessarily restricted to the use of to establish a prescriptive right of flowing the water at the precise place where it water by a dam for the use of a mill, it was used, when the grant was made. is not necessary that the dam should Shepley C.J., in Stackpole v. Curtis, 32 have been maintained, for the whole Maine, 383. So where the grant of an period, upon the same spot; it is suflBl- easement in the use of water is meas- cient, if shown to have been maintained ured by the height in the dam to which upon the same mill-site, though removed, the plaintiff is entitled, it is no objection from time to time, to different places to his assertion of his right that he has upon such site. See Whittier v. Cocheco increased the capacity of his mill, so long Manuf. Co., 9 N.H. 454, 458.] as he demands the use of no more water 394 LAW OF WATEECOURSES. [CHAP. VI. § 229. In a case in the English Court of Exchequer, in 1845,i in which the action was for the diversion of water, the plaintiff alleged in his declaration, a reversionary interest in three closes of land, to wit, three ponds filled with water, one pond being on each of the said closes, and a right to the flow of the water into the said closes, for supplying the said ponds in the said closes with water for the watering of cattle ; and the defendant trav- ersed the right to the flow of the water, as alleged. It appeared in evidence, that the plaintiff had enjoyed an immemorial right to the flow of this water into an ancient pond, in one of his closes ; but that above thirty years ago, he made a new pond in each of the three closes, and turned the water so as to supply them, and thenceforth disused the old pond, which became gradually filled up and overgrown with grass. It was held, that the plaintiff, under his declaration was entitled to recover, in re- spect to his right to the flow of water to the old pond, though it was contended by the defendant's counsel, that the three new ponds were alone claimed in the declaration. By Pollock C.B. : "The plaintiff, in bringing his action, and declaring for an in- fringement of his right to a flow of water to the three ponds, meant, no doubt, to recover, in respect of the three new ponds." By Parke B. : " The use of the old pond was discontinued, only because the plaintiff obtained the same or a greater advantage, from the use of the three new ones. He did not thereby abandon Ms right, he only exercised it in a different spot; and a substitu- tion of that nature, is not an abandonment. He has a right, therefore, under this declaration, to recover in respect of the old •pond. The right alleged, is a right to have the uninterrupted flow of certain surplus water, into a pond ; and that right is equally proved, whether it be by prescription or lost grant, or under Lord Tenterden's Act. The declaration means no more than this, that the plaintiff has a right to the overflow of water, either in one pond or in three ponds." § 230. It should, however, be observed, that the fact of how much water has been actually used, is not always decisive of the nature and extent of the right ; that is, if for the space of twenty years, a certain quantity of water has run uninterruptedly and as than the limitations of the grant award ' Hale v. Oldroyd, 14 M. & W. 789. to him. Carter v. Shipman, 35 N.Y. [See Carlisle v. Cooper, 6 C. E. Green, 538.] 595.] CHAP. YI.J EXTENT OP THE ENJOYMENT. 395 of right to a certain mill, the right to have that quantity run, becomes an appurtenance to the mill, though the whole of it may not have been necessary for the purposes for which the mill has been employed.^ In Tyler v. Wilkinson,^ it appeared that a certain quantity of water had been accustomed to run in an artificial canal, called " Sergeant's trench," leading from the main stream ; and Mr. J. Story, in giving judgment, said, " The proprietors of Sergeant's trench are entitled to the use of so much of the water of the river, as has been accustomed to flow through that trench, to and from their mills (whether actually used, or necessary for the same mills, or not), during the twenty years last before the institution of this suit, subject only to such quali- fications and limitations, as have been acknowledged, or rightfully exercised by the plaintiffs, as riparian proprietors, or as the own- ers of the lower mill-dam, during that period. But here their right stops ; they have no right farther to appropriate any surplus water, not already used by the riparian proprietors, upon the notion that such water is open to the first occupiers. That sur- plus is the inheritance of the riparian proprietors, and not open to occupancy." ^ [§ 230 a. It has already been stated in a preceding section,* and is here again noticed, to illustrate the subject under consider- ation, that if the owner of the land on one side of a river erects a mill-dam across the river, without obtaining permission from the proprietor of the opposite side, this is an adverse and in- jurious invasion of the rights of this riparian proprietor, although he may then have no occasion to make use of the water ; and if the dam be continued a sufficient length of time, will authorize the jury to presume a grant of the right to abut the dam on such opposite proprietor, and also a grant to have all the benefit, water power, and privileges which would arise from the erection of the same. The extent of this right would be measured by the height and capacity of the dam, and not by the partial use of the water power created by it ; unless it be shown that the grant was made with limitations and reservations. Aiid the burden of proof to 1 See Carlisle v. Cooper, 6 C. E. Green, pleaded ; but the right must be of such 695. a nature that it may comprehend the ■•i Tyler v. Wilkinson, 4 Mason, 897. right pleaded. Per Coleridge J., in 8 See ante, §§ 130-136. A plea of Bailey v. Appleyard, 8 Ad. & El. 167. prescription is supported if the party * [Ante, § 219 d.\ prove a right more extensiye than that 396 LAW OF WATERCOURSES. [CHAP. VI. show the limitations and reservations would rest on the party alleging their existence.^] [§ 230 h. Where a riparian proprietor has acquired a prescrip- tive right as against an owner below to pollute a stream in carry- ing on a particular kind of business, he will not render himself liable to such owner merely in consequence of a change of the material used in that business, which does not increase the amount of pollution. The defendant, the owner of an ancient paper-mill, where the paper had been made from rags, introduced a new vegetable fibre, and carried on the works upon the same scale for making paper from this new material. For more than twenty years before this change, the refuse arising from the paper manufacture had been discharged into a stream which ran past the plaintiff's house; it was held, that the easement to which the defendant had become entitled, was to be presumed to be, not a right to foul the stream by discharging into it the washings produced by the working up of rags, but a right to discharge into it the washings produced by the manufacture of paper in the reasonable and proper course of such manufacture, using any proper materials for that purpose, but not increasing the pollution, and that the burden was on the plaintiff to prove any increase of pollution.^ In Baxendale v. McMurray,^ in which the above decision was made. Lord Cairns L.J. said, " It is difficult to sup- pose the existence of an easement founded on, and limited to, the washing of rags. If made specific in this way it would be 1 [Bliss V. Rice, 17 Piclc. 23. But in and used substantially in the same man- Burnham v. Kempton, 44 N.H. 90, the ner. Twenty years' use of the water Court, adverting to the propositions laid raised by such a dam, to drive a grist, down in the text, said, " We find our- saw, and fulMng mill, at all seasons, or at selves unable to assent to this doctrine, certain seasons, is evidence of a grant to To us it seems that twenty years' main- use so much of such water as shall be tenanee of a dam in a particular mode, is necessary at those seasons to drive these evidence of a grant or right so to main- mills or similar ones. It necessarily im- tain it, and twenty years' use of the plies, also, a grant by the owner of the water in a particular way is evidence of right to obstruct the stream by the dam, a right thus to use the water. The same and to force all the water not used by proof of user which establishes the right, these mills over the dam, and of course is equally conclusive in establishing the necessarily to limit the right of the ripa- limitations of that right. Twenty years' rian owner to such use as he may make accustomed flow and use of a certain of the water after it has passed over the stream or pond of water is as good evi- dam."] dence of right to the one party as to the 2 [Baxendale «. McMurray, L.R. 2 other. Twenty years' support of a mill- Ch. App. 790.] dam is evidence of a grant to build and ' [L.R, 2 Ch. App. 790.1 maintain just such a dam, constructed CHAP. VI.] PARTIES NOT IN POSSESSION. 397 confined to rags known and in use at the time the easement was acquired, and the rags of textile fabrics afterwards coming into use must, however valuable for the manufacture of paper, be ex- cluded. Rags, again, would afford no standard by which to test or limit the amount of pollution. Some would be much more dirty than others ; the washings from some might be harmless, and from others deleterious." — "I am therefore of opinion that it is not sufficient for the plaintiff to show that the defendant uses in the manufacture of paper a raw material different from that formerly employed. He must show, further, a greater amount of pollution and injury arising from the use of this new material."] 5. The Presumption as it relates to Parties not in Possession. § 231. In an action for the disturbance of a water privilege, and indeed of any easement, the enjoyment of it may be shown not to have been adverse, by evidence that the plaintiff has not been in possession of the premises, to which the privilege or ease- ment claimed, is attached. Thus, if a tenant for a term of years, permits another to enjoy an easement in his estate for twenty years, and then the particular estate determines, such enjoyment will not, as a general rule, affect the interests of him who has the inheritance in remainder or reversion. And when the remain- ing or reversionary interest commences, the party entitled may dispute the right to the easement, and the length of enjoyment will be no bar to his claim ; for as the tenant cannot bind the landlord, by his own positive act, so he cannot by his laches, or inaction and forbearance. ^ § 232. The case of Bradbury v. Grinsell, in the King's Bench,^ was determined according to the rule just mentioned. A., who was a tenant for life, with a power to make a jointure, which he afterwards executed, gave license to B., in 1747, to erect a wear on the river T., in A.'s soil, for the purpose of watering B.'s 1 Gale & What, on Easem. 75; and 22 How. P.C. 217; Parker v. Framing- see Hale 0. Oldroyd, 14 M. & W. 789 ; ham, 8 Met. 260 ; Pierre v. Fernald, 26 [Wallace c/. Fletcher, 30 N.H. 453; An- Maine, 436 ; Blanehard v. Bridges, 4 Ad. gell, Lim. § 415; Coalter v. Hunter, 4 & E. 176; Reimer v. Stuber, 20 Penn. Kand. 58; Nichols w. Aylor, 7 Leigh, 546, St. 458; Schenley v. Commonwealth, 36 666 ; Biddle v. Ash, 2 Ashra. 211, 221 ; Penn. St. 29.J Smith V. Miller, 11 Gray, 148; Corning ^ Cited in Wms. Saund. 175, n. (d). V. Troy Iron &c. Co., 39 Barb. 311 ; s.c. 398 LAW OF WATERCOURSES. [CHAP. VI. meadows ; and then A. died, and the jointress entered and con- tinued seised, down to 1799, when the tenant of A.'s farm di- verted the water of the river from the wear. Upon which, the tenant of B.'s farm brought an action on the case of diverting the water. It was held, that the uninterrupted possession of the water for so many years, with the acquiescence of the ' particular tenants for life, did not affect him who had the inheritance in reversion, and the Court were clear upon the point of law as above stated. So in Barker v. Richardson,^ where the plaintiff's windows had existed for more than twenty years. The defend- ants had erected a building, which occasioned the darkening of the plaintiff's windows, upon their adjoining land, which had been glebe land, belonging to the rectory ; but within the last six years, had been conveyed in exchange, by the then rector, with the consent of the bishop and patron, under the authority of 55 Geo. III. and by the grantee conveyed to the defendants. It was objected on the part of the defendants, that although, after uninterrupted possession of an easement for twenty years, the law will, in ordinary cases, presume a grant, yet that rule ex- tended only to those cases where the presumed grantor was capable of making the grant. And that, in this case, the rector, who was a mere tenant for life, had no power to make such a grant, and therefore length of time could not operate against him, who was not seised of any estate of inheritance. Mr. C.J. Abbott admitted, that twenty years' uninterrupted possession of any easement, is generally sufficient to raise the presumption of a grant; but in this case, he thought the grant, if presumed, must have been made by a tenant for life, who had no power to bind his successor ; and that the grant, therefore, would be in- valid, and consequently the present plaintiff could derive no benefit from it, against those to whom the glebe had been sold ; and his opinion was, that the evidence in the case was insufficient to entitle the plaintiff to maintain the action.^ Lord Ellen- borough, on the argument for a new trial, in Daniel v. North,^ 1 Barker v. Richardson, 4 B. & Aid. by user, and they will be valid against 578. himself or those who hold his estate dur- 2 [In Wallace v. Fletcher, 30 N.H. 434, ing its continuance, and perhaps not 453, Bell J. said, " In the case of a rever- aiterwards, where the reversioner had sioner, the time of prescription does not previously neither cause nor right to begin to run until his interest becomes complain."] vested, so as to give him a right of action. 8 Daniel v. North, 11 East, 872. The The tenant for life or years may grant action was for obstructing ancient lights, easements, or permit them to be acquired and it appeared that the premises, on CHAP. VI.j PARTIES NOT IN POSSESSION. 399 observed, " How can such a presumption be raised against the landlord, without showing that he knew of the fact, when he was not in possession, and received no immediate injury from it at the time ? " In delivering his opinion, the learned judge said further, " The foundation of presuming a grant against any party, is, that the exercise of the adverse right on which such presumption is founded, was against a party capable of making the grant ; ^ and that cannot be presumed against him, unless there was some probable means of his knowing what was done against him ; for it cannot be laid down as a rule of law, that the enjoyment of the plaintiff's windows during the occupation of the opposite premises by a tenant, though for twenty years, without the knowledge of the landlord, will bind the latter, and there is no evidence stated in the report, from which his knowl- edge should be presumed." § 233. It is clearly not incompatible with the above doctrine, and indeed it has so been positively decided, that presumptions may in certain cases be made against the dominant land-owner, during the possession and acquiescence of his tenant. The tenant may suffer a direct and palpable injury to his own enjoy- ment, and thus fairly be presumed to be on the alert in guarding the rights of his landlord, while guarding his own enjoyment, as in the case, for instance, of the destruction of a way.^ It is a well-established rule in the construction of the Statute of Limi- tations, that the rights of persons in remainder and reversion, are not affected by neglect in the tenant for life, or for years, during the continuance of the particular estate, in resisting the acts of wrong-doers ; and yet there may be particular cases in which presumptions may exist to the contrary. If a houndary line is disputed, and the dispute is adjusted by the agreement of the tenant for life, such agreement is presumptive evidence to bind the remainder-man ; for although the remainder-man may assert that his right has been invaded, yet the submission of the tenant for life (if without fraud), will raise a strong presumption against those who succeed him.^ which the obstruction was erected, had 234, 235; Gray J., in Edson v. Munsell, been occupied, during twenty years, 10 Allen, 568. by a tenant at will, and there was no ^ Daniel v. North, ub. sup. [See evidence that the owner of those premi- Barker v. Kichardson, 4 B. & Aid. 679; ses was aware of such enjoyment. McGregor v. Waite, 10 Gray, 75.] 1 See post, §§ 238, '239, and cases in ' Saunders v. Annesley, 2 Sch. & Lef. notes ; Nelson v. Butterfield, 21 Maine, 101, and cited in Angell, Lim. § 415. 400 LAW OP WATERCOURSES. [CHAP. VI. § 234. There is, says Lord Redesdale,' a vast number of cases, in which the act of tenant for life binds the remainder-man as evidence ; and he then refers to the enjoyment of easements, in which case, if it can be proved, that the landlord has actual knowledge of a disturbance of the easement, while in the occu- pation of the tenant, he will be bound. Questions of this sort are undoubtedly proper for the determination of the jury, as depending upon the circumstances proved.^ In Dawson v. The Duke of Norfolk,^ Mr. J. Bayley, at nisi prius, did not advise the jury to presume a grant, because it did not appear that the turning of the plaintiff's cattle on the common, was generally known to those who had been trespassed upon ; and on that ground he left it to the jury, whether it was not an encroachment, negativing the right; and this direction was, by the Court of Exchequer, held proper. In Wood v. Veal,* it appeared on the part of the plaintiff, that, in the year 1719, a lease for ninety-nine years was given of the plaintiff's premises; and it was held by the Court of King's Bench, that, under these circumstances, the jury were well justified in finding that there was no public right of way, inasmuch as there could be no dedication by the tenant, for that term of years, nor by any one except the owner in fee. Therefore, to use the language of Mr. O.J. Dallas, " "When lapse of time is said to afford such a presumption, the inference is also drawn from accompanying facts; and here, where there is no direct evidence, whether or not the owner of the land had any knowledge of what passed, the inference to be drawn, must, in a peculiar degree, depend on the nature of the accompanying facts ; and the presumption in favor of a grant will be more or less probable, as it may be more or less probable that those facts could not have existed, without the consent of the owner of the land. The circumstances proved in the present case, were suffi- cient to leave to a jury, as circumstances from which the knowl- edge of the owner, and his acquiescence, on the supposition of a preceding grant, might fairly be presumed." ^ § 235. If the time has once begun to run against the dominant 1 Saunders v. Annesley, 2 Sch. & Lef. ^ Gray „_ Bond, 2 Bro. & Bing. 667. 101. An adverse possession of twenty years, 2 Daniel v. North, ub. sup. ; Wakeman is, in England, not a bar to a rector or V. West, 8 C. & P. 105. vicar, except aa against the present in- 8 Dawson u. The Duke of Norfolk, 1 curabent, who submitted to such pos- Price, 246. session. Euncorn t). Doe, 6 B. & C. « Wood V. Veal, 5 B. & Aid. 454. 696. CHAP. TI.J DISABILITIES. 401 land-owner, in consequence of his knowledge of, and acqui- escence in, the enjoyment of the easement, the intervention of a particular estate, will not then stop it.^ From the observations of Bayley J. in Cross v. Lewis,^ it would appear, that provided the existence of the easement prior to the commencement of the tenancy, was shown, and a sufficient length of enjoyment had taken place, to afford evidence of a grant, the burden of proof would be thrown upon the owner of the land sought to be made liable to the easement ; and unless he could show such previous user to have taken place, without his knowledge, the right to the easement would be established.^ § 236. The foregoing doctrine, in relation to the enjoyment of easements in estates, during the possession thereof, by tenants for life, or years, will apply to every temporary interest in the land ; * so that time does not begin to run against a privilege re- served in a deed, if by the deed it clearly appears that an imme- diate occupation and exercise of the privilege was not at the time contemplated by the parties ; as where the reservation is to the heirs and assigns of the grantor.^ 6. Disabilities. § 237. If the doctrine of adverse possession of an easement, cannot, in general, be applied to reversioners, during the con- tinuance of the particular estate, it would seem a fortiori to be in- applicable to persons who are hindered from suing by reason of their legal disability. Contra non valentem agere currit prcescrip- tio,^ is a maxim which naturally suggests itself in this place, and which is illustrated by those express provisions in the different Statutes of Limitation, which, in cases of infancy, coverture, and others similar, suspend their operation, until the removal of such disability. As in the case of a debt due, the prescription only begins to run, from the time when the creditor has a right 1 2 Greenl. Ev. § 545 ; Best, Presump. to be presumed against a party who has 89; [Cross v. Lewis, 2 B. & C. 686. See no choice but to acquiesce, as in the case Pearsall v. Post, 20 Wend. Ill ; Bright v. of private property taken for public use Walker, 1 Cr., M. & R. 211 ; McGregor by authority of the State. Jessup v. V. Wait, 10 Gray, 75.] Loucks, 55 Penn. St. 350.] 2 Cross V. Lewis, 2 B. & C. 686 ; Gale 6 Butz b. Ihrie, 1 Rawle, 281. & What, on Easem. 80. 6 Poth. Traite' des Obligations, 645 ; 8 Gale & What, on Easem. 80. ib. Traite' Praescript. ; Ayraud v. Babin, * Greenl. Ev. § 545. [Acquiescence 19 Mart. (La.) 47 ; Eichards v. Maryland in the enjoyment of an easement is not Insurance Co., 8 Cranch, 84. 26 402 LAW OP WATERCOURSES. [CHAP. VI. to institute his stiit ; ^ for in such case to impute delay to the creditor, would be contrary to the conclusions of reason.^ § 238. Yet, in commenting on the conclusiveness of the presump- tion, of which we are treating, Mr. J. Story, in Tyler w.Willdn- son,^ remarked, that its operation had never yet been denied in cases where personal disabilities of particular proprietors might have intervened, such as infancy, coverture, and insanity : and where, by the ordinary course of proceeding, grants would not be pre- sumed. But Mr. Matthews in his Treatise on Presumptive Evidence, seems to consider, that the right otherwise arising from long enjoyment, may be repelled, by showing, that the par- ties whose interests have been prejudiced were until lately, inca- pable, by reason of infancy, coverture, or other legal disability, to give the necessary license. The Supreme Court of New Hampshire have expressly held, that, notwithstanding the re- mark of Mr. J. Story, in Tyler v. Wilkinson,* a grant by a guar- dian of an infant, of an easement in the land of his ward, extending beyond the limit of the guardianship, was not to be presumed; inasmuch as a guardian is not authorized to grant in- corporeal hereditaments out of the ward's land. " Perhaps," say the Court, " a disability intervening during the lapse of the term, but not extending to the termination of the period of twenty years, might not be sufficient to rebut the presumption ; but it would be absurd to presume a grant, where it was clear that no such grant could have existed.^ And in this case, a 1 Broom's Legal Max. 700. reference to an enjoyment of twenty years. 2 It has been the pohcy of the English The enactment, as to the longer period legislature, at a modern date, to establish of forty years, materially restricts the two periods of prescription, except in Common Law modes of defeating the case of light. By the 7th sect, of the effect of the user of an easement, de- slat. 2 & 3 Will. IV. t. 71 (commonly daring that user for «/ia« time, shall give called the " Prescription Act"), it is en- an absolute and indefeasible right, notwith- acted as follows : " That the time during standing any personal disability on the which any person, otherwise capable of part of the owner of the servient inherit- resisting any claim to any of the matters ance, unless it shall appear that the same before mentioned, shall have been, or was enjoyed under some consent or agree- shall be, an infant, idiot, non compos ment, by deed or vrriting. See the Act mentis, feme covert, or tenant for life, or referred to and commented on, in Gale & during which any action or suit shall What, on Easem. 68-75. have been pending, and which shall have ' Tyler v. Wilkinson, 4 Mason, 402. been diligently prosecuted, until the death * 4 Mason, 403. of any party or parties thereto, shall be 5 [Edson v, Munsell, 10 Allen, 568, per excluded in the periods hereinbefore Gray J.; Barker v. Richardson, 4 B. & mentioned, except in cases where the Aid. 579 ; Erie J., in Rochdale Canal Co. right or claim is hereby declared to be v. Radcliffe, 18 Q.B. 287, 315.] absolute and indefeasible." This has CHAP. VI.] DISABILITIES. 403 grant by a guardian, of an easement, in the land of his ward, ex- tending beyond the limit of the guardianship, is not to be pre- sumed." 1 [In Edson v. Munsell,^ evidence was offered by the plaintiff to show that an aqueduct had been laid in 1813, from a spring on the land of the defendant, to a tub on the land of the plaintiff, and had been enjoyed from that time by the plaintiff and those under whom he claimed for more than forty years uninter- ruptedly, and the plaintiff claimed a right to maintain the aque- duct by prescription, or by such and so long an enjoyment as furnished a presumption of a grant. On the other hand, the defendant offered evidence to show that the person owning the land, in which, and at the time, the aqueduct was laid, was then insane, and continued insane and the owner of the land until his death in 1856. The Court held, that under the statutes of Massachusetts, an easement of this character in the land of an insane person, cannot be acquired by prescription, the time of which commences during the insanity, until the expiration of such time after his death or the removal of his disability as would bar an action by him or his legal representatives for the land, no matter how long such disability may continue. In this case Mr. Justice Gray remarked that the dicta of Mr. Justice Story, in Tyler v. Wilkinson,^ if fairly susceptible of a wider in- terpretation, than that a prescription cannot be interrupted by a disability which does not come into existence until after the time has begun to run, are in conflict with the general current of authority, and can hardly be reconciled with the opinion of the Supreme Court of the United States, as delivered by the same learned Judge, in Ricard v. Williams.* And Mr. Justice Gray added, " If a person incapable of granting or consenting is to have no longer time to avoid a title by prescription than he would be allowed by the Statute of Limitations to bring an action for the land, he should at least be allowed the benefit of all the time which the statute does give." — " If the time neces- sary to perfect a title by prescription to an easement in land is measured by any other rule than that derived by analogy from the statutes limiting actions to recover the land itself, it will be quite as difficult to establish such a title by the ordinary period of 1 Watkins v. Peck, 13 N.H. 360. The ^ [Edson v. Munsell, 10 Allen, 557.] Court cite Gilb. Eq. 3 ; Guernsey v. Rod- 3 [4 Mason, 402.] bridges, cited 2 Cowen's Phil, on Ev. 383. * [7 Wheat. 109-111.] 404 LAW OP WATERCOURSES. [CHAP. VI. prescription against one who has been insane throughout the en- tire period. It is an essential element of the use necessary to give a title by prescription, as laid down by Bracton, and repeat- edly recognized by this Court, that it should be with the acquies- cence of the true owner having the power to grant or to interrupt the easement." ^ § 239. Where a person claimed title to a several fishery, in the soil of another, on the presumption of a non-existing grant, and relied on the proof of adverse possession, for more than twenty years before the commencement of the action ; ^ the jury were instructed, that to raise such presumption of grant, it must appear that such exclusive right as the one claimed, had been used and enjoyed against those, who were aUe in law to assert and defend their rights, and to resist such adverse claim ; ^ and, therefore if the persons against whom such right is claimed, were under the disability of infancy, the time during which such disability continued, was to be deducted, in the computation of twenty years. They were further instructed, that if they found that the adverse possession in the lifetime of the person in whose soil the easement in question was claimed, added to that which was held after his heirs became of age (there having been no interruption in the mean time), amounted together to the period of twenty years' adverse possession, then they should find for the plaintiif. This instruction was excepted to and made the ground of a motion for a new trial, at which Wilde J., who delivered the judgment of the Court, said, " These instructions are manifestly correct, and it is not denied, that the evidence was such as would warrant the jury to find a verdict in pursuance thereof, for the plaintifP, provided the use and enjoyment by the plaintiff, and that by those under whom he claims, may be coupled, so as to make up the twenty years, notwithstanding the intervention of the rights of Fletcher's heirs and their disability ; and we have no doubt they may. If it were otherwise, it would be difficult to 1 [10 Allen, 567.] s [gee Watkins v. Peck, 13 N.H. 360; 2 [In McFarlin v. Essex Co., 10 Cush. Edson v. Munsell, 10 Allen, 568 ; Erie J., 304, it was ruled that, i£ a several right in Rochdale Canal Co. v. RadclifEe, 18 of fishery on the land of another can be Q.B. 287, 316; Nelson v. Butterfield, 21 acquired by prescription, it must be by Maine, 234, 235 ; Melvin v. Whiting, 13 an actual and exclusive occupation and Pick. 184; Reimer v. Stuber, 20 Penn. enjoyment of the fishery, adverse to the St. 458, 463.] riparian proprietor, and continued for at least twenty years.] CHAP. VI. J DISABILITIES. 405 maintain the presumption of a grant, by any lapse of time, and continuance of possession, if death should intervene in every period of twenty years ; so that a man and his ancestors, might have the uninterrupted use and enjoyment of an easement, or privilege, for a century, without acquiring any right ; which can- not be maintained. It is admitted, that no authority has been found, to sanction such a doctrine, and very clearly it cannot be supported on principle." ^ [So in Lamb v. Crossland,^ it was ruled, that if the ancestors die before the title by prescription is perfected, and the estate descends to minor heirs, the prescription is suspended during the minority.] [§ 239 a. But the present current of authority, and the general force of argument on principle, policy, and convenience, appear to be adverse to the doctrine of a suspension of the time of pre- scription by the intervention of a disability after that time has once begun to run. In a late case^ in New Hampshire, Bell J. said, " Under the Statute of Limitations it has always been held, that after the statute has once commenced to run, no intervening disability will defeat the ordinary limitation arising from twenty years' adverse possession.* The same rule seems to us proper to be applied in case of disabilities arising to the owners of real estate, after the user and enjoyment of an easement have been commenced under a claim of right, with the knowledge of the owner, and without question or opposition on his part. Such intervening disabilities should not defeat the presumption of title resulting from twenty years' possession." ^ In Tracy v. Atherton,^ 1 Melvin u. Whiting, 13 Pick. 184. 6 [Tyler v. Wilkinson, 4 Mason, 402 ; [See Watkins v. Peck, 13 N.H. 360] 2 Greenl. § 545; Cross v. Lewis, 2 B. & C. 2 [4 Rich. 586.) 686 ; Best, Presump. 89 ; Reimer v. Stu- 3 [Wallace v. Fletcher, 30 N.H. 434.] ber, 20 Penn. St. 463 ; Tracy w. Atherton, 4 [Stowell V. Zouch, Plowd. 353 ; Doe 36 Vt. 503 ; Mebane i'. Patrick, 1 Jones M. Jesson, 6 East, 80 ; Eager w. Common- (N.C.) 23. The case of Watkins «. Peck, wealth, 4 Mass. 182 ; Jackson w. Johnson, 13 N.H. 360, has been supposed to be 5 Cowen, 74 ; Griswold v. Butler, 3 Conn, adverse to the doctrine of the text, and 227 ; McFarland v. Stone, 17 Vt. 165 ; it was so considered in Tracy v. Atherton, Mercer v. Selden, 1 How. (U.S.) 37; De- 36 Vt. 503, 518; but this is denied by kay V. Darrah, 2 Green (N.J.) 294; Den Bell J., in Wallace v. Fletcher, 30 N.H. V. Richards, 3 Green (N.J.) 347; Fewell 434, 449-451, where he says, "In the V. Collins, 3 Brerard, 286 ; AUis v. Moore, present case, the period of twenty years, 2 Allen, 306; Angell, Lim. §§ 477-480; necessary to give a title by presumption Tracy v. Atherton, 36 Vt. 503, 515-517.] of a grant or title, commenced in 1807, 6 [Tracy v. Atherton, 36 Vt. 503. See per Peck J., in Perrin v. Garfield, 37 Vt. 311, 312,] 406 LAW OP WATERCOURSES. [CHAP. VI. Poland C.J. said, " In our judgment rights to easements acquired by long possession ought to stand on the same ground as rights by possession in lands. The real principle underlying the right, is the same precisely on which the Statute of Limitations stands. In the first place, it is presumed that one man would not quietly submit to have another use and enjoy his property for so great a length of time unless there existed some good reason for his doing so, and that after allowing it for so long, he should not call upon him to show his right or title, when it may not be in his power to do so ; and in the second place, it is a rule of policy, adopted in support of long and uninterrupted possession. It is important, too, in another view, that the doctrine of the law in the two cases should harmonize, that the people may not be misled and perplexed by having the law diffei-ent ways upon subjects which in reason, and upon principle should be the same. The requisites of a possession by which an easement is acquired, as generally laid down in the books, are, that it should be adverse under a claim of right, exclusive, continuous, and uninterrupted. These are exactly the requisites of a possession of lands to give title under the Statute of Limitations against the proprietor. But it is sometimes said that the possession must be with the acqui- escence of the owner. But this is the same as saying that the possession must be uninterrupted. If the owner does not inter- rupt the possession in any way, he does acquiesce as far as is needful in order to make the possession effectual against him." — " We are satisfied, that by the settled construction of the Statute of Limitations, a disability, in order to prevent the operation of the statute must exist when the right first accrues, and if the analogy of the statute in this respect is to be followed, it must govern this case ;" which was a claim to an incorporeal right on the ground of an adverse use and enjoyment during the period of the Statute of Limitations, although after the time had begun to run the disability of infancy in the owner of the land in which and ended in 1828, after which time the from the Court of Probate. The dis- right was denied, and its exercise inter- ability of the owners did not extend to the fered with. From 1822 to 1826, the title end of the twenty years, but ceased two of the defendant's estate, in which the years previously. That case was not easement was claimed, was in the minor decided in Watkins v. Peck, but was in children of Kelso, the former owner, express terms left undecided. The case then deceased, and their interest was sold then before the Court did not require the in 1826, by their guardian, by license decision of any question on the subject."] CHAP. ■¥!.] DISABILITIES. 407 the right was claimed, had intervened. The learned Judge adds, " We see no reason why the analogy of the statute should not be followed in this particular, if in any, as it stands upon the same reason and is governed by the same policy." And so the Court decided that the adverse use of an incorporeal right, having once commenced, will not be interrupted by the descent of the servient tenement to an infant. The same doctrine is maintained in North Carolina in Mebane v. Eatrick,i which was a claim by the plaintiff that he had acquired a right of way by use. After the use began, the owner of the servient estate became insane. It was decided that as the disability did not exist at the time of the commencement of the plaintiff's adverse use, it did not pre- vent the use ripening into a right. The Court say, " Such being the law as to the Statute of Limitations, it follows it must be so, in regard to prescriptions also." The same view of the law seems to have been taken by Merrick J., in Currier v. Gale.^ Having in that case stated the principle as established in Massachusetts, that if the owner of an estate is subject to no disability when he is disseised thereof, and, after a lapse of time sufficient to enable him to protect his rights, a disability intervenes, it will not delay or postpone the operation of the Statute of Limitations, the learned Judge adds, " The same rule must for the same reason prevail in relation to easements or other rights acquired by pre- scription, or to titles established and confirmed by open, adverse possession." This statement of the rule was quoted without dis- approbation in Edson v. Munsell^ by Gray J., who added, " Upon the same ground it has been held in other States, that a pre- scription cannot be interrupted by a disability which does not come into existence until after the time has begun to run." * ] 1 [Mebane v. Patrick, 1 Jones (N.C.) And he adds, that under the Statute of 23.] Limitations of Massachusetts, it is fully 2 [Currier v. Gale, 3 Allen, 328.] settled that no disability avoids its opera- 2 [10 Allen, 566.] tion, unless it exist at the time the right * [Neither in Currier v. Gale nor in first accrues. The decision of Melvin v. Edson V. Munsell is any allusion made by Whiting " must therefore have been made the Court to the ease of Melvin v. Whit- in entire disregard of the analogy of the ing, 13 Pick. 184, cited and stated in the statute, in this respect, and we think it preceding section. But this latter case is was made by giving undue importance to noticed by Poland, C.J. in Tracy v. Ath- the fictitious theory of a lost grant." It erton, 86 Vt. 518, and he says of it, may be further added, that no allusion " The case seems to have been very little whatever is made in that case to the effect examined by Court or counsel; no rea- of an intervening disability under the sons are given, or authorities cited." Statute of Limitations.] 408 LAW OF WATEBCOUESES. [chap. VI. 7. Extinction of Presumed Water Bights. § 240. First, the loss or extinguishment of a prescriptive or presumed right to a Watercourse, may be inferred from a non- user for such length of time, as that which created it.i It is laid down by Bracton, that an incorporeal right may be both acquired by long enjoyment, and lost by disuse and neglect.^ "Seeing," says Domat, "a service may be acquired by pre- scription, with much more reason may a freedom from a service be acquired in the same way. Thus, he who had a right to water, both by day and night, loses the use of it in the night- time, if he lets it prescribe." ^ This is tlie well-settled doctrine of the Common Law, and it has been expressly held, that ancient windows, which have been discontinued for twenty years, lose their former right.* 1 3 Kent, 448; Shields v. Arndt, 3 Green (N.J.) Ch. 234; [Prescott v. Phil- lips, 2 Evans's Poth. Obi. 136; Hillary v. Walker, 12 Yes. 239, 265; Hazard o. Robinson, 3 Mason, 275, 276. In Farrar V. Cooper, 84 Maine, 399 Shepley C.J. said, "A right acquired by use may be lost by non-user. Such appears to have been the rule of the Civil Law, which was declared to be the Com- mon Law by Bracton, and it has been re- peatedly recognized as such by judicial decisions. A non-user of twenty years is regarded as presumptive evidence of an abandonment and extinction of the right. This presumption may be re- butted by proof of facts inconsistent with sucli a conclusion ; " as that the owner of the easement did not intend to abandon it, but merely suspended the use of it. Pardessus, Traite des Servitudes, 458.] 2 Bract, lib. 4, c. 38, § 3. 3 Domat's Civil Law, b. 1, t. 12, b. 1. Libertatem servitutum usu capi posse verias est. Dig. I. 4. Itaque si cum tibi servitutem deberem, ne mihi puta liceret, altius 8edificare, et per statutum tempus altius sediflcatum habuero sublata erit servitus. Dig. de servit. prsed. urb. Si is qui nocturnam aquam habet, interdiu per constitutum ad admissionem tempus usus fuerit, amisit nocturnam servitutem, qua usus non est. Idem est in eo qui eertis horis aquse-ductus habens, ,aliis usus fuerit, nee uUa parte earum horarum. Dig. 1. 10, quemad. servit. amitte. [Ac- cording to the later Roman law, a con- tinued non-exercise of a servitude does of itself no longer constitute a limitation; so tliat in all servitudes, personal as well as preedial, the right is not lost by non- user, unless either the proprietor of the servient thing acquires its freedom from the servitude by prescription (usucapio Ubertatis), or a third party acquires the thing as a free property by prescription. 1 Kaufif. Mack. 351.] * Lawrence v. Obee, 3 Campb. 514, [2 ChittyPl. (16th Am. ed.) 480. It is said by Chancellor Kent that the mere non-user of an easement, for twenty years, will afford a presumption of a release or extinguishment, but not a ver.y strong one, in a case unaided by circumstances ; but if there has been in tlie mean time, some act done by the owner of the land charged with the easement, inconsistent with or adverse to the existence of the right, a release or extinguishment of the right will be presumed. 3- Kent, 448; 2 Evans's Pothier, 136; Wright!;. Free- man, 5 H. & John. 477 ; Knight v. Heaton, 22 Vt. 480 ; Farrar v. Cooper, 34 Maine, 394. "Very few cases of extinction of water rights will be found to stand upon the mere fact of non-user.] CHAP. VI.] EXTINCTION OF PRESUMED WATER RIGHTS. 409 § 241. It has been said by a learned Judge (C.J. Abbott), that, " One of the general grounds of presumption, is the exist- ence of a state of things which may be most reasonably accounted for, by supposing the matter presumed. Thus, the long enjoy- ment of a right of way, by A. to his house or close, over the land of B., which is a prejudice to the land, may most reasonably be accounted for, by supposing a grant of such right, by the owner of the land ; and if such right appear to have existed in ancient times, a long forbearance to exercise it, which must he inconvenient and prejudicial to the owner of the house or close, may most reason- ably he accounted for, by supposing a release of the right. In the first class of cases, therefore, a grant of the right, and in the lat- ter, a release of it, is presumed."^ The language of the Court of Appeals, of Maryland, is to the same effect. " If, therefore," say they, " the adverse user of a right of way over the lands of another, for twenty years, shall be a sufficient foundation to pre- sume, that the right originated in a grant, it must follow, upon every principle, that the user of the right may be extinguished, by presuming a release of it, for the purpose of quieting posses- sion." In this case, the presumption of a release was strongly fortified by the circumstance, that the parties to whom the right of way in question was originally granted, and those claiming under them, had used another and distinct route over the defend- ant's land.^ § 242. By virtue of this doctrine, if an ancient ditch has at one end opened into a watercourse, and the owner of a mill on the stream has kept the opening at the end of the ditch closed, without interruption, for twenty years, the mill-owner will have a right to keep it closed, and the owner of the land on the ditch 1 Doe V. Hilder, 2 B. & Aid. 791. action. This, the Court held, would be 2 Wright V. Freeman, 6 H. & John, presumptive evidence of an extinguish- 467. In Hoffman v. Savage, 15 Mass. ment, or grant of the privilege to the 130, the action was in case for interrupt- tenant of the land. The non-user of a ing a right of way, claimed by the plain- highway for twenty years, is prima facie tiff, which had been assigned to a dowager, proof of a release of the public, to the over land of her husband ; and the inter- owner of the soil ; and, therefore, where ruption complained of, was the erection bars across a highway had been kept up of a wooden building, upon the soil where by the owner of the soil about ninety years, the way was before used. The injury it was held, that evidence of this fact was complained of, was committed more than admissible to prove an extinguishment of twenty years before the commencement the public right. Beardslee ik French, 7 of the suit, and the adverse occupation Conn. 125; [Knight;;. Heaton, 22 Vt.iSO.] continued from the time of bringing the See also 2 Bay (S.C.) 280. 410 LAW OP WATERCOUESES. [CHAP. VI. would not be justified in re-opening the communication ; al- though it might appear, that the communication between the ditch and the watercourse was ancient ; and so where the owner of a mill worked by a ground-shot wheel, at a low head of water, altered the wheel to a breast-shot wheel, which required a high head of water ; and after that, for twenty years and more, dis- continued the use of the breast-shot wheel, and resumed the use of the ground-shot wheel, the discontinuance, it was held, caused the mill-owner to lose his right to the higher head of water.^ § 243. As an enjoyment for th.Q full period of twenty years, is necessary to found a presumption of a grant, the general rule is, that there must be a similar non-user, to raise the presumption of a release.^ In Corning v. Gould, in New York,^ Mr. J. Cowen, in giving the judgment of the Court, considered it perfectly well settled, that in order to make out an effectual answer to a claim upon the ground of a simple non-user of an easement, the enjoy- ment, and all acts of enjoyment, must have totally ceased for the same length of time, that was necessary to create the original presumption. " We aye to inquire first," says he, " was the way used continuously and adverselj'- for twenty years ? If so, the presumptive title becomes vested. Secondly, has the use, then, been altogether discontinued for twenty years f If not, there is no abandonment."* In Massachusetts, a mill privilege cannot be considered as abandoned or extinguished by disuse, until such dis- use, entire and complete, has continued for twenty years ; ^ and in Pennsylvania, as it takes twenty-one years' adverse enjoyment, to acquire a right,^ so it takes twenty-one years' non-user to extinguish it, and twenty years alone is insufficient.'^ § 243 a. But it seems now to be well understood, that courts are not to proceed on the ground that as twenty years' user, in the absence of an express grant, is necessary for the acquisition > Drewett v. Sheard, 7 C. & P. 465. * Corning v. Gould, 16 Wend. 531 ; 2 3 Kent, 448 ; Curtis v. Jackson, 13 [Mississippi Central Railroad Co. v. Ma- Mass. 507, 514. [In Curtis v. Jackson, son, 51 Miss. 234, 246, et seq.J Wilde J. said, "But it may be doubted, * Per Shaw C.J., in Hurd v. Curtis, if such claim and user for twenty years, 7 Met. 94. [See Pillsbury v. Moore, 44 previous to 1790, be sufficient to support Maine, 155; Williams v. Nelson, 23 Pick, the presumption of a grant, whether the 141 ; Dyer v. Kepui, 5 Wharton, 584, non-claim and non-user since that time 597 ; Mowry v. Sheldon, 2 R.l. 369, 378.1 [being over twenty years] be not suffi- « See ante, § 209. cient to rebut such a presumption."] ^ Dyer v. Depui, 5 Wharton 584 ■ 3 Corning v. Gould, 16 Wend. 531. CHAP. VI.] EXTINCTION OP PRESUMED WATER RIGHTS. 411 of an easement, so twenty years' cesser of the use, in the absence of any express release, is necessary for its loss. But as an ex- press release of the easement would destroy it at any moment, so the cesser of use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect without reference to time. It is not so much the duration of the cesser, as the nature of the act done by the grantee of the easement, or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of the jury. The period of time is only material as one element from which the grantee's intention to retain or abandon his easement may be inferred against him.^ § 244. The doctrine that the disuse of an easement, acquired by prescription, must have continued for the same length of time, which was required for its creation, has been held not to apply to ancient lights. In Moore v. Ilawson,^ Abbott C.J., in deliver- ing his judgment, said, " It seems to me, that if a person entitled to ancient lights, pulls down his house, and erects a blank wall in the place of a wall, in which there had been windows, and ' suffers that blank wall to remain for a considerable period of time, it lies upon him, at least to show, that at the time when he so erected the blank wall, and thus apparently abandoned the windows, which gave light and air to the house, that was not a perpetual, but a temporary abandonment of the enjoyment." ^ Littledale J. said, " I think that if a party does any act to show that he abandons his right for the benefit of that light and air, 1 Per Lord C.J. Denman, in Regina v. prietor, witnessing that erection of the Chorley, 12 Ad. & E. n.s. 515. [See dam and of expensive works upon it, and Dana v. Valentine, 5 Met. 8. Any act, knowing that it must destroy his privilege which isclearly indicative of the intention above, makes no effort or remonstrance to abandon an easement, will be evidence to prevent it, or claim of remuneration to that effect, and duration of non-user is for it, within the residue of tl^ twenty not a necessary element in the inquiry, years. Farrar v. Cooper, 34 Maine, 394.] Phear on Rights of Water, 109 ; Co. Litt. ^ Moore v. Rawson, 3 B. & C. 332, 114, b; Liggins o. Inge, 7 Bing. 682; [See 2 Chitty PI. (16th Am. ed.) 480 Moore v. Rawson, 3 B. & C. 332; Wallis Dyer u. Sandford, 9 Met. 395, 402 V. Harrison, 4 M. & W. 538 ; Regina v. Taplin v. Jones, 8 H.L. Cas. 290 ; Perkins Cliorley, 12 Q.B. 515 ; Stokoe v. Singers, v. Dunham, 3 Strobh. 224.] 8 El. & Bl. 31. Though, frpm the time " [In Stokoe v. Singers, 8 El. & Bl. 36, of the cessation to use a mill privilege, Crompton J. said, " Abbott C.J. seems twenty years may not have elapsed, prior rather to be making a remark on the to its being overflowed and destroyed by effect, as evidence, of erecting the blank a dam below, still an abandonment of the wall, than laying down a rule of law."] privilege may be presumed, if its pro- 412 LAW OP WATERCOURSES. [CHAP. TI. which he once had, he may lose his right in a much less period than twenty years ; " and Bayley and Holroyd JJ. were of the same opinion. It was, however, urged, in the subsequent case of Bridges v. Blanchard,^ that, as the party could only acquire the right by twenty years' enjoyment, it ought not to be lost, without disuse for the same period ; and that, as enjoyment for such length of time is necessary for the presumption of a grant, there mu'st be a similar non-user, to raise a presumption of a release. All this reasoning, said Mr. J. Littledale, might well apply to a right of common, or of a way ; but that there was a material difference between the mode of acquiring such rights, and a right to light or air ; the latter was acquired by mere occu- pancy ; whereas, the former could only be acquired by Mser. A way, said he, over the lands of another, can only be used in the first instance, with the consent, express or implied, of the owner; and a partj' using the way, without such consent, would be a wrongdoer ; but with respect to light, it is otherwise, as every man may erect even on the extremity of his land, a building, with as many windows as he pleases. [§ 244 a. In the case of Stokoe v. Singers,^ windows had been closed for twenty years, and nothing had been done in the mean time on the adjoining land ; and then, just as the other owner was thinking of building on the adjoining land, the proprietor re-opened these long-closed windows, and it was left to the jury to say whether or nt)t by the long disuse, the person who owned the windows and who had possessed this easement of light had induced the person who was commencing the building to expend any money, and to place himself in a worse position by reason of such expenditure ? That was held to be a right and proper direction. It has been always held to be of considerable import- ance, that a person in possession of a certain right, and leaving the right wholly unused for a long period of time, and havino- given so far an encouragement to others to lay out their money, on the assumption of that right not being used, should not be allowed at any period of time to resume his former right, to the damage and injury of those who themselves have acquired a rio-ht of user which the recurrence to this long-disused easement will interfere with.^] 1 Bridges v. Blanchard, 1 Ad. & Ell. 3 [Per Sir W. Page "Wood V.C, in 356. Crossley v. Lightowler, L.R. 3 Eq. Cas. 2 [8 El. & Bl. 31.] 292, 293.] CHAP. VI.j EXTINCTION OP PRESUMED WATER RIGHTS. 413 § 245. If the doctrine, that a prescriptive right to light may- be lost by a non-user, for a period less than twenty years, will not apply to a right of common, or of a -way, a fortiori, it will not apply to a natural watercourse. Yet, Mr. C.J. Tindal, in de- livering the judgment, in Liggins v. Inge,^ inquires, " Suppose a person who formerly had a mill upon a stream, should pull it down, and remove the works, with the intention never to return, could it be that the owner of other land adjoining the stream, might not erect a mill, and employ the water so relinquished ; or that he should be compellable to pull down his mill, if the former mill-owner should afterwards change his determination, and wish to rebuild his own?" He answers, that, in such a case, "it would, undoubtedly, be a subject of inquiry by a jury, whether he had completely abandoned the use of the stream, or left it for a temporary purpose only." The learned Judge here proceeds upon the assumption, that a right to a particular use of the water, may be acquired by mere occupancy ; that the riparian proprietor who first occupies, gains rights which he would not otherwise have ; and then he says " there is nothing unreasonable in holding, that a right which is gained by occupancy, may be lost by abandonment." But we have already had occasion to show it to be clearly settled in England, that no appropriation, except for such a period as will confer an easement (twenty years), can diminish the natural rights of the other riparian pro- prietors, along the course of the stream;^ and every riparian proprietor, who claims a right, either to throw the water back above his land, or to diminish the quantity of water, which is to descend below, must, in the words of Sir J. Leach,^ " in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an unin- terrupted enjoyment of twenty years." * § 246. It has been considered by Courts in America, that Mr. Justice Littledale, when he says,^ that when twenty years might be necessary to extinguish the right to a common or way, evi- dently did not advert to the distinction between a mere non-user, and a positive obstruction; and that all the judges lay great stress ' Liggins V. Inge, 8 Bing. 693. * See also Menzies v. Ereadalbane, 3 2 Ante, §§ 130-136. Bligh, n.s. 414. a In Wright v. Howard, 1 Sim. & Stu. ' See ante, § 244. 190. 414 LAW OF WATERCOURSES. [CHAP. TI. on the possible injury to purchasers of tlie adjoining premises, who might come in on the faith of an appearance of one. In Corning v. Gould,i the Court were entirely at a loss to see why Littledale J. should have hinted, in Moore v. Rawson, that twenty years' obstruction might be necessary to extinguish or bar a way ^ or common, more than a servitude of light to an ancient window. They reason, that both are acquired by the same prescriptive term ; and both are, when acquired, equally in the class of in- corporeal hereditaments ; and the actual deception upon a pur- chaser, is an important ground of decision.^ § 247. The rule of the Civil Law, most undoubtedly is, that the party himself, to whom ant/ sort of servitude is due, may, short of the period of prescription, effect its extinguishment, by merely suffering the erection of obstructions of a permanent and solid kind, such as edifices and walls ; and a fortiori, if the act of obstruction be done by the party to whom the servitude is due.* The rule of Common Law, as laid down by Kent, is, " There must be a total cessation of the exercise of the right to the servitude, during the entire time necessary to raise the presumption of ex- tinguishment, or there must have been some permanent obstacle permitted to be raised against it, and which absolutely destroyed its exercise. If the act which prevents the servitude, be incom- patible with the nature or exercise of it, and be by the party to whom the servitude is due, it is sufficient to extinguish it ; and if it be extinguished for a moment, it is gone for ever." ° Again, 1 Corning v, Gould, 16 Wend. 531. passed through the plaintiff's close had ^ [See Bowen v. Team, 6 Rich. 298, for sixteen years been completely choked 305. An interruption of a right of way up with mud. Bower u. Hill, 1 Bing. must have been acquiesced in by the N.C. 549.] owner of the easement before he can be * 3 Kent, 448. When neither a dies affected by it. "If the right be once ad quem nor a, cojidilio resolutiva has been established by clear and distinct evidence specified by agreement, or by law, with of enjoyment, it can be defeated only by respect to the termination of servitudes, distinct evidence of interruptions acqui- they will become extinct by renunciation esced in." Harvie v. Rogers, 3 Bligh, {remissio), on the part of the entitled N.s. 440, 447 ; Pillsbury t. Moore, 44 party, which may be either express or Maine, 154; Cuthbert u. Lawton, 3 implied. 1 Kauff. Mack. 350. And see M'Cord, 195.] Dig. 8, 6, 5; Toullier's Droit, Civil 3 [Where the defendants erected, on Fran9ais, tome iii. n. 673; Re'pertoire de their own premises, a permanent ob- Jurisprudence par Merlin, tit. " Servi- struction to a, navigable drain leading tude," in which that article is composed from a river through the defendant's with great care. Civil Code of Louisiana, premises to the plaintiff''s close, it was Art. 815, 816; Haight v. Morris Aque- held, that the plaintiff' was entitled to duct (Proprietors of), 4 Wash. C.C. 601. recover in an action for the obstruction, * 3 Kent, 449 ; Farrar v. Cooper, 34 although the portion of the drain which Maine, 394. CHAP. VI.] EXTINCTION OP PRESUMED WATER RIGHTS. 415 says he, "it is a wholesome and wise qualification of the rule, considering the extensive and rapid improvements that are every- where making upon real property." ^ § 248. The great American case on this head, and the one on which the learned author above referred to, founds his doctrine, is that of Taylor v. Hampton, in South Carolina.^ In that case, General Wade Hampton, the defendant, had purchased of Mr. Charles Pinckney, in 1807, 115 acres of land, with a mill-pond, dam, and mill in full operation, which continued till 1814. The pond flowed the land of the plaintiff; and there was no dispute that the defendant had a right to this flow, as a servitude by prescription. In 1814, a new mill was erected by the defendant, above the place where the old mill stood, upon which the water of the old mill flowed ; wherefore the lower dam was cut, the water let off, and its use as a mill abandoned. This dam was, however, immediately repaired, and the water raised, occasion- ally, for the purpose of flowing rice ; but in the main, the plaintiff's land was eased of the former flow, from 1814 to 1823, when the upper mill was burned down, and the old mill was rebuilt in the for- mer place ; the water being again permanently raised, and the flow resumed over the plaintiff's land. The verdict being for the plaintiff, in a suit for that injury, on a motion for a new trial, Nott J. delivered the opinion of the Court. He stated the main question to be, whether the erection of the upper mill, the exist- ence and enjoyment of that, being incompatible with the use of the other, by means of this pond, did not extinguish the right .of flow formerly held by the defendant. After looking exten- sively into the learning of the Civil and the Common Law, in respect to the extinguishment of servitudes, he comes to the conclusion, that it did. He shows that the act of the party en- titled to the servitude, is to be taken strongly against him ; and not only by the Civil Law, but by the Common Law, and anal- ogous doctrines of our Courts of Equity, it shall be held to work an extinguishment, where the same circumstances, were they the result of the law, or of inevitable accident, would be a mere suspension. -"Where," says the learned Judge, "a right is sus- pended by the act of God, as by the drying up of the spring, ^it will revive again, if the spring chance to flow ; but if it be 1 [Mississippi Central Railroad Co. v. ^ Taylor v. Hampton, 4 McCord (S.C.) Mason, 51 Miss. 254, 255.] 96. 416 LAW OP WATERCOURSES. [CHAP. VI. suspended by the act of the party, as by building a house or wall, it would not be restored, even though the obstacle should be removed by a stroke from heaven." It appears in the course of the opinion, that the plaintiff had purchased the land flowed, intermediate to the erection of the upper mill, and the restoration of the lower pond, perhaps in 1817, though, by the statement of the case (probably a misprint), it seems to have been 1807. On this, the Judge proceeds, " I think it not unimportant, that the present plaintiff was a purchaser for a bond fide consideration, at the time when the defendant had thus proclaimed to the world, that the privilege which he now claims, was useless, and even incapable of being enjoyed by him." ^ § 249. The learned Judge in the above case, adopts as one illustration, the rule as above laid down, in respect to the ex- tinguishment of a prescriptive right to ancient lights, and says, " Suppose a person to be the owner of a house with ancient lights, which no person has a right to obstruct. If he erect a house, or put up a wall, directly covering his windows, has he not extin- guished his light, as efi:ectually as if he had blown out his candle ? Surely, then, it would amount to a license to his neighbor, to put a similar building on his adjoining lot. Suppose A. to have a right of way over the land of B. If he erect a house on his own land, in such a manner as to obstruct the passage into the lands of B., does he not effectually destroy his right of way ? Can he claim a right, the enjoyment of which he has rendered impossible by his own act ? " Again " suppose," says he, " in the case before us, the defendant, instead of purchasing a mill-pond, with the right of flowing the plaintiff's land, had purchased arable land, with a right of way to haul away his crop. If he had erected the mill which he now has, and thrown the whole of his land under water, by converting it into a pond, would he not .have destroyed his right of way ? " The learned Judge considered the question before him one of great public interest, and that it was time it should be settled upon some known and fixed principles. § 250. The doctrine, and the reasoning in the above case of Taylor v. Hampton, was deliberately considered and adopted by the Supreme Court of New York, in the case of Corning v. Gould ; ^ 1 [See the discussion of this subject Central Railroad Co. v. Mason, 61 Miss. and cases cited, post, § 385 ; Mississippi 234, 246 et seq., 356.] 2 Corning v. Gould, 16 Wend. 531. CHAP. VI.J EXTINCTION OF PRESUMED WATER RIGHTS. 417 a case in which it was expressly held, that the encroachment by one party upon a way, held in common, by building part of the wall of a house upon a portion of it, and enclosing another por- tion, by a fence, work an extinguishment, by operation of law ; especially where the other party sells his interest after such acts done, and the purchaser, on his part, acquiesces in, and confirms what has been done ; that where a party relinquishes the enjoy- ment of an easement or servitude, it lies with him to show an intention to resume the use of it within a reasonable time ; and where there are no circumstances intimating the suspension to be temporary only, a bona fide purchaser will be protected in the en- joyment of the property, as it appeared at the time of his pur- chase. § 251. The same doctrine was discussed by the Supreme Court of Massachusetts, in Dyer v. Sandford,i which was an action on the case, for damage alleged to have been done by the defendant, in erecting a house on his own land, in such a manner, as to ob- struct the light and air which the plaintiff was entitled to through his staircase window. This was not claimed as a right by pre- scription for light and air through an ancient window, but as a right reserved in a deed from Nathaniel T. Tilden, administrator of the estate of Christopher Tilden, under which the plaintiff claimed, to Thomas Davis, under whom the defendant claimed. 1. The defendant offered evidence, tending to show that Eliza- beth Tilden, the widow of Christopher Tilden, having a right of dower in the estate, and being in the occupation, gave a license, by parol, to Thomas Davis, to erect a building, in such manner as to obstruct the air and light, in whole or in part ; also that some obstructions were afterwards erected by persons in the occupation of the defendant's estate, extending to a period of ten or twelve years ; and upon these facts, if established, contended that it ought to be submitted to the jury, to prove a license, by the owners of the plaintiff's estate, to the owners of the defendant's estate, to shut out and obstruct the light from entering said win- dow ; and that such license was not revocable by the plaintiff. He also contended, that, in fact, the easement in question, if it ever existed, had been lost by non-user, and cessation of enjoyment ; -and that, if not so extinguished, yet the right to light and air was ' Dyer v. Sandford, 9 Met. 395. 27 418 LAW OP WATERCODRSES. [CHAP. TI. to such only as could be received, if the estate, derived by Davis from Tilden, and out of which the light was reserved, had beeu left open and unobstructed ; which was the distance of about two feet from the window. Mr. C.J. Shaw, in giving the judg- ment of the Court, said, " We think there is a distinction between an executed license, to impede or obstruct an easement of this de- scription, and an abandonment of the easement. It may well be maintained, on the authorities, that the owner of a dominant tenement, may make such changes in the use and condition of his own estate as, in fact, to renounce easement itself ; and this may be relied on by the owner of the servient tenement as evidence of abandonment. So, if the owner of the dominant, grants a license to the owner of the servient tenement, to erect a wall which necessaril}"- obstructs the enjoyment of the easement, and it is erected accordingly, it may amount to proof of an abandonment of the easement. It is not a release, because it is by parol. But it results from the consideration, that a license, when executed, is not revocable ; and if the obstruction be permanent in its nature, it does, de facto, terminate the enjoyment of the ease- ment. But the license is for the specific act only ; and if, when executed, it is of such a nature, as, de facto to destroy the ease- ment, but is only temporary in its nature, or limited in its terms, then, as the easement is not released, when the obstruc- tion erected in pursuance of such specific license, is removed, the owner of the servient tenement cannot erect another obstruc- tion of the same, or of a different kind, without a new license. But as, by the rules of law, an easement is an interest in land, to be acquired and released only by deed, as between the parties respectively, when it is contended, that the owner of the dom- inant tenement has voluntarily abandoned his right, so as, de facto, to withdraw the incumbrance from the servient tenement, with- out a release to its owner, the proof must go to this extent : First, that the acts relied on, were voluntarily done by the owner of the dominant tenement, or by his express authority ; secondly, that such party was the owner of the inheritance, and had au- thority to bind the estate by his grant or release ; and thirdly, that the acts are of so decisive and conclusive a character, as to indicate and prove his intent to abandon the easement. ' Various illustrations might be given of such conclusive acts of abandon- 1 Moore u. Rawson, 8 B. & C. 332, and 5 Dowl. & Ryl. 234. CHAP. VI. J EXTINCTION OP PRESUMED WATER EIGHTS. 419 ment, as when one takes down the building in which a window was placed, and erects on the site a permanent tenement, so constructed, as not to require, or even permit, a window similarly situated ; or when one grants an express license to do acts on his own land, the necessary effect of which is, to take away or impair the ease- ment permanently, and the acts are done accordingly.^ In the present case, applying these principles to the subject, we are of opinion, that the evidence did not warrant the jury to find an ex- tinguishment of the easement. The license in question, and the acts done under it, could not operate as a release, because not in writing ; nor as an abandonment, because Elizabeth Tilden was not the owner of the inheritance, and had, at most, a right of dower in the premises, and the occupation, as guardian of her children, or otherwise ; nor could it operate as proof of release, by adverse possession, because it had not continued a sufficient length of time." § 252. In the above case of Corning v. Gould, the Court con- sider that abandonment is a simple non-user of an easement and that, in order to make out an effectual answer to the claim upon that ground alone, the enjoyment must have actually ceased for the whole period of twenty years.^ There are two writers, who incline with the Civil Law, to hold, that something beyond mere non-user for the prescriptive term is necessary to work an aban- donment ; * and undoubtedly it is so by the Common Law, where the easement has been created by deed. A distinction in this respect is recognized between an easement created by deed, and one which is created by prescription.^ An easement to become extinguished by disuse, must have been acquired by use, and the doctrine of extinction by non-user does not apply to servitudes, or easements created by deed.^ In the one case, mere disuse is ' Liggins K.Inge, 7 Bing. 682, and 5 542; Hayford u. Spokesfield, 100 Mass. Moore & P. 712. 491, 494. "A right acquired by deed is 2 [3 Kent, 448, 449 ; Owen v. Field, not lost by mere temporary non-user, 102 Mass. 114.] without any act showing an intention 3 Evans's Poth. 136 ; 3 Kent, 448. [And to abandon it. The use of narrow flash- see also Ward u. Ward, 7 Exch. 838 ; boards, or none at all, is not an act show- Wilder V. St. Paul, 12 Minn. 208 ; Hall ing an intention to surrender all further V. McCaughey, 61 Penn. St. 43.] right." Per Wells J., Knapp v. Douglas * [See per Shepley C.J., in Farrar o. Axe Co., 13 Allen, 1.] Cooper, 34 Maine, 400. " Where a grant ^ [Bannon «. Angler, 2 Allen, 128, 129 ; has been by deed, it will require a clear Barnes v. Lloyd, 112 Mass. 224, 231, and non-user of the privilege for twenty years cases cited. It is difficult to conceive at least, to bar the claim on that ground." that the distinction stated in the text, Leonard J., in Casler v. Shipman, 35 N.Y. which is clearly indicated in the cases, is 420 LAW OP WATERCOURSES. [chap. VI. sufficient, but in the latter, there must not only be disuse by the owner of the land dominant, but there must be an actual adverse user by the owner of the land servient.^ In White v. Crawford, in Massachusetts,^ it was directly decided, that an express grant, or reservation of a right of way, was not lost by a non-user for twenty years. And again, in Arnold v. Stevens, in the same State,^ it was held, that in the case of a grant by deed of the right to dig ore in the land of another, the mere neglect of the grantee, ioT forty years, to exercise the right, without any act of adverse enjoj'^ment, on the part of the owner of the land, will not extinguish such right; and moreover, that the occupation and cultivation of the land, by the land-owner, during such period, are not evidence of adverse enjoyment of the right to dig the ore. founded on any real difference in prin- ciple. The lost deed or grant which is presumed from twenty years' enjoyment, must be one that covers the right or privilege enjoyed. Before a deed or grant can be rightfully presumed, the facts must be made out with sufficient clearness to justify the inference or pre- sumption to be made of a formal convey- ance. It may well be that, in considering whether a deed or grant shall be presumed from the enjoyment proved, the fact, that the party, claiming that the presumption should be made, has after the period of enjoyment on which his claim is founded, ceased to use the right or privilege in controversy for an equal length of time, would generally have a strong bearing on the question whether the enjoyment had been adverse and under claim of right, and hence whether a case for the presumption had been made out. See Tracy v. Atherton, 36 Vt. 503; Perrin V. Garfield, 37 Vt. 304; ante, § 213. But unless a title acquired by twenty years' enjoyment, under circumstances from which the Court will infer a lost deed or grant, is to have the force and effect of a title founded on a deed actually pro- duced, the language employed to express the thing presumed is illusory and de- ceptive. But if a title obtained by sufficient length of enjoyment is of equal force with one obtained by deed, then there seems to be no reason for giving greater effect to non-user in one case than in the other. Suppose, as between two parties, a title to an easement to have been established by the verdict of a jury or decision of the Court, on proof of ad- verse use and enjoyment, could that be held to be extinguished by a non-user which would not be regarded as sufficient to extinguish a title established on proof by a deed ? Veghte v. Raritan &c. Co. 4 C. B. Green, 156. Although it was decided in Massachu- setts, in Bannon u. Angler, 2 Allen, 129, that a mere non-user of an easement created by deed, without proof of adverse enjoyment by the owner of land, is not sufficient evidence of an abandonment of the right, and the same is intimated in Jennison v. Walker, 11 Gray, 425 ; there is yet no decision in that State that an easement established by proof of long-con- tinued use or enjoyment will be held extinguished on mere proof of disuse during the same length of time.] 1 Nitzell V. Paschall, 3 Rawle, 76; [JewettD. Jewett, 16 Barb. 150; Farrar V. Cooper, 34 Maine, 394 ; Smyles v. Hastings, 24 Barb. 44 ; s.c. 22 N.Y. 217. An omission by the owner to make use of his right, does not impair his title or confer any right thereto upon another. It is not the non-user by the owner, but the adverse enjoyment by another, which destroys his right. Townsend v. Mc- Donald, 2 Kernan, 381; Pillsbury v. Moore, 44 Maine, 155; Ames J. in Owen V. Field, 102 Mass. 90, 114.] 2 White V. Crawford, 10 Mass. 183. 5 Arnold «. Stevens, 24 Pick. 106. CHAP. VI.J EXTINCTION OP PRESUMED WATER RIGHTS. 421 The right to an easement, created by deed, may indeed remain dormant for a long time, and not be lost, and more especially, if from the nature of the right, and the express grant, it is appar- ent that it was not contemplated, that the owner of the right should exercise it at an early period.^ In the language of Suth- erland J., " The presumption of a grant against written evidence of title can never arise from the mere neglect of the owner to assert his right." ^ [§ 252 a. Under a grant of a right to lay an aqueduct from a spring on the grantor's land to the grantee's land, together with the privilege of going on the grantor's land to repair the aque- duct, after one aqueduct has been laid, and afterwards taken up by the grantor, and the easement abandoned for thirty years, the grantee cannot lay a new aqueduct in a new direction over the grantor's land, although the construction of a railroad has made it impossible to lay it in the old place.^ Bigelow J. said, " The evidence at the trial not only proved a non-user of the easement of laying and maintaining an aqueduct through the land now owned by the plaintiff by the owners of the dominant tenement for more than thirty years, but also established a possession and use of the servient estate by the plaintiff and his grantors during the same period, entirely inconsistent with and adverse to the existence of the easement. The right or easement in question having been acquired by grant and not by use, there might have been difficulty in showing a loss or extinguishment of it by proof of a mere omission during twenty years or more to exercise the right by an actual enjoyment of the easement. But the removal 1 Yeakle v. Nace, 2 Wharton, 123 ; » [Jennison v. Walker, 11 Gray, 423. Butz V. Ihrie, 1 Rawle, 218. The easement of an artificial waterway, 2 Doe V. Butler, 3 Wend. 149. [An which, by the terms of the instrument easement passing by implication from a creating it, is established on a defined deed, as a necessary right of way, cannot line over the servient tenement, cannot, he extinguished by non-user, but only without the consent of the land-owner, by possession adverse to the easement be changed in location to his other lands, for twenty years. Smyles v. Hastings, either for the convenience of the owner 22 N.Y. 217.] When the grantee of a of the servitude, or because of disturb- market by letters-patent from the crown ance of the easement by the land-owner, suffered another to erect a market in his or because the particular land subject to neighborhood, and to use it for the space it has been taken by the public for a of twenty-three years, without inter- highway. Johnson v. Jaqui, 12 C. E. ruption, it was adjudged, that such user Green, 652, reversing the judgment of the operated as a bar to an action on the ease, vice-chancellor in the same case, reported for a disturbance of his market. Holcroft 11 C. E. Green, 321. See also s.c. 10 V. Heel, 1 B. & P. 400; and see Yard u. C. E. Green, 210.] Ford, 2 Wms. Saund. 175, and note. 422 LAW OP WATERCOURSES. [CHAP. TI. by the plaintiff's grantors of the aqueduct logs which conveyed the water through the land now owned by the plaintiff rendered the enjoyment of the easement impossible. It was an act in its nature essentially adverse. It effectually hindered the exercise of the right, and operated to annihilate it. After this removal took place, no means were adopted to renew the enjoyment of the privilege. It was a continuous disturbance for more than thirty years. There was not only a non-user of the easement by the owners of the dominant estate, but united with it was a use of the servient estate inconsistent with and adverse to the exist- ence of the easement during this period of time. Upon this proof, there was sufficient to justify the inference that the right originally conveyed by grant had been released and extinguished by a subsequent non-appearing deed." ^ In Ward v. Ward,^ it was held, that an immemorial right of way is not lost by non- user for upwards of twenty years, the user having been discon- tinued merely by reason of the party's having had a more convenient way. Alderson B. in this case said, " The presump- tion of abandonment cannot be made from the mere fact of non- user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something which is adverse to the user."] [§ 252 b. The mere suspension of the exercise of a right to foul a stream is not sufficient to destroy the right, without some evi- dence of an intention to abandon it ; but where dye-works situ- ated on a stream had not been used for more than twenty years, and had been allowed to go to ruin, it was held, that any right of fouling the stream attached to them was lost.^] § 253. Secondly, another mode of extinguishment of servitude as incorporeal rights, whether acquired hj actual or presumed ^ [See Arnold u. Sterens, 24 Pick, ment, which is a conclusion to be drawn lOS.] from all the circumstances ; among which '■^ [Ward V. Ward, 7 Exch. 838.] the lying by, and permitting others to 3 [Crossley v. Lightowler, L.R. 2 Ch. incur expense in preparing to do that App. 478. This case was very fully dis- which, if continued uninterruptedly for cussed by Sir W. Page Wood V.C., in twenty years, would destroy the ease- L. B. 3 Eq. Cas. 279, where it was ment, is a fact of great importance. But held by him, that mere non-user, for less actual disuser of an easement of the than twenty years of a privilege or abovekindfortwenty years, during which easement to discharge dye-water into a others have acquired adverse rights, de- stream is not of itself proof of abandon- stroys the right to the easement.] CHAP. VI.] PUBLIC EIGHTS. 423 grant, is that of unity of possession ; the doctrine concerning which has been alreadj^ considered.^ With regard to its applica- tion to presumed grants, it has been adjudged in Connecticut, that an adverse enjoyment of water of one close, issuing from another, cannot exist where there is an unity of seisin and pos- session of both ; and that, therefore, where A. and B. had adjoining closes, and A., having conducted water from B.'s close to his own, enjoyed it in a particular manner, for a less period than that limited for the right of entry upon land, and then con- veyed his close in fee-simple to B. ; and B., after a few days' possession, reconveyed it to A. ; and after which, A. enjoyed the water, in the same manner he had done before for a period less, but, with the former period, making more than the time limited by the statute ; it was held, that A., in consequence of such enjoyment of the water, so interrupted, acquired no right thereto by user? 8. Public Rights. § 254. The doctrine of the acquisition of right to easements, by uninterrupted and adverse enjoyment, is not applicable to rights of a public nature ; and all encroachments upon privileges, which are open to the whole community, though they may have been uninterruptedly prolonged, for a period exceeding twenty years, are, nevertheless, liable to be suppressed.^ " No laches," said Ch. J. Parsons, " can be imputed to the Government, and against it no time runs so as to bar its rights." * It has been accordingly adjudged, in Great Britain, in Vooght v. Winch,^ that twenty years' exclusive enjoyment of the water of a river, which is a. public highway,^ created no title. [A nuisance never can be legitimated.^ Every continuation of the obstruction is in itself an offence.^ The same principle applies to rivers which may be used for the floating of logs, rafts, &c., as to rivers which 1 See ante, §§ 191-200. ^ As to what rivers are public high- 2 Manning 'v. Smith, 6 Conn. 289. ways, see post, Chap. XIII. 3 Weld u. Hornby, 7 East, 195 ; Car- ' [Woolryoh's Law of Waters, 270, ter V. Murcot, 4 Burr. 2163 ; Thinmo v. 271 ; Knox v. Chaloner, 42 Maine, 150, Commonwealth, 4 H. & M. (Virg.) 57; 156; Cowen J. in Kenwick u. Morris, Johnson v. Irwin, 3 S. & Rawle, 292 ; 3 Hill, 621 ; Coates v. New York, 7 Cowen, [Knox V. Chaloner, 42 Maine, 156.] 558 ; People v. Cunningham, 1 Denio, * Stoughton (Town of) v. Baker, 4 536; Commonwealth v. Upton, 6 Gray, Mass. 522. 473, 476, 477!] 6 Vooght V. Winch, 2 B. & Al. 662. ^ [Benwick ;,■. Morris, 7 HUl, 575.] 424 LAW OP WATERCOURSES. [chap. VI. are navigable in the strict sense of the term, and for the same reason.^] So much regard, indeed, is paid to the interests of the great body politic, that if a river ever has been a public highway (even if it has not been used as such for the period of twenty years, and during the whole time has been in a condition incon- sistent with the public use), the right of the public is not extin- guished.2 An act of the legislature is the only means by which the interest, which the public may have in a watercourse, can be transferred ; ^ or the proof of such a very great length of enjoy- ment, as might furnish ground for the presumption of such a mode of transfer.* 1 [Knox V. Chaloner, 42 Maine, 150, 156. In this case it was held, that the settled doctrine that important individual rights, as against individuals, may be acquired and lost by adverse possession and enjoyment for a period of more than twenty years, does not apply to the rights of the public in a navigable river.] ^ Vooght V. Winch, ub. sup. ; [Knox V. Chaloner, 42 Maine, 150. No acci- dental or intentional obstruction in a stream, not there in its natural state, will legally take from it its inherent and natu- ral capability as a public highway. Treat ^. Lord, 42 Maine, 552.] 3 [See Treat v. Lord, 42 Maine, 552.] ' Vooght V. Winch, ub. sup. ; Chalker V. Dickinson, 1 Conn. 382. In an action of trespass, for cutting down and remov- ing a bridge over a navigable arm of the sea, alleged to be the property of the plaintiff, which bridge had been standing upwards of Jifty years, the Court, in giv- ing their opinion, said, " Public rights cannot be destroyed by long-continued encroachment ; at least, the party who claims the exercise of any right, incon- sistent with the free enjoyment of a public easement or privilege, must put himself on the ground of prescription ; unless he has a grant or some valid authority, from the Government; and a right by prescription does not exist in the present case." Inhabitants of Arundel v. McCuUoch, 10 Mass. 70. CHAP. Til.] THE USE SUBJECT TO SPECIAL AGREEMENT. 425 CHAPTER VII. OF THE RIGHT TO THE USE OP THE WATER, AS DEPENDING UPON CONTRACTS AND AGREEMENTS IN WRITING. 1. The Use subject to Special Agreement. 2. Contracts and Agreements by Specialty, and which run with the Land. 3. Contracts Personal. 4. Arbitrament and Award. 1. The Use subject to Special Agreement. § 255. By means of a special contract or agreement in writing, water rights may be created of a very limited nature, and sub- servient to the more general right of the riparian proprietors ; and the extent and mode of the use of the water may be affected and determined by any considerations, conditions, and modifica- tions, which the assent of the parties interested may impose.^ Instances are afforded, of covenants, intended to establish a limited property in a watercourse, and the rights and privileges appurte- nant thereto, which have been the subjects of controversy and of judicial investigation and decision. It may be premised, that the word " covenant," is not to be regarded as a word of art, and essential to the constitution of a covenant ; and any words in the instrument, in whatever part found, from which the intent of the parties to enter into the engagement, can be collected, are re- garded as effectual for that purpose.^ With reference to the nature 1 Tyler v. Wilkinson, 4 Mason, 397. actually used it for above twenty-five [A riparian proprietor may restrict him- years for watering horses and cattle, it self by grant or covenant from changing was held, in Pennsylvania, that such use the course of a stream through his land, for above twenty-one years entitled him Northam v. Hurley, 1 El. & Bl. 665. to it, and that he might maintain suit Where the lower proprietor had a right against one claiming under the former by deed from the then upper proprietor, upper proprietor for polluting the stream to erect a dam on the land of the latter, so as to render it unfit for his cattle, in order to convey a portion of the water Wheatley v. Chrisman, 24 Penn. St. 298.] through an artificial channel, for the pur- 2 jjac. Abr. " Covenant." pose of watering his meadows, but had 426 LAW OP WATERCOURSES. [CHAP. VII. of the estate on which, and the parties on whom, they are binding, they have been divided into real and personal. A covenant personal, relates only to matters personal, as distinguished from real, and is binding on the covenantor, during his life, and on his personal representatives, after his decease, in respect of assets. A covenant may also be personal, in a sense where it is to be per- formed personally, by the covenantor only.^ Oollateral covenants are such as concern some collateral thing that does in no way, or rather not so immediately, relate to the thing granted. They are not binding on assignees, though executors and administrators, in their representative capacity, are chargeable in respect of a breach.^ A real covenant is one which has for its object some- thing annexed to, or inherent in, or connected with land or other real property ; and it is one which descends to the heir, and which is transferred to a purchaser. In other words, it is one which necessarily runs with the land.^ 2. Oontraots and Agreements hy Specialty, and which run with the Land. § 256. A real covenant bears, therefore, a strong resemblance to an easement. Upon a grant confirming the easement of diverting water, the successive owners of the dominant estate* become entitled to the benefit of the right conferred, and may sue for a violation of it ; and as a general rule, it may be considered, that all implied covenants run with the land. Thus, if a lessor demise and grant to his lessee a house or land, for a certain term, the law will imply a covenant on the part of the lessor, that the lessee, during the term, shall quietly enjoy the same, against all incumbrances;^ and if the assignee of the lessee be evicted, " he shall have a writ of covenant." ^ An express grant of a watercourse, implies a covenant on the part of the grantor, not to disturb the grantee, his heirs or assigns, in the enjoy- ment of it.'' § 257. But whether a particular express covenant which touches or concerns land, is a real covenant running with the land, is not 1 Piatt on Gov. 67 ; 2 Wm. Black. 866 ; 6 Co. Litt. 384. Cro. Bliz. 552. 6 Spencer's case, 3 Co. 16, and notes 2 Piatt on Gov. 70 ; 5 B. & Aid. 7, 8, to same, in 1 Smith, Lead. Gas. (Am. ed.) Opinion of Holroyd J. 96, 138. 8 Cruise, Dig. tit. 32, c. 25, s. 22. 1 4 Kent, 478. 4 See ante, §§ 141, 142, et seq. CHAP. VII.J CONTRACTS OB COVENANTS REAL. 427 unfrequently a question of difficulty.^ It Has, however, been agreed, ever since Spencer's case,^ that to make an assignee of a covenantor liable to an action of covenant, there must be a, privity of estate, or contract, between them ; and it is said, there are three manner oi privities ; viz., 1. Privity of estate only. 2. Privity in respect of contract only. 3. Privity in respect to estate and contract together. The first; viz., privity of estate only, is between the grantee of the lessor's reversion and the lessee, or between the lessor and the assignee of the lessee, for no contract was made between them. The second, privity in respect of contract only, which is personal privity, and extends only to the person of the lessor and the person of the lessee, as be- tween the lessor and the lessee after the latter has assigned over, for the privity of contract remains, although the privity of estate is destroyed ; and yet this is between the lessor and lessee onlj-, for in the very case, viz., an assignment by the lessee, there is no privity of contract between the lessor and the assignee, but there is a privity of estate between them. The third, viz., privity in respect of contract aiid estate together, as between the lessor and lessee himself.^ Suppose that A. should demise, by indenture, certain land on a watercourse to B., and that B. covenants for himself, his heirs, &c., to build certain works or houses on the land ; that B. should underlet to C, and should covenant for himself, his heirs, and assigns, to observe and perform, or effectually indemnify C. against the covenants in the first indenture, and afterwards assigns his reversion to D. ; then suppose that A. enters and ejects B., by reason of the non-performance of the first-mentioned covenant, B.'s covenant with C. does not run with the land, and D. is not liable to C. § 258. It is obvious, that a covenant to build a mill or dam, on the land of a third person, is a mere personal covenant ; but a contract to build a mill or dam on the land demised, will run with the land and bind the assignee, on account of the privity of estate between the contracting parties. Where such privity ex- ists between the covenantor and covenantee, and the cove- nantor assigns his estate, the privity thereby created between • 1 Bally V. Wells, 8 Wils. 29. ' 2 Sugd. V. & P. (8th Am. ed.) 581, 2 Spencer's case, iib. sup. See Webb 582; Walker's case, 3 Rep. 23 a. V. Russell, 3 T.R. 402. 428 LAW OP WATERCOURSES. [CHAP. VII. the assignor and the other contracting party, renders the former liable on such covenants, as regulate the mode of occupying the estate.! j^j^^ go jf ^jjg covenantee assigns his estate, his as- signee will have the benefit of similar covenants. But if there is no privity of estate between the contracting parties, the as- signee will not be bound by, nor have the benefit of, any cove- nants between the contracting parties, although they may relate to the land he takes by assignment, or purchase from one of the parties to the contract. In such a case, the covenants are per- sonal, and are collateral to the land.^ "There are certainly, cases," says Mr. J. Cowen,^ " which seem startled at the com- prehensive rules concerning assignable covenants, and which, therefore, seek to limit the number ; and there are others which enable us still more clearly to see the legal partition between real and collateral covenants. It is not to be denied, however (he continues), that they still leave the application of the old principles to new cases, a very nice exercise of the mind, and remaining in a greater degree, a matter for judicial discretion, than almost any other of equal importance, in the law of prop- erty." * But the authorities clearly demonstrate, that in order to make a covenant run with the land, whether the estate be granted for an estate of inheritance, or for a term of years, the per- formance or non-performance of it must affect the nature, quality/, or value, of the estate conveyed, independently of collateral cir- cumstances, or must affect the mode of enjoying it. It is clearly not sufQoient, that the covenant concerns the land ; but to make it run with the land, there must be enough to create a privity between the contracting parties.^ § 259. "Anyone," says Mr. Justice Cowen, "would give more for a warranted farm, than for a succession of quitclaim deeds ;"^ and he cites Fitzherbert,'^ who says, " If at this day, a man 1 See Doughty v. Bowman, 16 Law contradistinction to those which are col- Jour. 414. lateral or personal ; and the numerous 2 See the opinion of Wilde J., in Hurd authorities on the subject are fully and V. Curtis, 19 Pick. 459 ; [Schwoerer v. ably reviewed by hira. And see 4 Kent, Boylston Market Association, 99 Mass. 472. 297-1 * 1 Piatt on Gov. 461 ; and see Mayor 3 In Norman o. Wells, 17 Wend. 136. of Congleton v. Pattison, 10 East, 130. * In the case just referred to, Mr. J. o In Norman v. Wells, ub. sup. Cowen discusses at large the doctrine of ' Fitz. Abr. p. 181 of tlie folio, and inherent covenants, running with the 420 of the Dublin ed. 1793. land, and of an assignable character, in CHAP. TII.J CONTRACTS OR COVENANTS REAL. 429 granted to one conamon of estovers ; or, of turbary in fee-simple, to burn in his manor, by that grant it is appurtenant to the manor, and if he make a feoffment of the manor, the common shall pass to the feoffee." From the example put by the second resolution in Spencer's case,^ of the lessee covenanting to build on land of the the lessor, or pay a collateral sum of money, it appears that these acts are disconnected entirely with the idea of their being a rent or compensation for the use of the premises ; otherwise, they would be taken as part of the rent, and run with the land. This was settled in Vyvyan v. Arthur.^ There was, in that case, a demise of certain land, at a money rent, and the lessee covenanted for himself and assigns, that he would grind all the corn grown on the premises, at the lessor's mill, standing in the neighborhood ; and the Court held, that as long as the mill and the reversion re- mained in the same hands, the covenant should go with the lands; and that the assignee of both might maintain an action on the covenant, although to be performed off the land. It has been said of the decision in this case, by a learned Judge,^ that "it seems difficult to reconcile it with the second resolution in Spen- cer's case, and with other cases in which it has been decided, that a covenant of a lessee, to build a house upon the land of the lessor, not being parcel of the demise, is a collateral covenant, not binding on the assignee; the distinction may be between covenants of this sort, which are in the nature of rent, and those which are not. But however this may be, the decision does not impugn, but confirms the doctrine laid down in all the cases, that an assignee is not bound by, nor is he entitled to the benefit of a covenant, unless there is a privity of estate between the con- tracting party and his assigns." § 260. The assignee of a grantee, may maintain an action on the covenants of warranty, against the grantor, because they are prospective, and form a part of the value of the land,* but it does not necessarily follow, because a covenant runs with the land to an assignee, that, in no event, the assignor can maintain an action on the covenant, after he has assigned it. In convey- ances of real estate, where there have been successive con- 1 Spencer's case, 3 Co. 16. 17 Wend. 136 ; Wyman v. Ballard, 12 2 Vyvyan v. Arthur, 1 B. & C. 410. Mass. 304; Sprague o. Baker, 17 Mass. " By Wilde J., in Hurd o. Curtis, 19 586; De Chaument v. Forsythe, 2 Penn. Pick. 459. 607. * 4 Kent, 472, and see Norman v. Wells, 430 LAW OF WATERCOURSES. [CHAP. VII. veyances from A. to B., and from B. to C, each with covenants of warranty, upon the eviction of C. he may maintain his action on the covenant of warranty, either against B. or A., at his elec- tion. But if B. shall pay to C. his damages occasioned by such a breach of the covenant, B. may then resort to A. for damages on his covenant ; and it would be no defence to A. to allege that his covenant to B. ran with the land, and, therefore, passed to C. In the case supposed, the payment by B. has discharged all lia- bility of A. to C, and therefore, B. may well maintain his action against A. This doctrine was applied to a conveyance of a mill and dam^ with a covenant to keep in repair. Tlie mill was con- veyed bj' A. to B., and A. covenanted with B., his heirs and assigns, to keep one-half of the mill-dam in repair. The dam was afterwards carried away by a flood, and B., after having duly requested A. to aid him in rebuilding it, conveyed the mill, with the privileges, &c., to C, who, at the same time, agreed in writing, that B. should " have all that should be obtained of A. for nonfulfilment of his contract, provided A. should not assist B. in erecting the dam, and B. should be compelled to rebuild it, without A.'s assistance." A. afterwards refused to assist in re- pairing the dam, and B. repaired it at his own expense. It was held, that B. might maintain an action in his own name against A. for breach of the covenant, to keep the dam in repair.^ § 261. In Jourdain v. Wilson in the King's Bench,^ a lessor covenanted to supply certain messuages and tenements demised, with a sufficient quantity of good water, at a certain rate per annum, for each house. The lease did not specifically point out the particular mode by which the water was to be supplied ; whether by pipes, by collecting the water in cisterns, or by carry- ing it to the premises by buckets ; but the Court considered it quite clear, that the covenant could not be satisfied, unless a sufficient quantity of good water was brought upon the premises during the term, and therefore they say (by Abbott C.J.) the covenant respects the premises demised, and the manner of en- joyment, and therefore they held, that it was a covenant which runs with the laud, and that the assignee might sue the rever- sioner for the breach of it. § 262. Where the owners of land granted a watercourse 1 Thompson v. Shattuck, 2 Met, 615. 2 Jourdain v. Wilson, 4 B. & Aid. 266. CHAP. VII.J CONTRACTS OR COVENANTS REAE. 431 through it, to a man and his heirs, and covenanted for them- selves, their heirs, and assigns, to cleanse it, this covenant was held to bind the land in the hands of an assignee, for it was a covenant that ran with the land.^ A covenant not to let or es- tablish any other site on the same stream, to be used for a par- ticular purpose, as for sawing mahogany, has been held to be a covenant running with the land, and that for a breach of it an action may be sustained by the assignee of the covenant. The covenant, said the Court, respected the premises, and was co-ex- tensive with the estate; that it benefited the owner of the demised premises, and nobody but the owner.^ So where several owners of mills and miU privileges, on the same waterfall, apportioned the water among themselves, and a certain part thereof was as- signed to W., the owner of a fulling-mill, for the use of that mill ; it was held, that a subsequent conveyance of this right by W. to B., another mill-owner, entitled B. to use that right for a fulling-mill, as against A., one of the other owners.^ § 263. In the above cases, it will be observed, that the cove- nant was to do an act at a future time. But a covenant in a deed, that the land thereby conveyed, is free from all incum- brances, does not run with the land, and, therefore, an action for a breach thereof, cannot be maintained by an assignee of the grantee. Thus, in an action of covenant broken, the action was founded on the alleged breach of the defendant's covenant against incumbrances in his deed to the grantee, from whom the plaintiffs derived title. The breach alleged, was, that, at the time of the execution of the deed, the land conveyed was not free from incumbrances, but that the defendant had before that time granted a right of way over the land; which incumbrance, it was averred, still existed, and did exist at the time of making the deed. The Court said, that it appeared by the plaintiff's own showing, that the covenant relied upon was broken as soon as made ; and held, that a covenant thus broken, did not, by the established doctrine of the Common Law, run with the land, so 1 Holmes v. Buckley, Free, in Chano. " Norman v. Wells, 17 Wend. 136. It 39; 1 Eq. Cas. Abr. 27, pi. 4; [Bronson has been truly said of this case, that it V. Coffin, 108 Mass. ISi; 2 Sugden V. & may be regarded as carrying the power P. (8th Am. ed.) 593 ; Morse v. Aldrich, of covenants to run with the land, to the 19 Pick. 449; Van Kensselaer v. Read, extremest limits allowed by law. See 26N.Y. 658; Woodruffs. Trenton Water note by the American editors, to Spen- Power Co., 2 Stockt. 489; Carr v. Lowry, cer's case, 1 Smith's Lead. Cas. 184. 27 Penn. St. 257.] 3 Hurd v. Curtis, 7 Met. 94. 432 • LAW OP WATERCOURSES. [CHAP. Til. as to authorize the assignee to maintain an action ; that he could not sue upon a breach of contract that happened before his time.i Again, A. conveyed the privilege of drawing water from a pond, when the water should not be four feet below the top of the dam to be erected, and covenanted that he would erect the dam ten feet high, and that he was seised of the granted prem- ises, and that he had a right to sell and convey the same, and that he would warrant the same. It appearing that he had a right to raise the water six feet only, instead of ten, it was held, that nothing passed by the deed, and that covenants were broken immediately, upon its execution, and consequently were not assignable. " This easement," say the Court, " could not run with the land, for no land was granted; and, to make a cove- nant run with land, it is not sufficient that it is of or concerning land." 2 § 264. In Mitchell v. Warner, in the Supreme Court of Errors of Connecticut,^ the questions were, whether the plaintiff, claim- ing to be the assignee of the covenant of seisin, could sue upon it, and whether he could sue as assignee of the covenant of free- dom, from incumbrances. The plaintiff alleged as a breach of covenant, that before the execution of the deed to him, one W. was well possessed of the right of turning the water of a certain brook, which run through the land conveyed, and was of great use in carrying a carding machine, and other waterworks, which the plaintiff had erected thereon, and that W., in virtue of such right, took the water therefrom, and turned it on his meadow ; by reason of which, the plaintiff lost the benefit of said stream of water, and the use of the works thereupon erected. It was held, that the action would not lie. In this case, Hosmer C.J. exam- ined the doctrine very fully, and he affirmed, " that the novel idea attending the breach in the testator's lifetime, by calling it a continuing breach, and, therefore, a breach to the heir or devi- see, at a subsequent time, is an ingenious suggestion, but of no substantial import. Every breach of a contract is a continuing breach, until it is, in some manner, healed ; but the great ques- tion is, to whom does it continue as a breach ? The only answer is, to the person who had title to the contract, when it was broken. A second supposed breach is as futile as the imaginary 1 Clark V. Swift, 3 Met. 390. s Mitchell v. Warner, 5 Conn. 407. '^ Wheelock v. Thayer, 16 Pick. 68. CHAP. VII.J CONTRACTS OR COVENANTS REAL. 433 unbroken existence of a thing dashed in pieces. It has no anal- ogy to a covenant to do a future act at different times, which may undergo repeated breaches." ^ § 265. Where a lessor covenanted for himself, his Jieirs, execu- tors, administrators, and assigns, with his lessee, to permit him to make a drain to convey the waste water from the houses de- mised to the main shore, and the covenantor had previously assigned the lands intervening between the demised premises and the main shore, to a stranger, who refused his permission for that purpose ; the Court held, that an action could not be supported against the lessor, the disturbance being alleged to be by an as- signee, who came in before the demise.^ § 266. A collateral covenant, or one that is personal and not annexed to the estate, we have already said, does not run with the land.^ Thus, the several owners of mills, drawing water from the same stream, by means of the same dam, entered into an indenture, in which, for themselves, their heirs &c., respec- tively, they covenanted with each other, and their respective heirs &c., that they would erect and use wheels of a certain con- struction ; and it was held, that there was no privity of estate between the parties to the indenture, and, consequently, that the covenant did not run with the land, and bind the grantee of one of the mills.* So in the lease of a mill, the lessee covenanted for 1 In the above case, the learned Chief could not sue on it, since tho ugh it ran with Justice Hosmer, in giving his opinion, in land, it could not run with water, and the this case, says, that the determination in action related to water. This doctrine is the case of liingdoin v. Nettle, 4 M. & clearly not supportable. It has attracted Sel. 53, was "against the ancient, uni- the attention of the learned American form, and established law of Westminster editors of Smith's Leading Cases, who Hall, and against well-settled principles there, in a valuable note to Spencer's and decided cases in the United States ; " case, reported in 3 Cas. 16, say, that " it in which the Supreme Court of Massa- would appear that the general principle, chusetts concurred, in Clark y. Smith, ub. that covenants will not run with inherit- sup. But the Court, in Mitchell v. War- ances incorporeal, is not law;" and they ner, went to the length of deciding, that refer to the well-considered decision, in a covenant of warranly, in a deed of land, the case of Bally v. Wells, 3 Wils. 26, did not embrace water, running over the which determined that covenants are as land, and that the covenant was not capable of running with incorporeal broken by the existence of a right in a hereditaments, at Common Law, as with third party, to enter upon the land war- land. And see the opinion of Wilde J., ranted, and draw off the water, nor by in Clark v. Swift, 3 Met. 390, and ante, an actual entry and diversion of the § 263. water, in pursuance of such right ; and - Turget v. Lloyd, 2 Ventr. 277. that the assignee from the original grantee 3 See the opinion of Cowen J., in of the land, even if the circumstances Norman v. Wells, 17 Wend. 139. amounted to a breach of the warranty, * Hurd v. Curtis, 19 Pick. 459. 28 434 LAW OF WATERCOURSES. [CHAP. VII. himself and his assigns, that he would not employ in his labor at the mill, persons settled out of the parish ; and this was held to be collateral, and not binding on the assignee.^ § 267. Sometimes the covenant does not extend to the subject in dispute, as where a covenant that the seller was seised in fee, was held not to extend to a covenant that the purchaser might draw water at a well ; so that it was no breach of the first cove- nant, that the seller was not seised in fee of the well.^ § 268. In Collins v. Plumb,^ where the vendor was possessed of some waterworks, and was seised of a freehold house, with a well, and conveyed the house and well to a purchaser in fee, who covenanted for himself, his heirs, and assigns, not to sell the water from the well, to the injury of the proprietors of the waterworks, their heirs, executors, administrators, and assigns. Lord Eldon, without giving any opinion whether the covenant ran with the land, refused to interfere to uphold the covenant ; because, in every instance, the question would be for a jury, whether the act was done to the injury of the waterworks ; as, therefore, the seller had thought proper not to reserve the well, but to rest upon the covenant, there was the covenant, and the parties must make what they could of it. § 269. Two tenants in common, were owners of twelve acres of ground, through which they had dug a race or canal, from the river Schuylkill, who divided the property, by a boundary crossing the canal, reserving to each, his heirs and assigns, the common use and privilege of the canal, as thereafter mentioned. By a subsequent clause, they declared the same should be, and remain for the common use and privilege of the respective par- ties, their heirs and assigns, tenants and occupiers of the respec- tive lots of ground through which the same passed, as a passage for scows and boats, and for the introduction of the Schuylkill water from the dam, for the use of the respective premises ; but neither of them, their heirs or assigns, should, at any time there- after, use more than one full equal half part of the water power of said river, to which they were previously jointly entitled ; nor would they, their heirs &c., put, or permit to be put thereon, any boat or scow, of larger dimensions, than would- admit another 1 Mayor of Congleton v. Pattison, 10 Niels, 192, cited, 2 Sugd. V. & P. (8th East, 130. Am. ed.) 622, 604. 2 Butterfield v. Marshall, Lutw. by ' Collins v. Plumb, 16 Ves. 464. CHAP. VII.] C0NTEACT8 OR COVENANTS REAL. 435 of equal dimensions, freely to pass it ; and that neither of them, their heirs &c., should permit the water or water power, to which they were respectively entitled as aforesaid, to be used or applied otherwise than upon their respective lots, nor carry, or permit to be carried on upon the same lots, the manufacture of gunpowder, or any part of the process of the manufacture of that article. It was held, first, that this deed did not give to a party the right to carry coal along the canal, and load it on his half of the premises, for the supply of a steam-mill, occupied by him, and situated on another and distinct lot, in the neighborhood ; secondly, that the privilege of the canal, under this partition, was not a personal one, hut appurtenant to the property divided ; and, thirdly, that, in a suit for a misuser of the privilege, it was no answer that the plaintiff was guilty of a similar misuser.^ § 270. The assignee of a covenant, for the liberty of bringing water to the city of London, though the word " assigns " was not mentioned, was held chargeable, in equity, with the cove- nants in the original lease or contract, as an equitable assignee, upon an equitable privity of estate, like the assignee of a bond. The city of London articled with A. to lay a leaden pipe, for the carrying of water to Cheapside, and while this was doing the city agreed with H., to grant him a lease of the water, for which he was to pay a certain rent, for fifteen years, and a lease was ac- cordingly made. A bill in equity was brought against R., and others, the assignees of the lease, to have the arrear of rent paid, and the growing rent, and the performance of H.'s covenants in the lease. It was objected, that the plaintiff had not proper par- ties, for H., the lessee, who had assigned over, was liable, and was no party. Secondly, it was urged, tliat the defendants, as assignees, if liable, were liable at law, and the plaintiff should sue there ; and that there was no good ground to be further lia- ble in equity, than they were at law ; and an assignee may, by law assign over, and be no longer liable. To which it was answered, that possibly the assignees might not be liable at law, if it was an incorporeal inheritance, for they had no privity of estate ; yet I Jamison v. McCredy, 6 Watts & S. a dam, runs with the land; and if one 129. [Following the principle of this also grants an easement on his land to case, it was held, in Lindeman v. Lindsey, the other, there is no statute of limita- 69 Penn. St. 93, that a covenant between tions against it, without actual adverse the proprietors of opposite banks of a possession, and no prescription or pre- stream, their heirs and assigns, to rebuild sumption from mere non-user.] 436 LAW OF WATERCOURSES. [CHAP. VII. they, enjoying tlie thing demised, ought, in equity, to be answer- able for the rent. The decree was, that the assignees of the lease should pay the rent due since the assignment, and which should become due while they continued in possession ; but not during the continuance of the lease ; for they might, if they could, get rid of the lease, by assigning it to another.^ § 271. So, when such a question arises in a Court of Law, the interest will be held assignable, when such was evidently the in- tent of the parties. In Kennedy v. Scovil, in Connecticut,^ the question arose upon a reservation, in a deed of conveyance of a watercourse, the right reserved by the grantors being reserved without naming their assigns ; and it was held by the Court unanimously, that the grantors, after the conveyance, had no assignable interest in the use of the water conveyed. " It' is true," say the Court, " the right is reserved to them (the grant- ors), without words of inheritance, and without naming their assigns ; but it becomes material to inquire for what purpose the reservation was made. It was '■for the necessary accommodation and use of the old shop.' Of this they were the owners in fee-simple ; and can it be supposed, that they meant to limit the use of the water (without which the establishment was of no value), to their own personal occupancy ? The idea is opposed to every presumption, and to all probability." And the Court added, that they knew of no rigid rule of construction that prevented them from giving effect to the intention of the parties ; and they considered the matter entirely free from doubt. § 272. It is generally considered, that, by the principles of the Common Law, the heir is not bound by the covenant of his ances- tor, unless it be stipulated by the terms of the covenant, that it shall be performed by the heir ; and unless assets descend to him from his ancestor, sufficient to answer the charge. If, therefore, the heir be not named in the covenant, it will be binding only upon the covenantor, his executors and administrators ; although the heir may take by descent from the covenantor assets suffi- cient to answer the claim. But this rule is not to be applied to real covenants running with the land granted or demised, and to which the covenants are attached, for the purpose of 1 City of London v. Richmond, 2 the High Court of Parliament. 1 Brown Vern. 421. The decree was affirmed by P. C. 30. 2 Kennedy v. Scovil, 12 Conn. 317. CHAP. VII.] CONTRACTS PERSONAL. 437 securing to one party the full benefit of the grant or demise ; or to the other party the consideration on which the grant or de- mise was made. Such covenants are, at law, regarded as inhe- rent in the land, and will bind the heir and assignee, though he is not named ; for, as he is entitled to all the advantages arising from the grant or demise, it is but reasonable that he should sus- tain all such burdens as are annexed to the land.^ The case of Morse v. Aldrich, in Massachusetts,^ was decided, in reference to these principles, which were decisive of the action. In that case, neither heirs or assigns were mentioned ; but it appeared, by the deed of S. C, the defendant's ancestor, to W. H., that the former conveyed to the latter a tract of land adjoining the mill-pond in question, " with the full and free privilege of using and improv- ing the said mill-pond, within certain limits, with the full liberty of ingress and egress, to dig out and carry away the whole, or any part of the soil in said pond, and to divide the same pond, as described in the deed, into six separate and distinct fish- ponds." W. H. conveyed the premises to the plaintiff ; after which, disputes arose between S. C. and the plaintiff, relative to their respective rights, and for settling the same, they entered into sundry covenants in relation to said grant, and qualifying the same. By the one, for the breach of which the action was brought, it was covenanted by S. C. (without mentioning his heirs or assigns), that he would draw off said pond, when re- quested by the plaintiff, six days in each year, for the purpose of giving the plaintiff an opportunity of digging and carrying away mud. S. C. died, and his estate in the mill-pond descended to the defendant. It was' held, that the covenant was a real cove- nant, running with the land, and was binding on the heirs of the covenantor. 3. Contracts Personal. § 273. An action may be maintained upon a personal contract for the use of water power, whether under seal or not ; but in construing all such contracts, to determine whether there be a breach, especially when expressed in general terms, it would not. always conform to the intent; of the parties, to construe every 1 Piatt on Gov. 62, 449 ; Bally v. ^ Morse v. Aldrich, 19 Pick. 449. "Wells, 3 Wils. 29. 438 LAW OF WATERCOURSES. [CHAP. Til. stipulation literally. Implied qualifications and exceptions are obviously necessary, to carry into effect the intention of the par- ties, to be collected from the whole contract, and to be examined under the lights thrown upon it by the obvious purposes and objects to be accomplished by it.^ An instance is given by C.J. Shaw : " Should a party having possession of a manufactory with water power only, stipulate with another having adjoining premi- ses, to furnish these premises with water power, during all regular working hours for severatl years, without exception, it is to be presumed that they know that such water power may be, and must necessarily be, occasionally interrupted ; that on a few very cold days in the winter, the ice will so clog the wheel, that it may take several hours to clear it ; that a freshet may carry away a gate, which will take a few days to replace ; and the covenants, though in general terms, are to be taken with neces- sary and implied exceptions. What are to be deemed occasional interruptions, and what a reasonable time to remove them, must depend upon the subject-matter, the knowledge and experience of those conversant with the subject, and all the circumstances of the case, as applied to the subject-matters, and the nature and terms of the contract." ^ Where the stipulation was to give the exclusive use of a particular water-wheel, it was held, that a mere temporary and inconsiderable suspension of water power, not manifesting any deliberate purpose on the part of the party stip- ulating, to withdraw or withhold the power, would not amount to a neglect or refusal to furnish power, which would constitute a breach of the contract ; but to have that effect, it must be a substantial refusal or neglect. § 274. In Mill-Dam Foundry v. Hovey, in Massachusetts,^ the action was assumpsit, and was held proper, though founded on a contract under seal ; that is, the original indenture was under seal, but was afterwards altered and modified by a contract not under seal. The plaintiffs were the owners of works for the manufacture of iron, which were carried on by a water power, held by them under a lease ; and the lessors were bound to keep the dams in repair. By an indenture made in April, 1833, be- 1 [The Salmon Falls Manuf. Co. v. 2 Mill-Dam Foundry v. Hovey 21 The Portsmouth Co., 46 N.H. 249 ; Win- Pick. 417. nipisseogee Lake C. & W. Manuf. Co. v. 8 Mill-Dam Foundry v Hovey ub Perley, 46 N.H. 83.] sup. CHAP. VII.] CONTRACTS PERSONAL. 439 tween the plaintiffs and the defendant, the defendant covenants to manufacture for the plaintiffs ten thousand dozen of plane- irons, by the 1st of July, 1834, and to keep in order all the tools used in the business, accidental breakage of some of them ex- cepted; and in consideration thereof the plaintiffs covenant to furnish all the iron and steel and other materials, as soon and as often as shall be reasonably required by the defendant to enable him to carry on the manufacture to the best possible advantage, and they agree " to give him (with the exception of the power conveyed to the boiler-house as now used) the exclusive use, or an equivalent thereto, of the south water-wheel, drums, gears, belts &c., belonging thereto, during regular working hours, whilst he is employed in making said plane-irons, they to keep the same in good repair, and to furnish him and to give him the control of all the tools, machinery, room and furnaces now in use, or which may be added to the plane-iron establishment ; and they agree to make good all breakages (except of shear-knives, tongs, and other small articles) that may happen to said tools and ma- chinery, without delay ; and to advance to the defendant such sums of money as shall enable him to settle with all such of his hands as conform to the rules of the plaintiffs, on such terms as they settle with their own hands ; " and it is stipulated, that the de- fendant shall receive a certain sum for every dozen of plane-irons so manufactured by him ; and that the plaintiffs shall reserve, at all times, a draw-back for such sums as they shall have advanced in paying his workmen &c., until all such advances shall have been reimbursed. On this contract was indorsed, in July, 1833, an agreement not under seal, by which, for a certain sum, the defendant agrees to keep all the machinery and tools in good order, excepting any accident to the fly-wheel of the rolling-mill. On the 11th of October, 1833, a further agreement not under seal was indorsed, by which, in consideration and full satisfaction of previous breaches of the contract on the part of the plaintiffs, they make the defendant certain allowances, and for his benefit extend the term of the contract four months from the 1st of July, 1834, " all other parts to remain the same." On the 14th of October, 1833, a breach was made in one of the mill-dams by a very high tide, and the power, of the south water-wheel was thereby reduced from a constant power to a tide power. At that time the defendant had on hand a large quantity of the 440 LAW OP WATERCOURSES. ' [CHAP. Til. plaintiffs' materials, in different stages of manufacture. The dam was repaired with due diligence, and the water power was restored on the 7th of March, 1834. At the time of the breach the plaintiffs had an unfinished steam-engine, which was com- pleted and put in operation at their works on the 27th of Decem- ber, 1833, and was equivalent in power to the south water-wheel. It was held, that the covenant to give the defendant the use of the south water-wheel, or an equivalent, was a stipulation for the use of mill power, and not a demise to the defendant ; that the furnishing mill power was a condition precedent to the perform- ance of the defendant, because without it no essential part of the work could be done ; that the plaintiffs had the election to furnish either the south water-wheel, or an equivalent power, not only at the commencement, but afterwards during the whole period contemplated for the performance of the contract, and that they might change from one to the other, from time to time, it being done without occasioning unnecessary inconvenience to the defendant ; that, as they had such an election, so they were bound to furnish one or the other during the whole period, subject to such occasional and casual interruptions as must necessarily attend the use of mill power ; that if the breaking of the dam was not a substantial suspension and destruction, for the time being, of the water power, for manufacturing purposes, but only a temporary diminution, subjecting the defendant to some lesser inconvenience, then it was not a breach of a condition precedent which would excuse the defendant from performance, although he might have a remedy by action of damages ; that if the water power was destroyed for the time being, the defendant had no right to treat it as a breach of the condition precedent, and absolve himself from further performance, provided the dam could be restored, or an equivalent power be furnished from a steam-engine, within a reasonable time ; that if the water power failed and could not be restored within a reasonable time, and an equivalent steam power could be furnished, and at a reasonable cost and expense, the plaintiffs were bound to furnish steam power; that, in such case, if such steam power was furnished within a reasonable time, the plaintiffs complied with the condition precedent, but otherwise there, was a breach of the condition ; that a breach of this condition precedent could only excuse the defendant from performing such part of the contract requiring CHAP. VII.] . CONTRACTS PERSONAL. 441 the use of mill power, as remained to be performed when a breach of the condition happened ; that although an interruption of the mill power might be construed to be the breach of a condition precedent, which would authorize the defendant to break off from the performance of his contract, yet if he continued in the per- formance until the power was re-established, this would amount to a waiver, and he would no longer be excused from further performance ; although, if he had suffered loss by the delay in furnishing the power, he would have a remedy by an action for damages ; that the furnishing stock and materials to some extent, and even to the whole amount, if that could be reasonably re- quired, was a condition precedent to any obligation on the defendant to perform, because he was to work on the plaintiifs' materials ; but that if the plaintiffs had furnished a large quantit}'' of materials, which the defendant had accepted and commenced working upon, he was bound to go on and finish the work on those materials: and a subsequent neglect or refusal, after a rea- sonable requisition, to furnish further materials, would not excuse him from performance so far as to finish what he had begun, though it would be a breach of contract for which he would have his remedy by action, and it would excuse his non- performance so far as occasioned by the want of the rest of the materials ; that a mere delay to furnish further materials, although it might prevent the defendant, in some particulars, from working to the best possible advantage, and subject him to some slight loss, which would be a ground for recovering damages, would not be a breach of condition, unless it were continued, after a reasonable requisition, for such a length of time as to warrant the jury in inferring that it was not the intention of the plaintiffs to furnish them ; and that the stipulation that the plaintiffs should advance money to pay the defendant's workmen, was not a con- dition precedent. § 275. In another important case, in Massachusetts,^ the. right to water power, and mode of its distribution and enjoyment, depended upon the terms of an indenture. The plaintiff, B., was originallj' the owner of a portion of the north shore of the Connecticut River, and of the bed of the river, to the thread of the stream, extending above and below the mills and mill privi- 1 Bardwell v. Ames, 22 Pick. 333. 442 LAW OP WATERCOURSES. [CHAP. VII. leges, hereafter mentioned. Water power had been created at this place, by erecting a pier near the shore, and running from it a wing-dam into the river, by means of which, a portion of the water was turned through guard-gates, placed between the pier and the shore, into a reservoir or pond, formed by the shore, and a side-dam parallel thereto, and this pond supplied a stone flume, carried down along the shore. In 1826, by an indenture of three parts between the owners of the mills and water power, all the water power became vested in B., the party of the first part, and, by the same indenture, B. grants to C, the party of the second part, the right of drawing and using, for the benefit of his oil- mill, or such other mill works or machinery, as may be erected or used upon the site thereof, " from the pond and flumes, as now erected and in use, so much water as may pass through the following described gate-ways now used in said oil-mill, or others of equal capacity (that is, such as will admit water of equal power) ; viz., one gate- way of one foot and five inches in length, and eight and three-fourths inches in height, with six feet and three inches head (to wit, from the top of the flume to the bot- tom of the gate-way) ; another " &e., describing, in the same man- ner, three more gate-ways ; and to the plaintiffs, H. & L., and others, the party of the third part (which others, as also C, have since transferred their rights to H. & L.), he grants " the right and privilege of drawing and using, for the benefit of a paper- mill, or such other mill works or machinery as may be erected or used upon the site thereof, from the pond and flumes, as now erected and in use, so much water as may pass through " five gate-ways (described in manner as above), " now used in said paper-mill, or others of equal capacity; " and B. "reserves and retains to himself the right and privilege of drawing and using, for the benefit of his mill works and machinery, near said pond, or any other works which may be erected upon the same site, or near the same, from said pond and flumes, as now in use, so much water as may pass through " twelve gates (described in manner as above), three of them, " or an equivalent, to be drawn from the pond, without the stone flume," and nine of them " to be drawn from the stone flume ; " and he also reserves and retains " the right and privilege of erecting and maintaining a sufficient flume, not exceeding eight feet in width of channel, to extend from the shore side of the lower end of the stone flume CHAP. VII.] CONTRACTS PERSONAL. 443 now built, down the river, for the accommodation of any works which may be entered below said paper-mill ; provided, however, that the water to be drawn and used through said eight-feet flume, shall not exceed in quantity, but may be equal to that which the party of the third part are entitled to by this indent- ure. And it is mutually agreed, that the dam, pier, guard-gates, stone flume, and the general passage of the water into said flume, shall be and remain situated as they now are, for ever, unless altered by mutual consent of all parties, and to be occu- pied in common, for the purpose of obtaining water, and making repairs, without hindrance or interruption from any party. And if there is at any time a deficienc}'' of water, the parties shall respectively be entitled to draw the same, only in proportion to the rights and interests above expressed ; and in case there is a surplus, they shall all be entitled to use the same ratio or pro- portion. And it is mutually agreed by the parties, that-they and each of them, are to contribute towards the expenses of main- taining and repairing the dam, pier, guard-gates, and other works, for keeping up and supporting said pond (exclusive of the stone flume), in proportion to the water power which they respectively derive therefrom, the proportions to be determined by the capacities of the gate-ways, it being agreed that the party of the first part is not to contribute any thing towards said expenses, on account of his right or privilege of drawing and using water from said stone flume, below the said paper-mill, until he actually sells or makes use of the same, unless " &c. In 1831, B. conveys to the defendants- a parcel of his land, bounded on the river, and going to the thread of the stream (in which were situated the wing-dam, pier, guard-gates, side-dam, upper end of the stone flume, and the upper mill-site) ; " also the right and privilege of drawing and using, for the beneflt of a paper-mill, or such other mill works or machinery, as may be erected or used upon the above granted premises, so much water from the mill-pond, on said river, upon and above the premises, as is equal to the quantity and power to which " H. & L. &c., are entitled, by virtue of the indenture of 1826, " a part of such water, not exceeding one-half, to be drawn from the stone flume, and the residue thereof from the pond above said flume. This grant of privilege of drawing and using water as above, is on condition that the defendants shall contribute towards the ex- 444 LAW OP WATERCOURSES. [CHAP. VII. pense of maintaining and repairing the dam, pier, guard-gates &c., in proportion &c. And on condition that said dam, pier, guard-gates, stone flume, and the general passage for water into said flume, shall be and remain situated as they now are, for ever, unless altered by consent of all parties interested ; " "mak- ing, however, from said sale and grants, the following reserva- tions, to wit : I reserve to myself &c., the right and privilege of drawing and using from said pond, over or across the granted premises, by means of said stone flume, the qua,ntity of water or power, which I now draw for the use of my grist-mill, and clothier's shop, and carding machine, and for my privilege below H. & L.'s paper-mill " &c. The defendants erected a paper- mill on the mill-site granted to them, and built a penstock below the wing-dam, in order to increase the supply of water for their works, by which penstock the water was thrown back upon the wing-dam ; they also built a wall in the river south of their mill, which was extended down the river by the plaintiffs, and thereby a raceway was made, by which the water from the mills, instead of being immediately diffused in the river, passed into it at a place below all the mills. It was held, that the subject-matter of the indenture was the whole of the water power, created by the artificial works erected for the purpose of applying the stream to mill purposes, consisting of the wing-dam, pier, guard-gates, side-dam, and stone flume ; and that all the rights of the parties to the indenture, in all the. water privilege, which was or could be derived by any mode of using these works, depended upon the indenture ; but that any rights which B. had, as riparian proprietor, in the unoccupied portion of the river, so far as they could exist and be used without impairing the conventional rights granted by the indenture, reiBained to him unaffected bj'' the indenture. Held also, that the indenture effected a distribution of the entire water power, created by the artificial works, not by a grant or reservation of a specific quantity of water power, as measured by the gate-ways, but by fixing the proportion in which all the parties should use the water power, whether it should exceed or fall short of the aggregate of all the powers particu- larly specified. Held also, the parties were not restricted by the indenture to the use of the gate-ways then existing, but that they might respectively change the places of their gates, by mak- ing new openings into the pond and stone flume, provided they CHAP. Til.] CONTRACTS PERSONAL. 445 did not weaken, or otherwise injure these common works, and that this would not be an alteration in these works, within the meaning of the indenture. Held also, that under the grant to the defendants, of the right of drawing so much water as is equal to the quantity and power to which H. & L. &c., are entitled, by virtue of the indenture, the measure of the water to be drawn by the defendants was the dimensions of the gate-ways and head of water, without regard to the greater or less fall from the gate-ways to the bottom of the raceway. Held also, that as against B., the defendants had a right to draw any part of the water granted to them, not exceeding one-half, from the stone flume, and the residue from the pond ; but that as, by the indenture, B. himself was allowed to draw from the pond only a certain quantity of water (determined by the gates therein speci- fied), so as against H. & L. &c., the defendants could not draw more than that quantity from the pond. Held also, that if the defendants opened gate-ways in their mill, capable, in their ordi- nary action, of drawing a much larger quantity of water from the common reservoir, than the defendants were entitled to draw, especially if their gate-ways were withdrawn from obser- vation, equity would award an injunction, compelling them per- manently to close a portion of their gate-ways, leaving such only as would enable them to draw the quantity to which they are entitled; or, if the defendants' works were of such a character as to require the alternate action of particular gates, so that when one was open, a corresponding one would be closed, then, in order to obtain the right of making a greater capacity of gates, than it was intended to use at any one time, it would be incum- bent on the defendants to set out such special case, and to give a pledge or security, adapted to the case, so as effectually to pro- tect the rights of the other parties. Held also, that the defend- ants, as riparian proprietors, under the grant from B. acquired a right in the stream, without and beyond the wing-dam, and other artificial works of the proprietors of the mills, and, as such riparian proprietors, might erect any works, and make any use of the stream, which could be done, without interfering with the common works of the proprietors of the mills, but that they had no right to alter those common works ; and that the erection of the penstock, higher than the wing-dam, so as to throw back the water upon that dam, was an alteration of the common works, 446 LAW OF WATERCOURSES. [CHAP. VII, and if it caused damage to the plaintiffs, they were entitled to relief. Held also, that the distribution by the indenture, of the mill power, created by the common works, erected at the time, extended to the enjoyment of the raceway, then in use, for con- ducting the water from the mills, and that thenceforth, neither party could do any act to render this raceway less beneficial to the other parties ; that the defendants had a right to build the wall, on their own land, on the southerly side of the mill, to keep out the waste water of the river, provided it did not injure or impair the rights of the plaintiffs ; and the plaintiffs had a right to continue this wall down the river, if it did not prejudice the defendants; and (supposing the wall to be injurious to neither party), that thenceforth the space between the wall and the shore became the common raceway of the parties, to be used in connection with their respective water-rights, as settled by the indenture. Held also, that if the plaintiffs, by their wall, nar- rowed the raceway, this would not justify the defendants in drawing from their penstock into their mill, and thence into the raceway, a quantity of water in addition to that which was or could be drawn from the common reservoir, and thereby imped- ing the plaintiffs' wheels ; not even if the defendants had, by their wall, kept from the plaintiffs' wheels as large a quantity of back-water as the penstock was calculated to throw upon them. The plaintiffs' bill in equity alleged, that the defendants were entitled to draw from the common reservoir 12,335 cubic feet per minute, but that they were erecting works which would require, and that they threatened to use, a much larger quantity ; and it prayed for damages, and for an injunction, to restrain them from using more than 12,335 cubic feet per minute. The de- fendants' answer claimed a right to use more than 12,385 cubic feet per minute, but denied that they had used, or intended to use, more than they were entitled to ; and it did not appear that they had drawn so much as 12,335 cubic feet per minute. It was held, that even if the defendants were not entitled to draw so much as that quantity, and had, in fact, drawn more than they were entitled to, yet, that under this issue, the plaintiffs could not recover damages against them, for having drawn too great a quantity, and that an injunction would not lie to restrain them from drawing 12,335 cubic feet per minute. § 276. In the construction of contracts and agreements, respect- CHAP. VII.] CONTRACTS PERSONAL. 447 ing water, the law has regard to the condition of the premises, at the time they were entered into. "Where, in a deed from A. to B., for part of a tract of land, described by courses and dis- tances, after stating that whereas there issue out of Jones's Falls two races, or watercourses, into another part of the tract, remain- ing unsold, which watercourses intersect a certain line (one of the courses of the part of the tract conveyed to B.), it was covenanted by A. that B. should have free use of said two races, or water- courses, as soon as they intersect said line, and that A. would not change or divert the course of said two races from their present sources, through their present channel, but that the same shall flow freely and uninterruptedly, until they intersect said line, and that B. should have free access to the sources of said races, to increase the streams .of water, and that A. should keep the said races pro- ceeding from the south-westernmost part of the tract, in good order and repair, through that tract, until it intersects said line ; it was held to be the intention of the parties, that A. should permit the water to flow through certain channels, over his land, for the benefit of B., and that, if the water flowed through such channels or races, at the date of the covenant, A. was bound to keep them in such order and repair that the water should con- tinue to flow through them as freely as at that time ; but, if the water did not, or could not flow through the channel of one of them, at the date of the covenant, A. was not bound to deepen or widen such channel, so as to conduct the water to the land purchased by B.^ § 277. Where a lease was executed of a mill-site, on a certain stream, for a term of years, and the lessor covenanted that he would not let or establish any other place on the same stream, to be used for sawing mahogany ; it was held, that a subsequent demise, by the landlord, to third persons, of a mill-site on the same stream, without limitation or restriction, as to its use, and the establishment and use of a mill, by the lessees, under the second demise, in the sawing of mahogany, was a breach of the covenant. And also, that the covenant was broken, although the second demise was in strict conformity to a parol agreement, made and entered into by the defendant, previous to the first demise ; it being considered by the Court, that a Court of Law 1 Carroll v. Cockey, 3 H. & John. 282. 448 LAW OF WATEKCOURSES. [CHAP. YII. cannot give relation back to a lease, to the time of the previous agreement, although followed by immediate possession. ^ § 278. In Davis v. Morgan,^ it appeared, that A., being seised of an ancient mill, together with a stream of water, diverted out of the river, and flowing from thence unto her mill ; and B., being possessed of other mills, together with a stream of water, diverted out of the same river, above the stream of A., by means of a head wear, and flowing from thence through the lands of A., down to B.'s mills, as appurtenant to the same ; B. erected upon other lands, below the lands of A., and near the said watercourse, two other mills, whereby, it becoming necessary for him (B.), to have a larger supply of water, he widened and deepened his water- course in the soil of A., and raised and heightened the head wear, and thereby diverted the greatest part of the water into the watercourse, for the use of his mills, so that the water was pre- vented from flowing down to the mill of A., so copiously as it had formerly done, and thereby A.'s mill became of no use. A., having recovered damages in one action against B., on this ac- count,, and having afterwards brought a second action for sub- sequent damages, in order to prevent all farther disputes, B. agreed to take a grant from A., of the use and benefit of the water- course, so widened and deepened, and of the liberty of divert- ing the water out of the river. By lease, reciting these facts. A., in consideration of ,£1,500, paid by B., demised to B. the use of the watercourse so widened and deepened as aforesaid, and the free liberty of diverting so much of the water of the river into and along the watercourse, as should be necessary for the use of B.'s mills habendum for the term of ninety-nine years, if three persons, therein named, should so long live, at an annual rent. Soon after the execution of this deed, A.'s mill was destroyed. B., or those claiming under him, continued to enjoy the water- course, and the use of the water, during the term, and pay the rent. The lease having determined, by the death of the last surviving cestui que vie, the person claiming under the grantee continued to enjoy the watercourse, in the manner described in the grant, and paid rent for it. The reversion in the lands, upon which A.'s mill formerly stood, having vested in C, it was held that the latter might maintain indebitatus assumpsit, for the use 1 Norman v. Wells, 17 Wend. 136. 8 Davis v. Morgan, 4 B. & C. 8. CHAP. VIT.] ARBITRAMENT AND AWARD. 449 and occupation of the watercourse, and the water running therein, against the persons who claimed under B. 4. Arhitrament and Award. § 279. Questions respecting the use of the water of a water- course, and the measure of water power granted, may, of course, by contract or agreement, be submitted to arbitrators. Arbitra- tors have authority to decide conclusively, all questions of law, necessary to the decision of the matters submitted to them, sin- less they are restricted by the terms of the submission, or unless it appears on the face of their award, that they intended to decide according to law, but have decided contrary to law. And there is no distinction, in this respect, between the authority of arbitrators, who are selected from the legal profession, and that of other arbitrators. The decision of arbitrators, to whom all questions of fact and law are submitted, and who act fairly, is conclusive, unless it can be impeached and avoided by proof of fraud, practised on them, or proof of mistake or accident, by ■which they were deceived and misled, so that their award is not in fact the result of their judgment. But their mistakes in draw- ing conclusions of fact, from evidence or observation, or in adopt- ing erroneous rules of law, or theories of philosophy, are not a legal cause for avoiding their award. Hence, where a question as to the measure of a water power, granted by demise, was sub- mitted to arbitrators, and they, after making numerous actual ex- periments, constructed a table, on hydraulic principles, by which the use of the water was to be calculated ; it was held, that evi- dence was not admissible to show, that the table was constructed on erroneous principles.-' § 280. The owner of the water powers, at the Boston Mill- Dam, leased a certain number of mill powers, with an agree- ment that they would do nothing whereby the power granted might in any way be in anywise defeated or diminished. Dis- putes afterwards arose, respecting the quantities of -^fater to which the lessee was entitled, and as to the mode of measuring and delivering the same, and the use thereof ; whereupon the parties submitted the matters in dispute to arbitrators, authoriz- ing them (among other things), to determine what quantities of 1 Boston Water Power Co. v. Gray, 6 Met. 131. 29 450 LAW OP WATERCOURSES. [CHAP. VII. water the lessee was entitled to draw, by virtue of his lease, and also to determine the manner in which the same should be meas- ured and delivered, and to settle, in all other particulars, the legal rights of the parties, under and by virtue of the lease, and . to employ such engineers, agents &c., as they should see fit, for the purpose of enabling them to determine the extent of the water power, and other experimental matters, incident to the business committed to them, and to determine what part of the expenses appertaining thereto, shall be borne by each party. Held, that the arbitrators had not exceeded their authority, by awarding that the lessee should take the water at a lower level than that at which it was taken at the time when the lease was made ; nor by awarding that the lessee should -pay half the ex- pense of an apparatus, which they ordered to be made and set up for measuring the water to be received by the lessee, and half the expense of the experiments made by the arbitrators, to determine the whole number of mill powers which the lessor owned ; nor by awarding that the water, received by the lessee, should be measured after it had passed his mills, and not before. Held also, that the arbitrators had not exceeded their authority, by awarding that the lessor should remove accretions from the basin that received the water, whenever it should be neces- sary to the full enjoyment of the water powers granted to the lessee, although the lessors might not own the soil ; the arbitrators being of opinion that the lessors had the right, and were bound to enter upon the recdving basin, and remove therefrom obstruc- tions arising from accretions. Held further, that the arbitrators, by awarding that the lessee was entitled to the use and enjoy- ment of his mill powers, " so long as the basins will furnish the same," had not, by implication, impaired his rights under the lease, which gave him such powers absolutely, and without any limitation." ^ § 280 a. A. and B. made their submission to arbitrators, stat- ing that, whereas they had a cause subsisting between them, rela- tive to the right of turning water from a certain spring or rivulet, each one claiming the right to turn the water on to his own land, they submitted the same matter to the final decision of C. and D., engaging to abide such decision, under a penalty. The arbi- 1 Boston Water Power Co. v. Gray, 6 Met. 131. CHAP. VII.] ARBITRAMENT AND AWARD. 451 trators made an award, in which they decided what were the rights of the parties, respectively, in relation to the use of the water, and prescribed the mode in which those rights should be exercised. In an action of assumpsit, brought by A. against B., for an alleged violation of A.'s right, it was held, 1, that the mat^ ter submitted was the right to the use of the water, and such right was correctly made the subject of the award ; 2, that so much of the award as related to the future conduct of the parties, was unauthorized by the submission, and void ; and 3, that no action would lie on such award, for an infringement of any right de- cided by it, although, in a proper action, it would be conclusive evidence of such right.^ § 281. Where an action for polluting the water of a water- course,^ was referred to an arbitrator, with power to him to regu- late the enjoyment of the water, it was held, that an award, directing a verdict to be entered for the plaintiff, and that the defendant should, at all times, take all pnoper and reasonable pre- cautions, for preventing the water from being rendered unfit for the plaintiff's use, and, in particular, should use a process of fil- tering, mentioned in the award, was bad for uncertainty. The direction as to the particular process was, that the water, passing from the defendant's to the plaintiff's premises, should be passed through filtering lodges, made or to be made by the defendant, so as to be thereby purified and cleansed for the plaintiff's use, " so far as the same can be purified and cleansed bi/ the ordinary and most approved process of filtering, as aforesaid." * It was held, that the description, by reference only to the " ordinary and most approved process," was uncertain, and the award was bad in this respect also. " The award." said Lord Denman C.J., " speaks of the ' most approved process.' By whose approbation is that to be determined? The witnesses who have made the affidavits, say that they understand the direction ; but even they do not themselves state what, in their view, is the most approved method. It may be that the arbitrator risks the validity of his award, if he attempts to set out the process, and does it imperfectly ; but much more is risked by the generality of description introduced 1 Dutton V. Gillett, 5 Conn. 172. the fulfilment of the award ; must the 2 See ante, §§ ISb-Hl. Court then go back to inquire what was 3 Stonehew v. Farrar, 6 Ad. & El. the ordinary and most approved process N.s. 730. " Suppose," said Coleridge J., thirty years before ? " Ibid. " a question arose thirty years hence, on 452 LAW OP WATERCOURSES. [CHAP. VII. here. The arbitrator must make himself scientifically master of the subject; he is bound to understand it so fully, that he may make a statement on which no one can have a doubt ; and that, when the material acts prescribed have been performed, it may be seen that the award is complied with, and parties may not be put to inquire for the greatest number of approvers. If dangers are to be considered, the most important is that which parties may incur upon awards, which do not finally settle their rights." § 282. An award between a lessee and a neighbor, awarding an act to be done for the benefit of the latter, by the lessee, which would be waste upon the estate of the lessor, is bad. In Alder v. Savill,^ the parties agreed to refer upon terms, in pur- suance of which, an order of nisi prius^&s afterwards drawn up, referring it to a gentleman of the bar, to settle all matters in difference, in that cause between the parties, and to order and determine what he should think fit to be done by either of them, respecting the matters in dispute. And it was ordered, that the costs of that cause should abide the event of the award. Upon the view of the arbitrator and examination of numerous wit- nesses, it appeared, that the defendants were occupiers of a mill, upon the river Mole, and the plaintiff was the occupier of certain meadows, adjoining that part of the river, which was the defend- ants' mill-pond, and situate about a mile higher up the stream than the mills; certain ditches, coming down from lands more remote from the river than the plaintiff's farm, traversed these meadows, the level of which was below the water-level of the full mill-pond, and were intended to discharge into the river the drainage of the country. At the mouthsof these ditches, the former occupiers of the plaintiff's land had, about thirty years before the action, erected, and occasionally repaired certain pen- stocks or valves, which freely opened to the 'river, whenever the water on the land side was so high, that its pressing the valve outwards, overcame the contrary pressure of the water in the river, and thereby let out the water from the ditches into the bed of the river ; and whenever the water in the river was higher than the water in the ditches, its pressure on the outside of the valves kept them closely shut against the upright posts to which 1 Alder v. Savill, 5 Taunt. 454. CHAP. Vll.] ARBITRAMENT AND AWARD. 453 they were applied, and prevented any water from the river from entering the ditches. These valves were at present disused and inefficient, from want of repairs. Some of the plaintiff's land, adjoining to the ditches, was injured by stagnating water. The defendants had purchased the residue of a term in the mills, which had been demised by the proprietor, to a tenant named Puplett, in whose time the machinery contained in the mills was of a very imperfect construction, and the water-wheels and waste hatches were much out of repair, and the water was very waste- fully applied ; so that when he wrought the mills, the level of the head of water in the mill-pond was in a very few hours drawn down much below the level of the meadows, and the water from the ditches was at such times freely discharged into the bed of the mill-pond, so that the plaintiff 's lands, during that period, suffered very little from stagnating water. The defendants had, since the plaintiff had become occupier of his farm, rebuilt the mills on an improved principle, made the waste-water gates and mill-hatches tight and efficient, and applied the water econom- ically to their machinery, so that the head of water was rarely drawn down, and the same, or nearly the same level in the mill- pond, was consequently continued for a much longer time to- gether, than it used to be during Puplett's occupation ; and by reason of such alteration, in the mode of management, the water in the ditches accumulated and stagnated for a much longer time than before, on the plaintiff's land, which certainly was thereby deteriorated ; but it was clearly proved that the defendants' im- proved mill, and waste-water gates, the ground-sills of which had remained unaltered, did not confine the water in the mill- pond to so high a level, as the mill and gates which existed in Puplett's time used to confine it; and the arbitrator declared himself satisfied of that fact. No evidence was given of the state of the defendants' mill, at any period anterior to Puplett's term. The attorneys, both for the plaintiff and defendants, had applied to the associate, for orders of reference, and the defend- ants' attorney, who applied last, obtained an order, drawn up in pursuance of his own conception of the terms of the refer- ence, and empowering the arbitrator to order what he should think fit to be done by either of the parties, as well respecting the matters in difference in that cause, as also all matters in 454 LAW OP WATERCOURSES. [CHAP. VII. dispute between the parties ; and ordering that the costs pf the cause should- abide the event of the award, in respect of the matters in difference in the cause. The plaintiff's order of ref- erence was that which was left with the arbitrator, for his guid- ance, the defendants not being aware of the diversity in the terms. The arbitrator, reciting that disputes subsisted between the plaintiff and defendants, concerning damage, alleged by the plaintiff to have been done and occasioned to his meadows, by the penning back of the water of the river, by the flood-gates and machinery of the mill, and that an action had been brought to recover damages for such injury so alleged to have been done to the plaintiff's meadows, by the means above stated in the declaration, awarded that the defendants should, within four months, make and complete, in a workmanlike manner, an over- fall, or tumbling bay, for the discharge of the water of the river, at a convenient place between the plaintiff's meadows, and the waste-gate of the mill, of specified dimensions, and that the defendants shoiild, at their own cost, maintain such tumbling bay, at that height and width, during their possession of the mill, and pay the plaintiff j£150, whereupon the parties should execute mutual releases, up to the date of the submission. Mr. J. Heath, in giving judgment, said, " With respect to the tumbling bay, if the defendants had been seised in fee, the award would have been good, but the power given to the arbitrator to determine what he should think fit to be done, must be confined to reason- able acts ; and the making- a tumbling bay on the lessor's land, would be waste in the defendants ; we cannot permit them to be attached on the one side, for doing that, upon which they would, on the other hand, be sued for waste. The Court cannot try the merits of the case ; but as to the damages, it is to be intended that they are given for the injuries alleged in the declaration, unless the contrary appears, and damages could not be given, un- less it were for penning the water too high. The keeping it penned up for a longer time than usual, would not entitle the plaintiff to recover a single farthing, if it were not penned up higher than usual. It is fit that a reference should be made to the associate, to ascertain whether of the two rules of reference is drawn up conformably to his minutes of the agreement made at the trial, and if the associate reports in favor of the defend- CHAP. VII.] ARBITRAMENT AND AWARD. 455 ants' rule, let a reference be made to the arbitrator, requesting him to state upon what ground he gave the damages. In this term the associate reported, that, according to his minutes, the plaintiff's order of nisi prius was the prior and the correct order ; whereupon the Court made the plaintiff 's rule absolute for set- ting aside the defendants' rule of Court, confirming their order of reference, but without costs, on account of the manifest injustice of making the costs of the action abide the event of matters, which could not be, and were not decided in the action. TJie Court made the defendants' rule absolute, for setting aside so much of the award as related to the erecting a tumbling bay, but discharged the rule as to the residue." § 283. Still an award must be performed by the parties, as far as they lawfully can ; and if several matters be directed to be done, all within the arbitrator's power to order, it is no an- swer to an attachment for non-performance of the award, that, as to one of the matters, it is out of the party's power to do it, or that compliance would subject him to an action, if he have done nothing to show his willingness to obey the award.^ Hence, where an umpire directed a defendant to prostrate some wears, of which he was proprietor, and also another wear, in which he had only a share, and then said he made his award only to extend so far as any right or interest the defendant possessed ; it was held by the Court, that it was the defendant's duty to obey, as far as he could, and that, if he could not remove his share of the latter wear, without being liable to an action of trespass, that would be an answer to that part of the award.^ § 284. An award by commissioners, under an " inclosure act," directed that the owners of lands over which a certain drain passed, should cleanse and keep the same of a sufficient width and depth to carry off the water, " intended to run down the same." The occupier of a close by which the drain passed, and 1 [So where it was awarded that mill- care that their dam should not, under any owners should have right to maintain circumstances, raise the water above the their dam only during a certain part of prescribed level, and if they had not the year, and only under certain restric- done so, it was immaterial to show that tions during that period, one of which the increased height was owing to the was that they should not flow or raise the letting down of water from a pond above, water in their pond above a certain mark Bates v. Sloan, 5 Allen, 178 ; Winkley v. at any time within the prohibited period, Salisbury Manuf. Co., 14 Gray, 445.] they were held bound to take effectual 2 Doddington u. Hudson, 1 Bing. 410. 456 LAW OP WATERCOURSES. [CHAP. VII. whose lands were drained by it, subsequently, for the better draining of his lands, opened a sough or under drain into the awarded drain. It was held, that this mode of draining, not being contemplated by the award, the owner of land lower down, across which the drain ran, was not bound to keep the awarded drain of sufficient capacity to carry off the additional water which was poured into it by the sough. ^ ' Sharpe v. Hancock, 7 Man. & G. 354. CHAP. VIII.] BIGHTS BY PAROL LICENSE. 457 CHAPTER VIII. . OP THE EIGHT TO THE, USE OP THE WATER, AS DEPENDING UPON PAROL AND VERBAL LICENSE. 1. Difference between an Easement and a Right by License. 2. The Extent of the Right derived from Parol Licenses, in general. 3. The Extent of the Right derived from Parol Licenses executed, and expense incurred &c., as conveying an Interest in Land. 4. The Equitable Doctrine concerning Parol Licenses. 5. Doctrine of Estoppel, as applicable to. 1. Difference between an Easement and a Right hy License. § 285. An easement., it has appeared, is a liberty, privilege, or advantage in land, without profit, and existing distinct from the ownership of the soil ; ^ and it has appeared also, that a claim for an easement must be founded upon a deed or writing,^ or upon prescription which supposes one.^ It is a paramount interest in another's land, with a right to enjoy it fully and without obstruc- tion. A license, on the other hand, is a bare authority to do a certain act or series of acts, upon another's land, without possess- ing any estate therein;* and, it being founded in personal confidence, it is not assignable, and it is gone if the owner of the land who gives the license transfers his title to another, or if either party die.^ Yet, notwithstanding the positive authorities 1 Ante, § 142. gles v. Lesure, 24 Pick. 187 ; Stevena v. 2 Ante, §§ 168-173. Stevens, 11 Met. 255 ; Carleton v. Red- 3 Ante, Chap. VI. [Morse v. Cope- ington, 21 N.H. 305, 806 ; Harris ... Gil- land, 2 Gray, 302, 305. No such right lingham, 6 N.H. 11 ; Cook v. Stearns, 11 or interest in real estate can be created Mass. 533 ; Seidensparger v. Spear, 17 by parol. Stevens v. Stevens, 11 Met. Maine, 123; Cowles v. Kidder, 24 N.H. 251; Cook v. Stearns, 11 Mass. 538; .364; Dark w. Johnston, 55 Penn. St. 164; Carleton v. Redington, 21 N.H. 291; Blaisdell u. Portsmouth, Great Falls & Marston v. Gale, 24 N.H. 176 ; Houston Conway Railroad, 51 N.H. 483 ; Morrill V. Laffee, 46 N.H. 505.] w. Mackman, 24 Mich. 282, 283. But * [Brown v. Bowen, 30 N.Y. 544, per such license will extend to and protect MuUin J. ; Morrill v. Mackman, 24 Mich, such agents and servants of the licensee 279, 282.] as are required to accomplish the au- 6 8 Kent, 452 ; Miller v. Auburn & thorized act. A license to a man to re- Syracuse Railroad Co., 6 Hill, 61 ; [Rug- move a bank-safe would imply a license 458 LAW OF WATERCOURSES. [chap. Tin. which have been referred to in a former chapter,^ questions of considerable difficulty and nicety have arisen, both in England ^ and in America,^ as to the effect of a license; and it has been contended, that " a beneficial interest in land may be granted witliout deed, and, notwithstanding the Statute of Frauds, with- out writing;"* and in fact, the distinction between a privilege or easement carrying an interest in land, and requiring a writing within the statute just mentioned to support it, and a license which may be by parol, " is," it has been considered, " quite subtle ; and it becomes difficult, in some cases, to discern a sub- stantial difference between them." ^ It is certain, however, that to as many servants of the licensee as should be required for his assistance. A license necessarily implies the right to do every thing without which the act cannot be done. Sterling u. Warden, 51 N.H. 217, 227.] 1 Chap. V. §§ 168-173. 2 Gale & What, on Easem. 13. 3 3 Kent, 452. * Taylor v. Waters, 7 Taunt. 384; [In Morrill v. Mackman, 24 Mich. 283, Cooley J. said, " Where nothing beyond a mere license is contemplated, and no interest in the land is proposed to be created, the Statute of Frauds has no application, and the observance of no formality is important. But there may also be a license where the understanding of the parties has in view a privilege of a less precarious nature. Where some- thing beyond a mere temporary use of the land is promised ; where the promise apparently is not founded on personal confidence, but has reference to the ownership and occupancy of other lands, and is made to facilitate the use of those lands in a particular manner and for an indefinite period, and where the right to revoke at any time would be inconsistent with the evidentr purpose of the permis- sion ; wherever, in short, the purpose has been to give an interest in the land, there may be a license ; but there will also be something more than a license, if the proper formalities for the conveyance of the proposed interest have been observed. What that interest shall be called in the law may depend upon the character of the possession, occupancy, or use, the promisee is to have, the time it is to con- tinue, and perhaps upon the mode in which the compensation, if any, is to be made therefor. It may be an easement or it may be a leasehold interest; or if the proper grant or demise has not been executed for the creation of either of these, the permission to make use of the land may still constitute a protection to the party relying upon it, until withdrawn."] 5 3 Kent, 345. For the nature of licenses, and for the legal nature of a license, we give the following from the elaborate judgment of C.J. Vaughan, in Thomas v. Sorrell (Vaughan, 351), and in Wood V. Leadbitter (13 M. & W. 843). In the course of his judgment, the latter learned Judge says, "A dispensation or license, properly passeth. no interest, nor alters or transfers property in any thing, but only makes an action lawful, which, without it, had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions, which, without license, had been unlawful. But a license to hunt in a man's park, and carry away deer killed, to his own use ; to cut down a tree in a man's ground, and to carry it away the next day after, to his own use, are licenses as to the acts of hunting and cutting down the tree; but as to the carrying away the deer killed, and tree cut down, they are grants. So, to license a man to eat my meat, or to flre the wood in my chimney to warm him by, as to the actions of eating, firing my wood, and warming him, they are licenses; but it is consequent necessarily to those actions, that my property may be destroyed, in the meat eaten, and in the wood burnt. CHAP. VIII.] EIGHTS BY PAROL LICENSE. 459 a license, otherwise inconsistent with the Statute of Frauds, may- convey as extensive an interest as that statute provides for, whenever it is so contemplated by an act of the legislature. By the act of the State of New York, concerning the regulation of highways,^ it is declared, that it shall not be lawful to lay out any road through improved land without the consent of the owner. The Court, in Noyes v. Chapin,^ held, that, by this statute, the public may acquire an interest in lands or an easement, without a writing, and that such was not inconsistent with the Statute of Frauds, inasmuch as it was by act and operation of law. 2. The Extent of the Right derived from Parol Licenses in General. § 286. The right to a privilege annexed to or growing out of lands, and the exercise or enjoyment of which is inseparable from the land, when conveyed by an instrument duly signed and sealed, cannot be recalled or revoked, even before it is carried into execution by the grantee ; whereas, a license unexecuted to enter and enjoy the privilege (unless created as above mentioned by law), is countermandable and revocable at any time, just as it may be agreeable or not to the licenser.^ A license, said Lord EUenborough, is not a grant, but may be recalled immediately ;* for although it may be a contract (parol) for " an interest in or concerning land, j'et it is but collateral, and no additional interest in the land (as in the case of an easement) is convej^ed by such contract: the interest of the land-owner being the same as be- fore."^ But that a limited or partial right to enjoy a privilege So as in some cases, by consequent, and ^ 16 sect. See Kev. Laws, New York, not directly, and as its effect, a dispensa- 275. tion or license may destroy and alter my 2 Chapin v. Noyes, 6 Wend. 461. property." Now, as Mr. Baron Alderson ^ Fentinam v. Smith, 4 East, 107 ; and says (in giving judgment in Wood v. ante, § 169 ; [Ruggles v. Lesure, 24 Pick. Leadbitter, ub. sup.), "alluding to this 187; Marston v. Gale, 24 N.H. 176; passage, in conjunction to the title Houston v. Laffee, 46 N.H. 507 ; Dark v. ' License,' in Brooke's Abridgment, from Johnston, 55 Penn. St. 164.] which, and particularly from paragraph 15, * Bex v. Inhabitants of Horndon on it appears that a license is in its nature the Hill, 4 M. & Sel. 565. [See Wood v. revocable ; we have before us the whole Edes, 2 Allen, 578, 581.] principle of the law on the subject. ^ Donellan v. Bead, 8 Ad. & El. 899. A mere license is revocable ; but that [" A permanent interest in land, even by which is called a, license, is often some- way of easement, cannot be created by or thing more than a license ; it often com- under a parol license." Selden J., in prises, or is connected with, a, grant, and Selden v. The Delaware and Hud. Canal then the party who has given it, cannot, Co., 29 N.Y. 634, 639.] in general, revoke it, so as to defeat his grant, to which it was incident." 460 LAW OP WATERCOURSES. [CHAP. Till. connected with the soil, may be acquired by parol license, is shown in many cases.^ Where, for example, a person contracted with the owner of a close for the purchase of a growing crop of grass, for the purpose of being mowed and made into hay by the vendee ; it was held, that the vendee had such an exclusive pos- session of the close, that he might maintain trespass against him who entered and took the grass, even with the consent and license of the land-owner. The Statute of Frauds, it was considered, did not expressly and immediately vacate such contracts, but that it only precluded the bringing of actions to enforce them by charging the contracting party on the ground of such contract, .and of some supposed breach thereof.^ § 287. Nevertheless, it is a well-established general principle, that an unexecuted parol grant of any interest concerning land is revocable at the pleasure of the licenser.^ A general permission to enter upon land and take timber, is revocable ; * and so a parol license to abut a dam upon the land of another, has been held subject to be revoked at any time before the expenditure of mo- ney.^ Where the defendant gave permission to the plaintiff to pass over his land with teams, and there being no consideration for the license, it was held, that it might be revoked at pleasure.® Where a drain and tunnel from a spring were dug, with the verbal consent of the then tenant, and had been used for fifteen years, such license was adjudged to be revocable.^ [In an action 1 See 2 Hilliard, Abr. Am. Law of and a license to enter upon the land and Eeal Property, 52, et seq. remove the trees, is valid, though not in 2 Crosby v. Wadsworth, 6 East, 602. writing. Whitraarsh v. Walker, 1 Met. An outgoing tenant, after the determina- 313; 1 Sugden V. & P. {8th Am. ed.) tion of his lease, has the right to enter 125 note (I), 126 note (n). upon the land, but this, it was held, is » [Houston w. Laffee, 46N.H. 505, 507 not sufficient for him to maintain trespass Ruggles v. Lesure, 24 Pick. 187, 190 against a succeeding tenant, who enters Carleton v. Redington, 21 N.H. 291 to seed the land before the crop comes Marston v. Gale, 24 N.H. 176; Stevens to maturity. Dorsey v. Eagle, 7 G. & v. Stevens, 11 Met. 251 ; Wood v. Edes, John. 321. The defendant, in June, 2 Allen, 578; Sterling v. Warden, 51 agreed to sell to the plaintiff the potatoes N.H. 227 ; Blaisdell v. Portsmouth, Great then growing on a certain quantity of Falls & Conyvay Railroad, 51 N.H. 483.] land of the defendant, the plaintiff to have * Baker v. Wheeler, 8 Wend. 505. them in October, and to find diggers. It » Beidelman v. Foulke, 5 Watts, 808. was held, that this was not a contract for *> Dexter v. Haven, 10 John. 426. the sale of an interest in land, within the ' Cocker v. Cowper, 1 Cr., M. & R. Statute of Frauds. Sainsbury v. Mat^ Ex.418; and see Hewlins o. Shippam, 5 thews, 4 M. & W. 343. An oral agree- B. & C. 221 ; [Stevens v. Stevens, 11 Met. ment, for the sale of mulberry-trees in a 256 ; Allen v. Fiske, 42 Vt. 462.1 nursery, and raised to be transplanted, CHAP. VIII.] RIGHTS BY PAROL LICENSE. 461 of trespass for cutting off lead pipe, which the plaintiff had laid upon the land of defendant under a parol license, for the purpose of conve3'ing water, from a well on the defendant's premises, to the plaintiff's house, plaintiff cannot recover the money expended in digging or deepening the well, or purchasing and laying the pipe, or any consequential damage suffered at his house or stable in consequence of the stopping of the water at that particular time.'] A parol license was given by A. to B., to dig up the soil and make embankments and a railway over it, it was held to be countermandable at any time, whilst it remains executory ; and that if A. conveyed the land to another, the license was determined at once, and without notice to B. of the transfer ; and that if B. afterwards enters upon the land, he is liable in trespass.^ Where an ancestor consented by parol to have his land overflowed, by the erection of a dam, the Supreme Court of North Carolina held, that the license ceased with the death of the ancestor, and the heir could recover damages.^ " There is nothing," says Mr. J. Cowen, " to prevent the license operating according to its own nature, and there is no book which teaches that, before a license is revoked, or has expired, though it be not 1 [Houston V. LafEee,46 N.H. 505, 508. (N.C.) 492; [Selden v. The Del. & Hud. In this case Sargent J. said, "Can the CanalCo., 29 N.Y. 634,; Miller u. Auburn plaintiff recover at all in this action I & Syr. R.B. Co., 6 Hill, 61 ; Stevens o. The lead pipe remained the property of Stevens, 11 Met. 251. A license to en- the plaintiif, though in defendant's land, large a canal would authorize an increase and he could have maintained trespass of the depth of the channel as well as of against a stranger who had no interest the width, and such increase of depth in or right to either the pipe or the lands, might be produced by excavations from if he had cut it off. But the defendant the bottom, or by raising the banks, or had the right to revoke his license in a by both, and the license, so long as it ■way that should be effectual, and, if the remains in force, will not only relieve the cutting off of the pipe was done simply licensee from liability for making the en- for the purpose of putting an end to the largement, but also from liability for any license, of revoking it, and without any consequences which might naturally flow malice, or intentional wrong, we think from such enlargement. If there be an the defendant would not be liable in-this injury to the licenser's land in conse- aotion ; but if he cut the pipe wantonly, quence of any want of skill or care in unnecessarily, and maliciously, and with making the enlargement, and not as a a view to injure the pipe or to injure the natural result, if the work is carefully plaintiff, we think he would be liable." done, the license will not constitute a The principle ia,4hat a party, in abating defence. A license to do an act cannot a private nuisance, is bound to use reason- be held to screen the licensee from the able care that no more damage be done consequences of carelessness and unskil- than is necessary for effecting his purpose, fulness in the performance of the act. Post, § 390.] Selden v. The Del. & Hud. Canal Co., 29 2 'Wallis V. Harrison, 4 M. & W. 588. N.Y. 634; Brown v. Bowen, 30 N.Y. 519.] 3 Bridges v. Purcell, 1 Dev. & Bat. 462 LAW OF WATERCOURSES. [CHAP. VIII. executed, a man is liable to pay damages for availing himself of it. It is personal to himself, and if it regard land, it is gone, if the person who gave the license transfers his title to another; and so, doubtless, by the death of either party." ^ § 288. A parol license is clearly a justification, until recalled by the licenser, or revoked by a transfer, or by death, as above mentioned, as the utmost effect which is ever given to proof of it, is to afford a defence to an action of trespass. It inures as a personal authority, and until revoked, protects the defendant against an action for a wrong.^ Indeed, there cannot, in the nature of things, be any legal wrong until the license is counter- manded, unless it can be said, that a man may do an actionable wrong to himself touching his own property.^ [In this sense, and to this extent, such a license is irrevocable, so far as it is executed or acted upon, without objection ; it cannot be revoked so as to render the licensee a trespasser for the acts he has done under the license.*] The subject is treated in this point of view, by Mr. C.J. Parker, in Cook v. Stearns,^ and in a most satisfac- tory manner. " Licenses to do a particular act," says he, " do not, in any degree, trench upon the policy of the law, which requires that bargains respecting the title or interest in real estate shall be by deed or in writing. They amount to nothing more than an excuse for the act, which would otherwise be trespass." ® § 289. In Chapman v. Hartshorne, in Connecticut,'^ the de- fendant was employed as superintendent of a manufactory, but 1 Miller v. Auburn & Syracuse Rail- owners of land adjoining have a dispute road Co., 6 Hill, 64 ; and see also Mum- about the line of partition, and agree that ford V. Whitney, 15 VFend. 380; [ante, certain persons shall survey and establish § 285, and cases cited to this point.] the line, and that their doings shall be 2 [Ante, § 285, and cases cited ; Ster- decisive, and they survey and mark the ling V. Warden, 61 N.H. 217, 227; Blais- line accordingly; this does not give to dcU V. Portsmouth, Great Falls & Conway one of the owners such a right to the land Kailroad, 51 N.H. 483.] on his side of the line so marked, as to 3 Miller v. Auburn & Syr. R.R. Co., preclude the other from showing that his nb. sup. ; Abbott w. Wood, 1 Greenl. 115 ; laud extends beyond such line. The Davis V. Thompson, 13 Maine, 209 ; Fol- effect of the paper as a license, would be som V. Moore, 19 Maine, 252; [Stevens to protect the plaintiff against any action, V. Stevens, 11 Met. 251, 256, 257, 258 ; by the defendant, for any act done upon Houston i>. Laffee, 46 N.H. 507, per Sar- the land, which would otherwise be a tres- gentJ.] pass. Whitney w. Holmes, 15 Mass. 152; « [Marston v. Gale, 24 N.H. 176.] Pond v. Pond, 14 Mass. 402. 6 Cook V. Steams, 11 Mass. 538. ^ Chapman v. Hartshorne, 9 Conn. 664. ^ It is held in Massachusetts, that if CHAP. VIII.] RIGHTS BY PAEOL LICENSE. 463 before the time had expired he was dismissed by notice in writ- ing. He still persisted in entering upon the premises, and en- deavored to induce the workmen to obey him, and not the plain- tiff. Daggett J. charged the jury, that the defendant was justified in doing so ; for his contract gave him the right to enter and occupy, as superintendent, till the contract had expired ; say- ing, when the plaintiff "bound himself by contract to pay the defendant for superintending his manufacturing establishment, he has given to him full authority to enter and occupy during the continuance of the contract." The jury found a verdict for the defendant, but the Court granted a new trial, on the ground that the defendant had no right to enter after he was dismissed, for the master has at all times a right to dismiss his servant, making himself responsible for the consequences when he dis- misses without cause. But where a grantee, at the time of the execution of the deed, agreed that the grantor might enter upon the premises, to remove certain property belonging to him ; it was held, that the former could not maintain trespass for entering in pursuance of such license. The act was done by the consent of the person who claimed to be injured thereby, and who cannot be considered as injured — Volenti non fit injuria.^ § 290. In Wood v. Manley, in the Queen's Bench,^ it appeared that goods, which were upon the plaintiff 's land, were sold to the defendant ; and that, by the conditions of the sale, to which the plaintiff was a party, the buyer was to be allowed to enter and take the goods. It was held, that, after the sale, the plaintiff could not countermand the license. And the defendant having entered to take, and the plaintiff having brought trespass, and the defend- 1 Parsons v. Camp, 11 Conn. 525. his property, or drive him to an action 2 Wood u. Manley, 11 Ad. & El. 34. for its recovery, by withdrawing his im- [In McLeod w. Jones, 105 Mass. 406, Weils plied permission to come and take it." J., speaking for a majority of the court. See Sterling v. Warden, 21 N.H. 217, 227 ; said, "A sale of chattels, which are at Drake v. Wells, 11 Allen, 141, 142, 143; the time upon the land of the seller, will Giles v. Simonds, 16 Gray, 441 ; Nettleton authorize an entry upon the land to v. Sikes, 8 Met. 34; 1 Sugden V. & P. remove them, if, by the express or im- (8th Am. ed.) 126 note (n) and cases plied terms of the sale, that is the place cited ; Hill v. Cutting, 107 Mass. 596 ; where the purchaser is to take them. A Ellis v. Clark, 110 Mass. 391 ; Wells J. license is implied, because it is necessary in McLeod v. Jones, 105 Mass. 403, 405, in order to carry the sale into complete 406 ; McNeal o. Emerson, 15 Gray, 384 ; effect, and is therefore presumed to have White ». Elwell, 48 Maine, 360 ; Parsons been in contemplation of the parties. It i^'Camp, 11 Conn. 525; Hill v. Hill, 113 forms a part of the contract of sale. The Mass. 103, 105.] seller cannot deprive the purchaser of 464 LAW OP WATERCOURSES. [CHAP. VIII. ant having pleaded leave and license, and a peaceable entry to take, to which the plaintiff replied de injuria; it was held, that the defendant was entitled to the verdict, though it appeared that the plaintiff had, between the sale and the entry, locked the gates, and forbidden the defendant to enter ; and the defendant had broken down the gates, and entered to take the goods. " The plaintiff," as was said by Williams J., " having assented to the terms of the contract, put himself into a situation from which he could not withdraw." § 291. In a case in the Court of Appeals, of Maryland, in which the action was for damage in diverting a watercourse from its natural channel, on the plaintiff's land, it was held, that the defendant might show that the diversion was made on his land in virtue of a verbal agreement between him and the plain- tiff that he might make the diversion, for the purpose of work- ing a mill to be erected by him (the defendant) on his land, if the defendant would allow the plaintiff the use of the road through the defendant's land, and the execution of such agree- ment ; or, that the plaintiff entered into such contract with the defendant, conferring the privilege with a fraudulent design and for the purpose of extorting money from him. Such evidence, it was held, was admissible in mitigation of damages, and for the purpose of showing that the defendant was not a trespasser ab initio, for continuing the diversion after a countermand of his authority by the plaintiff.^ § 292. The case of Miller v. Auburn & Syracuse Railroad Company, in New York,^ is a case of justification of acts done under a license, while unrevoked. The action was against the company for building and constructing their road on a street in front of the plaintiff's house, so as to obstruct his right of egress and ingress ; and it was held, that the company might give evi- dence of a parol license from the plaintiff to build the road, and thus defeat his claim for all damages sustained while the license remained unrevoked. " If " (said Mr. J. Cowen, who delivered the judgment of the Court) " what the defendants in this case proposed to show was true, viz., that the plaintiff verbally author- ized the making of the railway, while the authority remained, 1 Addison v. Hack, 2 Gill, 221. 2 Miller v. Auburn & Syracuse Rail- road Co., 6 Hill, 61. CHAP. VIII.] EIGHTS BY PAROL LICENSE. 465 their acts were no more a wrong to the plaintiff than if he had done them himself." [§ 292 a. The case of Stevens v. Stevens,^ in Massachusetts, very clearly illustrates the doctrine under consideration. A. gave to B. an oral license to erect and continue a mill-dam on A.'s land, and to dig a ditch through said land, to convey water to a mill that B. was about to build on his own land. B. erected the dam and dug the ditch, and afterwards erected the mill, and continued them during the life of A. After A. had granted said license, he conveyed his land to C, without any reservation. B. continued the dam and ditch, after the decease of A., for the purpose of working the said mill, and C. requested him to remove the dam and fill up the ditch, and upon B.'s refusal so to do, C. attempted to remove the dam, and tore down a part of it, and B. forcibly interposed, prevented C. from proceeding further, and repaired the injury so done to the dam by C. ; C. thereupon filed a bill in equity, praying that B. might be enjoined and prohibited from any longer continuing the dam, which was alleged to be a nuisance, and that the same might be ordered to be abated. On an issue framed and submitted to a jury, they found that the dam was a nuisance. It was held that C. was entitled to a decree for an abatement of the nuisance, and for a perpetual injunc- tion against B., to prevent its renewal. And it was also held, that B. was not responsible for any acts done in pursuance of the license before it was countermanded, and therefore was not liable to pay any expenses incurred by C. in removing the old dam ; but that he was liable for building a new dam or repairing the old one, after the license was countermanded, and that C. was entitled to have the same abated at the expense of B.J [§292 6. In a case^ where the plaintiffs consented to the building of a dam by the defendants, on condition that the work should be so done as not to injure the plaintiffs, but the work was so imperfectly executed that the current of the stream was impeded, and the water did not flow off, but set back upon the plaintiffs' wheels, it was held, that the condition on which the consent was given not having been performed, the consent or license was no longer binding on the plaintiffs, and the dam from that time became a nuisance, and the defendants liable for the [11 Met. 251.] 2 [Brown v. Bowen, 30 N.Y. 519.] 30 466 LAW OP WATERCOURSES. [chap. Till. injury it caused the plaintiffs. It was also held, that the consent of the plaintiffs, and rendering aid in the work, could only oper- ate against them by way of estoppel ; and that it could not thus operate, because of the express condition on which such aid and consent were given.] § 293. The construction is that a license to enter iipon land, does not purport to convey an interest in land ; it is substantially a promise without any consideration to support it ; and while it remains executory, may be revoked at pleasure. When executed, however, it can only, in general, be revoked, by placing the other party in the same situation in which he stood before he entered on its execution. ^ Where one party authorized another to divert a watercourse running through the lands of both, by means of a license, countermandable in its nature, and the au- thority was exercised as granted, it was held, that the party who had the power to countermand could only be restored to his rights by doing justice to the other, and tendering him the ex- pense he has incurred under the license.^ ' Per Cowen J., in giving the judg- ment of the Court, in Mumford v. Whit- ney, 15 Wend. 880. And see Case v. Weber, 2 Carter (Ind.) 108; Sutcliffe k. Wood, Jur. 75, and s.c. 8 Eng. Law & Eq. 217. ■' Addison v. Hack, 2 Gill, 221. [In Houston V. LafiFee, 46 N.H. 507, Sargent J. said, " It has been held, that, where a license has been given to the defendant to enter upon the plaintiff's land, and do acts which involve an expenditure of money, and the license becomes executed by the expenditure incurred, it is either irrevocable, or cannot be revoked without remuneration, on the ground that a revo- cation under such circumstances, without remuneration, would be fraudulent and unconscionable. Harris v. Dillingham, 6 N.H. 9; Putney v. Day, 6 N H. 430 Woodbury v. Parshley, 7 N.H. 237 Ameriscoggin Bridge o. Bragg, 11 N.H 102 ; Sampson v. Burnside, 13 N.H. 264 Carleton v. Eedington, 21 N.H. 291 Cowles V. Kidder, 24 N.H. 364; Miller v. Tobie, 41 N.H. 86. But we think the more recent decisions, however, sustain the doctrine that the license is in all cases revocable, so far as it remains un- executed, or so far as any future enjoy- ment of the easement is concerned ; Carleton o. Redington, supra; Ruggles V. Lesure, 24 Pick. 187 ; Stevens v. Ste- vens, 11 Metcalf, 251 ; Marston v. Gale, 24 N.H. 176 ; in which last case it is said that, ' to hold otherwise would be giving to a parol license the force of a convey- ance of a permanent easement in real estate. Such a doctrine cannot be sus- tained. No such right or interest in real estate can be created by parol.' See, also, upon this point. Hall v. Chaffee, 13 Vt. 150 ; Prince v. Case, 10 Conn. 375, where it is held that where such license is given by parol, and not in writing, it is countermandable at will, even when executed, so as to make any further en- joyment of the easement a ground of action, and that in such cases, where money has been expended upon the faith of such license, so that the parties cannot now be placed in statu quo, a Court of Equity would grant relief as in any other case of part performance of a parol con- tract for the sale of land or any interest therein, upon the ground of preventing fraud. Morse v. Copeland, 2 Gray, 302 ; Foot V. New Haven &c. Co., 23 Conn. 214, 223; Mumford v. Whitney, 15 Wend. 380; Wood v. Leadbitter, 13 CHAP. VIII. j RIGHTS BY PAROL LICENSE. 467 § 294. Where the defendant, in an action for the obstruction of a watercourse, by raising his dam, proved, that the person under whom the plaintiff claimed was frequently present during the erection of the dam, and did not object to or forbid its erec- tion, and even expressed an opinion that it would be beneficial to his mill ; and the plaintiff had said, that he was satisfied with the manner in which the defendant had used the water ; it was held, that these facts did not amount to a license to erect the dam, but were at most only evidence of such license ; and that consequently it was proper for the Court, upon such evidence, to leave it to the jury to say whether such license was in fact given.i 3. Extent of the Right derived from Parol Licenses executed, and as Qonveying an Interest in Land. § 295. There has been occasion, in a former chapter, to intro- duce authorities to show, that at Common Law, and by the Statute of Frauds, easements and all incorporeal hereditaments can only be created and transferred by deed, devise, or record.^ The several provisions of the well-known statute referred to, has been asserted by a very learned and eminent Judge (Lord C.J. Kenyon), to be one of the wisest laws in the English statute book;^ and according to the views of Mr. Baron Parke, there cannot be, by force of this statute, an irrevocable license to enter upon land without its amounting to an interest in lands, and which, therefore, by the force of the Statute of Frauds, can pass only by deed.* Mr. J. Littledale inquired, " Suppose he " (one of the parties in the action) " had given a parol license to a neighbor to put cattle on his premises, and that person had in consequence made pens and roads, could not the license be coun- M. & W. 838 ; Wood v. Manley, 11 Ad. Brockwell, 8 East, 308 ; and post, part 4, & El. 34. These cases all hold that a of the present chapter, " The Equitable mere license is revocable at any time, so Doctrine Concerning Parol Licenses." far as any further enjoyment of the ease- ' Johnson v. Lewis, 13 Conn. 303, per ment is concerned, at the will of the Sherman J. licensor, but they m'ay not all agree as 2 Ante, § 168-173 ; [Diinklee u. The to the form of the remedy which the Wilton B.B. Co., 24 N.H. 506.] licensee should pursue to recover back * Chaplin v. Rogers, 1 East, 194. the money he has expended ; some hold- * William v. Morris, 8 M. & W. 488. ing that it may be done in an action at [See Stevens v. Stevens, 11 Met. 251 ; law for breach of contract ; others, that Carleton «. Redington, 21 N.H. 291; it must be in e(iulty by compelling spe- Marston v. Gale, 24 N.H. 176, 178.] cific performance."] And see Winter v. 468 LAW OP WATERCOURSES. [CHAP. VIII. termandable ? " To which the counsel replied, that in such case the license was subject to technical difficulties, and that if it conveyed an interest in the land, it must be granted by lease, written and signed, or be held merely at will; and if it amount to an easement, it can pass only by deed.^ Where a rector granted to A., by parol, leave to make a vault in the parish church, for the burial of the remains of a certain person there, and also the exclusive use of the vault ; and afterwards, without the leave of A., opened the vault and buried the remains of another person there, it was held, that no action could be main- tained against him for so doing ; for that the rector could not grant the exclusive use by parol : Bayley J., said, " If it be not an interest in land, it is an easement, or the grant of an incor- poreal hereditament, which could only be effectually granted by deed, and no such instrument was executed." ^ A demise in writing, but not under seal, of a messuage, with full, free, and exclusive license for the lessee to hunt, shoot, and sport in, over, and upon the manor of the lessor, and to fish in the waters thereof, at an entire rent, was held to be altogether void.^ In a very elaborate judgment given by Mr. J. Bayley, the necessity of a deed for creating any incorporeal hereditament affecting land was expressly recognized, and formed the ground of deci- sion.* § 296. Notwithstanding the authorities adduced in the preced- ing section, establishing the doctrine, that easements and other incorporeal hereditaments, can in England pass only by deed, . there have been cases in that country to the contrary. But, as has been forcibly observed, " to give absolute effect to a parol 1 Bridges ;;. Blanchard, 1 Ad. & El. to enter upon the land and remove 636. " A license," says Lord Ellen- the building. The debtor having placed borough, " is not a grant, but may be the building upon the plaintiffs soil, by recalled immediately, and so might this his permission, was tenant at will of the license, the day after it was granted." land on which it stood. Doty v. Gorham, The license, in this case, was from the 5 Pick, 487. lord of the manor, to build a cottage on 2 Bryan v. Whistler, 8 B. & C. 288. the waste; the license had been executed, 3 Bird ^. Higginson, 4 Nev. & Man. and the cottage inhabited by the licensee. 505; and see also Somerset (Duke of) v. Eex u. Horndon, 4 M. & Sel. 565. In Fogwell, 5 B. & C. 875. Doty V. Gorham, the Supreme Court of * Hewlins v. Shippam, 5 B. & C. 222, Massachusetts determined, that where a and cited ante, § 169 ; and see also, building is placed on land of the plaintiff, Fentinam v. Smith, 4 East, 109, and cited with his permission, and the building ante, § 169, and other cases cited from was sold on an execution against the § 168 to § 173. owner of it, the purchaser had a right CHAP. VIII.] RIGHTS BY PAROL LICENSE. 469 license, and hold that it passes a perpetual right, or an absolute right, even for years, in, upon, and over the grantor's land, so as thereby to part with or prejudice any part of his interest therein, V7ould be in the teeth of the statute against frauds." ^ We do not refer to the case of Winter v. Brockwell,^ which has been so very much discussed both by the bench and at the bar, in Amer- ica as well as in England, as it is ranked among cases of another category, and, as we shall by and by show, is inapplicable to the subject immediately before us. It is one of that class of cases upon which we have already had occasion to bestow considerable attention, and which shows that a parol license carried into exe- cution may work the extinguishment of an easement.^ The doc- trine with regard to the nature and effect of a parol license, in creating an easement, had derived very considerable illustration from the case of Wood v. Leadbitter,* to which we propose to have recourse, for the purpose of removing the doubt and uncer- tainty which have been occasioned by some of the earlier cases. § 297. Four cases have been relied on in England in support of the doctrine, that there are some parol licenses which are irrevo- cable. The first is Webb v. Paternoster.^ This case, as appears from the report in Rolle, was an action of trespass brought against the defendant for eating, by the mouths of his cattle, the plain- tiff's hay. The defendant justified under Sir William Plummer, the owner of the fee in the close in which the Kay was, averring that Sir William Plummer leased the close to him, and therefore, as lessee, he turned his cattle into the close, and they ate the hay. The plaintiff replied, that, before the making of the lease. Sir Wil- liam Plummer had licensed him to place the hay on the close, till he could conveniently sell it, and that before he could conveniently sell it. Sir William Plummer leased the land to the defendant. The defendant demurred to the replication. From the arguments, as given in Rolle, it appears that the plaintiff's counsel, who was first heard, contended, first, that the license, being a license for profit, and not merely for pleasure, and being also for a certain time only, namely, till he could sell his hay, was not revocable ; 1 Sugden, V. & P. (8th Eng. ed.) 74, « Wood v. Leadbitter, 13 M. & W. 75 ; and see 1 Chitty, Gen. Praot. 336- 837 ; and 34 Lond. Law Mag. 129. 339. 5 Webb v. Paternoster, reported in 2 Winter v. Brockwell, 8 East, 308. five different books ; viz., Palmer, 71 ; 3 [Morse v. Copeland, 2 Gray, 302.] Rolle, 143 and 152 ; Noy, 98 ; Popham, 151; andGodboIt, 282. 470 LAW OF WATERCOURSES. [CHAP. VIII. and secondly, even if the Hcense was revocable, still that the lease to the defendant was an implied, and not an express, revo- cation, and therefore was inoperative against him without notice; and for this he referred to Mallory's case, 5 Rep. 111. To this latter proposition, the Court appears to have assented ; but Dod- deridge J., suggested, that, even if the license was in force, still the licenser did not, by such a license, preclude himself, nor con- sequently his tenant, from turning cattle on the land, and that the licensee ought to have taken care to protect the hay from the cattle. As to this, however, the Chief Justice expressed a doubt. The defendant's counsel was heard some days afterwards, and he alleged, that it appeared by the record, that the plaintiff had had two years to sell his hay, before the defendant's cattle had eaten it ; and he argued that the Court would say, as matter of law, that this was more than reasonable time ; and to this the Court as- sented. The plaintiff's counsel, in reply, reverted to the dis- tinction between the license for profit, and a license for pleasure ; but Dodderidge denied it, and said that a license to dig gravel, though a license for profit, is revocable ; and he said that the true distinction was between a mere license, and a license coupled with an interest. Judgment was eventually given for the defend- ant, on the ground that the plaintiff had had more than reasonable time to sell the hay. It will be seen, therefore, that the only two points decided were, first, that the question of reasonable time was for the Court, and not for the jury ; and, secondly, that two years was more than a reasonable time. The decision, therefore, itself, has no bearing on the point for which it has been cited ; and the only support which the case affords to the doctrine which has been so very often contended for, is what is said in the report of the case in Popham, to have been agreed by the Court, namely, that a license for profit for a term certain is not revocable ; a proposition to which, with the qualification we have already pointed out, we entirely accede. It is, moreover, by no means certain, that the license in Webb v. Paternoster was not a license under seal. The defendant's counsel appears, from the report in Rolle, to speak of the plaintiff as grantee of the liberty to stack hay &c. ; a form of expression not very appropriate, if used in respect of a party who had a mere parol license ; and the Chief Justice, according to the report in Popham and Palmer, says that the plaintiff had an interest which charged the land, into whose CHAP. Till.] RIGHTS BY PAROL LICENSE. 471 hands soever it came. And Dodderidge J., according to the report in Palmer, arguing that the lessee certainly might turn his cattle into his own field, and was not bound to stop their mouths, says it was folly for the plaintiff, that he did not, together with the licensee, take a covenant that it should he lawful for him to fence the hay with a hedge. From these expressions (and there are others in the various reports of the case having a similar aspect), it certainly seems possible that the license was under seal ; and then the only point would be that which alone was in fact decided, namely, whether, supposing the plaintiff to have acquired by grant a right to stack his hay on the land for a limited time, that limited time had expired. Even supposing the license to have been a mere parol license, yet the strong probability is, that Webb had purchased the hay from Sir William Plummer, as a growing crop, with liberty to stack it on the land, and then the parol license might be good, as a license coupled with an inter- est. Be this, however, as it may, the decision, as we have already pointed out, has ,very little, or rather no bearing on the point before us ; and the judgment of Dodderidge J., as given both in Rolle and Palmer, is in strict accordance with what was after- wards laid down by Vaughan C. J., and which may be considered to be consonant both to principle and authority .^ § 298. The next decision in England, in order of time, is one which has been much commented on ; viz., that of Wood v. Lake.^ It appeared in this case, that a parol agreement was entered into for liberty to stack coals on a part of the close for seven years, and that during the term, the person to whom it was granted should have the sole use of that part of the close, upon which he was to have liberty of stacking coals. It was held, that this agree- ment was valid, Lee C.J., and Dennison J., relying on the above case of Webb v. Paternoster. The decision in this case of Wood V. Lake has been forcibly attacked by Sir Edward Sugden, as a relaxation of the Statute of Frauds, which holds out a strong temptation to a man in possession of land, under a parol agree- ment, to commit perjury, in order to insure to himself a more per- manent interest in the land than the statute would permit him to claim, were the real transaction disclosed. That statute, he 1 Judgment of Baron Alderson, in For the judgment of C.J. Vaughan, see Wood ^. Leadbitter, 13 M. & W. 836. ante, note 5 to § 285. 2 Sayer, 3. 472 LAW OP WATERCOURSES. [chap. vtii. says, " expresses an anxious intention to embrace interests of every description," and -"how," says he, " can it be argued, that a license, not countermandable, and which confers the sole use of a place on a man, is not an interest within the statute?"-^ No report of this case is given of the arguments at the bar.^ " Sup- posing," says Baron Alderson, in commenting upon this case, " the court to have been right in deciding that this was not a lease (which, however, is doubted by Sir E. Sugden),^ yet no 1 1 Sugd. V. & p. (8th Am, ed.) 123, 124. 2 But from a MS. report, which the Court, in Wood v. Leadbitter (ubi sup.) had the opportunity of consulting, througli the kindness of the representatives of the late Mr. J. Burrough, it appears that the argument turned wholly on the point, whether the privilege of stacking the coals did or did not amount to a lease ; for if it did, then the defendant contended it was void after three years, under the Statute of Frauds. The following is the MS. copy of the report of Mr. J. Bur- rough : — " Case — A parol agreement, that the plaintiff should have liberty of laying and stacking of coals upon defendant's close, for seven years. Afterwards, de- fendant forbids plaintiff to lay any more coals there, and shuts up his gates. De- fendant says, that plaintiiFwas but tenant at will. Qusere, if this was an interest within the description of the Statute of Frauds. " Sergeant Booth. — This is but a per- sonal license or easement. 1 Roll. Abr. 859, p. 4; Roll. Rep. 143, 152; 1 Saund. 321. A contract for sale of timber grow- ing upon the land, has been determined to be out of the statute. 1 Ld. Raym. 182. Vide the difference of a license and a lease. 1 Lev. 194. This must be taken only as a license, for that the coal- loader also is to have benefit as well as plaintiff, " Sergeant Poole, for defendant. — Question is, if any interest in land passed by the agreement; for, if interest passed, it is within the statute, ergo void, being for longer term than three years. Bro. License, p. 19 ; Thome v. Seabright, Salk. 24 ; Webb v. Paternoster, Poph. 151. A license to enter upon and occupy land, amounts to a lease. The plaintiff is not confined to a particular part of the close, and might have covered the whole, if he pleased ; on that account it is an uncer- tain interest. The distinction of license to plaintiff, and his coal-loader, is noth- ing; he could not stack the coal himself, and is merely vague. Easement may be of more value than the inheritance ; ex. gr. way-leave. "Lee C.J. — If this be a lease, as it is argued, it is within the statute, and void for not being in writing. No answer as yet is given in the case in Popham, when the stacking of hay, vfhieh is similar, was determined to be a license. The word uncertain, in the statute, means uncer- tainty of duration, not of quantity. License was not revocable, and here is no case to show this to be considered as a lease. " Dennison J. — This seems not to be an interest, so called, in the language of the law, although easements, in general speaking, may be called interests. Had the plaintiff such an interest as to have maintained a clausum fregif! Certainly not.- If a man licenses to enjoy lands for five years, there is a lease, because the whole interest passes, but this was only a license for a particular purpose. " Foster J. — These interests, grounded upon licenses, are valuable, and deserve the protection of the law, and therefore may perhaps have been within the in- tention of the words of the statute. — Desired further time for consideration: stood over. "N.B. — Afterwards, upon motion for judgment the last day of the term, and gave judgment for plaintiff. Foster non dissentiente." 3 1 Sugd. V. & P. (8th Am ed.) 124. CHAP. V]II.] BIGHTS BY PAROL LICENSE. 473 grounds are stated on which it could be held good as an easement originating merely by parol. Up to this case, not a single decision is to be found giving countenance to any such proposition ; and we are compelled to say, that, if the Court proceeded on the ground that the plaintiff had acquired the easement by the parol license, we do not think it can be supported. But the case may, perhaps, have been decided on another ground. The defendant himself was the party who had agreed to give the easement to the plain- tiff; and although the action is stated to have been an action on the case, it may have been a mere assumpsit — an action on the case on promises ; and in such an action the plaintiff would cer- tainly be entitledi to recover, if the contract was not (and proba- bly the Court considered it was not) a contract concerni^g land, within the fourth section of the Statute of Frauds.^ § 299. The next English case is Taylor v. Waters.^ It was an action by the plaintiff against the door-keeper of the opera-house, for preventing him from entering the house during the perform- ance of an opera. It appeared that one W. Taylor, being in possession of the opera-house, as a lessee, for a long term of years, by a deed dated the 24th of August, 1792, assigned his interest therein to trustees, on various trusts, for creditors and other claimants, and ultimately in trust for himself. After the execution of this deed, Taylor continued in possession, by the permission of the trustees, and he carried on and managed tlie af- fairs of the theatre. In March, 1799, he, by deed, granted to one Gourgas, for a valuable consideration, six silver tickets, en- titling the holders to admission to the theatre. One of these tickets was sold by Gourgas to the plaintiff in July, 1799, but no deed of assignment to him was executed. In 1800, Taylor's trustees took possession of the theatre. The plaintiff, however, was allowed to attend the theatre, by virtue of his ticket, until the year 1814, when the defendant Waters, as servant of the trustees, prevented him from entering the theatre ; and for this obstruction the action was brought. The cause was tried before C.J. Gibbs, and a verdict found for the plaintiff, and that ver- dict was afterwards upheld by the Court of Common Pleas. The grounds of the judgment were, that the right under the silver ticket was not an interest in land, but a license irrevocable 1 Wood V. Leadbitter, ubi sup. 2 Taylor v. Waters, 7 Taunt. 374. 474 LAW OF WATERCOURSES. [CHAP. YIII. to permit the plaintiff to enjoy certain privileges thereon ; that it was not required by the Statute of Frauds to be in writing, and, consequently, might be granted without a deed. The Chief Jus- tice, in support of that doctrine, relied on Webb v. Paternoster, which, he said, showed that a beneficial license, to be exercised upon land, might be granted without deed, and could not be countermanded, at least after it had been acted on. The same case, he added, showed that the interest was not such an interest in land as was required by the Statute of Frauds to be in writ- ing ; as to which last point, all doubt, if there remained any, had (he said) been removed by the case of Wood v. Lake. This judgment is stated by the learned reporter, to have comprised the substance of the arguments on both sides, and which, therefore, he does not give in his report. It must be inferred from this, that the attention of the Court was not called in the argument to the principles and early authorities, to which we have adverted. Brooke, in his Abridgment, Dodderidge, in the case of Webb v. Paternoster, and Lord Ellenborough, in the case of Rex v. Horn- don-on- the- Hill, 4 M. & Selw. 562, all state in the most distinct manner, that every license is and must be in its nature revocable, so long as it is a mere license. Where, indeed, it is connected with a grant, there it may, by ceasing to be a naked license, be- come irrevocable ; but then it is obvious that the grant must exist independently of the license, unless it be a grant capable of being made by parol, or by the instrument giving the license. Now, in Taylor v. Waters, there was no grant of any right at all, unless such right was conferred by the license itself. C.J. Gibbs gives no reason for saying that the license was a license irrevocable, and it cannot but be presumed that he would have paused before he sanctioned a doctrine so entirely repugnant to principle and to the earlier authorities, if they had been fully brought before the Court. Again, the Chief Justice is represented as saying that the interest of the plaintiff was not an interest in land, within the Statute of Frauds, and that consequently it might be granted without deed. How the circumstance, that the interest was not an interest in land within the Statute of Frauds showed it to be grantable without deed, is not discoverable. The precise point decided in Webb v. Paternoster, is not adverted to, and it is as- sumed, without discussion, that the license there must have been a parol license, and a naked license^ unconnected with an interest, CHAP. VIII.] BIGHTS BY PAROL LICENSE. 475 capable of being created by parol. The action was not, as it may have been in Wood v. Lake, an action founded on the contract. It was an action on the case for the obstruction, and was founded on the supposition that an actual right to enter and remain in the theatre had vested in the plaintiff, under the license conferred by the silver ticket. With all deference, says Baron Alderson, to the high authority from which the judgment in Taylor v. Waters proceeded, we feel warranted in saying, that it is to the last de- gree unsatisfactory ; an observation which we have the less hesi- tation in making, in consequence of its soundness having obviously been doubted by the Court of King's Bench, and Mr. Justice Bayley, in the case of Hewlins v. Shippam.^ § 300. The above case of Taylor v. Waters, was overruled by the decision of the Court of Exchequer, in 1845, in Wood v. Lead- bitter. To an action of trespass for assault and false imprison- ment, the defendant pleaded, that, at the time of the supposed trespass, the plaintiff was in a close of Lord E., and that the defendant, as the servant of Lord E., and by his command, molliter manus imposuit on the plaintiff to remove him from the said close, which was the trespass complained of. The plaintiff replied that he was in the close by the leave and license of Lord E. ; which was traversed by the rejoinder. The evidence was, that Lord E. was steward of the Doncaster races ; that tickets of admission to the Grand Stand were issued, with his sanction, and sold for a guinea each, entitling the holders to come into the stand, and the inclOsure round it, during the races ; that the plaintiff bought one of the tickets, and was in the inclosure dur- ing the races ; that the defendant, by order of Lord E., desired him to leave it, and, on his refusing to do so, the defendant, after a reasonable time had elapsed for his quitting it, put him out, using no unnecessary violence, but not returning the guinea. It was held, that on this evidence the jury were properly directed to find the issue for the defendant ; and that a right to come and remain for a certain time on the land of another, can be granted only by deed ; and a parol license to do so, though money be paid for it, is revocable at any time, and without paying back the money .2 1 Hewlins v. Shippam, 5 B. & C. 221 ; 2 Wood v. Leadbitter, IS M. & W. Judgment of Baron Alderson, in Wood v. 837, ubi sup, ; [Adams v. Andrews, 15 Leadbitter, ubi sup, Q-B. 284 ; Morse v. Copeland, 2 Gray, 805.1 476 LAW OP WATERCOURSES. [CHAP. VIII. § 801. The fourth and last English case, considered by Baron Alderson, was the more recent one in the Queen's Bench^. That was an action for trespass quare clausum f regit ; plea, that defend- ant was possessed of a large quantity of hay, being on the plain- tiff's close, and that by leave of plaintiff he entered on the close in question, to remove it. Replication, de injuria. It was proved at the trial, that the hay in question was sold in January, 1838, by the plaintiff's landlord, who had seized it as a distress for rent. The conditions of the sale were, that the purchaser of the hay might leave it on the close until Lady-day, and might in the mean time come on to the close from time to time, as often as he should see fit, to remove it. These conditions were assented to hy the plaintiff. The defendant became the purchaser, and after- wards, and before Lady-day, the plaintiff locked up the close. The defendant broke open the gate, in order to remove the hay. A verdict was found for the defendant, Erskine J. telling the jury, that the license to come from time to time to remove the hay was irrevocable. Mr. Crowder moved to set aside this verdict, on the ground that the license was necessarily revocable, and was in fact revoked. But the Court of Queen's Bench refused to grant a rule, and we think quite rightly. This was a case not of a mere license, but of a license coupled with an interest. The hay, by the sale, became the property of the defendant, and the license to remove it became, as in the case of the tree and the deer, put by, C.J. Vaughan, irrevocable by the plaintiff; and the rule was properly refused.. The case was analogous to that of a man tak- ing my goods, and putting them on his land, in which case I am justified in going on the land and removing them.^ It appears, therefore, that the only authority necessarily supporting the pres- ent plaintiff in the proposition for which he is contending, is the case of Taylor v. Waters, in which the real difficulty was not dis- cussed, nor even stated. It was taken for granted, that, if the Statute of Frauds did not apply, a parol license was sufficient, and the necessity of an instrument under seal, by reason of the inter- est in question being a right in nature of an easement, was by some inadvertence kept entirely out of sight ; and for these rea- sons, even if there had been no conflicting decisions, we should have thought that case to be a very unsafe guide in leading us to 1 Wood V. Manley, 11 Ad. & El. 34. - Vin. Abr. Trespass (H.) a 2, pi. 13; and Patrick v. Colerick, 3 M. & W. 483, ' CHAP. VIII.J RIGHTS BY PAROL LTCENHE. 477 a decision, on an occasion where we were called on to lose sight of the ancient landmarks of the Common Law. We are not, however, driven to say that we shall disregard that case merely on principle. Giving it the full weight of judicial decision, it is met by others, which we must entirely disregard, before we can adopt the argument of the plaintiff. In the case of Fentinam v. Smith,^ and Rex v. Horndon-on-the-Hill,^ which were before Tay- lor V. Waters, Lord Ellenborough and the Court of King's Bench, expressly recognized the doctrine, that a license is no grant, and that it is in its nature necessarily revocable, and the further doc- trine, that, in order to confer an incorporeal right, an instrument under seal is essential. And in the elaborate judgment of the Court of King's Bench, given by Bayley J., in Hewlins v. Ship- pam,3 the necessity of a deed, for creating any incorporeal right, affecting land, was expressly recognized, and formed the ground of the decision. It is true, that the interest in question in that case was a freehold interest, and on that ground Bayley J. sug- gests that it might be distinguished from Taylor v. Waters ; but in an earlier part of that same judgment, he states, conformably to what is the clear law, that, in his opinion, the quantity of in- terest made no- difference ; and the distinction is evidently ad- verted to by him, not because he entertained the opinion that it really was of importance, but only in order to enable him to de- cide that case without, in terms, saying that he did not consider the case of Taylor v. Waters to be law. The doctrine in Hew- lins V. Shippam has since been recognized and acted upon in Bryan v. Whistler,* Cocker v. Cowper,^ and Wallis v. Harrison,^ and it would be impossible for us to adopt the plaintiff's view of the law, without holding all those cases to have been ill decided. It was suggested that, in the present case, a distinction might exist, by reason of the plaintiff 's having paid a valuable consid- eration for the privilege of going on the stand.- But this fact makes no difference-; whether it may give the plaintiff a right of action against those from whom he purchased the ticket, or those who authorized its being issued and sold to him, is a point not necessary to be discussed ; any such action would be founded on 1 Fentinam v. Smith, 4 East, 107. ^ Bryan v. Whistler, 8 B. & C. 288. 2 Rex ,;. Horndon on-the-HiU, 4 M. & 5 Cooker w. Cowper, 1 Cr.,M. &R. 418. Sel. 565. ^ Wallis v. Harrison, 4 M. & W. 538. 8 Hewlins v. Shippam, 5 B. & C. 222. 478 LAW OF WATERCOURSES. [chap. vin. a breach of contract, and would not be the result of his having acquired by the ticket a right of going upon the stand, in spite of the owner of the soil ; and it is suiEcient, on this point to say, that in several of the cases we have cited (Hewlins v. Shippam, for instance, and Bryan v. Whistler), the alleged license had been granted for a valuable consideration, but that was not held to make any difference. § 302. In the United States, as in England, there have been some decided cases which approach to, and favor the doctrine in Wood V. Lake, &c. ; and the cases of Kicker v. Kelley,i and Clem- ent V. Durgin,^ in Maine, have been held by the Supreme Court of New York to let in a verbal distinction, under which, " if re- tained and made applicable in its full extent, the Statute of Frauds would in many important respects be repealed."^ In Mumfold V. Whitney in New York,* in 1836, the principal Eng- lish and American authorities on the subject, down to that period, were carefully reviewed and compared with each other, and the 1 Bicker v. Kelley, 1 Greenl. 117. 2 Clement v. Durgin, 6 Greenl. 9, 13 ; and see Blanchard v. Baker, 8 Greenl. 253. ^ Miller v. Auburn & Syracuse Rail- road Co., 6 Hill, 61. There are cases in other States also, to which the above comments by the Supreme Court of New York are not entirely inapplicable. It was held in New Hampshire, that where A. gave a parol license to B., to erect a dam on A.'s land, for the benefit of both, that after the license had been executed, it could not be revoked, without tender- ing to B. the expenses of erecting the dam ; and that if it could be revoked, it would be as much the business of A. as of B. to remove the dam. Woodbury «. Parshley, 7 N.H. 23. So in the same State, it was held, that a license to build and maintain a bridge on another's land, may be proved by parol, and is not such an easement or interest in land as to be within the Statute of Prauds. Ameris- coggin Bridge v. Bragg, 11 N.H. 102. [But in subsequent cases in New Hamp- shire, it has been held, that an oral license to be exercised upon the land of another is revocable, at the pleasure of the party giving it, so far as it remains unexecuted, and will not justify any acts done under it after its revocation. Houston v. Laffee, 46 N.H. 505, 507 ; Marston v. Gale, 24 N.H. 176 ; Cowles v. Kidder, 24 N.H. 364.] In a case in the Supreme Court of Georgia, A. and B. were joint owners of a lot of land, and no partition had been made between them. It was, however, under- stood, that A. should have the east, and B. the west end of the tract. B. agreed that A. might erect a mill on his (A.'s) half, and cut as much timber off the west half and overflow as much of the land as might be necessary for that; purpose. Afterwards B. sold to C, the latter having agreed expressly with A. to abide by these stipulations, which B. exacted from him before he would consent to sell. After the dam was partly constructed, and timbers collected for building the mill, C. sold to D., who shortly thereafter notified A. to discontinue the work, and, upon his refusal, brought an action of trespass for the overflowing of his land by backwater. It was held, that under the above circumstances, the action could not be maintained, and that the original parol agreement could not be revoked, after it had been executed at the defend- ant's expense. Speffield v. Collier, 3 Kelly (Geo.) 82. [See Houston v. LaflTee, 46 N.H. 507.] 1 Mumford v. Whitney, 15 Wend. 380. CHAP. VIII.J EIGHTS BY PAROL LICENSE. 479 opinion of the Court was directly opposed to the doctrine, that parol licenses are irrevocable. The question which the case pre- sented, was whether a parol agreement, that a party may abut and erect a dam upon the land of another, not for a temporary, but for a permanent purpose, as the erecting of water-power for the use of mills, and other hydraulic works, is void, within the Statute of Frauds ; and it was decided, that it was void within that statute.^ The decision in this case, and the general doc- trine laid down by the Court, were expressly recognized and ap- proved by the Supreme Court, in 1843, when the Court were of opinion, that if a contrary doctrine was established, " parol licenses irrevocable would be made, in effect, to pass estates of freehold ; and the well-established rule of the Common Law too, that easements and other incorporeal hereditaments shall pass by deed only, would be nearly repealed. You have only to throw the grant into the form of a parol license, and, on its being executed, both the Statute and the Common Law are evaded." Therefore, the owner of lands cannot grant the right to enter upon and occupy them by a railroad for an indefinite time, with- out a conveyance sufficient to carry a freehold.^ In another case in New York, decided at a much earlier period than either of the above mentioned, it appeared that one G. gave a parol license in writing to one H., to build a house above the mineral spring at New Lebanon, and to occupy it during his necessity or pleasure, and that H. built a small house which he occupied for seventeen years, and then sold it to one C. The Court held, that H. had only a personal license, or privilege to inhabit, and had no title to the premises ; and that his sale to C. put an end to the privilege.^ § 303. The doctrine in Nor*h Carolina is, that a parol license may be countermanded, and this " to avoid the danger of chang- ing or affecting a man's real property by suborned oaths." * In Bridges v. Purcell, in that State,^ it was held, that a verbal authority to overflow land by a mill-dam, necessarily ceased with the life of the person giving it. In this case, the Court, by Gas- ton J., said, " It is often difficult to distinguish between a license and a mere authority, and an interest or a license coupled with 1 [See Stevens v. Stevens, 11 Met. ^ Jackson v. Hull, 4 John. 418. [See 251, 257 ; Prince v. Case, 10 Conn. 375 ; ante, § 285.] Leidensparger v. Spear, 17 Maine, 123.] * Anon. v. Deberry, 1 Hay. (N.C.) 248. 2 Miller v. Auburn & Syracuse Rail- ' Bridges v. Purcell, 1 Dev. & Batt. road Co., ubi sup. " (N.C.) 492. [See ante, § 285.] 480 LAW OP WATERCOURSES. [CHAP. Till. an interest. It necessarily follows, that what is done under either, while in force, is binding upon him who has granted it. Until the license was revoked, the keeping of the water upon the land was lawful. It is a general principle, that a mere license may be countermanded ; and it is equally a general principle, that an interest once passed cannot be recalled. The extent of the grant, whether it be of an authority or an interest, depends not on any technical words, but upon the intention of the parties. Whether a license to do an act which in its consequences perma- nently aifects the property of him who gives it, when so acted on, that what is done cannot be conveniently undone, may be regarded as the grant of an interest to the extent of the conse- quences thereby authorized, and therefore not revocable ; or whether such license does not necessarily imply a permission for the thing done to remain, notwithstanding the continuing conse- quences ; and therefore the licenser, on a principle of good faith, may be forbidden to withdraw it, without indemnifying him who trusted thereto ; ^ whether these or either of these principles can be extracted from the adjudications, we are of opinion, that they do not uphold the instructions complained of.^ The right to pond water on another's land, is an incorporeal hereditament, a right not indeed to the land itself, but to a privilege on and upon the land, impairing to that extent the dominion of the pro- prietor therein. Set up as a permanent interest granted to the vendor of the plaintiff, transferable by him, passing with the land 1 [In Dunklee v. The Wilton Railroad only channel ; and as to all the parties, Co., 24 N.H. 506, Bell J. said, "Inde- and those who claim under them, it must pendently of the technical notion of the be regarded as the natural channel, with Common Law, which requires all grants all the easements and incidental rights of incorporeal hereditaments to be in which would belong to it if there never writing, and of the Statute of Frauds, had been any other." In regard to sub- which requires all creations and assign- stituting one way for another by an exe- ments of any interests in land to be in cuted oral agreement, see Pope v. Deve- writing, we suppose there can be no reux, 5 Gray, 409 ; Smith v. Lee, 14 Gray, doubt that, by a common agreement of 473 ; Gage v. Pitts, 8 Allen, 531 ; Reign- all parties interested, though merely ver- olds v. Edwards, Willes, 282 ; Hamilton bal, any change may be made in the o. White, 1 Selden, 9 ; Crounse v. Wem- actual state of property, and easements pie, 29 N.Y. 640 ; Lovell v. Smith, 3 created as a necessary consequence of C.B. n s. 120 ; Dean ... Colt, 99 Mass. that change ; as, for example, a new 484, 485.] channel may be made for a stream, the '' The instructions to the jury were, water turned into it, and the old water- that the plaintiff could not recover unless course abandoned or obliterated, and the the dam had, subsequently to the license new channel would thenceforth be the been raised higher. CHAP. VIII.J RIGHTS BY PAROL LICENSE. 481 to the defendants, it is inoperative, because it is a freehold inter- est, and cannot pass but by deed. Regarded as a mere license, however irrevocable, between the parties (if indeed, there can be such without an interest), it is difficult to see how it can be binding between the plaintiff and the defendants. The ancestor of the plaintiff granted a license, and the plaintiff has succeeded to all his estate. Now, if the effect of the license be not to pass any interest out of, or impose any charge upon the land, the plaintiff has succeeded to an unlimited and unshackled fee-simple therein. A mere authority necessarily ceases with the life of the grantor. The plaintiff's ancestor granted a license to the vendor of the defendants ; but regarded as a license, how does it inure to the benefit of the defendants ? If it passed as an appurtenance to the land, it partook of its nature ; it was more than an author- ity, it was an hereditament. To hold, that a permission thus given, shall operate for ever for the benefit of the grantee and his assigns, against the grantor and his heirs, would be in effect to permit a fee-simple estate to pass under the name of an irrevo- cable license. Purchasers would never know what incumbrances were on their lands, and instead of the solemn and deliberate instruments which the law requires as the indispensable means of transferring freeholds, valuable landed interests would be made to depend wholly on the integrity, capacity, or recollection of witnesses." § 304. In Hays v. Richardson, in the Court of Appeals of Maryland,^ it was held, that an authority to open and to keep open a way through a field, must be executed under the hand and seal of the owner of the land, and recorded. In giving the opinion of the Court, Dorsey J. commented with censure and severity upon the cases of Wood v. Lake, and Taylor v. Waters ; and he said, " We feel no disposition, for the sake of analogy, to give a similar interpretation to our Act of Assembly of 1766, regulating the execution and enrolment of conveyances of real property, to that given in Wood v. Lake to the Statute of Frauds. The language of its provision comprehends the privi- lege attempted to be conferred by the instrument before us, and the policy of the law, the interests and convenience of the pub- ' lie, forbid that we should restrict its operation. In no other ' Hay3 V. Richardson, 1 Gill & J. 366. 31 482 LAW OF WATERCOURSES. [CHAP. VIII. way can the leading object of the legislature, the ' securing the estates of purchasers,' be effected. Their design was, that all rights, incumbrances, or conveyances, touching, connected with, or in any wise concerning land, should appear upon the puMic records. If parol or unrecorded licenses of the character of that in controversy were tolerated, frauds and losses upon purchasers would be innumerable, as may readily be imagined." ^ § 305. It was expressly held by the Supreme Court of Massa- chusetts, in the year 1814, that licenses, which in their nature amount to the granting of an estate for ever so short a time, are not without deed.? The defendant, in the case referred to, claimed by his plea a right to enter upon the plaintiff's close for the purpose of repairing a dam, &c. ; because those whose estate the plaintiff then held permitted him to enter for that purpose. From this permission he sought to infer a right to enter when- ever the state of the mill owned by him required it. Aware that he could not set up any estate of a permanent nature in the plaintiff's close, without averring and proving a deed, or some other lawful conveyance, he maintained that the fact alleged in his plea amounted to a license given him by the former owner of the land to make and repair the dam, &c. ; and contended, first, that such license may be by parol ; and, secondly, that it is not in its nature countermandable. Parker, C.J., in delivering the opinion of the Court, said, " The argument had some plausibility in it, when it was first stated ; but upon more mature considera- tion, it seems to have no foundation in principles of law. A license is technically ah authority given to do some one act or a series of acts on the land of another, without passing any estate in the land ; such as a license to hunt, a license to cut down a certain number of trees. These are held to be revocable when executory, unless a definite term is fixed, but irrevocable when executed. It is also holden that such licenses to do a particular act, but passing no estate, may -be pleaded without deed. But licenses which in their nature amount to the granting of an estate for ever so short a time, are not good without deed, and are consid- 1 In "Wright v. Freeman, in Maryland, create a new one ; and that, as a parol 5 H. & John. 467, it was held by the license, it might be revoked by either Court of Appeals, of that State, that a party. simple parol agreement could not operate '•'Cook v. Stearns, 11 Mass. 533; to extinguish an old right of way, or to [Stevens v. Stevens, 11 Met. 251.] CHAP. VIII.] EIGHTS BY PAROL LICENSE. 483 erecl as leases, and must always be pleaded as such. It was also argued in this case, that, by the act providing for the support and regulation of mills, a right to acquire property in the land of another for the purpose of erecting or carrying on a mill, was contemplated to exist by parol. But the Court held, that the act referred to did not provide a mode of acquiring title to the mill on the land ; but merely superadded the right of flowing land, upon compensation, according to the statute, by those who had legally obtained the right to build a mill.i § 306. In Benedict v. Benedict, in Connecticut,^ the Court seem to have adopted the ancient doctrine of the Common Law, that a fixed and permanent building erected upon another's land, even by his license, became his property ; but if in its nature and structure it was capable of being removed, and a removal was contemplated by the parties, it was personal estate in the builder ; and in case the license should be improperly revoked, the only remedy, said Swift J., is in equity. Jn Prince v. Case, in that State,^ it appeared A. was owner in fee-simple of a tract of land, and that, in 1817, he gave B. liberty' to erect a dwelling-house for his use on said land ; B. erected it accordingly, and lived therein until 1828, when he died. Before the event of liis death, he executed a deed of such house to C, his son. A. had pre- viously conveyed the land to D. hy deed, containing no notice or exception of such license. In 1829, D. brought ejectment for the land and house against the person then in possession, recov- ered judgment, and in July, 1831, by virtue of an execution, was put into possession, and so continued until the fall of 1832, when he took down the house, thereby destroying it as such, but did not take away the materials. In an action of trespass brought by C. against D., it was held that D. was not liable. In this case the Court say, that a license given to erect a dam on the land of another, and continue it there for ever, the license to continue it would not be irrevocable, as it would be " in the face of the statute which requires all conveyances of an interest in lands to be in writing." In Branch v. Doane, in Connecticut,* 1 The Supreme Court of Massachu- permanent interest in land can be trans- setts, in Whitmarsh v. Walker, 1 Met. ferred only by writing." 331 ; Dyer v. Sanford, 9 Met. 395 ; Sey- '■' Benedict v. Benedict, 5 Day (Conn.), mourj;. Carter, 9 Met. 520, recognize and 469. expressly concur in the doctrine laid ' Prince v. Case, 10 Conn. 310. down in Mumford v. Whitney, in New * Branch v. Doane, 17 Conn. 402. York (see ante, § 302), namely, " that a 484 LAW OF WATERCOURSES. [CHAP. Till. the Court say, " If the words, whatever they may be, which con- fer authority on another to take possession of land, are not accompanied with language or stipulations which evince such a contract between the parties (a lease), they would arhount to a mere license, which would indeed be a sufficient excuse on a charge of trespass by the owner, but would not amount to a lease, nor convey any estate or interest in land." § 307. In Vermont, it is held, that a parol license to flow is, on account of the Statute of Frauds, countermandable at will, even if executed ; but, at the same time, the opinion is enter- tained, that if expense has been incurred, so that the parties cannot be placed in statu quo, the person so expending it is en- titled to relief in equity.^ § 308. It has been considered, that the result of the authori- ties as to the revocation of executed parol licenses, is the estab- lishment of a distinction between a license executed upon land of the licenser, and one executed upon the land of the licensee, which, in its consequences, is prejudicial to the land of the licenser.^ But it is apprehended, that this is true only as it re- gards light, or at least that such a rule is wholly inapplicable to a watercourse ; and that it is so, we shall endeavor to show. The principal authorities which seem to be relied on in support of the proposition above stated, are Winter v. Brockwell,^ and Liggins V. Inge.* These two cases require a careful attention, in order accurately to compare them, and thus render obvious the fallaciousness of the conclusion arrived at as above men- tioned. § 309. The declaration in Winter v. Brockwell, stated that the plaintiff was entitled to an easement of a passage for light and air to his dwelling-house, through an ancient window, over an open space of land of the defendant, and that, by means of such open space, noisome smells from the defendant's house evaporated, without occasioning any nuisance to the occupier of the plaintiff's house, and that the defendant wrongfully erected a skylight above the plaintiff 's ancient window, and covering the 1 Hall V. Chaffee, ]3 Vt. 150. [See Curtis r. Noonan, 10 Allen, 409 ; Dyer r. Houston V. Laffee, 46 N.H. 508.] Sanford, 9 Met. 402 ; Veglite v. The Rari- 2 Such is the couclusion arrived at by tan Water Power Co., 4 C. E. Green, a writer in the 84th vol. of the London 153, 154.] Law Magazine, p. 129. [And also in » Winter v. Brockwell, 8 East, 308. Morse v. Copeland, 2 Gray, 802. See * Liggins v. Inge, 7 Bing. 682. CHAP. VIII. J , RIGHTS BY PAROL LICENSE. 485 open space above mentioned, by means of which " the light and air were prevented entering the plaintiff's window and into the house, and noisome smells, arising from the adjoining house, were prevented from evaporating, and entered the plaintiff's dwelling- house." The defendant pleaded the general issue. It appeared in evidence, that the open space " which belonged to the defend- ant's house had been inclosed and covered by a skylight in the manner stated, with the express consent and approbation of the plaintiff, obtained before the inclosure was made, who also gave leave to have part of the framework nailed against his wall ; some time after it was finished, the plaintiff objected to it, and gave notice to have it removed ; but Lord Ellenborough was of opinion that the license given by the plaintiff to erect the sky- light, having been acted on by the defendant and the expense incurred, could not be recalled, and the defendant made a wrong- doer, at least not without putting him in the same situation as before, by offering to pay all the expenses which had been incurred in consequence of it. And under this direction the defendant obtained a verdict." On motion for a new trial, in support of which no argument appears to have been advanced, the learned Judge said, " That the point was new to him when it occurred at the trial, but then he thought jt very unreasonable, that after a party had been led to incur expense in consequence of having a license from another to do an act, and the license had been acted upon ; that the other should be permitted to recall his license, and treat the first as a trespasser for having done that very act. That he had afterwards looked into the books upon this point, and found himself justified by the case of Webb V. Paternoster,^ where Haughton J. lays down this rule, that a license executed is not countermandable, but only where it is ex- ecutory. And here the license was executed." ^ § 310. The above case appears to have undergone very little consideration ; but it may here just be mentioned, that the deci- sion is sustained by all those decisions that have before been con- sidered, wherein it is held, that an easement may be abandoned and extinguished (not created^ by the party entitled to it, by 1 In Blancliard v. Bridges, 1 Ad. & by implioation to making a window to El. 536, it was decided, that a license lools on the premises of the licenser, simply to set a ladder on the land of an- ^ Cited ante, §§ 244-253. other, could not be construed to extend 486 LAW OF WATEECOUESES. [CHAP. VIII. express permissions, accompanied by corresponding acts, on his part.^ § 311. In the other case of Liggins v. Inge (a case of palpable misapprehension of the law), it appeared, that the predecessor of the plaintiff, who was entitled to a flow of water to his mill, over the defendants' land, by a parol license, authorized the defend- ants to cut down and lower a bank, and to erect a wear upon their own land, the effect of which was to divert into another channel the water which was requisite for the working the plaintiff's mill. Subsequently the plaintiff complained to the defendants of the injurious effects of the wear, and called upon them to restore the bank to its ancient height and to remove the wear ; and, upon refusal on the part of the defendants to do this, an action was brought. The Court held the parol license not to be revocable, on the ground, that it had been executed. The argument on the part of the plaintiff, very properly was, that such a parol license was in its nature eountermandable at any time, at the pleasure of the party who gave it ; that to hold otherwise would be to allow to a parol license the effect of passing to the defendants a perma- nent interest in part of the water which before ran to the plain- tiff "s mill ; which interest could only pass by grant under seal. But Tindal C.J., in his judgment, said, " We do not consider the object, and still less the effect, of the parol license, to be the transferring from the plaintiff 's father to the defendants any right or interest whatever in the water which was before accustomed to flow to the lower mill, but simply to be an acknowledgment, on the part of the plaintiff's father, that he wanted such water no longer for the purpose of his mill ; that he gave back again and yielded up, so far as he was concerned, that quantity of water which found its way over the wear or fletcher, which he then consented should be erected by the defendants. And we think, that after he has once signified such relinquishment, whether by words or acts, and suffered other persons to act upon the faith of such relinquishment, and to incur expense in doing the very act to which his consent was given, it is too late then to retract such consent, or throw on those other persons the burden of restoring matters to their former state and condition." The learned Judge cites as authority, the case of Winter v. Brockwell ; and he besides 1 [See Morse v. Copeland, 2 Gray, 302; Stevens v. Stevens, 11 Met. 255.] CHAP. VIII.] EIGHTS BY PAEOL LICENSE. 487 assumes, that water is puhlici juris, emd that the plaintiff's right to the use of the water was derived from occupancy, and con- siders that there is nothing unreasonable in adjudging that a right which is iAws 'gained, may be lost by abandonment. Before proceeding to comment upon this judgment of the learned Judge, we will give an account of a decision in a case in Maryland, to which our proposed comments will equally apply; as it was made on the authority of this case, and on that of Winter v. Brockwell.^ § 312. The action in the Maryland case was an action on the case for the diversion of a watercourse. The defendant offered to prove by parol evidence, that before the diversion of the water, • it was agreed verbally between the 'plaintiff and the defendant, that the defendant might divert the watercourse in the manner complained of, for the purpose of erecting a mill in contempla- tion by the defendant, on his land, if he, the defendant, would allow the plaintiff the use of a certain way leading from the plain- tiff 's land and through the defendant's ; and that in pursuance of said agreement, the plaintiff was allowed the use of said way, and did use the same ; and that the defendant went on, and at great expense (upwards of $4,000), with the knowledge of the plaintiff, and without objection, and with encouragement on his part, to complete the mill as had been agreed ; and that no objection was made by the plaintiff to the defendant's diverting the watercourse, until after the completion of the mill, and that in case the water was withdrawn from the defendant's mill, and restored to its ancient channel, the defendant's mill would be rendered useless and of no value. Upon the objection of the plaintiff 's counsel, the Court (Archer C.J.) refused to permit the foregoing facts to go to the jury for the purpose aforesaid. The verdict and judgment being against the defendant, the judgment, on appeal to the Court of Errors, was reversed, the Court relying upon Winter v. Brockwell, and Liggins v. Inge.^ § 313. Now, in the case of a prescriptive right to light (as in the case of Winter v. Brockwell), it is not in collision with well-estab- lished authority, but, on the other hand, in accordance with it, that a parol license to do any act on the land of the licensee by the licenser, inconsistent with and in derogation of such right, is irrev- 1 See ante, § 309. 2 Addison v. Hack, 2 Gill, 221. 488 LAW OF WATEECOURSES. ' [CHAP. VIII. ocable, because the title to this right of the licenser becomes thus extinguished} An easement is not created, but an existing one voluntarily abandoned and surrendered. But how can this doc- trine of extinguishment be applied to a natural watercourse ? Not upon the ground upon which it is put by Mr. C.J. Tindal, that the riparian owner's right to the water is derived from an actual occupatioyi of the water ; for it has been already clearly shown that the law is otherwise.^ It is indeed agreed in all the cases, that where a natural watercourse is diverted, the plaintiff need not aver and prove a prescriptive right. ^ § 314. It is important to note the broad distinction there is, in the eye of the law, between a right to light and the right to the water of a natural watercourse. The owner and occupier of a house has primd facie no right to light which enters his win- dows sideways; it must be by grant, or by prescription, which supposes one. Both he and the adjoining land-owner only own the light upwards, cvjus est solum, ejus est usque ad coelum. There was, therefore, no interest in land conveyed in Winter v. Brockwell, and the licenser's intei'est in his land remained as complete as it was originally, and the license was only some- thing collateral to the land.* In respect to a natural watercourse, it is directly otherwise ; and the right which a riparian proprietor upon it has, as to the use of the water, is, by the force of the maxim above mentioned, a part of the freehold ; ^ and to deprive him of it by a diversion, would be a deprivation of what is inseparably connected with and inherent in the land ; of what, in fact, is parcel of the inheritance, and which passes with it.^ The purchaser of land over which a watercourse, ex jure naturae, runs, has a corporeal tenement, and the right which he possesses, in respect of his watercourse, is real. It is not, like an easement, or an appurtenance, something superadded to the general property of the estate, but something which always formed a part of it. To render the estate of the lower riparian proprietor servient to the upper to divert the water, would be an easement in the estate of the latter.^ It is a right tangible, and its existence is not 1 Refer ante, §§ 244-253. 3 See ante, note to § 123. i Ante, §§ 130-136, 245. The object -i See Donellan v. Read, 3 B. & Ad. of the judgment in Mason v. Hill (cited 899; and see ante, §§ 257, 258. ante, § 133), says a learned writer, was to ^ Ante, §§ 5, 8. set right the mistaken notion which had ^ Ante, § 90, et seq. got abroad, that flowing water was publici 1 Ante, § 141. juris, and that the first occupant may appropriate it. 1 Crabb, Real Prop. § 899. CHAP. VIII.J RIGHTS BY PAROL LICENSE. 489 merely in idea or abstracted contemplation, ^ and is, in short, an Interest in Land. Hence it is we find Lord EUenborough ruling, in 1807, the license in Winter v. Brockwell to be irrevo- cable, when, in 1803, in Fentinam v. Smith, he held, that the title to have the water flowing in the tunnel over the defendant'' s land, could not pass without deed. § 315. In the above case of Fentinam v. Smith,^ the action was brought for diverting a watercourse from the plaintiff's mill. The declaration stated the plaintiff's possession of the mill, and that by reason thereof he was entitled to the use and benefit of the water of a rivulet, which, until the interruption complained of, flowed through a tunnel into another stream, whereon the plaintiff's mill was built ; but that the defendant cut a channel, and thereby diverted the water from running into said tunnel, and so to the mill. It appeared at the trial, that the tunnel was made in the defendant's land, and fixed into the ground with stonework ; that the defendant agreed for a guinea, to let the plaintiff lay the tunnel, for the purpose of conveying the water to the mill ; that the defendant even assisted at the making of the tunnel under the plaintiff's directions; but no conveyance was made of the land to the plaintiff. The guinea was afterwards tendered to the defendant, but he refused to receive it, or give his assent to the continuance of the tunnel, and made the ob- struction complained of. A verdict having passed to the plaintiff with leave to move or enter a nonsuit, in opposition to a rule obtained for this purpose, it was contended, " that it was suf- ficient for the plaintiff against a wrongdoer, to declare upon his possession of the mill with the appurtenances." But Lord EUenborough said, " Such an allegation could not be sustained without showing that the appurtenances were legally such. Now here, the title to have the water flowing in the tunnel over the defendant's land could not pass by parol license over the defend- ant's land, without deed, and the plaintiff could not be entitled to it, as stated in the declaration, by reason of his possession of the mill ; but he had it by license of the defendant, or by contract with him ; and if by license, it was revocable at any time. The enjoyment, with the defendant's assent, was not left as evidence > See Le Fevre v. Le Tevre, 4 S. & '■' Fentinam v. Smith, 4 East, 107, Eawle, 542 ; and see Frey v. Witman, 7 Penn. St. 440. 490 LAW OF WATERCOURSES. [CHAP. VIII. to the jury to presume a grant, but it was supposed that it gave a title in point of law, which it clearly did not. §316. It is now. indeed considered in England (whatever doubts may have formerly existed as to the creation of easements, by express agreement), to be at this time fully settled, that, like all other incorporeal hereditaments, they can be created only by an instrument under seal ; that the utmost effect of a license is, that it majr work the extinguishment of an existing easement ; as where permission is given to a man to erect something on his own land which is incompatible with the continuance of some easement over it, to which the licenser was entitled.^ The proper application of the doctrine to a natural watercourse is, that if A has acquired a prescriptive right, or a right by an express grant, to divert the water, and convey it around the land of B., the next adjoining lower proprietor ; and should be induced to consent that B. might in future apply the whole of the stream to a mill, provided he would erect one ; and A. should carry the license into effect, by the removal of the obstruction, by means of ■which the water had been diverted and enjoyed, and B., on his part, should carry it into execution by building the mill, — then the easement is irrevocably gone.^ [§ 316 a. It is a rule of law, that an easement, whether acquired by known grant or by prescription, may be extinguished, re- nounced, or modified by a parol license granted by the owner of the dominant tenement, and executed by the owner of the ser- vient tenement. The authorities on this point are conclusive.^ In Morse v. Copeland, cited in the note below, Metcalf J., after citing many of the cases referred to in this discussion, said, in regard to the principle established by them, " The authorities referred to show that the rule sometimes laid down in the books, that a license executed cannot be countermanded, is not applicable to licenses which, if given by deed, would create an easement; but to licenses which, if given by deed, would extinguish or modify an easement. They also show that the distinction, some- times taken in the books, between a license to do acts on the licensee's own land, and a license to do acts on the licensor's 1 Gale & What, on Easetn. 14. Winter v. Brockwell, 8 East, 308 ; Liggins 2 See Frey v. Witman, 7 Penn. St. 440. v. Inge, 7 Bing. 682 ; Addison v. Hack, 2 3 [Morse v. Copeland, 2 Gray, 802, GUI, 221 ; Curtis «. Noonan, 10 Allen, 409 ] 304, 305; Dyer v. Sanford, 9 Met. 395; CHAP. VIII.] PAROL LICENSES — EQUITY. 491 land, is the same distinction that is made between licenses which, if held valid, would create, and licenses which extinguish or modify an easement. Generally, if not always, a license which, when executed, extinguishes or modifies an easement, is, from the nature of the case, a license to do acts on the servient tene- ment — the tenement of the licensee." In the above case it appeared that the owner of a mill privilege gave the owner of lands flowed thereby an oral license to erect a dam on the land of the licensee, and also to dig a ditch across the land of the licensor, to drain the water from part of the licensee's land ; and under this license the dam was erected and the ditch dug ; and it was held, that the licensor could revoke the license to dig the ditch, even after the expiration of twenty years, but could not revoke the license to build the dam ; and the licensor having undertaken to revoke the whole license, and, after notice to the licensee, made an incision in the dam, that the licensee was justi- fied in making a ditch on his own land, to draw off the water thrown upon it through the incision, although he thereby diverted the water from the licensor's mill-pond also.] § 817. It is occasionally observable in the judgments of Courts of Law, that intimations are made of the equitable relief which might be obtained in the case of a parol license executed in chan- cery ; and in Pennsylvania it has been peculiar to its jurispru- dence, that the Courts of Law are governed by equitable rules, and, through the instrumentality of a jury, grant relief as a Chan- cellor does ; ^ and there have been many decisions in that State in favor of the admission of parol evidence at law, in contradic- tion to written instruments.^ How far the decisions at law, which have been reviewed, will accord with the rule of equity, which sometimes enforces parol conveyances made on valuable considera- tion, and executed by possession, we proceed next to consider. 4. The Equitable Doctrine Concerning Parol Licenses. § 318. There appears to be no doubt that, in equity, licenses 1 4 Kent, 163, note ; 1 Story, Eq. been held, in that State, that the gift of a Juris. § 58 ; 6 Wharton, 540. lot for a schoolhouse to be ferected by 2 14 S. & Rawie, 285 ; 1 S. & Eawle, contribution, created a trust for the pur- 464 ; 6 S. & Rawle, 171. In Pennsyl- pose of the contributors. Schwartz v. vania, the part of the English Statute fey Schwartz, 4 Penn. St. 353 ; Martin v. which a trust is prohibited in lands, has McCord, 5 Watts, 27. not been enacted ; and therefore it has 492 LAW OP WATERCOURSES. [CHAP. Till. executed are taken out of the Statute of Frauds, and that relief may be had in equitable tribunals by the licensee against an ac- tion af law. The decisions of the Courts of Equity on that statute proceed on the principle, not that the right passes by parol license or agreement, but that wherever one party has executed it by payment of money, taking possession, and making valuable improvements, the conscience of the other is bound to carry it into execution ; and equity will compel him to do it.^ Thus in the case of laches ; as where one party stood by and saw his watercourse diverted ; but, instead of preventing it, encouraged the work while it was going on ; and, afterwards brought his action at law ; the defendant, on his application to the Court of Chancery, obtained an injunction.^ Short v. Tay- lor,^ is a similar case, in which Lord Somers also granted an in- junction. So in the case of long possession of a watercourse by tiie plaintiff, the defendant having cut a channel on his own land, and set up a sluice so as to divert the stream, the Court, on proof by the plaintiff, decreed for him, without sending him to try his right at law.* But, as a rule, equity will not grant relief until the parties have tried their rights at law.^ So if there have been laches, and erections complained of have been suffered to remain any length of time, the Court will not interpose by injunction.^ § 319. The above case of the watercourse, and that of Short v. Taylor, were recognized and sanctioned by Lord-Chancellor Cot- tenham as late as 1841, who, on that occasion, said, " I think it impossible after these two cases, to say, that a party may not so encourage that which he afterwards complains of as a nuisance, as not only to preclude him from complaining of it in this Court, but to give the adverse party a right to the interposition of thi§ Court in the event of his complaining of the nuisance at law." ^ 1 Le Fevre v. Le Fevre, 4 S. & Rawle, 3 Cited ibid. 241 ; M'Kellip v. M'lllienny, 4 Watts, « Whiteoliurch v. Hide, 2 Atk. 391. 317 ; [Houston v. Laffee, 46 N.H. 507, 5 2 Vera. 891, n. 1. 508. See Wood v. Edes, 2 Allen, 578, e gge further, Bush v. Western, Preo. 581 ; Veghte v. The Raritan Water Chan. 536 ; Dorset v. Girdler, id. 631 ; Power Co., 4 C. E. Green, 153.] The Hilton v. Lord Scarborough, 4 Vin. Abr. license may be given by the known agent 425 ; Weller v. Smeaton, 1 Br. C.c! 572 ; of a company, which, if carried into s.c. 1 Cox, 102. effect, will bind the company. M'Kellip ^ Williams v. Earl of Jersey, 1 Cr. & V. M'llhenny, 4 Watts, 317. Ph. Ch. 97, 2 Anon., 2 Eq. Cas, Abr., 523, pi. 3- CHAP. Tin.] PAROL LICENSES — EQUITY. 493 His lordship also referred to the case ^ in which Lord Manners held, that it was the duty of a party, seeing a nuisance in prog- ress, to give notice to the party erecting the nuisance, of his intention to object ; and in reference to it, said, " It is unneces- sary to say under what circumstances a party might be affected by that course of conduct, but certainly it is a recognition by Lord Manners that such a case might exist." § 820. Wetmore v. White in New York, in 1805,^ was a case in equity, in which it was held by the Court of Errors, that if the water of a watercourse be owned by two persons, whose lands are on opposite sides, and they agree to erect mills on the land of one, and turn the whole stream to the mills ; it is an appropriation of the water to the mills. It was contended, that parol agree- ments having been in part executed, took the case out of the Statute of Frauds. The case having been heard in the Court of Chancery, the appellant's bill was dismissed with costs, but in the Court of Errors there was a unanimous judgment for re- versal. The judgment was delivered by Mr. J. Thompson, who held it to be an established rule in equity, that a parol agree- ment, in part performed, was not within the provisions of the Statute of Frauds. " To allow," says he, " a statute having for its object the prevention of frauds, to be interposed in bar of the performance of a parol agreement, in part performed, would evi- dently encourage the mischiefs the legislature intended to pre- vent." 3 § 321. In an injunction bill filed in the Court of Chancery of New Jersey, it was held, that if waste gates be constructed by the defendants, and used by them for a course of years (four years), with the assent of the complainants ; the complainants cannot have relief by injunction so long as the use of the gates is confined to their original purpose ; but if there is an attempt to apply them to a different purpose, and one injurious to the com- plainants, the Court will by injunction entirely prohibit the use of •the gates. It was further held, that although such new improve- ment was commenced in the summer, and carried on during the ensuing fall and winter, but not completed till February, when ' Jones V. The Royal Canal Co., 2 ' [Houston v. Laffee, 46 N.H. 508 ; MoUoy, Ch. 319. Potter v. Jacobs, 111 Mass. 32.] '^ Wetmore v. White, 2 Caines (Ca. in Error), 87. 494 LAW OP WATERCOURSES. [CHAP. VIII. the complainants' bill for an injunction was filed, the complain- ants have not lost their remedy by injunction. ^ § 322. A parol license, without consideration, was given in Pennsylvania, to use the water of a stream for a saw-mill, in consequence of which the grantee incurred the expense of erect- ing a mill ; it was held by the Supreme Court of Pennsylvania, that (notwithstanding the want of consideration) the license could not be revoked at the pleasure of the grantor ; and that if the grantor diverted the water to the injury of the grantee, the latter might maintain an action. Such a license, the Court said, was a direct encouragement to expend money, and it would be against all conscience to annul it, as soon as the benefit expected from the expenditure is beginning to be perceived.^ That a party, it was observed by the Court, should be let off from his contract, on payment of a compensation in damages, is consistent with no principle of morals. Gibson J., in delivering the opinion of the Court, remarked, " Why should not such an agreement be decreed in specie ? That a party should be let off from his con- tract, on payment of a compensation in damages, is consistent with no system of morals, but the Common Law, which was, in this respect, originally determined by political considerations, the policy of its military tenures requiring that the services to be rendered by the tenant to his feudal superior should not be pre- vented by want of personal independence. Hence the judgment of a Court of Law operates on the right of a party, and the decree of a Court of Equity on the person. But the reason of this distinction has long ceased, and equity will execute every agreement for the breach of which damages may be recovered, where an action for damages would be an inadequate remedy. How very inadequate it would be, in a case like this, is perceived by considering, that a license which has been followed by the expenditure of ten thousand dollars, as a necessary qualification to the enjoyment of if, may be revoked by an obstinate man who is not worth as many cents. But, besides this risk of insolvency,' the law, in barely compensating this want of performance, sub- jects the injured party to risk, from the ignorance or dishonesty of those who are to estimate the quantum of the compensation. 1 Hulnie V. Shreve, 3 Green (N.J.) '^ [Dark !7. Johnston, 55 Penn. St. 164. Ch. 116. See Wood v. Edes, 2 Allen, 578, 581.] CHAP. VIII.] PAROL LICENSES — EQUITY. 495 In the case under consideration, no objection to a specific per- formance can he founded on the intrinsic nature of the agree- ment ; nor, having been partly executed, on the circumstance of its resting in parol ; but it is to be considered as if there had been a formal conveyance of the right, and nothing remains but to determine its duration and extent. A right under a license, when not specially restricted, is commensurate with the thing of which the license is an accessory. Permission to use water for a mill, or any thing else that was viewed by the parties as a per- manent erection, will be of unlimited duration, and survive the erection itself, if it should be destroyed or fall into a state of dilapidation ; in which case, the parties might perhaps be thought to be remitted to their former rights. But having had in view an unlimited enjoyment of the privilege, the grantee has pur- chased by the expenditure of money, a right, indefinite in point of duration, which cannot be forfeited by non-user, unless for a period sufficient to raise the presumption of a release. The right to rebuild, in case of destruction or dilapidation, and to continue the business on its original footing, may have been in view, as necessary to his safety, and' may have been an inducement to the particular investment in the first instance. The cost of rebuild- ing a furnace, for instance, would be trivial, when weighed with the loss that would be caused by breaking up of the business, and turning the capital into other channels ; and therefore a license to use water for a furnace would endure for ever. But it is otherwise, where the object to be accomplished is temporary. Such usually is the object to be accomplished by a saw-mill, the permanency of which is dependent on a variety of circumstances, such as an abundance of timber, on the failure of which the busi- ness is necessarily at an end. But, till then, it constitutes a right for the violation of which redress may be had by action. With this qualification it may safely be affirmed, that expending money or labor in consequence of a license to divert a watercourse, or use a water power in a particular way, has the effect of turning such license into an agreement that will be executed in equity. Here it was not pretended that the license had expired, and we are unable to discover an error in the opinion of the Court on the points that were propounded." ^ 1 Rerick v. Kerr, 14 S. & Rawle, 267 ; Benson, 19 Ind. 369 ; Wickersliani v. Orr, [Lacy V. Arnett, 33 Penn. St. 169 ; Snow- 9 Iowa, 260 ; Beatty v. Gregory, 17 den V. Wilas, 19 Ind. 14 ; Stephens u. Iowa, 114.] 496 LAW OP WATERCODRSES. [CHAP. VIII. [§ 322 a. But where the owner of land through which a stream of water passes has erected upon his own land a dam across the stream, for a fish-pond, by means of which the flowing back of water upon his land from the dam of a mill-owner is prevented, a bill in equity to abate the upper dam cannot be sustained by the mill-owner, on the ground of an oral license to him to use the same, in consequence of which he has erected a new mill and fixtures, which have been rendered worthless by the subsequent refusal and prohibition of the owner above to allow such use, if it appears that on application by the lower owner, prior to the erection of his mill, the upper owner expressly refused to sell or let the right to use his land as a reservoir for a specific time.^] § 323. In reference to the above case it has been asserted, that the principle of it is, that the revocation of it would be a fraud ;2 and that to prevent it, a chancellor will turn the owner of the soil into a trustee ex maleficio. Or, it is in substance the same which postpones the title of one who is studiously silent as to the existence of it, in the presence of a purchaser from a third per- son ; or of one who suffers to build ignorantly on his ground without informing him of his mistake.^ § 324. In Le Fevre v. Le Fevre,* parol evidence was regarded admissible to prove, that after the execution of a deed of con- veyance of a right to a watercourse through the land granted by courses and distances, a verbal agreement was entered into be- tween the parties for their mutual accommodation, altering the route of the watercourse ; provided the agreement has been carried into effect. § 825. A verbal license may terminate, and without any act of revocation on the part of the licenser ; as where a permission was given to erect a dam for a temporary purpose; it was held to be terminated by a decay of the dam.^ In delivering the opinion of the Court in this case, Rogers J. observed as follows: " In award- ing a new trial, the Court think proper to lay down some prin- ciples which may be useful in another trial of the cause. It 1 [Wood V. Edes, 2 Allen, 578, 581.] 5 Hepburn v. M'Dowell, 17 S. & Rawle, 2 [Houston V. Latfee, 46 N.H. 508.] 383 ; [Carletonw. Redlngton, 21 N.H. 307 ; * Swartz w. Swartz, 4 Penn. St. 353. 3 Kent, 452 ; Amerlscoggin Bridge v. * Le Kevre v. he Fevre, 4 S. & Rawle, Bragg, 11 N.H. 102.] 241. CHAP. VIII.] PAROL LICENSES — EQUITY. 497 appeared in evidence, that Frederick Ritter, under whom the plaintiff claims, was in possession of the Jew's Mill, from 1811 till 1815. The spring he came, there was no dam ; but in the summer of that y6ar, Drake, under whom the defendants claim, drove and put in some stakes and bushes, and made a dam, as the witness says, like a fish-dam. It was swept away in a short time by a freshet. Drake then asked Ritter if he would help him to make a little dam, with which Ritter complied, by assisting him to get logs, and to lay them across the creek, to cut bushes and to lay them on the logs, and then Drake hauled stone on the top of the bushes. Ri'tter cannot say that the dam was ever finished, but believes that it stood that winter, but was gone the next. He says he did nx)t take particular notice how high it came, for he did not care much about it, as it did not injure him, and that he never gave Drake any right to overflow the ford. He was sure the dam he made would not stand long. That he gave Drake no grant of the right, and that there was a saw-mill on the property at the time. This permission or license has been at- tempted to be magnified into a grant of a right to erect a dam of a permanent nature, for a grist-mill, of the same height, which it is alleged was twenty inches. As a license for the erection of the present dam, the assistance or permission to Drake, as dis- closed by the evidence, is entitled to no weight. It was a license for a temporary purpose (which appears to have been answered), which would have excused Drake from a suit by Ritter, but does not amount to a grant for any other purpose than was in the immediate contemplation of the parties. It is manifest it was neighborlj'- kindyess on the part of Ritter, without the slightest view of granting a right to a permanent use of the water. To make the most of it, it was a license during the continuance of the dam, and as soon as the dam was swept away, the license ceased to exist. To justify a new erection, even for a temporary purpose, a new grant or permission was necessary. I mean, if the effect was to swell the water on the land of Ritter. In Rerick V. Kerr, the distinction is taken between the cases, where the object to be accomplished is temporary, and where it is perma- nent. Permission to use water for a mill, or any thing else that was viewed by the parties as a permanent erection, will be of unlimited duration, and survive the erection itself, if it should be 82 498 LAW OF WATERCOURSES. [CHAP. VIII. destroyed, or fall into a state of dilapidation. But it is other- wise where the object to be accomplished is temporary. And the Court then instance a saw-mill, as a temporary erection. No person can avoid seeing, that it was not within the comprehen- sion of either of the parties, that Ritter had made a grant to Drake of a right to the permanent use of the water. It was a temporary use that was intended to be conferred, and for a par- ticular purpose, and it would be the height of injustice to extend that to any other purpose than that intended by them." [§ 325 a. So an oral license to erect a dam on one's own land and flow the lands of another, nothing appearing as to the period of its expected duration, terminates with the decay of the dam, and gives no right, when the dam has become decayed and ruin- ous, to re-erect or repair it, and reflow the land.^] 5. The Doctrine of Estoppel as applied to Parol Licenses. § 326. In Corning v. Gould,^ an important case, which has been before cited upon another point,^ the Court ask. Why may there not another doctrine, the doctrine of estoppel, estoppel in pais, come in ? " The general rule," say they, " being established, that such rights" (easements or servitudes) " maybe extinguislied by the act of the party beneficially interested, done upon the land where the servitude is exercisible, — no writing being nec- essary, but the case being clear of the Statute of Frauds, — we are then at liberty, and it is quite material to consider whether the party purchasing the land, apparently discharged of the servitude, has not the right, the matter not being explained to him at the time, to insist on holding the one toiwhom the servi- tude is due to such apparent discharge, even though he might have intended a mere suspension. § 327. Estoppel is a rule of law operating as an impediment, by which rights or titles may be bound, although no property or interest actually passes. It was formerly considered, that there could be no estoppel where any interest did pass, but that doctrine has been lately disallowed.* There is, says Gibson C.J., such a 1 [Carleton v. Redington, 21 N.H. 291 ; = Corning v. Gould, 16 Wend. 531. Cowles V. Kidder, 24 N.H. 364, 380. See And see ante, § 323. Ameriscoggin Bridge v. Bragg, 11 N.H. ^ Ante, § 250. 109; Cook V. Stearns, 11 Mass. 533 ; 3 * Christmas v. OUver, 10 B. & C. 181. Kent, 451,J CHAP. VIII.] PAROL LICENSES — ESTOPPEL. 499 thing as an estoppel in pais ; but it is always by an act done, such as partition, entry, livery, acceptance of rent or of an estate. ^ Contrary to the feeling which seems to have pervaded the Courts, with regard to other classes of estoppel, their inclination appears to have been to extend the list of estoppels in pais, especially in mercantile transactions, where men are obliged to trust much to appearances? The English Courts have been for some time favorable to the doctrine of estoppel, but hostile to its technical- ity; but, at the same time, they have been unwilling to allow men to be entrapped by formal statements and admissions, which were perhaps looked upon as unimportant when they were made, and by which no one was ever deceived, or induced to alter his position. Such estoppels are still, as formerly, in England, con- sidered as odious? The recent decisions of Courts, in this country as well as in England, have given a more liberal extension to the doctrine of estoppels than that which formerly existed ; and to have established that in all cases, where an act is done, or a statement made by a party, the truth or efficacy of which it would be a fraud on his part to controvert or impair, there the character of an estoppel shall be given to what would otherwise be mere matter of evidence ; and it will, therefore, be binding on a jury, even in the presence of truth of a contrary nature.* The general doctrine in relation to the subject, is thus stated by 1 Field's Estate (Case of), 2 Kawie, can Editors to 2 Smith Lead. Gas. (5tli 351. Am. ed.) 642. [The lands of C. were 2 2 Smith Lead. Cas. (Am. ed.) 511. flowed by reason of a dam erected across "Estoppels have been sometimes said to a stream, in a case wliere the rights and be odious, and it has been affirmed, that remedies of the parties remained as at there is no such thing as an equitable Common Law, he suffering tiie owners estoppel. But the doctrine of election, of the dam to build, maintain, and repair which prevents a party from claiming in it from time to time for a period of more repugnant rights and which has been so than ten years, during which time they advantageously introduced into Courts of made valuable and permanent improve- Equity, is manifestly an extension of the ments in mills &c., and drew water from principle. In Courts of Law, they are the dam to propel them; it was held, for the most part reconcilable to the that, by such acquiescence in the claim purest morality, and when they produce asserted by them, he would be precluded neither hardship nor injustice, they merit from maintaining an action to abate the indulgence, if not favor. The conclusive- dam as a nuisance, and for an injunction ness of judgments, which conduces so to restrain them from rebuilding and essentially to peace and repose, has no maintaining it, when it had been partially other foundation." Per Gibson C.J., In destroyed by a flood, and that he must Martin v. Ives, 17 S. & Rawle, 364. resort to his Common Law action for 3 Smith Lead. Cas. ubi sup. damages. Cobb v. Smith, 16 Wis. 661.] * See the learned note of the Ameri- 500 LAW OF WATEECOURSES. [chap. VIII. Lord Denman : " Where one by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the time." 1 But it is not here intended to discuss at length the doc- trine of the peculiar rule of pleading of which we have thus far treated, because it would be incompatible with the design of the present work to do so. We have seen, that it may (as an im- pediment') operate to the full extent of the extinguishment of an easement.^ § 328. As an estoppel is so called because a man is precluded from saying any thing, even the truth, against his own act or ad- mission, if a man knowingly, though passively, by looking on, should suffer another to purchase and expend money on or about a mill-site, under an erroneous impression of his title, without making known his claim, he cannot afterwards be permitted to exercise his legal right against such person. It would be an a-ct of fraud and injustice, and his conscience would be bound by such 1 Pickard v. Sears, 6 Ad. & El. 469. This case _ was an action of trover, in wiiich it appeared that the plaintiff, being the legal owner of the goods in question, they were seized while in the actual pos- session of a third party, under an execu- tion against such third party, and sold to the defendant. It was held, that under a plea denying the plaintiff's possession, the defendant might show, that the plain- tiff authorized the sale ; and that a jury might infer such authority from the plain- tiff consulting with the execution creditor, as to the disposal of his property, without jnentioning his own claims, after he knew of the seizure and of the intention to sell. See also 9 B. & C. 586 ; 3 B. & Ad. 318, note (a) ; [Mitchell o. Leavitt, 30 Conn. 587 ; Corningy. Troy Iron & Nail Factory, 39 Barb. 311. " To establish an estoppel ill pais, it must be shown; 1st. That the person sought to be estopped, has made an admission or done an act, with the intention of influencing the conduct of another, or that he had reason to believe would influence his conduct, inconsistent with the evidence he proposed to give, or the title he proposes to set up; 2d. That the other party has acted upon, or been influenced by, such act or declara- tion ; 3d. That the party will be preju- diced by allowing the truth of the admis- sion to be disproved." Brown v. Bowen, 30 N.Y. 519, 541, per MuUin J. ; Plumb V. Cattaraugus County Mut. Ins. Co., 18 N.Y. 392.] 2 Parol or verbal admissions which have been held conclusive against the party, seem; says Mr. Greenleaf, to be those on the faith of which a Court of Justice has been led to adopt a particular course of proceeding, or on which another person lias been induced to alter his con- dition. To these may be added a few cases of fraud and crime, and some ad- missions on oath. 1 Greenl. Ev. 204; and see the doctrine considered, of the general law of admissions ; ibid. Ch. XI. An estoppel in pais to be effectual, must be reciprocal and binding on both parties, and the acts or admissions relied on, by way of estoppel, must have been intended to influence the conduct of the party set- ting them up ; must have had the effect intended, and the denial must operate to the injury of such latter party. Welland Canal v. Hathaway, 8 Wend. 480. CHAP. VIII.] PAROL LICENSES — ESTOPPEL. 501 equitable estoppel.^ But to estop one from asserting title by rea- son of his presence at the sale by another, without having made any objection, the subject-matter of the sale must be something in which his interest is direct and immediate. If there be an intermediate interest on which his is dependent, he cannot be estopped. Thus, if a person who is entitled to have the water flow to his house, in a certain manner, by agreement permits others to take and use part of it, their presence at a sale which is inconsistent with his rights, will not estop them from having the use of the water, he not having been present.^ § 328 a. In an action of trespass for diverting water from the plaintiff's mill, the defendant, by giving evidence tending to show title to the locus in quo in the State, is not precluded, as by an estoppel, from proving that the water was taken in pursuance of the statute, by the direction of a canal commissioner, for a supply of water for the State canal.^ § 328 J. The fact that a defendant in an ejectment suit has taken a quitclaim deed from another, and entered into possession under it, will not estop him from questioning the title of his grantor. An estoppel exists only where there is an obligation, express or implied, that the occupant will at some time, or in some event, surrender the possession ; as between landlord and tenant, or as between vendor and vendee before convej'ance. There is no estoppel between grantor and grantee.* § 329. A. and B., owners of adjoining tracts of land, erected, under a parol agreement, a mill and dam at their joint expense, the site of which was on the land of A., and the watercourse 1 Wendell v. Van Rensselaer, 1 John, occupation of the plaintiffs, by means of Ch. 353. It is, first, the knowledge, and a dam, it was shown that the defendants secondly, the concealment, which estops and their ancestor had omitted to assert one from setting up his title. Bucking- title to the premises in question, although ham V. Smith, 10 Ohio, 288. In a bill in knowing the premises to belong to them, equity in the Supreme Court of Massa- and that the plaintiffs had purchased chusetts, the Court admit the principle, them, and were making valuable improve- that where one stands by, and sees an- ments thereon, in the belief that they other laying out money, and making owned them, it was held that this silence large investments upon property, to which — this omission to assert title — clearly he himself has some claim or title, and constituted an estoppel, and that no evi- does not give notice of it, he cannot after- dence could do away with the force of it wards, in equity and good conscience, set Brown v. Bowen, 30 N.Y. 520.] up such claim or title. Gray v. Bartlett, " Watkihs v. Peck, 13 N.H. 360. 20 Pick. 193. [Where, in an action to » Walrath «. Barton, 11 Barb. 382. recover damages of the defendants for * Bigelow v. Finch, 11 Barb. 498. flooding the water back upon mills in the 502 LAW OP WATERCOURSES. [CHAP. VIII. power partly on that of B. B.'s assignees sold his tract as a saw- mill, with the appurtenances. It was held that if the contract between A. and B. was for a term of years only, yet if the pur- chaser from B. continued in possession after the determination of the term, and jointly with A. erected a new mill on the old site, to propel which, the power on A.'s land was necessary, A. was estopped denying the right of such purchaser to a moiety of the mill-site and of his land covered by the water which constituted the mill power.^ [So, if the general owner of a mill privilege, in which others are interested, has, with their knowledge, acqui- escence, and consent, built on his own land a new dam and works, by which the water is supplied to a common flume, they cannot recover compensation for any damage which they may thereby sustain.2 Where a lessee, under a lease having several years to run, diverted a watercourse, and made large expenditures and improvements thereon, it was held, that such diversion could not be presumed to have been intended to be perpetual or perma- nent, or to be extended beyond the duration of the term, so as to require interference on the part of the owner of the land, under the penalty of being estopped in equity from afterwards objecting. An estoppel can never arise, founded on an omission to object to an act of a party which he had a perfect right to do, or a declar- ation of his which was entirely true, without any invasion and threatened invasion of the rights of another.^ 1 Swartz V. Svrartz, 4 Penn. St. 353. » [Corning u. Troy Iron & Nail Factory, See Mitchell v. Learitt, 30 Conn. 587. 39 Barb. 311.] 2 [Pratt «. Lamson, 2 Allen, 276,] CHAP. IX.] PLOWING LAND. 603 CHAPTER IX. OP INUNDATION AND BACKWATER, CAUSED BT THE USE OP THE WATER. 1. Overflowing Land above. 2. Flooding Land below. 3. Backwater upon a Mill above. 4. Prior Occupation. 5. Eight to overflow or to cause Backwater, a3 derived from Special Grants and Reservations. 6. Prescription, or Twenty Years' Enjoyment. 7. Parol Licenses. § 330. The use of a watercourse by mill-owners and other ri- parian proprietors, in such a manner as to inundate or overflow the lands of riparian proprietors and other land-owners above, is directly contrary to the injunction of the law, — sio utere tuo ut alienum non loedas, for which, by the English Law, an action will lie as for a private nuisance,^ and for which, by the Roman Law, the actio aquce pluvice aroendce will lie.^ In an early Eng- lish case, the plaintiff declared that the defendant exaltavit stag- num, by which the plaintiff's meadow was flooded, and judgment was for the plaintiff.* So when in a declaration in case, for that 1 Aldred's case, 9 Rep. 59 ; 3 Bl. facto, opere tamen jam facto, hoc est de eo Comm. 217 ; and see ante, §§ 95, 96, 97 ; opere, ex quo damnum timetur, totiesque Great Falls Co. v. Worster, 15 N.H. 412 ; locum habet, quoties manu facto opere [Pixley V. Clark, 35 N.Y. 520. Under agro aqua nocitura est, id est, cum quis the Common Law the mill-owner was manu fecit, quo aliter flueret, quam natura not authorized to erect and maintain his soleret, si forte immittendo earn aut dam, in such manner as to flow the lands majorem fecerit, aut citatiorem, aut- of proprietors above his mill, on the same vehementiorem, aut si comprimendo re- stream. Such a structure, by which the dundare effecit. Quodsi natura aqua noceat, land of another would be overflowed, ea actione non continetur. § 2. Neratius would be a nuisance. Strout v. Millbridge scribit : Opus, quod quis fecit, ut aquam Co., 45 Maine, 87. See Cowles v. Kidder, excluderet, quce exundante palude in agrum 24 N.H. 364, 378.] ejus refluere solebat, si ea palus aqua ptuvia 2 Compend. of Modern Civ. Law, by ampliatur, eaque aqua repulsa eo opere agris Mackeldey, edited by Kauffmann, in vicini noceat, aquai pluvice actione cogetur which is cited fr. l,§l,D.39,3(TJlpianus), toUere.—tr. 1, § 18, D. ibid. " Hsec autem actio (soil, aquaj pluviae 3 Goldb. 59. arcendae) locum habet in damuo nondum 504 LAW OF WATERCOURSES. [chap. IX. the plaintiff was seised of two acres of land in D., and J. Q. erected, &c., so high that the water overflowed the said meadow, &c. ; it was adjudged for the plaintiff.^ And, in case, for stop- ping water incessanter decurrente by his land, by which the land of the plaintiff was drowned and his grass rotted, Gawdy J. said, " If the water had run but for one year, yet if the defendant diverts it, so that it drown the plaintiff's land, the action will lie well enough." ^ The law upon this subject as thus laid down, has never been called in question,^ and is so well settled and so obvio.usly just, that if one tenant in common upon which a mill is situated, erects a dam below on the same watercourse, upon his several estate, and thereby flows the common property to the injury of his cotenant, the latter may maintain an action against him.* § 331. The law as above stated is so perfectly well established and understood, that in Massachusetts and some other of the States, acts have been passed giving to the owners of mills the right to flow the adjoining lands, if necessary to the working of their mills, subject only to such damages as shall be ascertained ' Cro. Jac. 556. 2 Lev. 193. [See Company v. Good- ale, 46 N.H. 53, 56.] ' [See per Peckhara J., in Pixley v. Clark, 35 N.Y. 520, 521.] 4 Odiorne v. Lyford, 9 N.H. 502; [Pillsbury o. Moore, 44 Maine, 154 ; Great Falls Co. v. Worster, 15 N.H. 460. Where the proprietor of a mill, and of a definite proportion of the water power or flow of water in a stream, makes a change in a sluiceway which occasions an increase of backwater injurious to the mill of a neighboring owner, who is also part owner of the water power, the latter may maintain an action therefor. Mun- roe V. Gates, 48 Maine, 463.] That an action will in all eases lie for overflowing land, as enjoined by the maxim sic utere tuo &c. Hutchinson u. Granger, 13 Vt. 386 ; Bell v. McClintock, 9 Watts, 119. If my neighbor, says Blackstone, ought to scourge a ditch, and does not, whereby my land is overflowed, this is an action- able injury. 3 Bl. Comm. 217. [The bed of a watercourse, extending through the farming lands of R., was used by K. as a channel to convey the waters discharged into it from a ditch, of which it formed a connecting link. R.'s land was injured by a deposit of sediment thereon, caused by the overflow of the watercourse, K. having failed to properly clear it of impediments, or having turned into it a quantity of water too great for its natural capacity ; it was held that the watercourse was a part of K.'s ditch, but that he was liable in damages to R. for the injury caused by the overflow and deposit of sediment. Richardson v. Kier, 37 Cal. 263. If, by raising the water in a natural stream above its natural banks, and to prevent its overflow, artificial embankments are constructed which answer the purpose perfectly, yet if, by the pressure of the water upon the natural banks of the stream, percolation takes place so as to drown the adjoining lands of anJSther, an action will lie for the damage caused thereby. It matters not whether the damage is caused by the overflow of, or the percolation through, the natural banks, so long as the result is caused by an improper interference with the natural flow of the stream. Pixley v. Clark, 35 N.Y. 520.] CHAP. IX.] PLOWING LAND. 505 by the particular process prescribed. If public policy requires, that encouragement should be given to the building of mills and manufactories, and the liability to frequent actions at Common Law will discourage the proprietors of mill-seats from building in places where they must overflow the land of others, it belongs to the legislature to interfere, and make such provision as policy, consistently with justice, may require ; and until this is done the remedy given by the Common Law for injury sustained by the overflowing of land cannot be denied.^ Besides, where a mill- owner is authorized by statute to flow the land of another by paying damages therefor, an action will lie against him at Com- mon Law for damages caused by the flowing by means of a dam that has been connected with the mill, in case the mill-owner has abandoned the intention of again using the dam and water as a mill-power.^ If the nature and extent of the injury alleged, in an action for overflowing land, are specially described in the declara- tion, the plaintiff is entitled to recover nominal damages, should he fail to prove the particular injury complained of, or indeed any other actual injury.^ § 331 a. An illegal flowing of land may be caused by the acts of a railroad company in the mode of constructing their road. A railroad was constructed across certain lands adjoining the river Dun, over which the flood waters of that river used to spread themselves. These low lands were separated from the plaintiif 's lands by a bank, constructed under certain drainage acts, which protected the plaintiff's lands from floods. By the construction of the road, without sufficient openings, the flood waters could not spread themselves as formerly, but were penned up and flowed over the bank upon the plaintiff 's lands. There was no express clause in their act obliging the company to make open- ings for flood waters in that district, but there was a general pro- vision that they should make openings when the road crossed any public drains, embankments, or works in any drainage district. It was held, that although the company might not be compelled by a mandamus to make openings for the flood waters in that district, yet that an action would lie against the company for the injury to the plaintiff 's lands.* 1 Johns V. Stevens, 3 Vt. 308. ■• Lawrence v. Great Northern Kail- 2 Hodges V. Hodges, 5 Met. 205. way Co., 2 L.J. n.s. 293, and s.o. in 4 3 Pastorius v. Fisher, 1 Rawle,_27 ; and Eng. Law & Eq. 265. see ante, § 135. 506 LAW OF WATERCOURSES. [CHAP. IX. [§ 331 h. A town, in building a highway across a natural stream, should provide for, and maintain, a free passage of the water, so that it may not be obstructed and pent up, in such manner as to flow back on land belonging to the riparian pro- prietors. In Haynes v. Burlington,^ it appeared that at the time of constructing a public highway, a culvert of ample dimensions was constructed under it, which for many years furnished a free passage for all the water of a natural stream through it ; but by the action of the highway surveyors, and street commissioners of the town, from year to year, in raising the grade of the high- way over the culvert, the earth washed and slid down so as to enlarge the base of the embankment so much as to finally cover the mouth of the culvert and prevent the water from passing through, and cause the water to flow back upon the land of the plaintiff on the stream, to his injury. It was held that the town, upon notice, was liable for the damages to the plaintiff, not on the ground that the town was liable for the acts of the surveyors or commissioners as agents of the town, but on the ground that it was the duty of the town originally to provide for a sufficient passage for the water, and the same duty remained with the town to keep and maintain it. Poland C.J. said, " We are of opinion that the corporate duty to build and keep in repair their highways, imposes upon towns certain obligations very like those existing between the owners of adjoining lands." — " In the case of an individual owner of a strip of land of suitable width for a highway, who should build a road upon it, he would by ordinary legal principles be bound to do it in a prudent and reasonable manner, and so as to avoid doing any unnecessary damage to persons owning lands adjoining. And so if such person had occa- sion to build his road over a natural stream or watercourse, the law would require him to provide some suitable and sufficient means for the passage of the water so that the adjoining pro- prietors should not suffer damage by its being obstructed. Sub- stantially the same obligations to the owners of lands adjacent to the highway we consider are devolved upon towns in the building and maintaining their roads. In Massachusetts, it has been settled in repeated cases, and is now the undisputed law of that State, that in all cases where a highway, turnpike, bridge, 1 [Haynes v. Burlington, 38 Vt. 350.] CHAP. IX.] PLOWING LAND. 507 town way or other way, is laid across a natural stream of water, it is the duty of those who use such franchise or privilege, to make provision to open bridges, culverts, or other means for the free passage of the water, so that it shall not be obstructed and pent up to flow back on lands belonging to the. riparian propri- etors. And it is their duty not only to make such bridge, culvert, or passage for water, but to keep it in such condition that it shall not obstruct the stream.^ But in Massachusetts, no statute exists imposing any such duty specificalty upon towns, any morB than in this State." — " A contrary doctrine allowing towns to dam up and obstruct running streams by their highways, to the great injury, and perhaps absolute ruin, of the adjoining owners, with- out compensation or liability, would be too monstrously unjust to be tolerated for a moment." 2] § 332. A riparian owner whose lands are directly inundated by the acts of his neighbor, can, not only by the Common Law, recover adequate damages, but he is allowed, by the same au- thority, to defend his land against encroachments ; and if any consequences detrimental to the wrongdoer result from this course, they afford no legal ground of complaint ; ^ [and this is true even 1 [Rowe V. Granite Bridge, 21 Pick. & J. 528 ; Duncan v. Findlater, 6 CI. & 344; Lawrence v. Fairharen, 5 Gray, Kn. (Am. ed.) 894, note (1) and cases; The 116 ; Perry v. Worcester, 6 Gray, 544 ; Mersey Docks v. Gibbs, L.E. 1 H.L. 93 Parker v. Lowell, 11 Gray, 353 ; Sprague s.o. 11 H.L. Gas. 715-722 ; Whitehouse v. V. Worcester, 13 Gray, 193 ; post, § 397. Birmingham Canal Co. 5 H. & N. 528 So where a city, or a board of municipal AUentown u. Kramer, 73 Penn. St. 406 officers, is authorized by the legislature Maximilian o. New York, 9 N.Y. Sup, to lay out and construct common sewers Ct. 263 ; Eochester White Lead Co. v and drains, if by an excess of the powers Rochester, 3 Comst. 463 ; Detroit granted, or negligence in the mode of Corey, 9 Mich. 165 ; Rowe v. Ports carrying out the system legally adopted, mouth, 56 N.H. 291. So the duty of keep or in omitting to take due precautions to ing the common sewers in repair and guard against consequences of its opera- free from obstructions, after they have tion, a nuisance is created, the city may been constructed and become the property be liable to indictment in behalf of the of the city, under a special authority public, or to suit by individuals sufFering conferred and accepted, is also a minis- special damage. Washburn and Moen terial duty, for the neglect of which the Manuf. Co. v. Worcester, 116 Mass. 458, city is liable to any person injured. Gray 460, 461; Haskell v. New Bedford, 108 J. in Emory u. Lowell, 104 Mass. 16; Mass. 208 ; Merrifield v. Worcester, 110 Child v. Boston, 4 Allen, 41 ; New York Mass. 216; Brayton «. Fall River, 113 m. Furze, 3 Hill, 612 ; Lloyd u. New York, Mass. 218, 227 ; Emery v. Lowell, 104 1 Selden, 369 ; Barton v. Syracuse, 36 Mass. 13; Child v. Boston, 4 Allen, 41; NY. 54. See Stone u. Augusta, 46 Richardson v. Boston, 19 How. (U.S.) Maine, 127.] 263; Gerrish ^. Brown, 51 Maine, 256; 2 [See Groton i>. Haines, 36 N.H. 388.] Attorney-General u. Birmingham, 4 Kay ' Merritt v. Parker, Coxe (N.J.) 460; 508 LAW OP WATERCOURSES. [CHAP. IX. where an act of the legislature authorizes a corporation to erect and maintain a dam on their own land across a river, by means of which the inundation is caused. Such act of the legislature confers upon the corporation no right to overflow the lands of another riparian proprietor without his consent, and he may- maintain an action for the nuisance or enter and abate it.^] § 333. A riparian proprietor may in fact legally erect any work in order to prevent his lands being overflowed by any change of the natural state of the river, and to prevent the old course of the river from being altered.^ The case of Farquhar on v. Farquharson, in Scotland, was a case of this sort.^ That was the case of the land of two proprietors on the river Cluny, on opposite banks of the river, which runs northward, and falls into the river Dee. Auchindyne grounds were on the left bank ; Invercauld grounds on the right. Invereauld on his grounds had erected a mound, and the question was as between him and Auchindyne, whether he was entitled to erect that mound ; and it was decided that he was. But the circumstances were of this description : The river had been continually going to the eastward. It had in one instance actually departed from its orig- inal course, and taken a new direction, placing a part of Inver- cauld grounds on Auchindyne side, and was obviously repeating, or attempting to repeat, the same operation, by a new encroach- ment on Auchindyne grounds. The mound erected, therefore, was not to have the effect of altering the old course of the river, but it was to have the effect of preventing the old course of the river from being altered ; and that, it is obvious, is a most ma- terial distinction in cases of this kind. But independently of this, there was evidence to show, that at least a considerable part of the bank was built on old foundations. There was further evidence of this description, which, with respect to cases like the present, is of the most important character, that, according [Adams v. Barney, 25 Vt. 225 ; Tuthill Amoskeag Manuf. Co., 44 N.H. 160 ; V. Scott? 43 Vt. 525, 627.] If a party Hooksett v. Amoskeag Manuf. Co., 44 unlawfully turns a watercourse upon the N.H. 110 ; State o. Moffet, 1 Green (Iowa), land of an adjoining proprietor, no right 248 ; Renwick v. Morris, 7 Hill, 577.1 to the water is thereby conferred, and 2 gee Rex v. Trafford, 1 B. & Ad. 874, the wrongdoer may divert the water at and in the Exch. 8 Bing. 204 ; [Slater v. any time within twenty years. Shields Fox, 12 Sup. Ct. N.Y. (5 Hun) 544.] V. Arndt, 3 Green (N.J.) Ch. 234. 3 Farquharson v. Farquharson, cited 1 [Amoskeag Manuf. Co. v. Goodale, in 8 Bligh Pari. N.s. 421, 422. 46 N.H. 53, 67 ; post, § 476 ; Eastman v. CHAP. IX.] FLOWING LAND. 509 to the custom of that part of the country, proprietors on the opposite sides of the rivers had embanked against each other ; and in this particular case it was proved, that Auchindyne had himself embanked on his side of the river, for the purpose of pre- venting the overflow of the water on his side, so as to throw it on Invercauld; and it was proved also, as the last circumstance, that the destruction of the grounds of Invercauld would have followed, if these works had not been allowed, and that the most trifling damage in point of amount was occasioned to the propri- etor on the other side. § 334. But a riparian proprietor for his greater convenience and benefit has no right to build any thing which, in times of ordinary flood, will throw the water on the grounds of another proprietor so as to overflow and injure them.i This was so expressly adr judged in the case of an appeal to the British House of Lords from the Court of Session in Scotland.^ The law on this subject, as considered by the Lord Chancellor in giving judgment in this case, is as follows: "But let us see what is said on this subject by the institutional writers on the Law of Scotland. Erskine, in his Institutes, is distinct, as it appears to me, and precise upon the subject. He says, ' When a river threatens an alteration of the present channel, by which damage may arise to the proprietor of the adjacent or opposite ground, it is lawful for him to build a bulwark ripce muniendce causa, to prevent the loss of ground that is threatened by that encroachment ; * so that the proprietor whose lands are threatened to be washed away, may, for the pur- pose of protecting his own property in a case of that description, raise a bank for his own security ; but this bulwark must be so executed, as to prejudice neither the navigation, nor the grounds on the opposite side of the river ; and as a guard against these consequences, the builder, before he began his work, was obliged by the Roman law to give security. Nothing, therefore, can be 1 [The owner of a dam, although the injury of an ordinary freshet, he will erected on his own land, is answerable to be responsible. He ought to provide his neighbor for injury to his land in against this in erecting his dam ; if he times of ordinary freshets, occasioned or cannot, then it is a case in which he enhanced by the dam. In erecting his must prove a license from his neighbor to dam the owner is bound to regard his suit the exigency, or not erect it at all. neighbor's rights and security, not only Casebeer v. Mowry, 55 Penn. St. 419, 423 ; in ordinary stages of water, but in those Gerrish :;. Clough, 48 N.H. 9, 13.] stages occasioned by ordinarily recurring 2 gee Eex u. Traflford, ubi sup. freshets. If, by his dam, he aggravates 510 LAW OF WATERCOURSES. [CHAP. IX. more distinct and precise than the language of Erskine in his In- stitutes, with respect to this particular case. He says, ' You may protect your own property from destruction ; ' so you may by the law of England ; but he says in distinct terms, ' Though the river threatens to change its channel, and to encroach upon your land, you cannot protect yourself to the prejudice of the opposite pro- prietor.' Lord Stair in his Institutes, though not so clear and precise, yet in general terms, confirms that which was laid down by Erskine in his Institutes. The language of the Roman law, according to the passage cited in the case, confirms the same doc- trine. It is there said (39 Dig. t. 3, 1, 1,), ' Opus quod quis fecit ut aquam exoluderet, quce exundante palude in agrum ejus refluere solet, si eapalus aqua pluvia ampliatur, eaque aqua repulsa eo opere ' agris vicini noceat, aquoe- pluvice actione cogetur tollere ; ' and ac- cording to a passage quoted in the printed papers, Voet repeats the same doctrine. In the Digest you will find another passage to the same effect, under the title ' De Aqua ' (lib. 39, tit. iii.). '■ Hoec autein actio locum habet in damno nondum facto, opere tamen Jam facto ; hoc est de eo opere, ex quo damnum timetur, totiesque locum habet, quoties manu facto opere agro aqua nocitura est ; id est, cum quis manu fecit quo aliter flueret, quam natura soleret ; si forte immittendo earn aut majorem fecerit aut citatiorem aut vehementiorem ; aut si com,primendo redundare effecit : quodsi na- tura aqua noceat, ea actione non continetur.'' \t appears to me, that that passage (and there are others to the same effect in the Digest) confirms the opinion laid down by Erskine in his Insti- tutes, with respect to the law of Scotland, in confirmation of which he refers to the Roman law. It is true that passages may be found in the Digest appearing to have a contrary tendency, but I think they may be all reconciled ; or, considering the sub- ject in this light, that these passages to which I am now alluding, have reference to accidental and extraordinary casualties, from the flood suddenly bursting forth, and they go to this, that, in such a case, the parties may, even to the prejudice of their neigh- bors, for the sake of self-preservation, guard themselves against the consequence ; perhaps in this way, the different passages in the Digest may be reconciled." ^ 1 [See post, § 349 a ; Gerrlsh ■/. v. London & North Western Railway Co. Clough, 48 N.H. 9, 13; Slater v. Fox, L.E. 10 Exch. 4, it appeared that the 12 Sup. Ct. N.Y. (5 Hun) 644. In Nield defendants, owners of a canal, being CHAP. IX.J FLOODING LAND BELOW. 511 2. Flooding Land Below. § 335. The maxim, Sic utere tuo ut alienum nan Icedas, dictates that it is equally actionable for an occupier of a mill vehemently to discharge a superabundance of water below him, as it is to overflow land above, or by the side of him.^ The rule of the Civil Law is very rigid in this particular ;^ and according to Po- threatened by an overflow of flood water from a neighboring river, and fearing damage to their premises situated on the banks of the canal, placed across it, at a point above their premises, planks reach- ing from the bottom of the canal to the coping-stone, which was some inches higher than the surface of the canal water. The flood-water afterwards broke into the canal at a point above the barricade of planks, and opposite to the plain tifis' premises, which were also situated on the banks of the canal above the premises of the defendants, and, being penned back by the planks, the water rose in the canal until it flooded the plaintiffs' prem- ises ; and in the action to recover damages for the injury so cau8ed,~it was held that the defendants were not liable, on the ground that the water which did the mis- chief was not brought there by them, and that there is no duty on the owners of the canal analogous to that on the owners of a natural watercourse, not to impede the flow of water down it. Amphlett B. said : " I think the analogy between a canal and a natural stream is a false one. You cannot obstruct a nat- ural stream, because the riparian propri- etors above and below have a right to the pse of the watercourse, and ho one has a right to build across or upon the bed of the stream for any purpose. But this canal is not a natural outlet for water, nor had the plaintiffs any right to its use as such ; and the plaintiffs cannot succeed, unless it can be shown that the canal, through what was done by the defendants, did bring a larger amount of water to the plaintiffs' premises than would have gone there if the canal had never been made, or had previously been filled up." So the owner of land, which is being inundated by a stream that has broken away from its channel, may lawfully turn it back to its old channel. But he would have no right, in preventing the inundation of his own land, to cause it to flow on to the land of another, except in its old channel. Tuthill v. Scott, 43 Vt. 625. The stream in question, in this case, flowed in a well-defined channel in the land of the defendant until a. freshet in 1869, when it broke away, flowed down the highway a short distance, and turned on to the plaintiff's land. The plaintiff turned it back to its old channel. The highway surveyor, without right, then filled up the old channel by making a road-bed therein, thereby causing the water to flow elsewhere on the defendant's land. The defendant then took measures to stop it from flowing on to his land, and thereby caused it to flow on to the plain- tifTs land again ; and it was held that this was against the plaintiff's right, and he could sustain an action therefor without waiting until he had suffered actual dam- ages from the effects of the water.] 1 [See Davis v. Getchell, 50 Maine, 602, 604. Each proprietor of a lot is entitled to the benefit of the. fall of the water upon his own land. He has not the right to set the water back upon the proprietor above him, nor can he lawfully dig into the soil of the proprietor below for the purpose of discharging the water upon the lot of such proprietor at a lower level on the division line, than the surface of the soil in its natural state would per- mit. Each proprietor, in availing himself of the fall upon his own land, must take care that he does not abridge the same right existing in either of the neighboring proprietors on each side of him. Per Denio J., in Townsend v. McDonald, 2 Kernan, 891.) •' Kauff. Mack. 305, .i. (b.). Nee illud qseramus : unde oriatur ? nam et si publico oriens vel ex loco secro per fundum vicjini descendat, isque opere facto in meum fundum earn avertat, aqucB piuvicB 512 LAW OP WATERCOURSES. [chap. IX. thier, the supra-riparian proprietor must not raise the water by- means of dams so as to make it fall with more abundance and rapiditj^ than it would naturally do, to the injury of the proprie- tor below.i By the Common Law, if a mill occupier shuts down his gate, and detains the water, and afterwards, permits it to dis- charge itself in unreasonable quantity to the annoyance of a mill in the lower part of the stream, he is liable to an action.^ [Where the owner of a mill caused the water upon a stream to be accu- mulated during the wet season, and drew it off in the summer, so as to cause a greater flow than usual, by means of which the banks of the proprietor below were washed away, his land drowned, and his grass depreciated, he was held liable for the damages caused thereby, although they might be small.^ So a mill-owner who turns into his mill-pond, naturally supplied from stream A., the water of stream B., which does not naturally flow into said pond, and by consequence, increases the quantity of arcendcB teneri eum, Labeo ait. — fr. 1 § 22, D. 39, 3. Sed si vicinus opus tollat et sublato eo aqua naturaliter ad inferiorem agrum parveniens noceat, Labeo existimat aqu« pluvise arcendse agi non posse ; semper enim lianc esse servitutem inferi- orum prsediorum, ut natura profluentem aquam exeipiant. Plane si propter id opus suUatum vehementior aqua profluat vel cor- rivetur, aqu(B pluvice arcendce actione agi posse, etiam Labeo confitetur. § 23. De- nique ait : conditionibus agrorum quasdam leges esse' dictas, ut, in quibus agris magna sint flumina, liceat mihi scilicet in agro tuo aggeres vel fossas habere : si tamen lex non sit agro dicta, agri naturam e&seservandam, e( semper inferi(yrem superi- ori servire, atque hoc incommodum naturaliter pati inferiorem agrum a superiore, com- pensareque debere cum alio commodo ; sicut enim omnis pinguitudo terrae ad eum decurrat, ita etiam aquse incom- modum ad eum defluere ; si tamen lex agri non inveniatur, vetustatem vicem legis tenere. Sane enim et in servitutibua hoc idem sequimur, ut, ubi servitus non in- venitur imposita, qui diu usus est servi- tute neque vi, neque' precario, neque clam habuisse longa consuetudine velut jure impositapi servitutem rideatur. Non ergo cogemus vicinum aggeres munire. Bed nos in ejus agro muniemus, eritque ista quasi servitus. In quam rem utilem actionem habemus vel interdictum." — Schneider in the Z. fr. Civil. R. u. Proc. vol. 5, p. 826. 1 Pothier, Traite du Contrat de Soci^te, second App. No. 236. 2 Merritt v. Brinckerhoflf, 17 John. 806. [Clinton v. Myers, 46 N.Y. 611.] In Shaw V. Cummiskey, 7 Pick. 76, the de- fendant dug a ditch whereby water was conducted from his brewery to an old clay-pit in the plaintiff's back yard ; and it was held, that an action on the case for a nuisance lay against the defendant. In Delaware it is provided by statute, that any person who shall wilfully dis- charge from any mill-dam an unusual quantity of water, or who may do the same accidentally -, it shall be his duty, as soon as the nature of the case will admit, to give notice of the wilful or accidental discharge of such water, to the owner or possessor of any mill which may be situate next below him ; and for omission to do so, the offender shall for- feit and pay double the amount of all dam- ages with costs. Laws of Delaware, pp. 405, 406. 3 [Gerrish v. ISeyi Market Manuf. Co., 80 N.H. 478 ; Tillotson v. Smith, 32 N.H. 90 ; Thompson v. Crocker, 9 Pick. 69.] CHAP. IX.] FLOODING LAND BELOW. 513 water flowing in the stream from his mill through the land of an owner below, to the injury of the latter, is liable in an action for the damages.^ In Tillotson v. Smith, the Court say, " if any per- son, above or below, shall make any change in the natural flow of a stream, to the material injury of the owner situate upon it, or by any interference shall prevent the stream from flowing, as it was wont to flow, to such injury, he is liable for the damage he may occasion. It seems very evident that if a man's land is materially damaged by water thrown upon it by reason of the acts of an- other, it can make no difference what the source of the water may be, whether it be back water, or the flowage of the same, or the water of another stream. The wrong consists in turning any water upon the land which does not naturally flow in that place ; and it can make no difference, whether the water, wrong- fully turned upon a man's land against his will, flows in the channel of an ancient stream, or in a course where no water flowed before, if similar damage results." *] § 335 a. In an action against the Corporation of the City of New York for injuries occasioned by the negligent and unskilful construction of a dam on the Croton River, it appearing that the dam was part of the work undertaken pursuant to the act of the legislature for supplying th« city with water, and that it was built by persons employed for the purpose under a contract with the water commissioners ; it was held, that the commissioners, though appointed by the State, were the agents of the corporation, and that the latter were liable for the consequences to the plaintiff of the sweeping away of the dam.^ In the case of Barron v. The Corporation of Baltimore, it appeared that the corporation, in the exercise of their municipal powers, diverted certain streams from their natural channels, to a point near the plaintiff's wharf, or navigable water, within the harbor and city of Baltimore, to which point a large deposit of sand and earth was carried down by the streams, and injured the value of the wharf; and it was held that a private action lay for the damage arising from this corporate act.* 1 [Tillotson V. Smith, 32 N.H. 90; 3 Hill, 53L [See Wendell v. Pratt, 12 Merritt v. Parker, Coxe (N.J.) 460; Allen, 464.] Pardessus on Servitudes, §§ 82, 85, 88.] * Barron v. Corporation of Baltimore, 2 [See Tuthill v. Bcott, 43 Vt. 525.] Am. Jur. No. 4, p. 203. 5 Bagley v. Mayor &c., of New York, 514 LAW OF WATERCOURSES. [CHAP. IX. § 336. The degree of care which a party who constructs a dam across a stream of water is bound to use, is in proportion to the extent of the injury which will be likely to result to third per- sons, provided it should prove insufSeient. It is not enough that the dam is sufficient to resist ordinary floods ; for if the stream is occasionally subject to great freshets, those must likewise be guarded against ; and the measure of care required in such cases is that which a discreet person would use if the whole risk were his own.i In a case where the plaintiff gave evidence that the defendant was the possessor of a saw-mill and dam above the plaintiff's works, and by means of the dam had raised a large body of water, about a mile in length, and varying in width from a few rods to half a mile ; and that the dam gave way, and let down the whole body of water upon the plaintiff's works below, and which swept away and destroyed his property to a large amount ; and at the time the dam gave way, there had been no unusual fall of rain ; the Court held as follows : " The defendant was subject to the maxim, Sic utere tuo ut alienum non Icedas; and to comply with this requisition of the Common Law, it was the duty of the defendant to have used ordinary care and diligence in making repairs to his dam ; or in drawing off the water from his pond to prevent injuries to the plaintiff's furnace. If the defend- ant did not use this care and diligence, he was guilty of negligence, and liable for consequential damages ; but he was not liable for inevitable accident." ^ § 337. It has been said, that if a man's ground is surrounded by water by natural causes, he is allowed to make a trench for the purpose of conveying the water downward upon the land of his neighbor ; for the reason that water is descendible by the laws of nature.^ In such case, however, the law without doubt ' Per Chan. Walworth, in Mayor &c. owner of land through which a stream of New York v. Bailey (in Error), 3 flows, may increase the volume of water Uenio, 433; [Wendell v. Pratt, 12 Allen, therein by draining into it, without lia- 464 ; Gray v. Harris, 107 Mass. 492. See bility for damages to a lower owner ; but Kylands v. Fletcher, Fletcher v. Rylands, in Miller v. Laubach, 47 Penn. St. 154, it L.R. 1 Ex. 265 ; 3 H. & C, 774 ; L.B. 3 was held that such owner of land above H.L. 330 ; Humphries v. Cousins, 2 C.P. could not, by an artificial channel, drain Div. 239, cited ante, § 114 j', in note, and water standing upon his own land upon § 114 k, in note.] that of another. It appeared in the above 2 Lapham o. Curtis, 5 Vt. 371. [See case that there was wet or marshy ground Frye v. Moor, 53 Maine, 683.] on the defendant's land, occasioned by 3 Callis on Sewers, 136, who cites 12 what was called winter springs, and which Hen. VIII. [There is no doubt that the only saturated the earth, without running CHAP. IX.J FLOODING LAND BELOW. 515 would require the exercise of proper caution, and would repro- bate any injurious consequences which, with prudence and care, might be prevented.^ It has been held by the Supreme Court of Pennsylvania, that where several persons unite in the pur- chase of a piece of ground, and divide the same into smaller lots, upon each of which a house is built, and then partition is made between them, each must so regulate and grade his own lot, as that the water which falls or accumulates upon it shall not run upon the lot of his neighbor.^ § 338. Williams v. Gale, in the Court of Appeals of Mary- land,^ was an action on the case, brought by the appellee (the off by a defined channel. To remedy this the defendant construoted a drain through tlie land thus saturated to the plaintiff's land, and there discharged tlie water which was accustomed to remain on his own until carried ofi' by evapora- tion. The plaintiff proved that this ren- dered his land, to the extent of from one-fourth to one- half acre, wet and worthless. See Kauffman u. Griesemer, 26 Penn. St. 407 ; Martin u. Riddle, 26 Penn. St. 405 in note. But in Gannon v. Hargadon, 10 Allen, 106, it was decided that the owner of land may lawfully occupy and improve it in such manner as either to prevent surface water which accumulates else- where from coming upon it, or altering the course of surface water which has accumulated thereon or come upon it from elsewhere ; although the water is thereby made to flow upon the adjoining land of another, to his loss. Bigelow C.J. said, " A party may improve any portion of his land, although he may thereby cause the surface water flowing thereon, whencesoever it may come, to pass off in a different direction, and in larger quan- tities than previously. If such an act causes damage to adjacent laud, it is damnum absque injuria,"] 1 The owner of a mill has an easement in the land below, for the free passage* of the water from the mill, in the natural channel of the stream, accompanied with a right to enter upon the land for the purpose of clearing out the stream, and removing obstructions to the free flow of the water. Prescott u. Williams, 5 Met. 429. [In Knoll v. Light, 76 Penn. St. 268, it appeared that the plaintiff owned land above the defendants' dam and that the dam did not ordinarily back the water on plaintiff's land ; in latter years a pecuhar grass commenced growing in this dam about February of each year, which obstructed the water, and in conse- quence it flowed back on plaintiff's land ; about June the grass broke off and ceased to impede the current. A ruling, that if accumulations of dirt &c. in the dam caused the growth of the grass, the de- fendants would be liable as if the ob- struction had been caused by dirt &c. alone ; but if the grass would have grown to the same extent and caused the same injury &c in tlie channel, if there had been no dam or accumulation of dirt &c., he would not be liable, was held to be correct ; and it was farther held that, if the growth of the grass was not occa- sioned by any act or negligence of the defendants, but was the result of natural causes over which they had no control, they would not be liable for injury there- from to the plaintiff, although the ob- struction was on the defendants' own land. And Pearson P.J. ruled that the plaintiff, if injured by the grass, had the right to enter upon defendants' land and remove it ] A law may be passed pro- viding for cases in which swamps, bogs, or wet land should be drained by ditches and embankments on the land of each owner, for the general benefit. The Wharf Case, 3 Bland (Md ) Cli. 442. 2 Bentz V. Armstrong, 8 Watts & S. 40. See Young v. Leedom, 67 Penn. St. 351. 8 Williams v. Gale, 3 H. & John. 231. 516 LAW OP WATERCOURSES. [CHAP. IX. plaintiff below) against the appellant (the defendant below), for making and erecting a dam and bank of earth in and across an ancient stream of water which ran through the lands of the plain- tiff and the defendant, so as to overflow and cover with water the land of the plaintiff. The defendant, at the trial, moved the Court to direct the jury, that although it should appear to the jury, from the evidence, that there was a natural watercourse run- ning through the plaintiff's land, and through the defendant's land below the land of the plaintiff, yet if it should appear to the jury, from the evidence, that the plaintiff, by cutting ditches on his own land, contiguous to the watercourse, and making banks, and clearing and cultivating the land, in the occupation and use of his land, increased the quantity of water which flowed down the watercourse, in a greater quantity than would have naturally flowed down the same watercourse, to the injury of the defend- ant's land, by overflowing the defendant's land adjoining the natu- ral course ; and that the plaintiff, by the said means, increased the velocity of the current, which ran down the watercourse, to the injury of the defendant's land, that then, and in that case, the defendant had a right to erect any necessary bank on an^d within the limits of his own land, and across the watercourse, to obstruct the watercourse, and to prevent such injury, and for the enjoyment and benefit of his own land, although the plaintiff's land should be damaged thereby ; and that, under such circumstances, the plaintiff could not support his action, but that the jury should find for the defendant. This opinion and direc- tion the Court refused to give to the jury, but they were of opinion, and so directed the jury, that under the above circum- stances, the defendant had no right to erect the bank to obstruct the water. The defendant excepted ; and the verdict and judg- ment being for the plaintiff, the judgment was affirmed. § 339. In Cooper v. Barber,^ the defendant had for many years past penned back a stream for the purpose of irrigation, the consequence of which was, that the water percolated through 1 Cooper V. Barber, 3 Taunt. 99. The mences building upon it. It has already objection to such a right as the one in been shown, that a presumption of right question in this case being acquired by by virtue of user ought to be furnished user, is that such underground filtrations by any enjoyment which is had either may be unknown to the owner of the vi, clam, or precario. See ante, §§ 100-115. land subjected to them, until he com- CHAP. IX.] BACKWATER UPON A MILL ABOVE. 517 the neighboring soil.i The Court appear to have been of opin- ion, that no right to cause such percolation was acquired by user, and that the adjoining owner, on receiving injury from it upon erecting a house, might bring an action for it.^ 3. Backwater upon a Mill above. § 340. The maxim, Sic utere tuo &c., applies as well to setting back the water of a watercourse above the owner's land in the natural channel of the stream, as it does to an actual overflow of land ; and indeed the consequences of setting back the water upon a mill-wheel above, are in most cases more injurious than flowing the land in the absence of any mill upon it. According to the doctrine we have laid down, in treating of the general property in a natural watercourse, every riparian proprietor, on either bank, is fully entitled to the benefit of the water, as it subsists in its natural state. It follows, then, that no single pro- prietor, without consent, has a right to make use of the flow, in such a manner as will be to the prejudice of any other ; and that he has no more power to apply it to a purpose which occasions a return of the water on the land above, than he has to cause a diminution of the quantity below. He cannot alter the level of the water, either where it enters, or where it leaves, his property.^ In the language of the Vice-Chancellor, in Wright v. Howard,* "Without the consent of the' other proprietors, who may be affected by his operations, no proprietor can either diminish the quantity of water, which would descend to the proprietor below, nor throw the water back upon the proprietors above. Every pro- 1 See ante, §§ 109-115; [Pixley v. Gale & What, on Easem. 121; and see Clark, 35 N.Y. 529, 530 ; Wilson v. New ante, § 143. The difference, says Vinnius, Bedford, 108 Mass. 265, 266.] between the flumen and the stillioidium 2 " If a man hath a sen, that is to say is this, — the latter is the rain falling a spout, above his house, by which the from the roof by drops ; the flumen is water used to fall from his house, and when it is poured forth in a continuous another levies a house paramount to the stream from the lower part of the build- spout, so that the water cannot fall as it ing. See Gale & What, on Easem. ubi was wont, but falls upon the walls of the sup. house, by which the timber of the house ^ See ante, §§ 92-97 ; [Dunklee v. The perishes, this is a nuisance." Vin. Abr. Wilton R.R. Co., 24 N.H. 498 ; Pixley v. "Nuisance," G. 5, citing 18 Edw. III. Clark, 35 N.Y. 520, 521; M'Calmont v. 22 b. The easements " that a man shall Whitaker, 3 Rawle, 84, 90; Gould v. receive upon his house or land, the flumen Boston Duck Co., 13 Gray, 442, 453 ; or stillicidium of his neighbor, are Good v. Dodge, 3 Pittsb. (Pa.) 557.] directly recognized by the Civil Law." * Wright y. Howard, 1 Sim. & Stu. 208, 518 LAW OP WATEECOURSBS. [CHAP. IX. prietor who claims either to throw the water back above, or dimin- ishes the quantity which is to descend below, must, in order to main- tain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninter- rupted enjoyment of twenty'years." ^ § 341. It therefore follows, that when a watercourse is raised so high, that the water is prevented from escaping from a mill above, whereby the motion of its wheels is impeded, it is an actionable injury. In Saunders v. Newman,^ Bayley J. says, " If a person stops the current of a stream, which has immemorially flowed in a given direction, and thereby prejudices another, he subjects himself to an action." — "Any impediment," say the Supreme Court of Pennsylvania, " in the stream caused by the defendant's dam, by which the plaintiff's mill is stopped from grinding, in any state of the water, or made to grind slower, or worse than it otherwise would, is an injury for which the plain- tiff would be entitled to damages."^ In a case, too, in New Hampshire, the Court say, " In general every man has a right to the use of the water flowing in a stream through his land ; and if any one divert the water from its natural channel, or throw it hack, so as to deprive him of the use of it, the law will give him redress."* — "There can be no difference," say the Supreme Court of Massachusetts, " whether the damage to the owner of a mill arise from the water above being diverted from his mill, or 1 Detweller v. Groff, 10 Penn. St. 376 ; and inundate and stop the coal works. Munn V. Wilkinson, 2 Sumner, 275 ; Mof- It was iield, upon tlie application for a fetty.. Brewer, 1 Greene (lo.) 348 ; [Pills- vxandamus' tor a jury to ascertain and bury V. Moore, 44 Maine, 154 ; Heath «. compensate the owner for the injury 'Williams,25Maine, 209; Brown w.Bowen, done his works, that it was a question 30 N.Y. 519, 537, 538 ; Cowles v. Kidder, 24 for the jury, and that the owner's alleging N.H. 364, 377, 378; Smith v. Agawam that he was injured by the altering of Canal Co., 2 Allen, 365 ; Gould v. Boston the level of the brook, was sufficient to Duck Co., 13 Gray, 442. The Common entitle him to a viandamus ; and that if Law affords the owner of land a protection damage be done partly under the powers against the flow of water back upon his of a statute and partly not, a mandamus own land to the injury of his mill by the and not an action at law is the proper acts of another, without showing any remedy for such lawful acts. Eegina v. priority of appropriation, or statute pro- North Midland Railway Co., Cases relat- vision to aid him. Heath v. Williams, ing to Railways, Vol. II. Part I. p. 1. 25 Maine, 209.] .Under a railway act 2 Saunders i>. Newman, 1 B. & Aid. which gave power to divert rivers, water- 258. courses &c., a company had raised the ' Butz v. Ihrie, 1 Rawle, 218 ; and see level of a brook into which the sough also Stiles v. Hooker, 7 Cow. 266. of a coal-mine had been accustomed to * Gilman w. Tilton, 5 N.H. 232. See empty itself, and thereby caused the Pixley v. Clark, 35 N.Y. 520. water of the brook to flow into the sough, CHAP. IX.] BACKWATER UPON A MILL ABOVE. 519 from the water below being stopped so as to flow back and thereby prevent the mill from grinding." ^ Again, in Massa- chusetts, where the defendant was owner of an existing mill- dam, and the plaintiff rightfuUj'^ erected a mill-dam above it, on the same stream, it was held, that the defendant had no right to increase the height of his dam to a level with the plaintiff's wheel, and thereby obstruct the wheel by backwater, Parker C.J. observing, " There is no such right as the defendants claim, to raise by flash-boards the water to a level of the plaintiff's wheel. Both parties had a right to use their water privilege. The de- fendants having first erected their dam to an adequate height for the common state of the water, the plaintiff had a right to work his mill without interruption by any additional dam of the de- fendants." ^ [§ 341 a. Where the proprietor of a mill, and a definite pro- portion of the water power or flow of water in a stream, makes a change in a sluice-way which occasions an increase of back- water, injurious to the mill of a neighboring owner, who is also part owner of the water power, the latter is entitled to maintain an action therefor.^] § 342. The rule, that a riparian prbprietor cannot alter the level of the water above the point where the water enters his land, applies whether the supra-riparian proprietor has a mill already erected to be affected by backwater, or not. The Su- preme Court of Illinois, in giving judgment in a case in which the plaintiff sought to recover damages for an alleged injury occasioned by the erection of a dam by the defendant, and the consequent setting back the water upon the plaintiff's mill-site, and preventing him from proceeding to erect a mill, said, " Every man has a right to construct a mill-dam on his own land ; but in doing so he must be cautious that he does no injury to another. He cannot interfere with his neighbor's rights and privileges, or set back the water of a stream one foot upon his land, without rendering himself liable to damages commensurate with the in- jury sustained, unless he has so long enjoyed his privilege as to confer upon him a prescriptive right." * 1 Hodges V. Raymond, 9 Mass. 316. And see to the same effect, Eipka v. Ser- [See Smith v. Agawam Canal Co., 2 geant, 7 "Watts & S. 9. Allen, 355.] ^ [Munroe v. Gates, 48 Maine, 463.] 2 Sumner v. Tileston, 7 Pick. 198. * Hill v. Ward, 2 Gil. (111.) 285. In 520 LAW OF WATERCOUESES. [CHAP. IX. § 343. If one person erects a dam upon a river where the public have an easement for navigable purposes and for the passage of lumber, and the dam proves an obstruction to transportation, an- other riparian proprietor below him cannot justify the erection of a dam, and thereby cause the water to flow over the dam first erected, on the ground that it is a public nuisance.^ § 343 a. The owner of a mill and mill-ponds, and of land bor- dering on a stream, conveyed to A. the upper part of said land, with " a privilege to the grantee to dig a ditch," from a certain point, " large and deep enough to convey all the water into the river, without overflowing the meadow, where it will do the grantor's land the least damage." The grantor afterwards conveyed the lower part of the land to B., who erected a mill-dam thereon, and thereby flowed the water back into the ditch which A. had dug, in pursuance of his grant ; and A. brought an action against B. to recover damages for such flowing. It was held, that B. could not defend by showing that he, with the knowledge of A., and without objection from him, erected said dam, and continued it for several years before A. dug his ditch as to be affected thereby, and that the damage to A. was occasioned by the sinking of his ditch to a level below that at which it was when B.'s was erected. When the grantor owned the entire privilege, it was competent for him to make stipulations with the purchaser of the upper privilege, creating rights in that privilege, and imposing servitudes upon the lower, that would be binding upon the sub- sequent purchasers of the lower privilege.^ § 344. In M'Calmont v. Whitaker, in Pennsylvania,^ the plain- tiff, it appeared, was the owner of a tract of land, mill, and water power on a watercourse, and that the defendant was the owner the Supreme Court of Indiana there was find for the defendants. It was held, a case in which an action was brought that it was the duty of the Court to in- fer obstructing a watercourse by a fish- struct the jury as to the law, and inform dam, to the injury of the plaintiff''s mill, them as to the legal sequence resulting The defendants asked the following in- from given facts ; but the Court was not struction which the Court refused to bound to tell the jury that one fact neces - give : that " If the fish-dam is built three- sarily results as a consequence of another fourths of a mile below the mill, and the fact. Case v. Weber, 2 Cart. (Ind.) 108. jury believe from the evidence that the ' Odiorne v. Lyford, 9 N.H. 502 ; and said dam is only one foot high, and that see Hart v. Mayor of Albany, 9 Wend, the fall of the water from tlie surface 671 ; [Lincoln v. Chadbourne, 56 Maine, thereof below the plaintiff's mill-wheel, 197, 200.] to the surface thereof on the top of the ^ Whitney v. Eames, 11 Met. 517. fish-dam is nearly two feet, the jury may 3 M'Calmont v. Whitaker, 3 Eawle, 84. CHAP. IX.] BACKWATER UPON A MILL ABOVE. 521 of another tract of land, mill, and water power below the plain- tiff; and the plaintiff complained of being injured by the defend- ant's dam, which backed the water upon the plaintiff. It was held, in conformity to the doctrine above laid down, that the water to which a riparian owner is entitled consists of the dif- ference of level between the surface where the stream, in its natural state, first touches his land, and the surface where it leaves it. But the views of Mr. J. Huston, in giving his judg- ment in this case, are worthy of attention. He says, " It may be admitted, generally, a man has a right to use all the fall in a stream of water, from the place where it enters his land to the spot where it leaves it ; nay, more, that if at the first erection of his machinery he did not use it all, he may change his site within his land, or raise his dam to flow it back to his line, or deepen his tail-race as low as he can, so as to deliver the water into its natural channel at his lower line. But he cannot raise his dam so as to throw the water back on the man above him ; nor can he dig his tail-race through the land of the owner below, so as to deliver the water into its natural channel at a point where that channel is lower than at his own line ; nor can he go into the chan- nel of the creek in the farm below," and deepen that channel so as to make the bottom of the creek lower at his own lower line, than it was in a state of nature. He has no better right to blow rocks, or dig out gravel, or clay, in the channel of a creek below his own line, than he has to go into the fields below and dig a race ; in either case he commits a trespass on the man owning below. If he could do either, he could take from the owner be- low all that person's fall, and add it to the tract above." . . . "Everyman who has seen a stream of water, knows that its bottom is not a regular inclined plane. If it were, the depth of the current would be equal ; it is often very far from it ; for many yards we find it almost a stagnant pool, and several feet deep ; immediately below this we find a ledge of rock or of slate, or of hard pan, over which the water flows only a few inches in depth, and flows rapidly, and exhibits a ripple of more or less length, or a succession of ripples. Now if you dig away the hard pan or gravel, or blow out the rocks the whole length of these ripples to the depth of a foot or two, you change the pool above, and its surface is sunk a foot or two. Suppose the line of the tract above crossed the creek over this pool; by taking down the 522 LAW OP WATERCOURSES. [CHAP. IX. bottom of the creek below, the owner of the land above can then lower the surface of the water on the tract above — can do so. But can he do it legally ? Certainly he cannot. Suppose in a state of nature there was a four-feet fall in the space of one hundred yards in the land below ; if M'Calmont could dig out this fall, so as to make it level for the whole of the hundred yards, he would have four feet fall at his own lower line, and by sinking his tail-race up to his wheel, could sink his wheel four feet, and make four feet more addition to his head ; but if the man below cannot dam back on this new wheel, he has taken four feet of water power from the man below, and that he has no right to do.fc The principle then is, that he may use all the fall from his own upper fall to his own lower line, but he cannot add to that by sinking the bed of the creek on the land be- low." 1 § 345. A very common error has been thought to prevail as to the flowing back of the water of a stream by means of dams or other obstructions, and complainants fall into that error when they allege that they cannot flow back the water farther than a certain cut, because they observe a current through the cut "more rapid than the other parts of the stream. And those complained against fall into the same error, when they allege, that the com- plainants never flowed back to their mill, because there is a fall of some inches in the stream from a certain point up to the defend- ants' mills. The intervention of a ripple or rapid current in a watercourse, is no evidence that the water above that ripple or current is not aifected by a dam or obstruction below. And if the width of a pond were diminished one-half of any distance, the water would flow through that part of the pond, while the mills were in operation, with double the velocity that it would flow through the other parts, and thereby create a current or ripple ; for it may readily be perceived, that if a dam were re- moved from below, the water would of course sink, and thereby increase the rapidity of the current through the narrow part of the stream, and thereby permit the water above to escape more rapidly .'■* In a case in the Court of Chancery of New Jersey, it I [See Gould v. Boston Duck Co., 13 2 Hulme n. Shreve, 3 Green (N.J.) Gray, 442, 453 ; Norton o. Valentine, 14 Ch. 116. And see Case v. Weber, ante, Vt. 239 ; Ford v. Whitlock, 27 Vt. 265 ; § 342, note. Stein «. Burden, 29 Ala. 127.] CHAP. IX.] BACKWATER UPON A MILL ABOVE. 523 was asserted by the defendants in their answer, that " the back- water of the defendants' mill is created by the narrowness of the creek, and the quantity of water flowing down the same, and not by the complainants' dam, for in the fall of the year 1831, there was a fall in the said stream from the lower point of the neck of land called ' Warner's meadow,' up to the defendants' mills, of from six to eight inches." Here is an admission of backwater, but it was charged to the narrowness of the stream, and not to the dam ; and the allegation that the backwater was not occasioned bj'' the dam, was evidently a conclusion drawn from the fact, that there were six or eight inches of water between the complainants' mills and the lower part of the neck of land called " Warner's meadow." But the Chancellor said, " This conclusion is evidently erro- neous, for by inspecting the measurements of the depth of the stream or pond it will be found that from the mills of the defendants down to ' Warner's meadow,' the average depth is about four feet three inches, and that depth increases gradually from that point down to the dams of the complaina,nts, where the average depth is more than six feet ; so that there is a gradual fall in the stream from the one mill to the other, and it cannot be doubted, that if the complainants' dam were removed entirely, the water would sink at the lower part of ' Warner's meadow,' probably to one-half its present depth, and thereby the water from above would escape more rapidly, and of course relieve the wheels of the defendants in some measure from their backwater. But the witnesses who have testified on this subject all agreed that there is, and always has been, backwater at the mills of the defendants ; and the engineer puts the matter beyond controversy, for he says that he has levelled the stream, and finds the complainants' full head about eight inches higher than the sheeting of the wheels of the defendants' mills; and whenever the parties shall make the ex- periment, by stopping both mills and letting the water find its level in the pond of the complainants, they will find that the water will stand in the sheeting of the defendants' mills nearly a foot deep."^ § 346. The decision in McDonald v. Bacon, in Illinois, ^ was ou the ground of the exception to the general principle, that an award to be obligatory on the parties, must decide all the 1 Hulme V. Shreve, 3 Green (N.J.) ^ McDonald u. Bacon, 3 Scam. (111.) Ch. 116. 432. 524 LAW OP WATERCOURSES. [CHAP. IX. matters contained in submission ; ^ the exception being that where the submission is of several distinct subjects, an award determining some of them only will be good, if it appear that those not decided were withdrawn from the consideration of the arbitrators, or that the parties failed to submit the evidence con- cerning them. The main questions submitted for the decision of the arbitrators, were, whether B.'s mill-dam, by causing back- water, obstructed the operations of M.'s mill, and, if so, what amount of damages M. had sustained, and how much the dam should be lowered. The Court, in giving judgment, said, " The only question which the Court is called upon to decide, is, whether that part of the award which relates to the lowering of the dam, is sufficiently certain. By the terms of the submission, the arbitrators were required to ascertain and determine, upon act- ual examination, how much the dam should be lowered, to remove the injury complained of. They award that the dam shall be taken down, so that the quantity or head of water above it, shall be reduced eleven inches lower than it was on a particular day. The injury complained of arose from the backwater occasioned by the dam at the lower mill. The remedy agreed on by the parties, was the lowering of the dam, so that the backwater should cease to interfere with, and obstruct the operations of, the upper mill. It is but reasonable, therefore, to apply the reduction in the depth of water, to that part of the dam nearest the upper mill. The duty of the arbitrators seems clear and positive. They were to examine the premises, and ascertain by experiment and other- wise, in the first place, how much the depth of the water at the upper mill should be lessened, to free it from the obstruction ; and then determine what reduction in the height of the dam would produce the result desired. It was useless to determine the first proposition, unless they at the same time decided the other. They ascertain the cause and extent of the injury, but fail to pro- vide a certain and definite remedy. The principal question, to what extent the dam is to be lowered, remains undetermined." § 347. In a very modern case in England, Lord Tenterden C.J. observed, " It has been long established, that the ordinary course of water cannot be lawfully changed or obstructed for the benefit of one class of persons to the injury of another ; and I See ante, § 279, et Bec^, CHAP. IX.] BACKWATER UPON A MILL ABOVE. 525 he then says, that " unless a sound distinction can be made between the ordinary course of water flowing in a bounded chan- nel at all usual seasons, and the extraordinary course which its superabundant quantity has been accustomed to take at particu- lar seasons, the erection and continuance of these fenders cannot be justified." ^ But it is clearly agreeable to legal principles, that a riparian proprietor may erect a dam without being held liable for consequences which are remote and unforeseen. The legal maxim is causa propinqua non remota, spectatur ; and a departure from this maxim would open a field for litigation, which might unexpectedly bring ruin upon persons engaged in lawful pursuits.^ As damage from floods maj' be increased by almost any obstruc- tion whatever, it is inseparable from even a reasonable use of the water in a way to produce the greatest benefit ; and were it otherwise, the whole power created by the descent of the stream within the limits of each, could not be used by any of them, as a considerable margin would have to be left by each to prevent his dam from swelling the water back upon his neighbor in times of flood. It is better for all, that the whole power of the stream should be turned to account, than the particular damage, on extraordinary occasions, should be prevented by sacrificing part of it.3 § 348. In an action brought to recover damages for an injury done to the plaintiffs' bridge by a head of water raised, as was al- leged, by the defendants' dam, the jury were instructed, that if the damage was occasioned by great rains, or by the violence of the wind, the defendants were not liable, if the jury were satisfied that the head of water, raised by the dam, was not raised high enough to flow the plaintiffs' bridge, or to do damage thereto. On a verdict being returned for the defendants, and a new trial granted, Weston C.J., in delivering the judgment of the Court, said, " The jury have found, that the head of water raised by the defendants' dam, was not, at the period complained of, high enough to flow the plaintiffs' bridge, or to do damage thereto. Its erection then was a lawful act, not in itself calculated to do any injury to the plaintiffs. Their loss was occasioned, as the jury 1 Rex V. Trafford, 1 B. & Ad. 874; 3 Per Gibson C.J., in Monongahela s.c. in error, 8 Bing. 204. Navigation Co. v. Coon, 6 Penn. St. 383. 2 Cliina (Town of) v. Southwick, 12 [See Smith v. Agawam Canal Co., 2 Maine, 238. Allen. 357, 358.] 526 LAW OF WATERCOURSES. [CHAP. IX. have found, by great rains, or by the violence of the wind. If the dam had not raised the water to a certain height, the rain or the wind superadded might not have done the damage. It may have been one of a series of causes, to which the injury may be indirectly ascribed. Their connection, however, was fortuitous, and resulted from an extraordinary and unusual state of things ; neither the rain nor the wind was caused by the dam. The bridge had continued unimpaired for a series of years, while the dam was higher than it was when the bridge was carried away. Such an event, therefore, could not have been calculated upon or foreseen. It would be carrying the doctrine of liability to a most unreason- able length, to run up a succession of causes, and hold each re- sponsible for what followed, especially where the connection was casual and unexpected, as it was here, and where that which is attempted to be charged was in itself innocent." ^ § 349. If, in the case of an obstruction of a public river, it ap- pears that the injury resulting therefrom arose from causes which might have been foreseen, such as ordinary periodical freshets, or the collection of ice, he whose superstructure is the immedi- ate cause of the mischief is liable for the damage. On the other hand, if the injury is occasioned by an act of Providence, which could not have been anticipated, no person can be liable.^ [§ 349 a. Where the proprietor of land aud a mill privilege erected a dam across the stream upon his own land, and thereby caused the stream to become obstructed with ice, and the water of the stream and the ice to be thrown back upon the land aud mills of a proprietor above, on the same stream, and the operation of the ' China (Town of) v. Southwick, ubi away should be regarded, substantially, sup. as the act of Providence. The dam ought ' Bell V. M'Clintock, 9 Watts, 119. to be so constructed as to resist such ex- And see Lehigh Bridge Co. v. Lehigh traordinary floods as might be reasonably Nav. Co., 4 Rawle, 9 ; Cowles v. Kidder, expected occasionally to occur ; other- 24 N.H. 364, 381 ; Davis v. Fuller, 12 Vt. wise, those erecting it are liable. Pixley 178; Pixleyu. Clark, 35 N.Y. 525; Smith v. Clark, 35 N.Y. 524; The Mayor of V. Agawam Canal Co., 2 Allen, 355, 358. N. York v. Bailey, 2 Uenio, 433 ; Gray v. There is a class of cases in leference to Harris, 107 Mass. 492; Washburn v. Gil- surface streams, where negligence is the man, t)4 Maine, 1B3, 1B8 ; i'letclier v. foundation of the action; as where a Ry lands, L.R. 3 H.L. 33U, cited ante, riparian owner erects a dam, so carelessly § 114 k, in note, and Michols !;. Marsland, or unskilfully that it is carried away, and L.R. 10 Exch. 255, cited ante, § 114 /t, in owners below are thereby injured; in note; Conhocton Stone Koad Co. u. Buf- such case, the riparian owner is held falo. New York & Erie R.R. Co., 5 N.Y. liable, unless the flood that carried it Sup. Ct. Rep. 661.] CHAP. IX.] PRTOR OCCUPANCY. 527 mills was thereby obstructed, the proprietor below was held liable for the obstruction.^ The Court said in the case cited, " The case furnishes no evidence of any sudden and accidental accumulation of ice, by some extraordinary means, or any state of the water which is not usual and ordinary, and always to be expected in certain seasons in each and every year. Accumulations of ice in our streams in this climate, are as certain as the annual return of winter." — "This was simply the ordinary case of the erection and maintenance of a dam, either higher or otherwise, of a char- acter such as the defendants had no lawful right to maintain, and by means of which the ice and water were accumulated and thrown back upon the mills of the plaintiffs in a manner to oc- casion a damage." — "The damage is distinctly shown to have been caused by the dam, in its necessary and usual operation upon the water, causing the water and ice to be thrown back upon the mills." But in Smith v. Agawam Canal Company^ it- was held, in Massachusetts that the owner of land lying upon both sides of a natural stream of water, which is not navigable, may lawfully erect thereon a dam across the stream to such a height that in ordinary stages of the water it will not throw wa- ter back upon the wheels of an ancient mill above, although, in consequence of the erection of the dam, the ice, when it breaks up in the spring, becomes packed together above the dam, and the water is thereby set back so as to flood the wheels to a . greater height and for a longer time than it has done before at that season.] 4. Prior Occupancy. § 350. That it is now become the well-established doctrine, that no riparian proprietor can acquire any rights in the use of the water by mere prior occupation^ (whatever dicta there may 1 [Cowles V. Kidder, 24 N.H. 364, 381. be acquired by adverse possession and See Tyler v. Wilkinson, 4 Mason, 395, enjoyment, where it is real and actual. 400; Gilman v. Tilton, 6 N.H. 231; Tlius tlie proprietor who first lawfully Blanchard v. Baker, 8 Maine, 253, 266; erects his dam across the stream, to create Pugh V. Wheeler, 2 Dev. & B. 50; Hill v. a fall by means of which he may operate Ward, 2 Gilm. 285 ; Gary v. Daniels, 8 his mill, has a right afterwards to main- Met. 466, 477.] tain it against all other proprietors, both 2 [Smith V. Agawam Canal Co., 2 above and below him; and to this extent Allen, 355.] priority of occupancy gives priority of 3 [In Pratt v. Lamson, 2 Allen, 288, title." Cary v. Daniels, 8 Met. 466; Merrick J. said, "The right to an ex- Thurber w., Martin, 2 Gray, 394; Gould elusive use of the water may undoubtedly v. Boston Duck Co., 13 Gray, 442.] 528 LAW OP WATERCOURSES. [CHAP. IX. have been to the contrary), has been demonstrated in a preceding chapter ; ^ and that such is the law, as applicable to backwater, was ably maintained by an elaborate opinion of the Supreme Court of North Carolina.^ In Heath v. Williams, in Maine,^ the defendant, it appeared, had a clothing-mill on the watercourse in question, above the plaintiff's dam, and that when, in 1842, the parties were operating their respective mills, the plaintiff per- mitted the water held by his dam, to rise so high as seriously to impede the operations of the defendant's mill. It appeared also, that the defendant frequently requested the plaintiff to let off the water, so that the back-flow should not injure him ; which was not done. The defendant then notified the plaintiff, that he him- self should let off the water, and though forbidden by the plain- tiff, he thereupon removed planks from the plaintiff's flume, and let off the water, doing no greater damage than was necessary to remove the back-flow from his mill ; and for this act he was sued in an action of trespass. The Court thought that the defendant, failing to obtain relief from the continuance of the injury by the backwater, without it, might lawfully enter upon the plaintiff 's_ land, and remove, so far as was necessary, the obstruction he com- plained of ; and in giving their opinion, they said, that priority of appropriation of running water conferred no exclusive right to the use of it, in the absence of grant, license, or an adverse appro- priation for more than twenty years. So, on the other hand, an upper proprietor who has the first opportunity of using the water, and becomes the first occupant, is. entitled to no more fall and water power than his privilege, within the limits of his land, will afford ; and he cannot, by virtue of his first appropriation, obtain a greater water power by altering the bed of the stream lower down, and beyond the line of his own land. * § 351. The erection of a mill and dam, with the use of the water for a period less than twenty years, by the owner of the land on one side of the river, does not show an appropriation of 1 See ante, Chap. IV. §§ 130-136. fendant liad no right to increase the 2 Pugh 0. Wheeler, 2 Dev. & Bat. height of his dam to a level with the (N.C.) 50. plaintiff's wheel, and thereby to obstruct 3 Heath v. Williams, 25 Maine, 44. the wheel by backwater. Sumner v. Where the defendant was the owner of Tileston, 7 Pick. 198. an existing mill-dam, and the plaintiff * M'Calmont v. Whitaker, 3 Rawle, rightfully erected m, mill above on the 84, and cited more fully ante, § 344. same stream; it was held, that the de- CHAP. IX.] SPECIAL GRANTS AND RESERVATIONS. 529 all the water in the stream to the side of the river on which the mill is built ; nor does such use give the owner of the mill and of the land on that side a right, at a subsequent period, to flow the place where the dam stood, by means of another dam erected at some distance below, to the injury of the owner of the land on the opposite side of the river. No occupation short of a period of twenty years can be evidence of such an adverse right.^ § 352. Where each of two persons having equal rights to a water privilege of sufficient power to drive but one mill, has recently erected a mill on his own land, neither acquires a priority of right, by first erecting his mill ; but each has an equal right to the use of the water therefor, and neither can maintain an action founded in tort for the use of the water thus owned in common, before their rights became several by partition.^ 5. Right to overflow or to cause Backwater as derived from Special Grants and Reservations. § 353. The right to overflow land above and below, or to set back the water upon an upper mill privilege, may be conferred by 1 Lyford o. Odiorne, 9 N.H. 502. [Where a proprietor of land upon one shore appropriates and applies to his in- dividual use so much of the passing ■water as he is enabled to do, even if it be the whole of it, by means of structures erected upon and within the limits of his own estate, and the proprietor of the land on the opposite shore neither uses nor seeks to use, nor makes any provision, nor, has any occasion, for the use of any part of the stream or proportion, of the water to which he is entitled, there is nothing adverse in the action of the former. He does nothing for which an action can be maintained against him, or nominal damages recovered in the asser- tion and vindication of an invaded right. In such circumstances, they stand towards each other in the relation, and with sub- stantially the rights, of tenants in com- mon, where the possession of one is deemed to be the possession and for the benefit of all, and their respective rights will continue to be protected and preserved to them, until some positive act of actual and exclusive adverse possession by which one of the parties is directly interfered with, and prevented from enjoying his equal privilege in the use of the water. Pratt V. Lamson, 2 Allen, 288, 289.] ^ Bailey o. Rust, 15 Maine, 440. [Where two steam mills or factories are located on the same stream, the rule is declared, in Bliss v, Kennedy, 43 111. 67, to be this ; that so far as the water is destroyed by being converted into steam, neither is entitled to its exclusive use ; it is to be divided between them as nearly as may be according to their respective requirements ; if each requires the same quantity, it should be equally divided ; but while the water is incapable of being thus divided with mathematical exactness, if the jury should find that the upper factory has used more than its reasonable share, or has diverted the water after using it from its natural cliannel, or so corrupted it as to deprive the lower pro- prietors of its use to such a degree as to cause a material injury to that factory, it would be ground for an action, and ultimately for an injunction.] 34 530 LAW OP WATERCOURSES. [CHAP. IX. a special grant. When thus acquired (like the right thus acquired of diverting or detaining the water) it is an incorporeal heredita- ment of the class of easements,^ the nature, creation, and extin- guishment of which, and also the extent of the easement conferred, as depending upon the terms of the grant, there has before been occasion carefully to consider.^ So also the right in question (like the right of diverting water) may be excepted and reserved as an easement in a conveyance of the land.^ It is now proposed to arrange the cases in which the rules and principles laid down in former chapters respecting the particular use of the water as it passes, derived by particular conveyances and contracts, have been applied directly to overflowing land and causing backwater. § 354. The following case, in relation to a right of flowing, by virtue of a grant, was adjudged in Connecticut: Where A. and B. were joint tenants of a grist-mill and dam, and the land on which they were erected ; the parties, in 1788, made a division in severalty, by a deed of partition, A. taking one-third, and B. two-thirds. In 1791, B. erected a saw-mill on land owned by him in severalty, which was operated by water taken by the grist- mill pond by means of a trough inserted in the dam. In 1797, A. and B. submitted to arbitrators a controversy between them relating to the overflowing of the land of A., caused by the dam erected for the benefit of the grist-mill; whereupon it was awarded, that the dam should remain as it then was, and if it should in a common season cause the water to overflow A.'s land more than it did at the time of the partition, B. should pay dam- ages. By a writing indorsed on this award in 1799, A. and B. mutually agreed to abide by it. In 1807, B. by a quitclaim deed conveyed to A. all B.'s right and title in and to the grist-mill, together with the privileges thereto belonging. In an action subsequently brought by A. against B. for keeping up the dam, and thereby overflowing the 'adjoining land of A., the defence set up was a right in B. to the use of the water in the manner stated in the declaration, for the purpose of working his saw-mill. It 1 See ante, Ch. V. parol license and acts in pais, ante, 2 As to the nature and extent of ease- §§ 240-253. ments, ante, §§ 141-144 ; as to the creation ^ As to exceptions and reservations, of, ante, §§ 168-173 ; as to extinguish- ante, §§ 173-191 ; covenants running with ment of, by unity of possession, ante, the land, ante, §§ 255-273. §§ 191-200; as to extinguishment of, by CHAP. IX.J SPECIAL GRANTS AND RESERVATIONS. 531 was held by the Court, that B. had no such right by virtue of the documents referred to.^ [§ 354 a. Where from the whole of a written instrument read in the light of surroundhig circumstances, and of preliminary and other agreements referred to, it is apparent that it was the pur- pose of the parties that the grantor should sell to the grantee the right to maintain a dam to the height of certain iron bolts ; but in making the conveyance, after a grant of that right, there was also a license to raise the water to the height of such bolts, it was held that the latter clause was not to be construed, under the circumstances, as a limitation of the height of the dam, but that the grantee acquired the right to maintain a dam of that height, and to use it in the ordinary way, although it would sometimes raise the water above such bolts.^ So, in the same case, where it appeared that, by a preliminary agreement, a right was sold to raise a dam to a certain height above another dam, and after- wards by an instrument in writing the parties agreed that certain iron bolts were placed in the rocks to denote the height to which the vendees had the right to raise their dam by virtue of such preliminary agreement, which second agreement was made part of the final instrument of conveyance, it was held that this was conclusive evidence of the height to which the grantee might build his dam.^] § 355. In respect to a right to flow by virtue of an unlimited grant at the first settlement of the country, it has been decided in Connecticut, that where, under such grant, a person claiming under those who have elected to flow, has for a great length of tiflie flowed to a certain extent, such extent wUl determine the extent of the grant ; and the dam cannot consequently be raised any higher.* The rule is, that where an interest vests immedi- ately by the force of the grant, elect^n may be' made by the heirs ; and so an election coupled with an interest is descendible. But if nothing passed or vested in the grantee before his election, it should be made during the life of the parties.^ In Vandenburgh V. Van Bergen,^ the defendant, under a deed for certain lands in 1 Watrous v. "Watrous, 3 Conn. 373. * 1 Swift Sys. 86. 2 [The Salmon Falls Manuf. Co. v. 5 Com. Dig. tit. " Election ; " Jackson The Portsmouth Co., 46 N.H. 249. See v. Van Buren, 13 John. 625. Winkleyy. Salisbury Manuf. Co., 14 Gray, 6 Vandenburgh u. Van Bergen, 13 443.] John. 212. 8 [The Salmon Falls Manuf. Co. v. The Portsmouth Co., 46 N.H. 249.] 532 LAW OF WATERCOURSES. [CHAP. IX. CoxsacMe (New York) Patent, with full liberty and license to erect and build a mill on any place on the river by that name (with liberty of ground and stream of water), claimed the right of overflowing the plaintiff's land, which was held by the grantor at the date of the defendant's deed ; it was held, that though the grantee, in his lifetime, would have had a right to erect a mill on the river, and to have overflowed, so far as was reasonable and necessary, the land of the plaintiff adjacent to the river, which had been purchased from the defendant's grantor, subsequent to the date of his deed ; yet, not having elected to erect the mill, in his lifetime, the right became extinct at his death. ^ § 356. Where the proprietors of a township, in order to en- courage its settlement, voted to give lands and a sum of money to any persons who would build mills on one of the lots designated, and maintain them for ten years, which was done ; this was held to give no right to flow the lands of any individual proprietor holden in severalty at the time of the vote, though more than forty years had elapsed since the mills were built, without any claim of damage. It was urged, that for a series of j'^ears prior to the division and allotment of the proprietary lands, there was an understanding among all concerned, that the mill lot should be reserved for the purpose of having mills erected thereon for general convenience ; and that, therefore, when the division was made, each owner or assignee of a lot must be considered as assenting to take his land subject to the right, in the owners or occupants of the mill-lot, to flow the adjoining lands, without any compensation. But the Court said, " Such a construction would contradict the record ; it would be changing a vote or convey- ance, absolute in its terms, into a conditional one ; it would be making a contract, instead of giving a construction to one already made. If a man's title, founded on deed or record, could be varied and impaired in this manner by parol proof, or by the magic of construction, without any proof at all, titles would be exposed to a thousand dangers, and thrown into confusion. In early times, the flowing of the lands in question, as in many other cases, was little or no injury to the owner ; but as the lands have become more valuable, that injury may become matter of import- ance ; and we do not perceive why such an injury should not 1 And see Thompson v. Gregory, 4 John. 80. CHAP. IX.J SPECIAL GRANTS AND RESERVATIONS. 533 furnish as fair a claim for the damage which has actually been sustained, as in cases where the flowing has been occasioned by- more recent erections."^ § 357. In New York, it has been held, that a grant of land by the State, in which there is a mill-site, but no mill or dam, does not authorize the grantee to erect a dam thereon so as to flow adjoining lands subsequently purchased of the State by others, unless that right be expressly provided for in the grant ; and it is so, although the subsequent purchaser acquires a title after the erection of the dam, under letters-patent referring to a map which represents his land as flowed to the extent and in the manner claimed.^ § 358. By a grant of a mill, "with the appurtenances," the dam and all privileges of flowing which are necessary to the full enjoyment of the mill and head of water wiU pass.^ The doc- trine on this subject, as applied to the diversion and detention of the water, is applicable likewise to causing it to flow back on the land above ; and it has been expressly held, that, as the grant of a mill not only carries the head of water necessary to its enjoy- ment, with all the incidents and appurtenances, as far as the right exist'ed to this extent in the grantor, if such grant cannot be beneficially enjoyed without causing the water to flow back upon other lands of the grantor, a right to do this passes to the extent to which it had been flowed before the grant ; and to this extent all the parties and privies in estate under the grant are bound.* Even without the word appurtenances, we have seen that the rule is, that whenever a right is granted, all and any easements neces- sary to its beneficial enjoyment will pass.^ Thus the grant of a right to build a dam, and flow the land of the grantor, carries with it, as incident to it, the right to enter and repair the dam and cleanse the pond.^ § 359. In an action brought for overflowing land by the back- water of a mill, it appeared that A. died seised of a tract of land on which there was a grist-mill then in operation ; and that on a division of the land under the law of descent among the intes- tate's heirs, the mill was on the part allotted to B., the dam of 1 Stevens v. Morse, 5 Greenl. 26. 5 gee ante, §§ 157-167 ; Mower v. 2 Colvin V. Burnet, 2 Hill, 620. Hutchinson, 9 Vt. 242. 3 See ante, §§ 156-158, et seq. ^ Prailey v. Waters, 7 Penn. St. 221. * Backley v. Sprague, 17 Maine, 281. 534 LAW OP WATERCOURSES. [CHAP. IX. which covered a portion of the part allotted to C. It was held, that B. had a right to use the mill and dam in the same way, and to the same extent, as they had been used by A. in his life- time.^ § 360. As a general rule, then, a deed of land over which a watercourse passes, will convey the right of the grantor, in re- spect to backwater, as it actually existed at the time of the con- veyance.^ Tenants in common of an ancient mill and water privilege erected, below their mill, a new dam and a smaller mill, on their own land ; and while they owned both mills, it was the practice, whenever the lower dam so raised the water as to obstruct the upper mill, for a workman in the upper mill to go down, over the land owned by the tenants in common, and open the waste-gate of the lower dam, and thus relieve the upper mill from backwater. Afterwards, each of the tenants in common, by a separate deed, conveyed his undivided part of the upper mill, and the land near it, to W., in these terms : " A certain parcel of land " (described) " together with one undivided " (fractional) " part of the privilege of water, creek, factory, saw-mill, dwell- ing-houses, and other buildings, situate on the premises, and of the water-wheels, main gear, main drums, connected witA the said factory and saw-mill, and of all the privileges and appurte- nances thereunto belonging ; " and in each deed was a covenant that " the aforegranted premises " were free from all incumbrances brought thereon by the grantor. W. conveyed the upper land and buildings, with all the privileges and appurtenances, to C, who was one of the former tenants in common. W. and D. after- wards became the owners of the lower land, dam, and mill, and W. released all his right therein to D., who abandoned the dam and erected another, for the use of the mill, lower down the 1 Kilgour V. Ashcom, 5 H. & John. 82. from those before granted. Such deed '^ [The defendant conveyed to the conveys all such privilege of flowage, plaintift' a piece of land, by metes and use of water, and repairing of dam, bounds, bounded on one side by Warner as would be incident to the land as Eiver, with the saw-mill, clothing-mill, bounded on the river, and such as and carding-maehines therein, " with a were incident to, or had become con- privilege of flowage, use of water, and nected with the mills conveyed, and in- repairing of dam," with all privileges eluding not only those which were origin- and appurtenances, &c. It was held, ally incident to the land and mills, but all that this was only an enumeration of the such as had been acquired by grant or rights that would pass as incident to the prescription by the defendant or his land or mills, and not a separate grant grantors, before the conveyance to the of any rights or privileges disconnected plaintiff. Seavey v. Jones, 43 N.H. 441.] CHAP. IX.J SPECIAL GRANTS AND RESERVATIONS. 535 stream, and by means thereof threw back the water upon the wheel of C.'s mill, whereby its movements were obstructed. It was held, in a suit by C. against D. for the obstruction thus caused, that C. took the upper dam, mill, and privilege, as they existed, and were modified and appropriated by the lower dam, when the conveyance was made to W. ; and that he did not ac- quire a right to the unobstructed flow of the water from his mill. Held also, that the right to use the water below C.'s mill, as that right was modified by the appropriation previously made for the lower mill, was not an incumbrance on the upper mill and privilege, within the meaning of the covenant made against in- cumbrances by W.'s grantors, but was a parcel of the lower estate. Held also, that D., by removing his dam lower down the stream, exercised his rights justly, and without injury to C, if he thereby made only the same appropriation of the stream that was made by his dam and mill, as they stood before ; but that if D. raised his new dam higher than his old one, so as to appropriate to himself an increased portion of the stream, and set backwater upon the wheel of C.'s mill, he was answerable to C. in damages. Held also, that C was not entitled to recover damages of D. on the ground that the removal of D.'s dam lower down the stream had prevented C. from opening the waste-gates therein, or had rendered the opening of them more onerous or expensive.^ § 361. But of course in all conveyances, covenants, and agree- ments respecting overflowing land and backwater, their con- struction will depend upon the express stipulations they contain in connection with the nature of the right granted.^ A lease, 1 Gary v. Daniels, 8 Met. 466. so high as he can do so without setting 2 See the doctrine on this subject fully the water back upon the wheel of their considered, ante, § 144, et seq^., § 255, et grist-mill, so as, in any manner, to ob- seq., § 273, et seq., § 279, et seq. [Where struct said wheel, or injure the privilege a deed granted to the defendant a certain of said John and Almond," and the plain- water-privilege on Sudbury River, and tiiF claimed that this clause limited the provided that " the said WiUiam B. (the right of the defendant, so that he could defendant) is to have the right to build a not build a dam which would flow the dam across said river as high as he shall water back upon the wheel of the mill need, by his being responsible for all above, the court said : " We are unable damages that may be done, by-flowing in to adopt this construction. Its natural consequence of said dam, excepting as is construction is, that it gives the defend- hereinafter provided, to wit, the said ant the right to build the dam as high as William B. shall have the right to flow he shall need, he paying all damages, the land of said John and Almond, with- with the proviso that he is not to pay the out paying damage therefor, so far and grantors any damage unless it flows water 636 LAW OF WATERCOURSES. [CHAP. IX. after demising a mill-site on a certain stream of water, pro- ceeded thus: " together with the dam now. across said brook, with the privilege of using the water and water-fall created hy said dam ; and with the farther privilege of flowing so much of the adjoin- ing marsh as may be necessary, provided that the same he not raised higher than to flow the water back even with the bottom of the apron of the water-wheel above, as the same now lays." It was held, that the lessee did not acquire the unqualified right of using all the water which the dam would contain as it existed at the date of the lease ; but that he must so use the dam, as not to raise the water above the bottom of the apron at the upper mill.i [§ 361 a. The owner of a mill on a stream, and of a right to flow during half the year part of the meadow on which the head of water was raised, and of the right to flow the residue of the meadow all the year, granted to the owner of a mill above his own and at the outlet of the meadow a privilege to draw water " sufficient to carrj' a water-wheel well constructed, with twelve feet head and fall, for two common blacksmith bellows, and, should the head and fall be less than twelve feet, sufficient to carry one bellows twelve hours in twenty-four, in either case in the daytime, as near as may be ; " it was held, that the grantee took, as against the grantor's mill, the whole power granted for the whole year ; but, as against third persons, only that power limited by the restriction of the grantor's right of flowing part of the meadow ; that the rights acquired by the grant might be designated in equity by some other mode of measurement ; that the restriction was not affected by a previous reservation to an intermediate mill, also owned by the grantor, of a right to flow the whole meadow at all seasons ; and that a subsequent purchaser of the lowest mill and of the land occupied by the dam and reser- voir, if he did not use that mill, was not bound to keep the dam in repair for the benefit of the privilege above granted ; but could not hoist the gates of the dam and thus waste the water to the injury of that privilege.^] back upon their wheel. The clause as to dam as high as he shall need." Prentiss setting the water back upon the grantor's v. Wood, 118 Mass. 589, 593.] wheel is a limitation of the right to flow l Watt v. Kinney, 6 Hill, 82. without paying damages, not a limitation ^ [Phelps v. Tourtellot, 9 Gray, 102.] of the principal right granted to build a CHAP. IX.] SPECIAL GRANTS AND RESERVATIONS. 537 § 862. A grant of a mill " with the privilege of raising a full head of water to the usual height, from the middle of November to the middle of May, so far as respects lands of the grantor, and at other seasons as may be hereafter agreed," does not restrict the grantee to the use of the head of water during that time only ; but is merely a failure to fix exactly by compact to what extent the grantee might flow for the remainder of the year, and leaves that matter as an incident to the grant, to be determined by legal adjudication. ^ § 362 a. If the purchaser of a mill-seat and water-power ac- cepts from the vendor a deed without any covenant for his pro- tection, as to the. height of the dam, or the extent of flow to which he is entitled, and the purchaser is subjected to an action for damage, by reason of the improper height of the dam, he is with- out remedy, either at law or in equity .^ § 363. It appears to be a principle well established, that where the parties to a deed, soon after its execution, and in good faith and by mutual consent place monuments to correspond with the deed, this act is taken to fix those monuments, and to define the limits of the grant.^ So it has been held, that a grant of a right to erect a dam within certain limits, becomes fixed, when the dam is built at a certain place within those limits by mutual con- sent.* [Where an easement — as a right to lay aqueduct logs through land — is granted in general terms, without giving defi- nite location and description to it, so that part of the land over which the right is to be exercised cannot be definitely ascer- tained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee. If it be admitted that he has the right originally to select the place in which the ease- 1 Rackley v. Sprague, 17 Maine, 281. ^ Boynton u, Rees, 18 Pick. 332 ; 2 Hopper u. Lutkins, 3 Green (N.J.) [Farrar u. Cooper, 34 Maine, 394, 398, Ch. 149. 399 ; Bannon v. Angier, 2 Allen, 128. 3 Per Shaw C.J., in Dryden v. Jepher- See Goodrich v. Longley, 4 Gray, 379, son, 18 Pick. 385, referring to Makepeace cited ante, § 157 c] V. Bancroft, 12 Mass. 472 ; Davis v. Rains- ford, 17 Mass. 211 ; Allen u. Bates, 6 Pick. 460. 538 LAW OF WATERCOURSES. [CHAP. IX. ment is to be enjoyed, he cannot afterwards alter it. This rule rests on the principle that where the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties, contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposi- tion of the intent of the parties.^] The case of Dryden v. Jepherson, in Massachusetts,^ is considered to come within this- class of cases. D., the owner of a tract of land and two mill privileges, conveyed toM. a portion of the land, with a mill priv- ilege described in the deed by metes and bounds, " together with the privilege of a dam below D.'s factory, and of flowing the water as high as will answer and not injure or obstruct the water-wheels of D. above." It was held, that this was a grant to M. of a right to build a dam for a mill privilege, and, if for the purpose of raising the water to the height agreed upon, it was necessary for M. to extend his dam over a part of the tract not included by such metes and bounds, he was authorized to do so by the grant ; that evidence of acts done by the parties under a mutual agreement, immediately after the grant was made, by way of marking the site and height of the dam to be erected by M., was competent for the purpose of determining the extent of the grant ; and that M. might maintain trespass quare clausum against D. for cutting through that portion of the dam which was placed upon the land not included by the metes and bounds ; the interest of M. therein being a right of possession for the purpose J- [Jennison u. Walker, 11 Gray, 426, would have no right to lay an aqueduct 427 ; Stone v. Clark, 1 Met. 278, and to the spring in any other place, though cases cited; Onthank v. The Lake Shore it might be more convenient for B. to do and Michigan Southern R.R. Co., 15 Sup. so than to lay it in the place pointed out Ct. N.Y. (8 Hun) 131. See Jones v. in the deed. In the one case, the parties Percival, 5 Pick. 485 ; Choate v. Burn- to the deed not having fixed upon any ham, 7 Pick. 274 ; Wynkoop v. Burger, place for conveying the water from the 12 John. 222 ; Johnson v. Jaqui, 12 C. E. spring, the law interprets the grant to Green, 552, cited ante, 252 a, note. If A. mean that B. shall have a proper and grants to B. a spring of water in the reasonable place for conveying away the centre of A.'s field, and makes no provi- water ; but in the other case, the parties sion by which B. can lay an aqueduct to having interpreted and limited the grant the spring, the grant would, by implica- and fixed the place for conveying the tion, carry with it to B. the right in a water from the spring, there is nothing reasonable and proper manner to lay an left for interpretation or implication by aqueduct across A.'s field to the spring, the court, and the court have only to But if, in making the grant of the spring, enforce the grant as agreed upon by the A. had marked out a particular place in parties. Ross J. in Woodcock u. Estey, which B. could lay down an aqueduct and 43 Vt. 522, 523.] convey the water from the spring, B. ^ Pryden v, Jepherson, ubi sup. CHAP. IX.] SPECIAL GRANTS AND EESEBVATIONS. 539 of the dam, so long as his mill should continue, and not a mere easement. The Court expressed their opinion that the intent evinced by parol agreement and acts in pais, could be carried into effect without violating the rule of law requiring all rights and interests in real estate to be manifested by some writing ; and that it was the common case of going into evidence aliunde to ascertain limits and monuments left uncertain in the descrip- tion. § 364. Where, in the conveyance of land, a description is given which has not acquired a fixed legal construction, or a boundary is referred to, which is variable, parol evidence is admissible in order to determine the meaning and construction of the deed. By virtue of this rule, if a deed describes land as bounded on a certain pond, and upon applying the deed to the local objects embraced within its descriptive terms, it appears that the pond was a natural pond raised more or less at different times, hy means of a dam existing and in use at the time of the conveyance, so that there is a latent ambiguity ; it is competent to a party to prove, by parol evidence, that a certain line was agreed on and understood, at the time of the conveyance, as the boundary of the pond.^ § 365. A deed describing a boundary line as running up a river to certain falls, " thence continuing to run in such direction as to include a mill-yard, and the whole of a mill-pond which may be raised by a dam on said falls, to a certain road," &c., determines the boundary of the land itself, and not the height to which the pond may be raised.^ § 366. In grants of land some of the rights of flowing, inci- dent to the ownership, may be reserved by the grantor, both by express words and by necessary implication, or they may be ex- cepted.^ D., who owned a saw-mill and clothier's works, and also 1 Waterman v. Johnson, 13 Pick, 261. that which was flowed, to another, and 2 Hull V. Fuller, 4 Vt. 199. the release to the latter contains the 5 See the doctrine of reserrations and words " brook to remain for ever for the exceptions, and the difference between a use of the mills, as heretofore, for ever; " reservation and an exception, considered the mill-owner is entitled to flow the land ante, §§ 173-191. If owners and tenants of the other releasee to the extent that in common of a mill and the land flowed it had been usually flowed by previous by the stream by which the mill is oper- dams, without being subjected to the ated, with the adjoining lands, make payment of damages, under the statute partition of the same by mutual releases, of flowing. Vickerie v. Burwell, 13 Maine, assigning the mill and privilege to one, 289. and land adjoining, with a portion of 640 LAW OP WATERCOURSES. [CHAP. IX- the land above and below them, on both sides of the stream on which they stood, and up to the pond from which the stream flowed, conveyed to S., in 1883, a piece of the land, below the saw-mill and clothier's works, by a deed which contained these clauses : " With the privilege of flowing back the water, by a dam on said premises, within two rods of where the water is now taken out of the pond : Also the privilege of using the water on said premises for all kinds of machinery, except for a saw-mill, and clothier's works for customers : And also the privilege of drawing water from the pond, by raising the gate, for the benefit of the machinery that may be erected on said premises, under the above exception or reserve : And further, I reserve to myself, my heirs and assigns, the privilege of raising the gate at the pond, at all times, to draw water for the benefit of my machinery below." S. erected a factory on the land thus conveyed to him. In 1839, D. conveyed to W. the land lying above that which he had conveyed to S., extending to the pond, and also a strip of land, two rods wide, on the side of the land conveyed to S., and the deed of conveyance relinquished to W. the right to flow any other land which D. owned, by a dam which might be, or could be raised, on the premises thus conveyed ; W. dug a canal through said strip, and conveyed the water, through said canal, into the stream below the land and factory of S., thereby render- ing said factory nearly useless. S. brought an action against W. for diverting the water, and W. attempted to justify, on the ground that S. had raised the water higher than within two rods of where it was taken out of the pond, when he received his deed from D., and had thus exceeded the limit of the right granted to him by that deed ; and that W. had diverted only so much of the water, as to keep it down to that limit. Held that, all the re- servations in D.'s deed to S. were for the benefit of D.'s saw-mill, &c., and were to him and his assigns, as owners thereof ; and that W., not having purchased the saw-mill, &c., could not set up those reservations for any purpose ; that there was not in D.'s deed to S., either by express words or necessary implication, any restriction, on which D.'s grantors or assigns could insist, to pre- vent S. from flowing D.'s land beyond the line mentioned in that deed, subject to payment of damages under the mill acts, provided such flowing should not interfere with any mill above ; and that if S. had raised the water, for the use of his factory, CHAP. IX.j SPECIAL GRANTS AND RESERVATIONS. 541 higher than the limit mentioned in hia deed from D., W. was liable to an action for diverting it, and that W.'s remedy against S., if any, vt^as under the mill act.^ § 367. There has been, already occasion to invite attention to exceptions in convej'^ances that are void for uncertainty? Where A. granted eighty-six acres of land to B., reserving the streams of water and the soil under them, with the right of erect- ing mill-dams, and all such parts of the land as shall be overflowed by water for the use of mills for the grantor ; and B. sold forty acres of the premises to C, with the like exceptions; and C. erected a dam on his part of the land, by which the land of B. was overflowed ; it was held, that, until A. exercised his right and erected dams, the reservation was inoperative, and, if con- sidered strictly as an exception, would be void for uncertainty.^ § 368. A grant of land bounding on or near a pond and stream excepting the mill and water privilege, is an exception of the right of flowing the land so far as is necessary or convenient, or so far as it has been usual to flow it for that purpose ; and in such case the grantee takes subject to the easement, and the exist- ence of the easement is not an incumbrance on the premises granted.* § 369. An exception of a mill-site in a grant, operating as a reservation of the soil of the mill-site, and of the right of flow- ing so much land as is necessary for a mill-pond, is not a reser- vation of a mere easement, but of the soil itself ; and the grantor and his assigns may enter upon and locate under the exception, even after the grantee has conveyed and assigned his interest to another.^ § 370. The owner of a farm on which there was a fall of water, conveyed the fall by deed, and also conveyed as follows : " All those lands lying upon Queechy South Branch which shall be subject to be covered with water by virtue of a dam being erected six feet in height from low-water mark" at the fall con- veyed, with a proviso, that the water be drained off yearly from the first of May to the first of September. Subsequently he conveyed to the owner of the fall, " all that land, except the land belonging to B. and S., which is covered by the waters of the 1 Judd V. Wells, 12 Met. 504 ; [Tour- « Thompson v. Gregory, 4 John. 80. tellot V. Phelps, 4 Gray, 370.] * Pettee v. Hawes, 13 Pick. 823. '^ Ante, §§ 175, 176. - * Jackson v. Vermilyea, 6 Cowen, 677. 542 LAW OP WATERCOUBSES. [CHAP. IX. said South Branch overflowing the dam on said Branch, which dam is raised six feet above low-water mark ; however, all those lands covered by said water, and are connected with the main body of the water by small outlets, are not conveyed." It was held, that the deeds conveyed a right to flow all the lands of the grantor by such dam, except as against the owners of the land belonging to B. and S., and that the dam might be raised and kept up six feet from the bed of the stream, as it was when the deed was executed. -"^ § 371. In a complaint for flowing under the statute of Maine, it appeared that L. conveyed two lots of land which included a mill privilege and saw and grist mill on the premises to S. by deed, containing a reservation in these words : " Excepting and reserving out of the same, the one half of the grist-mill and saw- mill built by said S. on said lots, together with one half of all the privileges appertaining to the said mills, as the improving of the mill-yard, &c. Also said S. has a right of raising a head of water, all seasons of the year, not damaging the owners of the land above, as also said L. reserves to himself." It was held, that this gave a license to flow the grantee's other land ; and that L., as to his part of the privilege, was to have the same right to flow the contiguous land conveyed, as S. had to flow the other land of the gran tor. 2 1 Mower v. Hutchinson, 9 Vt. 242. [A owner of a mill privilege, of the right to deed of a water privilege, having a lower flow land above to a certain extent, which and an upper dam, "also all the laud is defined in the deed, without any words which I, the said grantor, own, that said binding the grantee to confine himself to first-mentioned dam flows (reserving all that limit, will not deprive him of his the woodexcept whatstandsonsaiddam), right, under the mill acts of Massachu- together with the right to flow all the setts, to flow the land bej'ond ; and build- land that said dam, as it now stands, will Ing a dam which does not exhaust the flow ; also all the land which the second- privilege conveyed by such grant will mentioned dam flows (reserving the not prevent the grantee from subse- wood), together with the right to flow all quently, within twenty years, availing tlie land that said dam, as it now stands, himself of the residue thereof. Knapp v. will flow," conveys the land which the Douglas Axe Co., 13 Allen, 1. Under dam would flow if inuse, although at the the Massachusetts mill uct (Genl. Sts. c. date of the deed the dam was not in use, 149), the proprietor of a mill on a stream and the water flowed within the banks may raise his dam so as to use all the of the stream and through the waste- unappropriated water power, even if he w^y, as freely as if no dam had been thereby causes water of his pond to flow there. Morse v. Marshall, 11 Allen, 229.] into the race-way of a mill higher on the ^ Eackley v. Sprague, 19 Maine, 344. stream. Dean v. Colt, 99 Mass. 486.] [The acceptance of a mere grant, to the CHAP. IX.] PLOWING LAND — PRESCRIPTION. 543 6. Prescription, or Twenty Years' Enjoyment. § 372. A right to overflow land or to raise the water to the injury of an upper mill privilege, may, like easements in general, be acquired by an uninterrupted and adverse enjoyment for twenty years, or for the period of time, whatever it may be, limited by the Statute of Limitations for the right of entry upon land.^ For the general law upon this subject, the reader is referred to a former chapter,^ where it has been elaborately considered in all its ramifications ; it being only here proposed to show the in- stances of its application in cases of alleged injury by throwing back the water. § 373. Where authority is conferred by statute to flow land, on payment of damages, if a mill-owner has in fact exercised the privilege of keeping up his dam, and flowing the land of an- other person, for a period of twenty years, without payment of damages, it is evidence of a right so to flow without such payment, and will bar a claim for damages.^ 1 Alder v. Savill, 5 Taunt. 454 ; Cowell V. Thayer, 5 Met. 253, and cases there cited ; Sargent v. Gutterson, 13 N.H. 467 ; Wilson V. Wilson, 4 Der. (N.C.) 154; [Norway Plains Co. v. Bradley, 52 N.H. 103.] In Sherwood v. Day, 4 Day, 244, it appeared, that the plaintiff had a full- ing-mill on the stream of water with a corn-mill belonging to the defendants, who about ten years before raised their dam one foot higher than it had ever previously been ; by which the water was thrown back upon the wheel of the plaintiff's mill, and its motion so much impeded that it could not be used. It was proved, that the fulling-mill had been in constant use for more than forty years. The defendants produced a grant from the town of F. giving authority to build a corn-mill on the very site occupied by the defendants' mill. In giving judg- ment, the Court said, " The mill of the plaintiff had been erected for more than forty years ; and during the whole of that time, except the last ten years, the stream of water had been suffered to flow off below without interruption, or any obstruction to the injurj' of the owner of the fulling-mill. It is, therefore, now too late to deny the plaintiff's right after so long an enjoyment of the privilege." [The right to flow back water, ae'quired by prescription, is as absolute as any other right. Hulme u. Shreve, 3 Green Ch. (N.J.) 116; Hynds v. Shultz, 39 Barb. 600.] 2 Ante, Chap. VI. 8 "Wilhams v. Nelson, 23 Pick. 141; [post, §§ 505, 506 ; Perrin v. Garfield, 37 Vt. 310; Brace v. Yale, 10 Allen, 443 See the remarks of the Court upon the case of Williams v. Nelson, in Nelson v Butterfield, 21 Maine, 233, 236, 237 Where it appeared that a town made a road across a navigable stream, and a mill-owner erected his mill and applied the road as a dam for the same, whereby land of a third party was flowed, and this had been continued for more than twenty years, it was held that the mill-owner had acquired a prescriptive right to flow the land, although by so doing he might have made himself liable to indictment in a .public prosecution for a nuisance 544 LAW OP WATERCOURSES. [CHAP. IX. § 374. An upper riparian proprietor may have acquired such an easement in the land of a lower proprietor, as to compel the latter to cleanse and keep open the watercourse as often as becomes necessary, to prevent the water being thrown back to the injury of the former ; and it is not necessary that the lower proprietor should have notice of the injury so occasioned. His cleansing and opening as soon as he had notice, shows that he acts properly, and as a person in his situation ought to do ; but that is no de- fence in point of law against a complaint for an antecedent injury. The action is not founded on malice, or the breach of any moral duty, but is for a compensation for damage sustained by the neglect of a legal duty ; and, if damage has been so sustained, the defendant is not the less bound to compensate for that, because he has promptly repaired his fault.^ § 375. Inall such cases of claim to a prescriptive right, the enjoy- ment set up mn?,t\)Q peaceable, open, and uninterrupted;^ and it is material, also, that it be adverse, or as of right ; ^ and in the words of Mr. J. Cowen, it must be " in complete analogy to its archetype — the bar in ejectment." * § 376. Where the plaintiff erected, in 1799, a mill, and the defendant, who owned a mill below, was in the habit of raising his dam by means of flash-boards, whenever the water was low ; but within twenty years after the erection of the plaintiff 's mill, had been frequently ordered to take down the flash-boards, and had always acquiesced, claiming no right to keep them up to the injury of the plaintiff ; and afterwards admitted that he had no right to keep them up : it was held, that this evidence was suffi- cient to defeat any claim by prescription on the part of the de- fendant, and to rebut the presumption of a grant.^ to the highway. Borden v. Vincent, 24 provided, and the evidence in support of Pick. 301. This case was cited and ap- the presumptive right must at least be proved, and the principle of it adopted, sufficient to have established the legal in Perley v. Hilton, 55 N.H. 444.] right, provided the statute had extended 1 Bell V. Twentyman, 1 Ad. & El. N.s. to the case in judgment." See also 766. [See ante, § 114 i, note.] Mitchell v. Walker, 2 Aiken, 269. In 2 Ante, §§ 210-216. Hart v. Vose, 19 Wend. 365, which was 3 Ante, § 216, et seq. a case oi Jlowing, it was held, that the ^ Colvin V. Burnet, 17 Wend. 564, and uninterrupted enjoyment was prima facie see ante, §§ 204, 209 : and as to d!sa6i'tties, evidence that it was adverse, but such ante, 237, 238. In Shumuy v. Simons, conclusion might be rebutted by proof 1 Vt. 58, Boyce J., in a case of flowing that it was commenced and continued with- land, says, " The modern doctrine of pre- out claim of right. sumption is founded in analogy to the ^ Sumner v. Tileston, 7 Pick. 198; Statute of Limitations. It is applitable and see ante, § 221. to cases for which the statute has not CHAP. IX.] FLOWING LAND — PRESCRIPTION. 545 § 377. Where the right to flow land, under the statute of flow- ing in Virginia, it was provided by an inquest, that the water was not to be raised higher than a certain log; and the dam, being raised higher than the log, caused the water to flow back upon the plaintiff ; and the evidence tended to show, that the dam had been higher than the log for more than twenty years, but that the plaintiff had complained of it, denied the right to raise it, and threatened to sue ; it was held, that the use and en- joyment by the defendant, and those under whom he claimed, although it was exclusive and adverse, and existed for more than twenty years, was not conclusive evidence of the defendant's right, but presumptive merely; and that evidence tending to show that such enjoyment was not acquiesced in, but the right thereto contested, was proper evidence to rebut the presumption. ^ § 378. Where a dam which makes backwater is intended to be only temporary, the enjoyment of it is not adverse, and the time which it is used, cannot be connected with the time during which a permanent dam, subsequently erected, has been used, in order to make out the length of enjoyment sufScient to confer a pre- scriptive right. When the defence to an action for the obstruc- tion of a watercourse by the erection of a dam below the plaintiff's works, and thereby setting the water back upon them, was a right in the defendant acquired by prescription, to raise the water, in the manner and to the height complained of; and it appeared that the defendant at first erected a temporary wooden dam, by which the water was raised to that height ; but he after- wards, for his convenience in erecting a permanent stone dam, discharged the water for some time through a wasteway, in con- sequence of which the water was so lowered as not to flow up to the plaintiff 's works ; and then, when the permanent dam was completed, the water was raised again by means thereof to the height complained of, and was so continued ; it was held, that the period of user by virtue of which the prescriptive right claimed by the defendant could be acquired, did not commence until the water was permanently raised by the stone dam, after its comple- tion.2 A dam for a temporary purpose, though it may imply permission from the supra-riparian owner to erect it, does not au- 1 Nichols V. Aylor, 7 Leigh, 546 ; and 18 Conn. 233. [See Hurlbut v. Leonard, Bee ante, §§ 217-221. Brayt. 201 ; Crosby v. Bessey, 49 Maine, 2 Branch v. Doane, 17 Conn. 402, and 543; Po'lly v. M'Call, 37 Ala. 20.] 85 546 LAW OF WATERCOURSES. [CHAP. IX. thorize, after the decay of it, the erection of another dam in its place. 1 § 379. The extent of the prescriptive or presumed right is determined by the user, the right acquired being commensurate with the actual enjoyment.^ In Stiles v. Hooker,* it was held, that where one has had the use, at a given height, for twenty years, a grant will be presumed of the privilege of using it at such height, but nothing beyond can be claimed ; and if the person repairs his dam, which has kept the water at that height, so as to raise the water higher, and flow it back upon an upper mill, an action will lie therefor, though the dam itself remains at its ancient height ; that the question is not altogether upon the height of the dam, but of the water. [So in Mentz v. Dor- ney,* it was held, that where a grant to flow land of an adjoining owner depends on presumption, the extent of the grant is meas- ured by the extent of land actually flooded, and not by the height of the dam ; and if repairs to the dam flood the land to a greater extent than it has been flooded for more than twenty years ; the owner is liable for the excess, though the dam may not have been made any higher.] In such cases, the person injured may reduce or change the dam so as to lower the water to its proper height ; though he has no right to demolish the dam entirely.^ § 380. But a mill-owner, who has acquired a prescriptive right to keep up a dam constantly, which, in its usual operation, would raise the water to a certain height, although, from the leaky condi- tion of the dam, or the rude construction of the machinery in the mill, or the lavish use of the stream, the water has not been usually and constantly kept up to such height ; yet if he repair the dam, without so changing it as to raise the water higher than the old dam, when tight, would raise it ; ^ or if he use the water 1 Hepburn v. McDowell, 17 S. & ^ Dyer v. Dupui, 5 Whart. 584; and Eawle, 383. see Heath v. Williams, 25 Maine, 440. 2 Ante, § 224, et seq. ; [Carlisle!;. ^ [A mill-owner, who holds his title to Cooper, 21 N.J. Eq. 576, 594, 595; Brooke a dam by deed, has a right to maintain V. Winters, 39 Md. 505.] his dam as it was at the time he took kis 8 Stiles V. Hooker, 7 Cowen, 266. In deed ; and, if through want of repair for Russell V. Scott, 9 Cowen, 279, it was a series of years subsequent to that it lets held, in reference to a prescriptive right the water escape, the owner has the right to flow, that if the dam be raised, and to repair and tighten it, although the the flow increased within twenty years, water is thereby raised higher and re- an action lies. tained longer than it was while the dam 1 [Mentz V. Dorney, 25 Penn. St. 519. was in a dilapidated condition. Butler v. See also Curtice v. Thompson, 19 N.H. Huse, 63 Maine, 447.] 471; Smith v. Euss, 17 Wis. 227.] CHAP. IX.J PLOWING LAND — PRESCRIPTION. 547 in a different manner, and thereby keep up the water more con- stantly than before, this is not a new use of the stream, for which a land-owner can claim damages, but is a use conformable to the mill-owner's prescriptive right ; ^ [but for any excess over this 1 Cowell V. Thayer, 5 Met. 253 ; [Jackson v. Harrington, 2 Allen, 242; Marcly u. Shultz, 29 N.Y. 354; Hynds V. Shultz, 39 Barb. 600; Hoar J., in Short V. Woodward, 13 Gray, 86 ; Vickerie V. Buswell, 13 Maine, 289; Ray v. Fletcher, 12 Cush. 200 ; Lacy v. Arnett, 33 Penn. St. 169; Powers v. Osgood, 102 Mass. 454, 467; Carlisle v. Cooper, 6 C. E. Green, 595, 596 ; Brace v. Yale, 99 Mass. 488, 492, 493. But see Mentz V. Dorney, 25 Penn. St. 519. In the Winnipiseogee Lake Co. v. Young, 40 N.H. 420, it was held that, if a party claims and exercises for twenty years the right to raise the water as high as his dam would raise it when there was suffi- cient water to fill it, he may acquire a right to the extent of his claim. But in Curtice v. Thompson, 19 N.H. 471, it was held that evidence was admissible, in an action on the case, for maintaining and keeping up a dam, to show that a party, by making a dam higher or tighter than it had been, caused the water to flow the plaintiff's land to a greater height than before. This point has been under con- sideration in several later cases in New Hampshire. In Burnham v. Kempton, 44 N.H. 90, Sargent J. said, "To us it seems that twenty years' maintenance of a dam in a particular mode is evidence of a grant or right so to maintain it, and twenty years' use of the water in a par- ticular way is evidence of a right thus to use the water. The same proof of user which establishes the right is equally conclusive in establishing the Hmitations of that right. Twenty years' accustomed flow and use of a certain stream or pond of water is as good evidence of right to the one party as to the other. Twenty years' support, subject to the qualifica- tions before stated, of a mill-dam, is evi- dence of a grant to build and maintain just such a dam, constructed and used substantially in the same manner." See Bucklin a. Truell, 54 N.H. 122; Griffin V. Bartlett, 55 N.H. 119. In Guilford v. The Winnipiseogee Lake Co. 52 N.H. 262, it was held that merely maintaining a dam for twenty years does not give a prescriptive right to flow land as high as it can be flowed by that dam. To acquire such right, the water must be actually raised on the adjacent owner's land so often as to a8"ord him reasonable notice, during the entire period of twenty years, that the right is being claimed against him. And in Griffin v. Bartlett, 55 N.H. 119, where it appeared that a mill-owner, having gained by prescription a right to flow a land-owner's meadow from October to June of each year, to the height of his ancient dam, repaired and tightened the dam, erected an additional mill, put in new and improved machinery consuming less water, and claimed the right to operate the mills as thus constructed, provided he did not raise the water above the top of his ancient dam, it was decided that he could not flow the land-owner's land in a different manner nor to a greater extent than he had formerly done. See Carlisle u. Cooper, 4 C. E. Green, 256. In this last case it was decided that the extent of the right, acquired by adverse user, to flow the lands of another by backwater from a dam, is not determined by the height of the dam, but is com- mensurate with the actual enjoyment of the easement, as evidenced by the extent to which the land of the servient tene- ment was habitually and usually flowed during the period of prescription. In a very late case in New Hampshire, it ap- peared that a, mill-owner erected a dam with the capacity of raising the water beyond his existing right, but provided with gates &c., whereby he supposed it to be within his power to keep the water within the limits of his right ; and it was always his intention so to manage the dam and gates as not to overstep his right, until he could arrange by contract with the owners of land above liable to be flowed. On a petition brought by a land-owner, under the act, it was held, that the actual interference with the water, and not such interference as was 548 LAW OP WATERCOURSES. [CHAP. IX. limit, the mill-owner is liable.^ So where the owners of a dam have for a period of twenty years made use of flash-boards on their dam for the purpose of retaining the water during periods of the year when it was low, they may acquire a right to substi- tute for any portion of such flash-boards a permanent structure, so long as the height of the dam is not raised thereby and no injury is done.^] § 381. The owner of a mill privilege brought an action against the owner of another mill privilege below him, for an injury to his privilege, caused by the defendant erecting a new dam higher than his old one. The Court, on the trial, instructed the jury, that if the plaintiff's wheels had not been obstructed within twenty years before, as since the erection of the new dam of the defendant, and if such obstruction was caused by the defendant's dam, then the law was for the plaintiff. It was held, that the instruction was erroneous, as the fact that the plaintiff's wheels were obstructed more after the erection of the new dam than be- fore, was not conclusive of the question whether the new dam exceeded the height of the defendant's old dam ; especially where it appeared in evidence that other causes existed (causes other than the height of the dam) to raise the water higher than before.^ § 382. There may undoubtedly be a definite limitation or modi- fication of the use, and one that is practicable and measurable. As where, for example, according to the custom of the country, a saw-mill or other mill has been kept up in the winter only, and the mill-owner has uniformly been accustomed to draw off the water sufBciently early in the spring to allow the growth of a crop of grass, and to continue it down until the hay is made, it rendered possible by the height of the before, although it did not pond the dam, was the proper basis for the assess- water farther back, it was held that the ment of damages. Town v. Faulkner, 66 easement obtained by the twenty years' N.H. 255. In Powell v. Lash, 64 N.C. possession upon the maxim tantum prce- 456, where it appeared that successiye saiptum quantum possessum did not protect dams at a certain point upon a creek had the owner of the dam from liability on thrown the water back upon the land of account of the new dam ; he would still a riparian proprietor for more than twenty be liable for the new injury.] years, and after that a new dam, no higher i [Hynds v. Shultz, 39 Barb. 600; than the former dams, but tighter than Marcly v. Shultz, 29 N.Y. 352.] they, erected six feet lower down the 2 [Jackson v. Harrington, 2 Allen, 242. creek, filled up the bed of the stream Hall v. Augsbury, 46 N.Y. 622.] with sand, and sobbed the land of such 3 Maniere v. Myers, 6 B. Mon. (Ken.) proprietor to a much greater extent than 132. CHAP. IX.] PLOWING LAND — PRESCRIPTION, 549 must be regarded as establishing a right to a winter privilege only, and not a constant privilege ; and then flowing the land through the year, exceeds the limit and measure of the mill- owner's prescriptive right.^ So, where a dam had been kept up more than twenty years, but the water had been drawn down six weeks in each year, between June and October, to enable the land-owners to get clay, it was considered good evidence of a right to keep up the dam subject to such limitation.^ But a pre- scriptive right to raise the water of a mill-pond from May to October, so far as can be done without injuring the grass of meadows above the dam, is not established by a habit, for more than thirty years, of nailing flash-boards on the dam for short periods, between May and October, when the rise of the water did not hurt the grass, and by a single instance of refusing at such a time to draw off the water at the request of the owner of a mill above.* § 383. In determining the legal rights of parties, the law doubtless looks rather to practical than to theoretical distinctions, and seeks, as far as possible, to place them upon grounds perma- nent and general, and upon principles applicable to the generality of cases, without varying by a slight change of circumstances. When the prescriptive right is once established, it should be con- strued favorably to the party who has acquired it.* Conformably to these rules, it has long been held, that where one has acquired a right to raise and maintain a head of water, by using it for one purpose, he may use it for another ; he may, for instance, substi- tute a cotton factory for a saw-mill, and the like ; and this, upon the ground, that any other rule would stop all improvement in machinery.^ [§ 383 a. Prescriptive rights held by the owner of a saw-mill 1 Per Shaw C.J., in Cowell v. Thayer, of the land had sometimes been as late ubi sup. as the last of September in getting out 2 Bolivar Manuf. Co. v, Neponset their hay ; will not warrant an instruction Manuf Co., 16 Pick. 241. And see ante, to the jury that there is no evidence of §§ 224-231. [Carlisle v. Cooper, 6 C. E. prescriptive right to flow during the Green, 597. On a complaint under the months of July and August. Powers v. iriill act, for flowing land, testimony of Osgood, 102 Mass. 454.] the respondent that for more than twenty 3 Pierce v. Travers, 97 Mass. 306. years he has flowed tlie land all the year * See opinion of Shaw C.J., in Cowell round, except during the haying season ; v. Thayer, ubi sup. ; [Hulme v. Shreve, that he usually made hay in July, and 3 Green, Ch. (N.J.) 116 ; Hynds ». Shultz, had sometimes been till the middle of 39 Barh. 600,] August making hay ; and tjiat the owners ^ See ante, §§ 226-231. 550 LAW OF WATERCOURSES. [CHAP. IX. to draw from his reservoir dam down to his mill more or less than the natural flow of the mill stream as he has occasion, are not lost as against the owners of the intermediate land over which the stream passes, by his building a new mill in place of his old one, and putting in two new wheels and other new machinery, including machinery for grinding fodder and making cider as well as for sawing wood, although the effect of such alterations is, oftentimes, to diminish the quantity of water which he has occasion to draw down from his reservoir dam, as com- pared with the quantity which he had occasion to draw down previously, and by such diminution the owners of the intermediate land are prevented from working their intermediate mills in the manner in which they had been accustomed to work them for more than twenty years ; and if one of these intermediate land-owners, in order to continue to work his intermediate miU in the manner in which he had been so accustomed, so manages his interme- diate dam as to interfere with those prescriptive rights, the per- son entitled to them, being the plaintiff in this case, may maintain an action to recover damages for such interference.-' The Court said, " As he, the plaintiff, was authorized to open his reservoir gate at any hour of the day, and use the water to saw a few logs, or even a single log, and then close the gate, or keep it open for as many hours or days in succession as he chose to work his mill, it is difficult to see how his use of the water for working his mill, within the capacity of his gateway, could be limited or regu- lated except within his own discretion. The change of his ma- chinery was immaterial.^ But if he has exceeded his right by letting down either too large or too small a stream, no authority is cited to show that he thereby forfeited his right to such use of the water as he had already acquired. It was held, in Allan v. Gomme,^ that if one has a right of way appurtenant, and uses it for a purpose not authorized by his grant, he is subject to an action for the tort, but his right is not thereby affected. Applying this doctrine to the present case, if the plaintiff has violated the defendant's rights by using too large or too small a stream of water at any given time, he has not thereby forfeited his right to use a proper quantity, but has exposed himself to an action for damages, and perhaps the defendant may have specific relief 1 [Brace v. Yale, 97 Mass. 18 ; s.c. ^ [Cowell v. Thayer, 5 Met. 253.] 99 Mass. 488.] » [Allan v. Gomme, 11 Ad. & El. 759.] CHAP. IX.] FLOWING LAND — PRESCRIPTION. 551 in equity. Still the defendant has committed a tort in obstruct- ing the whole flow of the stream, and then letting it down in too great quantities, and proof that the plaintiff had done him a wrong cannot justify this tort."^] § 383 h. To establish a prescriptive right to flow by a dam, it is not necessary that the dam should be maintained for the whole period, on the same spot ; it being sufficient to show that it has been maintained on the same mill-site, though removed, from time to time, to different places upon such site.^ § 384. The question was one of an extended enjoyment of a prescriptive right, in Chapman v. Thames Manufacturing Com- pany.^ A. owned lands adjoining a lake, into which the waters of the lake were drawn for the use of the mill below. The dam of the mill-pond, and the mill were ancient, and the owners of them had cut a channel through a sand-bar anciently formed, near the outlet, to let the water of the lake pass to the pond and thence to the mill ; which channel, when filled with sand, by the flowing of the water of the lake, such owners would occasionally clear out'. In an action brought by A. against B. for raising re- cently, by means of a conduit through the sand-bar, instead of the former channel, the water of the lake, so as to cause it to overflow A.'s land, to a greater extent than they had been accus- tomed to flow ; it was held, that A., having acquired the right to ' have the water kept down to the level to which it was ac- customed to flow, after the removal of the natural obstruction, might lawfully enforce that right, if the water, even by natural causes, became again obstructed ; and that the facts alleged being proved, B. was liable, although the sand-bar and the filling up of the channel from natural causes, without any act of B., would raise the water in the lake as high and cause it to over- flow A.'s land to the same extent. § 384 a. An instrument was made under seal between the owner of a mill-dam and the owner of land flowed thereby, stipu- lating, on the part of the owner of the dam, that he would reduce its height to a specified point, and for ever keep it so re- duced to that point ; and granting on the part of the land-owner, a right to flow his land by a dam, while it continued reduced to the stipulated point ; reserving, however, the right to annul the 1 [See post, § 490, note.] ' Chapman u. Thames Manuf. Co., 2 Stackpole v. Curtis, 32 Maine, 383. 13 Conn. 269. 652 LAW OF WATERCOURSES. [CHAP. IX. grant, whenever the dam should be raised above that point. It was held, 1st, that the covenant of the owner of the dam to keep its height reduced was an independent covenant ; 2d, that the contingent reservation by the land-owner to annul his grant, gave no election to the owner of the dam to raise it, after having once reduced it to the stipulated point; 3d, such a reservation afPords no protection to the dam owner, in a suit upon his cove- nant to keep the dam reduced ; 4th, in such suit, whatever pre- viously acquired right of maintaining the dam to its original height may have been vested in the owner by prescription, he is precluded hy his covenant from setting up such previous right as a defence.^ § 385. A prescriptive right to overflow land, or set back the water upon an upper mill privilege, may be lost or extinguished by a total non-user for the full length of time required to gain it ; ^ and so likewise by unity of possession? The easement of flowing land, however, if created by an express grant, is not lost by a mere non-user for twenty years ; for, as has been before laid down, a distinction in this respect is recognized between an ease- ment created by deed and one created by prescription. In the one case, there must not only be disuse, but an actual adverse user, and in the other, mere disuse is sufficient.* But both ease- ments gained by prescription and those acquired by express grants, may become extinguished by an abandonment for a less period than twenty yeai-s, if the abandonment is attended by cer- tain acts of the owner showing an intention to surrender, and the person whose land is affected by the easement, or has been subject to be flowed, conducts himself under the influence of the evidence of such intention.^ It was in this mode that the prescriptive right to flow land was extinguished, by the judgment of the Court, in Taylor v. Hampton,^ a full account of which has already been presented.^ Where a mill-owner who has a grant of a right to flow certain lands, suffers his mill to go to decay, and ceases to 1 Stinson v. Gardiner, 33 Maine, 94. 106 ; Pillsbury v. Moore, 44 Maine, 154, 2 See the doctrine in relation to this 155 ; Smith v. Moodus Water Power Co., subject considered ante, §§ 240-247 ; 35 Conn. 392.] French v. Braintree Manuf. Co., 23 Pick. ^ See as to the doctrine of Extin- 216. guishment of Easements, §§ 246-263. 3 See ante, §§ 191-200. 6 Taylor w. Hampton, 4 M'Cord (S.C.) I See ante, § 262 ; Mower v. Hutchin- 96. son, 9 Vt. 242 ; [Jennison v. Walker, 11 l Ante, § 248. Gray, 423; Arnold u. Stevens, 24 Pick. CHAP. IX.] FLOWING LAND — PAROL LICENSE. 553 flow the land, and a highway is then made across the land, he cannot, by afterwards granting his mill privilege and right to flow, authorize his grantee to overflow such highway by means of a new mill-dam on the site of -the old one.^ Again, an express declaration by the owner of a mill privilege, that it is no longer his intention to keep up the mill, accompanied with correspond- ing acts, such as removing the dam and mill, giving notice of such intention to those whose lands he has flowed, and to whom he had paid damages, will be deemed an extinguishment of the privilege.^ Still a non-user alone of a prescriptive right to flow for a period less than twenty years, is not sufficient evidence of an abandonment of such right.^ § 386. As stated in a former chapter, the enjoyment of an incorporeal hereditament for twenty years may be shown not to have been adverse, by evidence that the premises in question have been in the possession of a tenant for life or years, or that the party has been under legal duability^ Where there was injury done to church lands, by" a rivulet being penned back upon them by a head-stock, and the existence of the head-stock for about twenty years was proved ; it was held, that the evidence, though it would be in general sufficient, was not so in this case, as no grant of a prior incumbent would bind his successor.^ Time does not run against a privilege of flowing reserved in a deed, until some default or acquiescence is shown, as where the reservation is to the heirs and assigns of the grantor.® 7. Parol License. § 387. The right of flowing land, or of making backwater, is an incorporeal hereditament, and, therefore, can only be created by deed, or by prescription, which supposes one.^ The utmost 1 Commonwealth v. Fisher, 6 Met. from fear of being exposed to an action 433. for damages by their neighbor. Ques- 2 French v. Braintree Manuf. Co., tions of this kind, however, are proper 28 Piclc. 216 ; and see Fitz v. Stevens, 4 for the consideration of a jury."] Met. 428; [Baird <-. Hunter, 12 Pick. 3 Williams v. Nelson, 23 Pick. 141; 556; Hunt v. Whitney, 4 Met. 603. In [Hurd v. Curtis, 7 Met. 94; Pillsbury v. Hatch V. Dwight, 17 Mass. 297, Parker Moore, 44 Maine, 154; Mowry u. Shel- C.J. said, "If a site once occupied has don, 2 B I. 369.] been abandoned by the owner, evidently * Ante, §§ 231-240. with an intent to leave it unoccupied, it ' Wall v. Nixon, 3 Smith, 316. would be unreasonable that others, own- ^ Butz v. Ihrie, 1 Kawle, 218. jng above or below, should be prevented ' Ante, §§ 168-173 ; [Wood v. Edes, from making profitable use of their sites, 2 Allen, 680, 581.] 554 ' LAW OP -WATERCOURSES. [CHAP. IX. effect which a parol license to flow land has, is to protect the per- son acting by the authority of it against an action for damages until it is revoked by the licenser. A licensee may give evidence of the license, and thus defeat a claim for damages by the licenser, sustained while the license remains unrevoked. To allow a parol license to convey any permanent interest in land, or one which can be assigned by the licensee, or descend to his heirs, would be directly contrary to the Statute of Frauds.^ It was so expressly adjudged in Vermont ; ^ and a grant of the right of flowing land without paying damages, under the statute of Massachusetts regulating mills, was held to be an easement, and an interest in land, and could only be made by deed ; although a claim for mere damages caused by the flowing might be waived by parol, inas- much as it is always a good defence to a claim for a sum of money, that it has been paid or satisfied by agreement.* In a complaint for flowing the land of the complainant, in Maine, the Court held, that the right to overflow the complainant's land, without paying damages, could not be established bj^ proof of a parol agreement or license made with his grantor.* In giving judgment in this case, the Court considered, that the decision in Clement v. Dur- gin,^ in that State, should not be construed to go further than to settle the rights between those parties as to the payment of dam- ages, and to persons similarly situated. The most that can be accomplished by a parol license, is that it may work the extinguish- ment of an easement ;^ as where, for example, permission is given to the person whose land is subject to be flowed by virtue of a written grant or by prescription, by the mill-owner to remove his dam, and the other party by labor and by incurring expense, has removed the dam. But a Court of Equity, as we have seen, though it does not hold that a right in land passes by a parol license, will hold, that, wherever one party has executed it by taking possession and expending money, the other party is bound to carry it into execution.^ 1 That such Is the true doctrine in Plymouth, 15 Pick. 81 ; Short v. Wood- regard to parol licenses, the reader is ward, 13 Gray, 86.] referred back to Chap. VIII., in which * Leidensparger v. Spear, 17 Maine, all the cases upon the subject are re- 128. . See likewise, Branch v. Doane, 17 viewed and commented on. Conn. 402. 'i Hall V. Chaffee, 13 Vt. 150. 5 Clement v. Durgin, 5 Greenl. 9. ' 3 Fitch V. Seymour, 9 Met. 462 ; e See ante, § 316. [Smith V. Goulding, 6 Cush. 154; Sey- ' See ante, § 318, et seq. mour V. Carter, 2 Met. 520; Fuller v. CHAP. X.] INJURIES TO AND BY MEANS OP. 555 CHAPTER X. OF THE NATURE OP THE INJURIES DONE TO, AND BY MEANS OP, A WATERCOURSE; THE REMEDIES; AND OP THE PARTIES, PLEAD- INGS, AND EVIDENCE. 1. Nature of such Injuries. 2. Remedy by Act of the Party. 3. Remedies at Law. 4. Action on the Case. 5. By whom to be brought. 6. Against whom to be brought 7. The Declaration. 8. Pleas. 9. Evidence. 10. Actions of Covenant and Assumpsit. 11. Equitable Remedies. 1. Nature of such Injuries. § 388. It has been seen, that every diversion and unreasonable detention of. the water of a watercourse, by one riparian owner, is an invasion of the rights of the riparian owners below him ; and also that throwing the water back beyond the line where the water enters upon the land of the party, is an invasion of the rights of the riparian owner above him. The principle upon which the Common Law proceeds, in respect to such invasions of the rights of riparian owners, is, as there has already been several times occasion to observe, sio utere tuo ut alienum non Icedas, enjoy your own property in such a manner as shall cause no detriment to another person. Every injury then to a watercourse, as by diverting it, and every injury ht/ means of a watercourse, by throwing the water back upon another riparian owner above, is repugnant to this maxim, and is a species of tort denominated a nuisance; and when private rights only are involved, a private " nuisance." The distinction between " nuisance " and " trespass " is, that the former is only a consequence or result of what is not directly or immediately injurious, but its effect is injurious. A person who digs a channel, or erects a dam on his own land, does 556 LAW OP WATERCOURSES. [CHAP. X. no more than what is, in itself lawful, but as the effect of his so doing, is to divert the water from a natural watercourse to the loss of a riparian owner below, or to turn it back to the injury of a riparian owner above, such acts become unlawful ; the law in such instances taking care, says Blackstone, " to enforce the precept of gospel morality of ' doing to others as we would that they should do unto ourselves.' " ^ Trespass, on the other hand, is a direct and immediate invasion of property, as treading down grass in a neighbor's field, or destroying his inclosures. Having •said thus much as to the nature of the injuries to and hy means of, a watercourse, we proceed next to treat of the legal and most proper modes of obtaining redress. 2. Remedy hy Act of the Party. § 389. It is very well known, that private nuisances may be removed by the party aggrieved, if it can be peaceably done, or without occasioning a riot.^ Thus, if a ditch is dug, by means of which the water is diverted from the land of a riparian proprie- tor through whose land it would otherwise flow in its natural course, he may go upon the land of the wrongdoer and fill it up.^ So the law afi'ords the owner of land protection against the flow ^ [See Fletcher v. Eylands, L.B. 1 and throw down the nuisance, and justify Ex. 265; s. c. 3 H. & C. 774; L.R. 3 H.L. this in an action of trespass. This pas- 330.] sage was relied on in Raikes v. Town- 2 3 Black. Coram. 5. " Note, reader," send, 2 Smith, 9, as an authority for says Lord Coke, " there are two ways to confining the right to abate a nuisance to redress a nuisance, one by action, and in the cases of a nuisance to a mill, house, that he shall recover damages, and have and land ; but Lord EUenborough C.J. judgment, that the nuisance shall be said, " These cases are only put as in- removed, cast down, or abated, as the stances." The case before him was an case requires ; or the party aggrieved may action for the obstruction of a rivulet, by enter and abate the nuisance himself." means whereof the defendant's cattle Batten's case, 9 Rep. 54 b. It was could not obtain water so plentifully as resolved by all the Justices, " that a man before, and the defendant entered upon aggrieved by a nuisance may enter upon the soil of the plaintiff, and abated the the land of another and abate the nui- dam. And see Great Falls Co. n. Wors- sance, by the Common Law, without ster, 15 N.H. 412; Huy v. Cohoes Co., prescription, and trespass will not lie 3 Barb. 42. against him, either for the entry or 3 Vin. Abr. Tit. "Nuisance." [But abatement." Broke's Abridg. "Nui- this right of the riparian proprietor exists sance," f. 151 b. pi. 33. In 2 Rolle, Abr. only as against the wrongdoer, and he Nusans, (S.) if a man erects any thing has no right to enter upon or flow the upon his own soil which is a nuisance to land of innocent parties for the purpose my mill, house, or land, I may remain of regaining the use of the diverted water, (estoier) on my own soil, and throw it Agawam Canal Co. v. Edwards, 36 Conn, down. And so I may enter on his soil 476.1 CHAP. X.J REMEDY BY ACT OP THE PARTY. 55T of backwater on his land or upon his mill, and he may lawfully enter upon the land of the person causing the injury, and remove the obstruction by which it was occasioned.^ Indeed in all cases of wrongfully diverting or detaining the water, and of flowing land &c., the aggrieved party may, by the Common Law, enter the close of his neighbor for the purpose of abating the nuisance, or removing the cause of injury to which he has been thus sub- ject.^ In Missouri, to divert or obstruct a private watercourse, is held by the Common Law to be a private nuisance ; and although obstructions to private watercourses are declared by statute ^ public nuisances, yet it is held, that such statute is merely cumu- lative, and made for the sake of the remedy, and not with a view to alter or affect the remedies afforded by the Common Law to individuals for such injuries.* [Where a party can maintain an action for a nuisance, he may enter and abate it ; ^ even though at the time it caused only nominal damage to him.®] § 390. In abating a private nuisance, a party is bound to use reasonable care that no more damage be done than is necessary for effecting his purpose.'^ Thus, where the plaintiff had a right 1 Colburn v. Richards, 13 Mass. 420 ; Heath v. Williams, 25 Maine, 209 ; [Brown V. Chadbourne, 31 Maine, 26.] 2 Jebb V. Povey, 1 Esp. 679 ; Cooper V. Barber, 3 Taunt. 99 ; Hodges v. Ray- mond, 9 Mass. 816 ; Gleason v. Gray, 4 Conn. 418 ; Strong v. Benedict, 5 Conn. 210 ; Greenslade v. Halliday, 6 Bing. 379 ; Dimmett v. Eskridge, 6 Munf. 308; [Groton ». Haines, 36 N.H. 388.] 3 Rev. Stat. Missouri, 1815, tit. " Mills and Mill-dams," s. 23, p. 408. * Welton V. Martin, 7 Missou. 307. The statute of Iowa making it a penal offence to injure a mill-dam, does not take away the Common-Law right to abate the nuisance. State v. Mofiett, 1 Greene (Iowa) 247. 5 Amoskeag Manuf. Co. v. Goodale, 46 N.H. 53, 56 ; Baten's case, 9 Co. 54 b ; 3 Bl. Com. 220; Groton o. Haines, 36 N.H. 394] 6 [Penruddock's ease, 5 Co. 101 b. In this case the question was raised, whether, if one person erects a bouse with eaves projecting over liis neighbor's land, the latter might abate the nuisance, "before he had some special prejudice, as in the dropping of the water, or whether he ought to stay until he had special prejudice. And Popham C.J., held that he might abate the nuisance, and that before any prejudice, for it is reasonable that he should prevent his prejudice, and not stay until it be done ; which was granted by the whole Court." Amoskeag Manuf. Co. v. Goodale, 46 N.H. 66. See post, § 392, Fay v. Prentice, 1 C.B. 827.] ' Com. Dig., Action on the Case for a Nuisance ; 1 Crabb., Real Prop. § 431 ; Gates i>. Blincoe, 2 Dana (Ken.) 158; Moifett V. Brewer, 1 Greene (Iowa) 348. [The abatement should be limited to its necessities, and should be effected with the least practicable injury to the object which creates the grievance. Veazie v. Dwinel, 50 Maine, 496. See Houston u. Laffee, 46 N.H. 505. If there be two ways of abating a nuisance, the party who undertakes the abatement must choose the least mischievous of the two. Blackburn J., in Roberts v. Rose, Law Rep. 1 Exch. 89. Imminent danger from fire or flood, cannot excuse or exempt a person from the use of ordinary care to prevent unnecessary injury to the prop- erty of others. Noyes v. Shepherd, 30 Maine, 173] 558 LAW OF WATEECOUESES. [CHAP. X. to irrigate his meadow by placing a dam composed of loose stones across a watercourse, and occasionally a board or fender, and he fastened the board with two stakes, which he had no right to do, the defendant was held liable for pulling down the board, as well as the stakes, although, as owner of the adjoining land, he was lawfully empowered to abate the latter. ^ So if a person entitled to raise a stream of water to a certain height, raises it higher than he is entitled to do, the person injured thereby, though he may reduce the dam, has no right to demolish it.^ The owner of a water-mill has so much of an easement in the land below, for the free passage of the water from the mill, in the natural chan- nel of the stream, as to give him a right to enter upon the land for the purpose of removing obstructions to the free flow of the water ; ^ but in so doing he must not occasion any unnecessary damages.* The right or the duty of the mill-owner in such cases, to place on the adjoining banks, or to carry off the mate- rials taken out, may depend on the nature of the materials, and other circumstances in the particular case. If the stream' is walled up, and the stones have fallen in, it would seem to be the right and the duty of the mill-owner, in removing the stones, to replace them on the wall. If the material be soil, which has fallen from the adjoining bank, and which may be useful to the owner of the land, for the -purpose of enriching the soil, or otherwise, it would be the duty of the mill-owner to place it on the bank for his use. But if it be material not useful, it would be the dut}^ of the mill-owner to remove it off the land in a reasonable time, and in a manner the least prejudicial to the owner of the land." [§ 390 a. One whose land is flowed unlawfully by a dam may abate the nuisance without suit. But, if he take this course, he is bound to proceed in a reasonable manner. He has not a right, because the water is on his land, to do an unnecessary injury to the adverse party, notwithstanding the latter is in the wrong. He has not the right to take such measures as will relieve his land in the most speedy manner. If that was his right, he might ' Greenslade v. Halllday, 6 Bing. 379. * Prescott v. White, 21 Pick. 341 ; 2 Dyer v. Depui, 5 Whart. 684; [White y. Chapin, 12 Allen, 521, 622.] Heath v. Williams, 25 Maine, 209 ; * Per Shaw C J., in Prescott v. White, [Great Falls Co. v. Worster, 15 N.H. ubi sup. ; [Brisbane v. O'Neall, 3 Strobh. 439 ; Wright v. Moore, 38 Ala. n.s. 598.] 348 ; Brown v. Bush, 45 Peun. St. 64-66.] 3 Prescott V. Williams, 5 Met. 429. CHAP. X.] REMEDY BY ACT OF THE PARTY. 559 blow up the dam and mills, if mills were connected with it. He cannot take the water off at once. It will necessarily take time. The law does not put into his hands an unreasonable remedy. He has a right to remove so much of the dam as will drain the water from his land in a reasonable time, doing at the same time no unnecessary injury to the party who has erected or maintains it. On the other hand, he is not bound to exercise his right of removal in the most convenient way for the party whose wrong- ful act gives occasion for the removal. He may make it ef- fectual.i] § 391. Still, if the person injured by the nuisance of a di- version or obstruction of a watercourse, abate no more than is necessary, any damage resulting from the act to him who oc- casioned the nuisance, must be submitted to.^ Where one ri- parian owner erects a dam partly on his own land and partly on the land of another, and the other thereupon pulls down the part of the dam which is on his land, by which the entire dam is prostrated, the act of pulling down the part of the dam will be held justifiable.^ § 392. The thing complained of cannot be abated until it act- ually becomes a nuisance ; * so that if one see his neighbor com- mencing any work which probably will, when completed, be a nuisance, it cannot be abated while in an inoffensive state,^ though the person whose rights are thus in jeopardy may seek pro- tection in a Court of Equity. If a riparian proprietor on a river in which the public have an easement for the passage of lumber, erects a dam which obstructs such passage, another below him 1 [Great Falls Co. v. Worster, 15 N.H. kept upon the dam only in case they 439, per Parker C.J. ; Groton v. Haines, caused him actual damage or made him 36 N.H. 388, 394, per Perley C.J.] apprehensive of immediate material in- '^ Woolrych on the Law of Waters jury, were erroneous." For a case wliere &c. 225. a dam was erected on a stream in a 2 Wigford V. GiU, Cro. Eliz. 269. manner in no wise injurious or detrimen- * [It is to be observed, that, although tal, at the time of its erection, to a mill- in general an erection cannot be abated owner, but became so by subseciuent ■ as a nuisance unless it be such at the circumstances, which could not have time; yet an erection may be a nuisance been anticipated, operating in connection at a time when it is causing no actual with the dam, see Proctor v. Jennings, damage. Anaoskeag Manuf. Co. v. Good- 6 Nev. 83.] ale, 46 N.H. 56, Bartlett J., who said, ^ Rgx v. Wharton, 12 Mod. 610; " The instructions of the Court that the Holt's Cases, 499 ; ante, § 140 ; [Norris defendant would be justified in entering v. Baker, 1 EoUe, 393 ; Jones v. Powell, to remove the flash-boards wrongfully Palm. 536.] 560 LAW OP WATERCOURSES. [CHAP. X. cannot justify the erection of a dam which causes the water to overflow the dam above, on the ground that it is a public nui- sance.^ § 393. It is laid down by Blackstone, that, if a nuisance is abated by the party injured, he is entitled to no action for the damage; and the reason he gives is — there was choice of two remedies, either without suit, by abating it, or by suit, in which both damages may be recovered and the nuisance removed ; but the election having been made of one remedy, the party is pre- cluded from the other. But this rule, as it regards the remedy by an action on the case for the recovery of damages which we shall soon consider, must be subject to qualification, for the party's right to bring this action may attach before the removal of the nuisance, and it would be inconsistent with well-estab- lished principles, to preclude him, in an action on the case for damages, from a recovery of damages sustained prior to the abatement.^ 3. Remedies at Law. § 394. In addition to the remedy for private nuisances by act of the party, or by abatement, there have been known in the law the following judicial remedies : 1. The writ, Quod Permittat Prosternere. 2. Assize of Nuisance. 3. Action on the Case. The Quod Permittat &c., was an ancient remedy in the nature of a writ of right, which commanded the defendant to permit the plaintiff to abate the nuisance, and, upon his refusal, to summon him to appear in Court and show cause why he refuses. The plaintiff has judgment both to abate the nuisance, and to recover damages ; and the writ could be maintained as well for the alienee of the party first injured, as against the alienee of the party first injuring. The Assize of Nuisance was a writ wherein it was stated, that the party injured complains of some particular act done ad nocumenium liberi tenementi sui, and commanded the sheriff to summon an assize, that is, a, jury, and view the premises, and have them at the next commission of assizes, that justice be done therein. If the assize passed for the plaintiff, he had judg- 1 Odiorne a. Lyford, 9 N.H. 502 ; 2 Gleasou v. Gray, 4 Conn. 418. [Barrows J. in Lincoln v. Chadbourne, 56 Maine, 200.] CHAP. X.J ACTION ON THE CASE. 561 ment to have the nuisance abated, and to recover damages.^ But both these remedies have become obsolete,^ and fell into disuse in England, long before they were expressly abolished by the Act of 3 & 4 Wm. IV. c. 27, s. 36.3 xhe Action on the Case, the nature of which, and the proceedings in which, we shall next consider, only enables the party to recover satisfaction for the damage he has suffered, and there is no judgment therein for the removal of the nuisance ; but as every continuance of a nuisance, after damages recovered, is held to be a fresh one, a new action will lie ; and probably very exemplary damages would be given, if, after one verdict against him, the defendant should persist in continuing it.* 4. Action on the Case. § 395. This remedy is the judicial one now always resorted to in the usual cases of consequential injury done to, or by means of, a watercourse. The general result of the English authorities, renders it very clear, that where the damage does not immediately ensue from the act complained of, it is consequential, and case is ' 3 Black. Comm. 220, 221; 9 Rep. 55. 2 Blunt V. Aiken, 15 Wend. 525; Waggoner v. Jermaine, 3 Denio, 306 ; Great Kails Co. v. Worster, 15 N.H. 412, 435. ^ In a case in Pennsylvania, as late as 1828, Gibson, C.J., in delivering the opin- ion of the Court, said, that, notwithstand- ing the recognition of the assize of nuisance as an existing remedy, it had been incidentally suggested, that it was not too late to discard it ; that he was not for reviving obsolete forms, but that it was too late to make a stand now, it having been established by repeated decisions of this Court, that all Common- Law actions that had not been abolished by the legislature, were in force in Penn- sylvania precisely as they are in England. He considered the case before him as a pregnant instance of tlie inconvenience of the rule, yet, he adds, he would be the last to shake what has been as firmly estabUshed, as a train of decisions by tlie Court in the very last resort can estab- lish any thing. The ground on which it had been recognized was, that it was all along a living remedy, although dormant ; and, like the man who, awakening from a trance of twenty years in the Catskill mountains, was so altered, that, on re- turning to his native village, his former acquaintances did not know him, the assize of nuisance is to be received with the same modifications in practice which time had impressed upon the forms of other actions. Barnet v. Ihrie, 17 S. & Rawle, 175. And see 2 Bmn. 192; 9 S. & Rawle, 323; 11 lb. 271; Brack. Law Miscel. 248. * In Massachusetts is a provision by statute, tliat where judgment shall be rendered for the plaintiff, in an action on the case for a nuisance, " the Court may, on motion of the plaintiflf, in addition to the common execution, issue a warrant to abate the nuisance," and it leaves it within the discretion of the Court to grant or refuse such motion. The pro- vision is remedial, and not unconstitu- tional when applied to a nuisance created, and action brought, before the statute was passed. Bemis v. Clark, 11 Pick. 452. 36 562 LAW OF WATERCOURSES. [chap. X. the proper remedy ; and, on the contrary, where the act itself, and not the consequence of it, occasions the mischief, trespass is the right action.^ If a person pour water upon his neighbor's land, the injury is immediate, and trespass should be brought ; but if he stop a watercourse on his own land, or place a spout in such a direction as to damage the land of another, the mischief of the latter acts is consequential, and the party should bring an action on the case.^ The defendant caused water to overflow the plaintiff's fishery, by throwing down a wear in the plaintifTs close, where the defendant was a trespasser, and trespass was brought. There was also a count in case, and it was urged, that this was not a trespass, and that trespass could not be joined with case. The latter objection was assented to by the Court, but the opinion of the Court was, that the act complained of was a plain trespass.^ On the other hand, where the defendant ' Woolryeh, 222, who cites Chitty on Pleading, ed. 1811, vol. i. pp. 125, 126. To draw the line of distinction between trespass and case, Judge Gould, of Con- necticut, considers to be the most subtle part of the law. We are indebted to this very learned lawyer for the following rules, which he has given in his Law Lectures : When the original act occa- sioning the injury was forcible, the remedy is in some cases trespass, in others trespass on the case. If the forci- ble act is immediately injurious, trespass is the proper action ; if, on the contrary, the injury for which redress is sought, is the remote or consequential effect of the forcible act, the remedy is trespass on the case. As if A. throws a log across a highway, and B. injures himself by fall- ing over it, here the injury to B. is con- sequential, and the remedy is trespass on the case. The difficulty is in applying the last rule, and in distinguishing what is the immediate and what the consequential effect of any forcible act. The injury to be immediate within the rule, need not be the instantaneous effect of the forcible act. When it is instantaneous, there is no difficulty in the application. Injuries which are not the . instantaneous effect of some forcible act, are in some cases regarded as immediate, in others conse- quential. 1. Wlieu the immediate or proximate cause of the injury produced is but a continuation of the original force, the effect is immediate. 2. On the other hand, when the original force ceases before the injury or damage commences, such injury or damage is consequential, and the author of it is liable in trespass on the case only. These two general rules, Judge Gould thinks, will embrace every possible case. [An injury to mills situated in one State, by acts done in another, may be prosecuted personally in the latter State against the parties doing the injury, for the direct act; or the consequential injury to the mills may be prosecuted in the former State. Still- man V. White Rock Manuf. Co., 3 Woodb. & M. 538. Where parties, residing in Connecticut, own an easement in a river which is the boundary line between that State and Rhode Island, which is injured by acts done on the Rhode Island side, the United States Circuit Court for the district of Rhode Island has jurisdiction of a bill by those parties for an injunc- tion restraining the diversion of the water. Stillman v. White Rock Manuf. Co., supra.] ■^ Woolryeh, 222; [1 Chitty PI. (16th Am. ed.) 142; Kaer v. Martin, 8 Blackf. 317.] 3 Courtney v. Collet, 1 Ld. Raym. 274; 12 Mod. 164, cited in Woolryeh, ut supra. CHAP. X.] ACTION ON THE CASE. 563 dug ditches, and so diverted the plaintiff's water out of the river and damaged the meadows of the plaintiff, an action on the case was brought; and it was moved to arrest the judgment, because it had not appeared in evidence that the diversion of the water was consequential to the digging of the ditches, and thus that trespass was the proper form. But the Court said, that the injury should be intended after the verdict to have been conse- quential.i So, where one had a right to enter upon the yard of another, and he fixed a spout there which discharged water upon the plaintiffs land, it was held, that case, and not trespass, should have been brought, and judgment was given for the defendant.^ § 396. The action on the case is also the proper remedy for the proprietor of a house, whom it annoyed by the continual dropping of water from an adjoining dwelling. Upon such an occasion, a feoffment was made of the new house, and the only question was, whether an action would lie against the new feoffee for a continuance of the nuisance, and the Court held that it would.^ An action of the same nature was also held to lie against a party for contintiing a bank, so as to surround the plaintiff's meadow with water. It appeared that the bank had been raised before by the feoffer of the defendant, and the Court said, that a remedy might be had against an heir under such cir- cumstances.* According to another report of this authority, some doubt -appears to have been entertained by two of the judges,^ and at length, after adjourning the case, judgment was given for the defendant, upon the ground, that assize of nuisance, or quod permittat, should have been brought.^ In another early case, the defendant, by erecting a new mill on his own land, flowed the plaintiff's mill ; the flowing was held to be a conse- quence of the erection, and so case was the proper action.^ § 397. In this country, there seems to be no diversity as to the propriety of suing in an action on the case for the usual injuries done to or by means of a watercourse.^ Where case was brought 1 Leveridge v. Hoskins, 11 Mod. 257, ^ Cro. Eliz. 403. cited in Woolrych, ut supra. 6 Cro. Eliz. 520. 2 Reynolds v. Clarke, 2 Ld. Kaym. ' Broome v. Mordaunt, 1 Cro. 112. 1399; also cited ut supra. s -where the defendant, says Mr. 8 Rolfe y. Bolfe, 3 Mod. 353, cited Dane, so disturbs the plaintiff in his there in Beswick t). Combdon ; S.C. cited stream or watercourse, as to occasion in 5 Rep. 101, and Woolrych, 223. consequential damages, case is the proper 4 Beswick v. Combdon, Ibid. action, in all cases where the defendant 564 LAW OF WATERCOUESES. [CHAP. X. by the plaintiffs as owners of certain mills, and entitled to all the stream, except what they had leased to the defendants ; and the complaint was, that the defendants had diverted more water than they had a right to take ; it was held, that case was the proper form of action and not covenant.^ In Maryland, where the action was trespass for breaking the plaintiff's close, and erecting thereon a wall, by which the plaintiff was prevented from using the water in her well, — the facts were, that the well did not be- long to the plaintiff, but to the defendant, and was on the land of the latter, though the plaintiff had a right to use the water in it. It was held, that the action could not be sustained, and that the plaintiff's remedy for being deprived of the use of the water was an action on the case.^ In Massachusetts, if, in consequence of the opening of a sluice on land upon which the mill owner has a right to enter, the plaintiff's land is flowed, it is considered that case and not trespass is the proper form of action.^ 5. By whom to he hrougJvt.' § 398. The tenant in possession may sue for a nuisance, even though it be of a temporary nature only, but if the nuisance be of a permanent nature, and injurious to the inheritance, the reversioner may also have an action ; and both the tenant in pos- session, and the reversioner are respectively entitled to recover damages commensurate with the injury sustained by him.* As the reversioner is bound by lapse of time when he is knowing of an encroachment upon a privilege belonging to the inheritance, it would be great injustice not to allow him to preserve his rights by maintaining an action during the continuance of the particu- lar estate.^ The reversioner, it should seem, may maintain an does the original act on his own land. v. Jewett, 13 N.H. 88 ; Sumner v. Tile- 3 Dane's Abr. 10. [See Groton v. ston, 7 Pick. 198 ; [Ashley u. Ashley, 4 Haines, 36 N.H. 388.] Gray, 197 ; Woodbury v. Willis, 50 1 Bigelow V. Battle, 15 Mass. 313. Maine, 403; Brown v. Bowen, 30 N.Y. 2 Shafer v. Smith, 7 H. & John. 67. 519; Seely v. Alden, 61 Penn. St. 302, 8 Fisk u. Framingham Man. Co., 12 305, and cases cited. Possession alone Pick. 67. is sufficient title to warrant a recovery * Cora. Dig. Tit. Action on tlie Case, against a mere wrongdoer. Branch v. Nuisance, B. ; Jackson !/. Pesked, 1 M. Doane, 18 Conn. 233; Barrows J. in & Sel. 234 ; Alston v. Scales, 9 Bing. 3 ; Lincoln v. Chadbourne, 56 Maine, 200.] Baxter v. Taylor, 4 B. & Ad. 72 ; Bell v. s See ante, § 233. Twentyman, 1 Ad. & El. N.s. 766 ; Davis CHAP. X.J BY WHOM TO BE BROUGHT. 565 action for any disturbance which in its present form is injurious to the possession, and which, without any farther interference by the act of man, would, in the ordinary course of things, continue to be so on the determination of the particular estate.^ In an action brought by a reversioner of a close against the defendant for the non-repair of a gutter running through the close to the mill of the defendant, whereby the water oozed through and car- ried away the soil of the close, one defence was, that the injury was the consequence of the tenant in possession of the close pen- ning back the water and watering his meadow. Chief-Justice Tindal said, he thought this no defence, as the owner of the rever- sion was suing for a permanent injury to his estate, and that he could not be met with the answer, that the injury arose out of the wrongful act of the tenant, for which the defendant might have maintained an action against him. That was merely the personal act of the tenant ; and it did not appear that there was any legal duty in the owners and occupiers of the close to do any act, the neglect of which, by the tenant, had occasioned the injury.^ Building a roof with eaves which discharge rain-water by a spout into adjoining premises, is an injury for which the landlord of such premises may recover as reversioner, while theyare under demise, if the jury think there is damage to the reversion.^ A reversioner of a freehold may maintain, after a tenancy for years, an action on the case against one who erects a dam on the adja- cent ground, and backs the water of the stream into the plaintiff's race 4 § 399. If the disturbance be continued, a fresh action may. be maintained by the alienee, whether he fill the situation of tenant in possession or reversioner ; * and the right of a mortgagee to commence an action, exists as soon as he takes possession of the mortgaged premises.^ An action may also be supported by a devisee for a continuance of the nuisance ; ^ but an action will not lie by an executor, for a nuisance done in the lifetime of the testator.^ 1 Gale & What, on Easem. 294, citing Shadwell v. Hutchinson, 2 B. & Ad. 97. Bower V. Hill, 1 Bing. N.R. 555. [See Noyes v. Stillman, 24 Conn. 15.] 2 Egremont v. Putnam, 1 Moo. & 6 Hatch v. Dwight, 17 Mass. 289. Malk. 404. ' Cro. Jae. 231; 1 H. & McIIen. (Md.) 3 Tucker v. Newman, 11 Ad. & El. 40. 224. * Ripka V. Sergeant, 7 Watts & S. 9. ' Holmes u. Moore, 5 Pick. 257. An 5 Penruddock's case, 5 Rep- 101 ; action on the case for diverting water, dies with the plaintifE. Ibid. 566 LAW OF WATERCOURSES. [CHAP. X. § 399 a. The purchaser of an estate injured by a nuisance may sue the original wrongdoer — the person who erected and still maintains the nuisance, without notice or request to abate — for the damage done to the land while he owned and occupied it. Nor does it matter in this respect how many times the land injured may have changed hands since the erection of the nuisance. ^ § 400. With respect to parceners, joint-tenants, and tenants in common, the two former must join in suing for injuries to real property, both in real and personal actions ; ^ but tenants in com- mon must in general sever in real actions ; though in personal actions, as for trespass or nuisance to their land, they may join, because in these actions the damages survive to all.^ In action for diverting a watercourse, the plaintiffs declared as tenants in common, and had shown their several titles in the declaration, when it was objected that they ought not to have joined ; but the Court overruled the objection, observing that this was a matter concern- ing the possession, whereby the profits of the land were dimin- ished.* § 401. One tenant in common may maintain an action on the case against his co-tenant for diverting the water from their common mill, for separate purposes of his own ; ^ and so, if one ' This is declared to be the law in to the exclusion of customers, constitute Eastman «. Amoskeag Manuf. Co., 44 an injury to the common property for N.H. 143, notwithstanding what is said which one tenant in common is hable to to the contrary in Woodman v. Tufts, 9 an action by his eotenant. Hines v. Rob- N.H. 91. See Penruddock's case, 5 Eep. inson, 57 Maine, 324. In McLellan i. 100, 101 a; Curtice v. Thompson, 19 Jenness, 43 Vt. 183, it appeared that the N.H. 471 ; Johnson v. Lewis, 13 Conn, plaintiff and defendant and three others 303 ; Branch v. Doane, 17 Conn. 402, 418. owned a main aqueduct, each having the 2 1 Chitt. PI. (16th Am. ed.) 74; Bac. right to one-fifth of the water passing Abr. Tit. Joint Tenants, K. therein, which they took to their re- 3 1 Chitt. PI. (16th Am. ed.) 74; 2 Bl. spective premises by branch aqueducts 1077; 5 T.R. 247; May v. Parker, 12 which each owned separately. The plain- Pick. 34. tiff sued the defendant in trespass on the < Stone V. Bromwich, Yelr. 161. case for a misuse of the water to the 5 Blanoliard «. Baker, 8 Greenl. 253; injury of the plaintiff. The court de- Pillsbury v. Moore, 44 Maine, 156. So termined that, if it appeared that the one tenant in common may maintain an defendant willingly and knowingly used action against his eotenant and a stranger or wasted more than his one-fifth part of for using water for another mill which the water which came in the main aque- rightfuUy belongs to the common mill, duct, or knowingly suffered his family Hines v. Robinson, 57 Maine, 324. Where to do it, for' the purpose of annoying or the common property consists of a grist- injuring the plaintiff; or with a wanton mill, the erection of an excelsior mill in disregard or indifference to the incon- such proximity thereto as to darken the venience it might occasion to the plain- grist-mill and prevent access to its under- tiff, and thereby the plaintiff suffered works, and the use of the yard in front injury, then the defendant would be lia- of it as a place for the piling of lumber ble in the action. CHAP. X.J ACTION, AGAINST WHOM TO BE BROUGHT. 567 tenant in common of land upon which a mill is situated, erects a dam below on the same stream, upon his several estate, and thereby flows the common property, to the injury of his co-tenant, the latter may maintain an action on the case against him.^ 6. Against whom to he brought. § 402. He who has been the author of a nuisance, is answerable for all the consequences thereof, and although, after damages recovered in an action for erecting it, another action cannot be maintained for the erection, yet it may for a continuance of the same nuisance. The continuance of that which was originally a nuisance is, in fact, a new nuisance.^ If the owner of the land on which the nuisance is created lets the land, an action for the continuance will lie ; ^ for he who has been the author of a nuisance cannot exonerate himself from liability therefor by alienating it and the land under it.^ Where a nuisance is created by a person on his own land by obstructing a watercourse, to the injury of the land of another, and the party erecting the nuisance then conveys the premises to a purchaser with warranty, he nevertheless re- mains liable in an action on the case, for the damage occasioned by the continuance of the nuisance subsequent to the convey- ance.^ In such cases an action for the nuisance lies, at the op- tion of the party injured, either against the person who originally created it, or the person in possession of the premises who suffers it to continue ; so that if a person erects a mill to the nuisance of 1 Odiorne v. Lyford, 9 N.H. 502 ; ante, to the same value and use as before the I 330. nuisance, and no real loss has been as yet 2 [Sewall J., in Staple v. Spring, 10 sustained, the damages should be small, Mass. 74.] If A. divert water by pipe but if, after this, the nuisance should be and cock to his house, every turning of continued, and a new action brought, then the cock is a new nuisance. Com. Dig. the damages should be so exemplary as Tit. Action on the Case for Nuisance, to compel an abatement of the nuisance. Hodges u. Hodges, 5 Met. 205. New Caruthers u. Tillman, 1 Hayw. (N.C.) action may be brought for the continuance 501; Anon o. Deberry, 1 Hayw. (N.C) of the nuisance, and the action may be 248; Bradley v. Amis, 2 Hayw. (N.C.) continued from time to time till the de- 399. fendant is compelled to abate the nuisance. ^ 2 Salk. 460; 1 Ld. Raym. 713. The first action is considered as a trial * 3 Dane Abr. 57 ; [Curtice v. Thomp- of the question, whether a nuisance or son, 19 N.H. 471; Eastman k. Amoskeag not, and, therefore, it is not proper, in Manuf. Co., 44 N.H. 143, 156.] the first instance, to give exemplary dam- 5 Waggoner v. Jermaine, 3 Denio, 206, ages, but such only as will compensate which limits and explains the decision for actual loss. But where the abating in Blunt v, Aiken, 15 Wend. 522. the nuisance will restore the premises 568 LAW OF WATERCOURSES. [CHAP. X. another, every occupier of it afterwards, who permits a continu- ance of the nuisance, is subject to an action. ^ In a case in Mary- land, where the action was for diverting a watercourse, the Court were of opinion, and so directed the jury, that the action would lie against the person who diverted it, and against the assignee of the land, or any person who kept up the obstruction which changed the watercourse ; but that no adventitious accidental advantages derived from the use of the water running in its present course, would amount to a continuance of the nuisance, without some act done to keep up the obstruction occasioning the diver- sion of the course of the stream ; and that the present action could not be supported without showing those acts were done since the title of the plaintiff accrued to the land injured.^ If a party buy the reversion during the tenancy, and the tenant after- wards, during his term, erects a nuisance, the reversioner is not liable for it ; but if such reversioner re-let, or, having an oppor- tunity to determine the tenancy, omit to do so, allowing the nuisance to continue, he is liable for such continuance.^ § 403. But, as the purchaser of land might be subject to great injustice if made responsible for consequences of which he is ignorant, and for damages which he never intended to occasion 1 Staples !'. Spring, 10 Mass. 72 ; Bald- and P. afterwards sold them, with his win V. Calkins, 10 Wend. 167 ; Beidelman land, to others. A freshet afterwards V. Foulke, 5 Watts, 308 ; [Pillsbury o. came, while the flash-boards were on and Moore, 44 Maine, 156. A stream crossed the gate closed, and broke down the dam a highway through a culvert which was and washed away the highway. The sufiicient to allow the water to pass at town, which was bound to keep the high- all seasons. The highway on each side way in repair, brought an action against of the stream consisted of an embank- P. and H., and P.'s grantees for the in- raent several feet in height. P. owned jury, alleging as the cause of it that the tlie land on both sides of the highway, dam was unskilfully and negligently built, and entered into a written agreement and had become decayed and ruinous, with H., under which the latter built a Held, 1. That if H. built the dam unskil- dam along the upper side of the higjiway, fully, P. was not liable for the want of to raise a water power for a mill to be skill. 2. That neither P. nor H. was built below the liigliway, and to be sup- liable for an injury caused by closing the plied with water through a canal. At gate and the aperture in the dam. tlie culvert, the dam was made about 3. That if the dam was built unskilfully two feet lower than in other places, in or negligently, or had become decayed order to allow the water to fall over there or ruinous, the grantees by using it would and pass througli the culvert ; and flash- be liable for damages sustained from its boards were used to close up this aperture, breaking away in consequence of such and were kept on or oif according as the defect. Wendell v. Pratt, 12 Allen, 464.] water in the pond was to be raised or 2 Hughes v. Mung, 3 H. & McHen. lowered. H. never became the owner (Md.) 441. of the dam or mill under this contract, s Ue^ v. Pedley, 1 Ad. & El. 822. CHAP. X.J ACTION, AGAINST WHOM TO BE BROUGHT. 569 or continue, it has been held ever since Penruddock's case,i that where a party was not the original creator of the nuisance, he must have notice of it, and a request must be made to remove it, before any action can be brought.^ Where a dam was erected, and land in consequence flowed, by the grantor of an individual, the grantee will not be liable for the damages in continuing the dam and flowing the land as before, except on proof of notice of damage and of a special request to remove the nuisance.^ But, of course, where such or any other nuisance is committed by the defendant himself, no notice or request is necessary to entitle the plaintiff to a recovery.* [ § 403 a. No particular form of notice or request is required ' Penruddock's case, 5 Rep. 101. 2 Brent v. Hadden, Cro. Jac. 555; Pierson v. Glean, 2 Green (N.J.) 36; Plummer v. Harper, 3 N.H. 88 ; [Johnson V. Lewis, 13 Conn. 303; Eastman v. Amoskeag Manuf. Co., 44 N.H. 143; Noyes v. Stillman, 24 Conn. 15 ; How Scale Co. u. Terry, 47 Vt. 109, 124. In an action on the case against the pur- chaser of a dam with flash-boards upon it, for flowing backwater upon the plain- tiff's land, it is for the jury to determine, whether such flash-boards are, or are not, a part of the dam ; and where in such action the plaintiflf claimed that such flash- boards were put upon the dam, and re- moved from time to time, by the water or ice, or by the defendants in order to save them, and that the defendants were liable for such renewing and replacing them, unless they had acquired the rights thus to renew them, if the jury should find them to be a part of the dam, then the defendants could not be held liable for maintaining them in the condition they were when purchased, without previ- ous notice that they had no right to use them. But if the jury should find the flash-boards to be no part of the dam, and only placed upon it for occasional use, as the state of the water might make them convenient or necessary, then the raising the water to a greater height than they had a lawful right to raise it, to the injury of the plaintiff, would render the defendants liable without any previous notice, although they originally purchased the dam with flash-boards upon it. Noyes V. Stillman, 24 Conn. 15. But in Brown V. Cayuga & Susq. R.R. Co., 2 Kern. 492, it was held, by Denio J., that a party who continues a nuisance erected by an- other is responsible for the damage caused by its continuance, although he has not been notified to abate it. The authorities are examined by him and he dissents from their conclusions.] 8 Woodman v. Tufts, 9 N.H. 88 ; John- son V. Lewis, 13 Conn. 303 ; [Pillsbury V. Moore, 44 Maine, 156, 157 ; Branch v. Doane, 17 Conn. 402, 418 ; Eastman u. Amoskeag Manuf. Co., 44 N.H. 143 ] < Branch v. Doane, 17 Conn. 402 ; [Curtice v. Thompson, 19 N.H. 471 ; Eastman v. Amoskeag Manuf. Co., 44 N.H. 143, 156. Where a dam is erected, and the land of an individual Is flowed to a greater extent than the person who erected and owmed the dam has a right to do, no action can be maintained against the grantee of such owner for continuing the dam as it was at the date of the pur- chase, and flowing the land as before, except on notice of the nuisance, and request to remove or abate it. But where at the time of such purchase, there were " flash-boards " upon the dam, and after- wards the " flash-boards " were removed, and timbers of a permanent character were placed upon the dam by the grantee, causing the land above to be flowed and injured, it was held, that the grantee was liable to an action for the injury, without any such notice or request. Carleton v. Redington, 21 N.H. 291.] 570 LAW OP WATERCOURSES. [CHAP. X. when necessary in such cases. It may be either written or oral, or it may be by acts done, clearly informing the party to be affected by it, of the fact of the existence of the nuisance, and of the desire of the party injured, for its removal.^ In Bunker v. Bunker,^ one question was as to the sufficiency of the notice to the defendant to remove the alleged nuisance. The action was case for flowing the plaintiff's land. The defendant had drawn down the water from the plaintiff's land. The plaintiff verbally "forbade the defendant to flow the land again." This was held sufficient. " The notice must, undoubtedly, be so distinctly and definitely made, as that the person to whom it is addressed shall fully understand the ground of complaint, and that the party is unwilling that the nuisance should be continued, and that he desires its removal."] § 404. Where a nuisance is committed by several, and is a malfeasance, the plaintiff may sue any of those who did the wrong, and the non-joinder of the others cannot be pleaded in abate- ment ; ^ [as, if the rightful flow of the water of a stream is obstructed by the joint action of several parties, although not acting in combination or by concert, it is no defence to the main- tenance of an action against one of them that all are not joined as defendants ; but this objection goes only to the damages.*] But if the parties committing the tort are joint-owners of land, and the tort consisted in the omission of some act, which, as such owners, they are bound to perform, then all must be joined in the action, as in such case the title to the realty will come in question ; that is, whether the defendants, by reason of their ownership, were bound to perform the act, for the omission of which the action is brought.^ If one of two tenants in common of a mill, is guilty of malfeasance by using it to the nuisance of a stranger, the other owner (not actually participating) is not liable. As where four persons owned a saw-mill, in the body of which three of them erected a lath-mill for their separate use, the rubbish thrown from which obstructed the mills below, the one having no interest in the lath-mill was held not liable in an action against all the owners of the saw-mill.® 1 [Carletonw. Redington, 21 KH. 291.] * [Wheeler v. Worcester, 10 Allen, 2 [Cited in Carleton v. Redington, 21 591.] N.H. 312 ] 6 1 chitt. PI. (16th Am. ed.) 98. 8 1 Chitt. PI. (16th Am. ed.) 97; Sut- 6 Simpson v. Seavey, 8 Greenl. 138. ton V. Clark, 6 Taunt. 29. CHAP. X.] PLEADING — THE DECLARATION. 571 [ § 404 a. If an iipper riparian proprietor increases the head waters of a stream, for useful purposes, by flowing more land, and by making reservoirs and other improvements to preserve surplus waters for dry seasons, and thus enlarges the volume of water for hydraulic purposes, every lower proprietor necessarily enjoys the benefit of it. But in such case no mill-owner below the first, and nearest the meadow or land flowed, can be liable to the land-owner for damages. He has done the land-owner no wrong by having the increased volume of water at his works, whether he used it or. not; such increased volume of water was inevitable by him ; he had not caused it, and could not prevent it. He would not be responsible to the land-owner for damage caused by flowing his land, because it was not caused by his dam, but by some one above him, for whose doings he would not be responsible.^] 7. The Declaration. § 405. First, as to allegation of title. In an action on the case for a nuisance, the plaintiff must show in his declaration, that, at the time of the nuisance, he was entitled to the estate to which the nuisance was done ; as for diverting a watercourse from his mill, he must show that he was seised of the mill. But the plaintiff's possession is sufficiently set forth in his declaration, by an averment, that at the time of the commission of the tort, he was " seised in his demesne as of fee ; " seised in law being suffi- cient, and a statement and proof of an actual pedis possessio is not necessaiy in order to maintain the action. ^ If the plaintiff allege that his father was seised and died, and a descent to himself, by virtue of which he was seised, without alleging an entry, it is enough.^ § 406. Where the plaintiff, in an action for an obstruction to his mill, declared that he was seised and possessed of the mill, and the evidence was, that it was occupied by a tenant at will, at a rent reduced on account of the obstruction, the declaration was supported ; for the possession of the tenant was the posses- sion of the plaintiff, and the injury was consequential upon a 1 [Per Shaw C.J., in Tourtellott v. ^ Com. Dig. Tit. "Action on the Phelps, 4 Gray, 376, 377.] Case for Nuisance ; " 3 Dane's Abr. 54. 2 Hart V. Evans, 8 Penn. St. 13; Northam v. Hurley, 1 El. & Bl. 065. 572 LAW OP WATERCOURSES. [CHAP. X. wrong done while the plaintiff was in actual possession, and the damage was sustained by him alone.-' § 407. If the plaintiff be in possession, he need not set forth his title to his premises, but declare only that he was possessed.^ With respect to the words " was and still is possessed," the latter expression " still is," is immaterial ; it being sufficient to show that the premises which liave sustained the injury were in the possession or occupation of the plaintiff at the time of the dam- age. This point was decided in an action on the case fordigging a bank. It appeared that the close, at the time of the injury, was possessed by two tenants ; but at the time of the action brought, it was possessed by one only. By Mansfield C.J. : " You must support your declaration by proving that when the injury was committed, the clpse was in the occupation of the persons mentioned in the declaration, and then you have done enough."^ § 408. Although the plaintiff is at liberty to declare upon his possession generally, yet if he undertakes to set out a title, and does it insufficiently, the declaration is bad.* A party appropri- ating water running immemorially through his land, although not enjoyed for twenty years, may maintain an action for a diver- sion from the ancient channel ; but where he had claimed this right as the owner of a mill not twenty years old, and not in respect of land, the Court refused to allow him to amend, and he was not entitled to damages given in respect of a different right, although the right was specially found by the jury.^ The real ground of this decision appears to have been, that not only was the title different, but the right proved was altogether a different one from that stated in the declaration. The right proved was to the flow of the stream in its accustomed course ; in other words, as incident to the ownership of the land.^ The right alleged was in respect of an appropriation, which, to confer a title, must have been ancient, and might have been in derogation 1 Sumner v. Tileston, 7 Pick. 198. '' 2 Ld. Raym. 1569 ; [Winnipiseogee But Putnam J. dissented, on tlie ground Lake Co. v. Young, 40 N.H. 420. 4.32.J that tlie declaration was upon an injury 3 Vowles v. Miller, 3 Taunt. 187. to the possessory right to the whole * 1 Wnis. Saund. 164 a. mill, during the whole time set forth, « Frankum v. Falmouth, 2 Ad. & El. and the. verdict had been found accord- 452. ingly. « See ante,-§§ 90, 314. CHAP. X.j PLEADING — THE DECLARATION. 573 of the natural easement, and, at all events, was totally irrespect- ive of it.i § 409. It was said by Mr. J. Holroyd, that, " ih cases of con- tract and prescription, the allegation must be proved as laid ; but that rule is not applicable to cases of tort where the right is merely inducement to the action. In this case," he continues, " the plaintiff is entitled to judgment if he has a right of com- mon, and that right has been disturbed by the defendant. Now he has stated a right in his declaration, and has proved the same right in part, by his evidence, and I think that entitles him to damages pro tanto.'''"^ This reasoning was considered to be applicable to the declaration in Twiss v. Baldwin, in Connecti- cut.2 It was contended in that case, that where plaintiffs set out a right to use the water according to its natural course, and without interruption, this was descriptive of their right and must be proved. But the Court overruled the objection, saying : Here the plaintiffs declare on a right to the use of the water without interruption ; yet they also state, that the defendants have a dam above, which, of course, must form some interruption. Of this, however, they do not complain, but that they have unrea- sonably penned and stopped the water. This unreasonable detention, then, is the burden of the complaint; and if the alle- gation respecting the natural course of the stream, or the right to enjoy it without hindrance or interruption, were stricken out, it would not affect the plaintiffs' right to recover. Williams J., in delivering the judgment, observes : " Is there such a variance between the proof exhibited and the allegations, that the plain- tiffs cannot recover ? It is said that the plaintiffs have set forth a prescriptive right, and therefore must prove it. The claim in the declaration is, that on the 28th of June, 1830, and ever since, the plaintiffs had a clock manufactory on a stream called the ' Gale & What, on Easem. 303. [An ought to hare run and flowed to the easement can be acquired at Common same ; because, no doubt, in many cases Law only by grant, or prescription, which the right to water is an incident to the pre-supposes a grant. It is, therefore, land itself, ratlier than an easement, necessary for a party who assumes to Per Bell C.J. in Winnipiseogee Lake Co. describe his title, to state it as derived u. Young, 40 N.H. 432.J in one of these modes ; though it is held ^ Rickets v. Sawley, 2 B. & Ad. 360. sufficient to allege that he is lawfully ■' Twiss u. Baldwin, 9 Conn. 291. [See possessed of certain mills, and by reason Avon Manuf. Co. o. Andrews, BO Conn, thereof ought to have tlie benefit of the 476.] water of a certain stream, which, of right, 574 LAW OP WATERCOURSES. [CHAP. X. Harbor, and that thej' had a right to use and employ the water of said stream ; and that the same should flow without interrup- tion, over and through their land, and in their i-aceway, to their manufactory, in a convenient and customary manner, according to the natural and usual flow of said stream, and without the hindrance of the defendants or any other person. Tliis, it is said, is a presumptive right, which must be precisely proved. The claim is to the enjoyment of the water in a convenient and cus- tomary manner ; but whether this is to be proved by occupancy or grant, or prescription, does not, and need not appear. That the right is set out as prescriptive rights formerly were,^ or as they now are, in a plea,^ will not be claimed. But it is said that the words currere solebat et consuevit, are considered as equiva- lent to setting out a title by prescription.^ It is true that, in support of a verdict, where these words were found in a declara- tion, the Court would presume that a prescriptive right was proved under them ; but it does not follow that they v^ould have been so considered, had the objection been made under a demur- rer. Indeed Lord Holt, whose opinion has been relied upon,* held in a prescription for ancient lights, that the words consuevit et dehuit would not be sufficient upon a demurrer. As it is now settled that bare possession is sufficient to support an action of this kind,5 there is no necessity to set out a prescriptive right, for the purpose of defeating the plaintiff, by supposing a variance to exist between the allegations and the proofs. This declara- tion is much like the form now used in England, founded on possession, where it is intended to avoid the preciseness required in setting out a prescriptive right." ^ § 410. A plaintiff, in an action for the diversion of water, alleged in his declaration a reversionary interest in. three closes of land, to wit : three ponds" filled with water, one pond being upon each of the said closes, and a right to the flow of the water into the said closes, for supplying the said ponds in the said closes with water for the watering of cattle ; and the defendant 1 Luttrel's case, i Co. 8i. 5 Anon. Cro. Car. 499. 2 Am. Prec. Dec. 200. 6 Williams a. Moreland, 2 B. & C. 3 Sury V. Pigott, Popli. 171; Heble- 910; Shears v. Wood, 7 Moore, 845; thwaite v. Palmer, 3 Mod. 25 ; Tenant v. Avon Manuf. Co. v. Andrews, 80 Conn! Godwin, 2 Ld. Raym. 1094. 476, 482, 483. And see 1 Chit.' PI. 392. * Rosewell v. Prior, 1 Ld. Raym. 892 ; B.C., 2 Salk. 459. CHAP. X.] PLEADING — THE DECLARATION. 575 traversed the right to the flow of the water as alleged. It appeared in evidence at the trial, that the plaintiff had enjoyed an imme- morial right to the flow of tliis water into an ancient pond in one of his closes, but that, above thirty years ago, he made a new pond in each of the three closes and turned the water so as to supply them, and thenceforth disused the old pond, which was gradually filled with rubbish and overgrown with grass. The plaintiff 's right in respect of the three ponds having been de- feated by proof of an outstanding life-estate, under 2 ds 3 Wm. IV., it was held, that under the declaration, he was entitled to re- cover in respect of his right to the flow of the water to the old pond. " The right alleged," said Parke B., " is a right to have the uninterrupted flow of certain surplus water into a pond ; and that right is equally proved w;hether it be by prescription or lost grant, or under Lord Tenterden's Act ; the declaration means no more than this, that the plaintiff has a right to the overflow of water, either in one pond, or in three ponds." ^ § 411. In an action on the case for the diversion of a water- course, in which it was averred in the declaration, that the plaintiff was entitled to all the water which should rise abovS a certain mark in a dam, and the evidence showed, that he was only entitled to the part of such water which should remain after a prior use thereof by the defendant ; it was held to be a fatal variance. The plaintiff, in his declaration, should have alleged a right to the surplus water of the stream and pond after satisfying the prior right, and should have stated, as the ground oIF his complaint, that surplus water existed, or would have existed but for the wrongful acts complained of ; and that he had been deprived of the use of such surplus water by such acts of the defendant.2 So, if the course of the water is set out and de- scribed in the declaration by metes and bounds, a variance be- tween the statement and the proof is fatal.^ § 412. It being an established rule, that in an action on the case for damage to property, the plaintiff 's right or interest in the property should be stated according to the facts, if the plain- tiff declare as reversioner, the declaration must allege the nuis- ance to have been to the damage of his reversion, or must state 1 Hale V. Oldroyd, 14 M. & W. 789. » Hall v. Swift, 6 Scott, 167. 2 Wilbur V. Brown, 3 Denio, 356. 576 LAW OF WATERCOURSES. [CHAP. X. an injury of such a permanent nature, as to be necessarily inju- rious to his re version. 1 In Jackson v. Pesked,^ it was held, that a reversioner must set forth his interest, and allege that the dam- age was an injury to the reversion ; it not being sufficient that the injury complained of might be of such a permanent nature as to affect the reversion. The plaintiff in that case declared as a reversioner of a yard and part of a wall, which one W. F. occu- pied as his tenant ; and alleged that the defendant wrongfully placed on the wall quantities of bricks and mortar, and raised it to a greater height than before ; and placed timbers on the wall overhanging the yard, on account of which the plaintiff lost the use of the wall, and the rain flowed from the wall on to the yard, and the yard and wall thereby became injured ; but, as the declaration did not allege that his reversion had been preju- diced, the Court arrested the judgment. Where the property for a portion of the time is occupied by the owner, and subse- quently he has a mere reversionary interest, separate counts should be inserted.^ § 413. Secondly, as to the statement of the breach. It is a general rule in pleading, that whatever facts are necessary to constitute the cause of action must be directly and distinctly stated in the declaration ; and a party who sues for diverting water, or for creating backwater, cannot recover unless upon proving the case as stated in his declaration ; * but it is sufficient to describe the substance of the injury in order to give the other party notice of what he is to defend.^ " It would have been sufScient," said Mr. J. Le Blanc, " to have stated that thej' di- verted the water above the navigation of the plaintiffs, by means of which the injury complained of happened." ^ The evidence in support of the declaration which alleged a diversion of a watercourse was, that the defendant's son had let down the wear of a dam so that the plaintiff's meadow was flooded, the course of the stream having been thus checked ; the learned Judge, upon this, directed a nonsuit ; and the Court sustained the opinion that the count relied on in a case of this nature 1 1 Saund. 343; Hale v. Oklroyd, 14 * Fitzsimons v. Inglis, 6 Taunt. 634. M. & W. 798. 5 Bigelow v. Battle, 16 Mass. 313. 2 Jackson v. Pesked, 1 M. & Sel. 284. « Mersey and Irwell Navigation v. '■> Baker v. Saunderson, 3 Pick. 348 ; Douglas, 2 East, 497. Davis V. Jewett, 13 N.H. 88. CHAP. X.] PLEADING — THE DECLARATION. , 577 ought to be so framed as to meet the particulars of the fact more distinctly and with greater certainty.^ But the same de- gree of strictness is not elways required. An action on the case was brought for diverting the water from the plaintiff's mills ; and the obstruction laid in the declaration, was the put- ting a dam across the stream, and cutting above and higher in the stream than the mill, sluices, trenches, channels, &c., so that large quantities of the plaintiff's water were thereby diverted, and the accustomed flow of the watercourse was stopped. There was a general count for turning the water out of its usual course. The evidence was, that the defendant had put down the dam in question about a mile above the plaintiff's mills, and thus had prevented the water from being regularly supplied, but that the water was not thereby diverted, because it returned to its regular course long before it reached the plaintiff's mills, and there was no waste of the water. It was proved, however, that the plaintiff had sustained injury by reason of the interruption of the regular supply , and it was upon this objected, that the mis- chief had been misdescribed in the declaration ; for the complaint should have been, that the water had been irregularly or insuffi- ciently supplied, or that it did not reach the plaintiff's mill at the proper time. The jury having found for the plaintiff not- withstanding, it was moved to enter a nonsuit upon the above objection, but Mr. J. Burrough said, that it was, in fact, stated in the declaration, that the water did not run to the plaintiff's mills as it was accustomed to run ; and that the objection was merely technical, which ought not to be allowed after verdict.'^ § 414. The general rule in cases of tort is, that it is sufBcient if part only of the allegation stated in the declaration be proved, provided that what is proved affords a ground for maintaining the action, supposing it to have been correctly stated as proved.^ A. and B. being owners of lands and mills on the opposite sides of a watercourse, which mills were operated by the waters of such river, raised a dam across it. A. brought an action on the case against B. for unlawfully raising the dam on his side of the river, in such a manner as to inundate B.'s wheel and mill. In his dec- laration A. alleged, that he was entitled to the free course of the water of such river, and to its use for his mill, by means of the 1 Griffith V. Marson, 6 Price, 1. ' Rioketts v. Seelway, 2 B. & Aid. 360. 2 Shears v. Wood, 7 Moore, 345. 578 LAW OP WATERCOURSES. [CHAP. X. dam, free and undisturbed ; and in support of this allegation, A. gave in evidence an indenture, executed many years before, from which both parties derived their titles, iproviding, that when there should be water enough in the pond, all the mills might be im- proved, without let or hindrance ; but when there should be want of water, the party under whom B. claimed, should have the sole power of drawing the water out of his pond, for his mills, three whole days in four, and the party under whom A. claimed, should have the like power, one day in four. It was held, that there was no variance sufficient to defeat a recovery by A. ; for the in- denture proved the right alleged, either for the whole time, or for one day in four ; and in either case, A. was entitled to recover to the extent of the injury proved.^ § 415. In an action for flowing the plaintiff's land, where the defendant had the right to keep the sluices in the dam shut, ex- cept when the water was at a certain height, and he kept them shut when he should have opened them ; it was held, that the plaintiff might declare generally, that the whole dam was unlaw- fully kept up, and recover upon showing that the gates only were unlawfully kept up ; and that there was no variance between such proof and the declaration.^ § 415 a. As a general rule, if special damages be claimed for an alleged tort, they must be set out in the declaration as induce- ment, or distinct grounds, for superadded damages. But where the damages arise necessarily from the tortious act, it would seem not to be necessary to set them out ; the tortious act being itself the gravamen of the action, and the necessarily resulting injuries being only the measure of the damages. In an action for a private nuisance for turning the course of a stream, so that it no longer flowed on the land of the plaintiff, it is an intendment of law, that the plaintiff, by the loss of the water, was thereby injured ; and evidence to show that, in consequence thereof, he was compelled to haul water from a distance to supply the uses of the stream, is proper and admissible to give to the jury certain data upon which they may estimate the real damages, and is not claiming damages for a distinct injury not necessarily resulting from the nuisance.^ 1 Burdick u. Glasko, 18 Conn. 494. 2 Hutchinson v. Granger, 13 Vt. 386. [See also Avon Manuf. Co. v. Andrews, s H^rt v. Evans, 8 Penn. St. 13. 80 Conn. 485; Wier v. Covell, 29 Conn. 197.1 CHAP. X.] PLEADING — THE DECLARATION. 579 § 416. Where, in an action for overflowing the plaintiff's land, by a. dam on the defendant's land, in which the natiire and extent of the alleged injury were specially described in the declaration, it was held, that the plaintiff was entitled to verdict for nominal damages, though he failed to prove the particular injury com- plained of, or any other injury.^ C.J. Gibson, in giving the opinion of the Court in this case, said, " It is said the plaintiff undertook to prove special damage, and therefore staked his case on the event. But surely an attempt to prove an injurj'- beyond what the law implies, is not necessarily a relinquishment of damages for every thing short of the whole case. When the plaintiff goes for special damage, he must lay it ; else he shall not give evidence ■ of it. But the converse of the rule does not hold, — that having laid it, he must prove it, or fail altogether. It would be neither reasonable nor just to compel him to elect between real and nom- inal damages ; or to refuse compensation as far as a substantial cause of action has been proved." § 417. It is usual in declarations to insert several counts, vary- ing the matters charged against the defendant.^ There may be one count alleging a general diversion of the water, without show- ing the means ; another for widening cuts from the stream, &c. ;^ and a count for keeping the banks of a river in repair, is said to be proper in order to avoid a risk, namely, of not being able to show that the defendant made the cuts or channels stated in the first count.* Perhaps, too, there may be a right in the defendant to irrigate his fields at certain seasons of the year. It is advisable to insert a qualification or exception to this effect in a separate count ; and care should be taken to preserve the exceptive state- ment throughout the count.^ With respect to the continuando, it is customary to allege it, with the vrords " kept and continued, or caused to be kept and continued." There is a case which shows the diiference, in this respect, between the action of trespass, and the action on the case for a nuisance. Upon executing a writ of inquiry of damages in trespass for digging a hole in the plain- tiff's soil, whereby his land was overflown — continuing the tres- pass for nine months — it was insisted, that evidence might be ' Pastorius v. Eisher, 1 Eawle, 27; ^ Ibid, and see ante, §§ 133-136. < Woolrych, 319 ; 1 Chitt. Plead. 392, ■^ See forms of Declarations in the 393. Appendix. ^ Ibid. 680 LAW OP WATERCOURSES. [CHAP. X. given of a consequential damage after the nine months, as well as in the case of a nuisance which continues for nine months, where, the cause being removed, the effect nevertheless continues. But Holt C.J. would not agree to this, observing, that, in case of a nuisance, the damage is the gist of the action ; but that in tres- pass the tort was the material point, and he doubted whether an action would lie for the continuance of trespass as of a nuis- ance. ^ § 418. Thirdly, as to venue. An action on the case for a nuisance, is a local action, so that the nuisance must be proved to have been done in the county where the venue is laid ;^ unless, indeed, there was some contract between the parties upon which to ground the action.^ A plaintiff declared, that he was possessed of a dwelling-house in the county of Surrey, and that the defend- ant;! possessed a shop contiguous, and a wooden spout affixed thereon, &c. ; which spout it belonged to the defendant to keep in ,,such repair that no injury should happen to the plaintiff's dwelling-house ; and he alleged that the defendant suffered the spout to be out of repair, to wit, at Westminster, in the county of Middlesex, whereby the rain-water soaked through the spout, &c. The premises were proved to be in Surrey. Mansfield C.J. : " On reading the declaration, it at first appeared to me, that the videlicet in the county of Middlesex, as applied to a house or any thing else in Surrey, in its nature local, is nonsense, and a contradiction in terms. And, upon consideration, the true sense appears to be this : it is the description of the house, a local object, which it states to be in Middlesex, and consequently the objection must prevail. If this is not a description of the place where the de- fendant's house is situated, there is no description of it ; and if no place is alleged in the declaration, it must be intended that the house lies in the county in which the nuisance is alleged to be committed, which is Middlesex. Therefore, quacunque via data, the declaration is not supported."* § 419. But the nuisance may be proved to have been done at 1 Case of the Farmers of Hampstead for damages, occasioned by injuries to Waterworlcs, 12 Mod. 519. real property, are local, as trespass, or 2 Sumner v. Finegan, 15 Mass. 284. case for nuisances, or via.ste,&c., to houses, [Worcester v. Winnipiseogee Lake Co., lands, watercourses, right of common, 25 N.H. 525.] ways, or other real property." 3 1 Chitt. PI. (16th Am. ed.) 281. « Warren d. Webb, 1 Taunt. 379. "Actions," says Cliitty, "though merely CHAP. X.] THE DECLARATION — VENUE. 581 any place within the county, although a particular town of the county is mentioned in the declaration. The case wherein this was determined, is the Proprietors of the Mersey and Irwell Navigation v. Douglas.^ In this case, the plaintiff declared, " that the defendant, at Preston, in the county aforesaid, erected, &c., above the said navigation of the said company, a certain wear or dam, and wrongfully and injuriously kept and continued the same, so there erected, for a long space, &c." At the trial, at Lancaster, the plaintiffs were nonsuited for default of proving that the river Irwell was at Preston ; and a rule nisi was obtained for setting aside the nonsuit, and granting a new trial. Lord EUenborough C.J. : " This action is in its nature confessedly local; but the question is, whether the gravamen need be de- scribed with any local certainty, and I incline to think it need not, but that it is sufficient if it be laid at any place within the body of the county. A plaintiff, in such an action, may indeed make it necessary to prove the gravamen in a particular place, by giving it a specific local description ; as by alleging the nui- sance to be standing, and being at a certain place particularly described ; but in general, such particularity is not necessary. For otherwise, bow is a venue to be laid to the fact of the obstruction, when that takes place in the higher part of a stream, flowing in one county, and the injury is sustained in the lower part of the same stream in a different county, in which the action is brought? It is sufficient to describe the substance of the injury, in order to give the other party notice of what he is to' defend ; and it is sufficient in the form of pleading, to allege the gravamen at any place within the body of the county. There- fore, the manner in which it is here stated, ought rather to be referred to venue than to local description." Lawrence J. : " The gist of the action is, that the defendants erected the wear above the plaintiffs' navigation, by means of which their naviga- tion was obstructed. It is quite immaterial where it was erected above the navigation. It would have been sufficient to have stated that they divei-ted the water above the navigation of the plaintiffs, by means of which the injury complained of happened. Neither is it necessary, in actions of this kind, to give a local description either to the property injured, or to the thing which 1 2 East, 497. 582 LAW OF WATERCOUESES. [CHAP. S. caused the injury ; but it is sufficient to state what the property injured was, and that it was so injured by the defendants. In this case, therefore, it was not necessary to prove that the river Irwell, or any part of it, was within the town of Preston ; or that the wear, by which the obstruction was caused, was within the same place ; but the whole may be referred to matter of venue." § 420. Where, however, an injury has been caused by an act done in one county, to land, &c., situate in another, the venue may be laid in either.^ The law to be collected from Bulwer's case is decisive upon this point : " When one matter in one county is depending upon the matter in another county, the plaintiff may choose in which county he shall bring his action." " As if a man will not repair a wall in Essex, which he ought to repair, and for which cause my land in Middlesex is drowned, I may bring my action in Essex, for there is the defendant's fault, or in Middlesex, for there is the damage." ^ If a trench made in the county of N. causes the plaintiff's land to be inundated in the county of W., although a statute requires all actions to be brought and tried in the county where the cause of action arises — the action may be brought and tried in the county of W.8 The case of Thompson v. Crocker, in Massachusetts,* was for flowing back the water upon the plaintiff's mills in the county of Plymouth, by a dam which was in the county of Bristol, and it was supported in the county of Plymouth. But both in this case and the one immediately preceding it, the action, according to Bulwer's case, could have been maintained in either county ; and it has, moreover, been expressly held, that where an injury to a fishery in the county of Plymouth is occasioned by an obstruction to the passage of fish erected in the county of Bristol, the owner of the fishery may bring his action in either county.^ 1 1 Chitt.Pl. (16th Am. ed.) 281 ; Com. See likewise Olipliant v. Smith, S Penn. Dig. Action, N. 3, 11 ; 3 Leon, 141. So 180. [But in Worcester v. Winnipiseo- where an action against a sheriflf arises gee Lake Co., 25 N.H. 525, where tlie partly from matter in pais in different plaintiff's land was situated in the county counties, the plaintiff may bring his of Carroll, and the defendant caused it to action in either county, at his election, be flowed by a dam erected in the county Marshall v. Hosmer, 3 Mass. 22. of Belknap, and an action on the case for ^ Bulwer's case, 7 Rep. 1. flowage was brought in the county of 8 Sutton V. Clark, 6 Taunt. 29. Belknap, it was held, upon demurrer, < Thompson v. Crocker, 9 Pick. 59. that the action should have been brought 5 Barden v. Crocker, 10 Pick. 883. in the county of Carroll.] CHAP. X.] THE DECLARATION — VENUE. 583 § 421. It has been asserted, that analogous to the cases cited in the preceding section, is the wrong done by stopping the flow of the water by any obstruction or drain in one State, to the injur}' of a mill in another State ; and that, " in a just sense, the wrong may be said to be done in both States."^ But though it may be true that a wrong done in one State, injuriously affecting property situate in another State, is, in a just sense, a wrong in both ; yet how stands the law as regards the remedy ? The question is not one of venue, but of jurisdiction. It is hardly necessary to point out the difference there is, as regards actions and suits, between the relation of counties in the same State, and the relation between two distinct and independent States. Ac- tions for injuries done to the freehold, as for diverting water or flowing land, are by the Common Law local, because they arise out of a local right or interest, and, therefore, cannot be prose- cuted in the Courts of another State. It has been accordingly decided by the Supreme Court of New York, that an action will not lie for an injury done by the diversion of a watercourse, where the premises injured are situate in another State ; that the injury so far savors of an injury to the realty, as to be classed with local actions ; and though the Courts of New York will entertain actions which are in their nature transitory, notwith- standing they arise abroad, they will not do so as to actions which are in their nature local. The action in this case was an action on the case in the Superior Court of the city of New York, for diverting the water of a stream from the mill of the plaintiffs, situate at Newark in the State of New Jersey. The action, the Court said, " stood on a footing with real and mixed actions, such as trespass quare clausum fregit, ejectment, waste, &c., where, if the lands lie in a foreign country, they cannot be tried here." ^ This judgment was afiirmed by the Court of Errors, in which Chancellor Walworth, in delivering his opinion, said, " Several cases were referred to from the decisions of the Court of Chancery in this country and in England, by the counsel for the plaintiffs, upon the argument, to show that bills have been filed to reach property beyond the jurisdiction of the Court, where the person of the defendant was within its jurisdiction. 1 Per Mr. J. Story, in Slack v. Wal- 2 Watts v. Kinney, 23 Wend. 484. cott, 3 Mason, 508, and cited more fully ante, § 167. 584 LAW OP WATEECOURSBS. [CHAP. X. These are founded, however, upon the well-established principle that the Court of Chancery has power to give relief wherever there is a clear case of right, for which the Common Law tribu- nals cannot give an adequate remedy. And they afford no ground for the extension of the jurisdiction of a Common Law .Court to a case which is clearly not within its known and estab- lished jurisdiction." 1 8. Pleas. § 422. In pleading to an action on the case, for a nuisance, the general issue is, "not guilty;" under which every thing, that shows that the defendant did what he might lawfully do, may be given in evidence. Hence the defendant may prove that the plaintiff gave permission to do the act which occasioned the nui- sance, and that it was done, under his permission ; for many matters, by modern practice, may thus be given in evidence that the party formerly was obliged to plead specially.^ In this re- spect, there is a difference between actions of trespass and actions on the case. The former are actions stricti jurig, and therefore a former recovery, release, or satisfaction cannot be given in evidence, but must be pleaded. But an action on the case is founded upon the conscience and justice of the plaintiff's case, and is in the nature of a bill in equity. Therefore a for- mer recovery, &c., need not be pleaded, but may be given in evidence. Whatever will in equity and conscience, according to the circumstances, preclude the plaintiff from recovering, may, in an action on the case, be given in evidence by the defendant ; because the plaintiff must recover upon the justice of his case only.^ § 423. In an action for diverting a watercourse, the defendant pleaded, that all the water .sprung in his own ground ; that certain pits, mentioned in the declaration, had been there immemorially for the benefit of the meadows and cattle ; and that._the pits, being choked up with mud, he dug other pits, and made dams and banks, &c. ; and the defendant thereupon denied that any 1 "Watts, &c,, ubi sup., as reported in ^ 2 Peake's Ev. 294; 3 Dane's Abr. 6 Hill (N.Y.), 82. For distinction be- 56; 1 Chitt. PI. 486. tween actions local and actions transitory, 3 2 Burr. 1353. see Mostyn v. Fabrigas, Cowp. 161, with notes, 1 Smith, Lead. Cas. 340. CHAP. X.] PLEAS. 685 Other ponds had been obstructed. The plaintiff, protesting that this plea amounted to the general issue, replied de injuria, con- cluding with an averment, upon which the defendant demurred. The Court held, that the plea amounted in reality to a confession of the plaintiff 's action, and that the plaintiff could not conven- iently take issue on such a plea. The defendant, in point of fact, had claimed a right to keep out all the water, if he pleased, and thus had done no more than plead the general issue ; inasmuch as if the case had gone to trial, and it had appeared that the defendant had this exclusive right, there must have been a nonsuit. The course which the defendant should have pursued, ought to have been to deny the plaintiff's right.^ § 424. If a defendant in one plea claim to have water flow from a mill-stream to a ditch at all times, and in another plea claim the right only at the time of flashes, and the jury find the right in his favor at all times, the Judge will discharge the jury as to the claim at the time of the flashes.^ § 425. One prescription cannot be pleaded against another, without a traverse ; and a mistake in this respect is in some degree similar to that in the authority just cited. Where the plaintiff had set out a title in his declaration, the defendant, by his plea, set forth another prescription for the convenience of watering his cattle, and the plaintiff demurred generally. The plea was adjudged to be bad, because it neither confessed nor avoided the declaration, nor yet traversed the matter therein alleged.^ In this case, it was holden by the Court, that if, upon the general issue pleaded, it had been proved that the water did not always run to the plaintiff 's house, but that it was usually dried up in the summer, or drank up by the defendant's cattle, the plaintiff would have failed in his prescription.* It follows, then, that great accuracy is requisite in setting forth a prescrip- tion.° 9. Evidence, § 426. In an action on the case for a nuisance committed to, or by means of, a watercourse, the plaintiff is of course bound to prove his possessory or reversionary interest ; and in the next 1 Brown v. Best, 1 Wilson, 174. ^ Murgatroid v. Law, Carth. 116. 2 Drewett v. Slieard, 7 C. & P. 456 ; « Ibid, .and 32 Eng. Com. Law R. 585. » Ibid. 686 LAW OF WATERCOURSES. [CHAP. X. place he must prove the act or omission of the defendant, as stated in the declaration.^ § 427. The plaintiff has, moreover, to prove the damage re- siilting to his right; and here arises the important question, whether he must show some positive, actual, or special damage. In an action for the obstruction of a way, to the use of which the plaintiff was entitled, it was held to be sufficient to prove the obstruction, without showing that any special damage had been occasioned by it.^ But in "Williams v. Morland,^ the Court make a distinction, in relation to this point, between a way and a watercourse. In the case of an action for the obstruction of a way, or of a right of common, it was admitted that such ob- struction was a sufficient cause of action ; but generally speak- ing, in the opinion of the Court, there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle the person complaining to maintain an action on the case. Water, the Court thought, was of that peculiar nature, that it was not sufficient to allege in a declaration, that the defendant prevented the water from flowing to the plaintiff's premises ; but the plaintiff must state an actual damage, accruing from the want of the water. The mere right to use the water, to adopt the words of Littledale J., " does not give a party such a prop- erty, in the new water constantly coming, as to make the di- version or obstruction of the water, per se, give any right of action." But Lord C.J. Denman, in concluding his judgmentin Mason v. Hill,* says, " It must not be considered as clear, that an occupier of land may not recover for the loss of the general benefit of the water, without a special use or special damage shown ; " and the learned Judge cites Palmer v. Kibblethwaite,^ and Glynne v. Nicholas.^ In the first of those cases it was argued for the plaintiff, that, the stream being the plaintiff's, the defend- ant could not divert it ; and the Court said, that an action had lain for the diversion of a watercourse, though no mill had been erected. Indeed, to take away from a lower riparian proprietor the natural advantages of the water (whether he has a mill or I 3 Stark. Er. 991 ; 1 Chitt. PI. 381, cited, and stated more fully ante, 392. § 133. '^ Allen V. Ormond, 8 East, 4. 6 Palmer v. Kibblethwaite, 1 Show. 3 Williams v. Morland, 2 B. & C. 908. 64 (often cited Heblethwaite), Skinn. 65. * Mason v. Hill, 3 B. & Ad. 312, and « Glynne v. Nicholas, 2 Show. 507. CHAP. X.] EVIDENCE. 587 not), and the fertility imparted by it to the soil, even when un- applied, without conferring a right of action, would be contrary both to the spirit and letter of the law.i One of the reasons which has been assigned for granting an injunction against divert- ing a watercourse, was, that it must be painful to any one to be deprived at once of the enjoyment of the stream which he has been accustomed to see flow by the door of his dwelling ; ^ and, as has been -held by the Supreme Court of North Carolina, every riparian proprietor necessarily and at all times is using the water running through it, — if in no other manner, in the fertility it imparts to his land, and the increase in the value of it. But the existence of a particular application of the water for hydraulic purposes, of course measures the amount of the damages incurred by the wrongful act of another.^ § 428. Independently, however, of the view taken in the fore- going section, and assuming that no actual damage is shown to arise from the diversion of a watercourse, or of throwing the water back upon land above, an action may be maintained on the ground that an undisturbed enjoyment or continuation of such acts, without the express consent of the owner of the land, would ripen into evidence of a right to do them.* " Wherever any act," says Mr. Sergeant Williams, "injures another's right, and would be evidence in future in favor of the wrongdoer, an action may be maintained for the invasion of the right without proof of any special injury, and this seems to be a governing principle in cases of this kind."^ In Hobson v. Todd,^ in which an action was brought by a commoner, who had himself surcharged against a stranger for putting his beasts on the common, it was held he might recover ; and it being objected that the plaintiff had shown no damage, BuUer J. said, " There is also another ground on 1 Mason w. Hill, ubi sup. to prove, that the owner of the land 2 Gardner v. Trustees of Newburgh, suffered damage." Shepley C.J., in 2 John. Ch. 162. Wood v. Kelley. 30 Maine, 5(3 ; Crossley s Pugh V. Wheeler, 2 Der. & Bat. v. Lightowler, L. E. 3 Eq. Cas. 296; (N.C.) 50. • Sampson v. Hoddinott, 1 C.B. n.s. 590. * See ante. Chap. IV., § 96 and note; But as to the applicability of this doc- and Young w. Spencer, 10 B. & C. 145; trine to the claim of a mill-owner to a [Stowell V. Lincoln, 11 Gray, 434 ; Cook presumptiye right to flow the land of a V. Hull, 3 Pick. 269 ; Bolivar Manuf. Co. neighboring proprietor without payment V. Neponset Manuf. Co., 16 Pick, 246 ; of damages, see post, §§ 504-506.] Tuthill V. Scott, 43 Vt. 525. " To es- 5 i Wms. Saund. 346 b. tablish an easement according to the ^ Hobson v. Todd, 4 T.R. 71. Common Law, it would not be necessary 588 LAW OP WATERCOURSES. [CHAP. X. which this action may be supported, which is, that tJie right has been injured; and if a commoner cannot sustain such an action as this, because his cattle had grass enough, he must permit a wrongdoer, like the defendant, to gain a right by length of pos- session." Grose J. likewise said, "I am* not inclined to encour- age this action on any other ground than that mentioned by my brother Buller ; namely, that if A. infringe the right of common of B. it is necessary that B. should have A.'s right ascertained ; otherwise his wrongful act would, in process of time, become evidence of his right." ^ Case lies, on the same principle, by one having a right of way against an intruder, without proof of actual damage, on the ground that the right has been in- jured.^ § 429. The rule established by the above cases is unquestion- ably applicable to watercourses; to the diversion of it, to the causing it to flow back upon land of others above, and to the right of fishery therein. If the owner of land on one side of a water- course extends a mill-dam across the river without the permission of the proprietor opposite, it is an adverse and injurious invasion of the rights of the opposite proprietor, although he has no occasion to make any use of the water ; because if the dam be continued a sufficient length of time, the law will presume a grant to abut the dam on the opposite side [and also a grant of all the benefit, water-power, and privileges, which would arise from the erection of the same. The extent of this right would be measured by the height and capacity of the dam, and not by the partial use of the waterpower created by it, unless it could be established that the grant was made with limitations and res- ervations. And the burden of proving the limitations and reser- 1 In the subsequent case of Pindar v. on to the garden, and did damage ; and Wadsworth, 2 East, 158, it was determined, by reason of the premises, the plaintiff that a commoner may maintain an action had been greatly annoyed and incom- for an injury done to the common, though moded in the use, possession, and enjoy- his proportion of the damage amount ment of his garden and messuage, and only to a farthing. the same were damaged and deteriorated 2 Williams v. Esling, 4 Penn. St. 486. in value. It was held, that the projection In a. declaration in case, it was stated in itself was a nuisance, from which the that the defendants being possessed of a law inferred a damage, and that the plain- messuage adjoining a garden and mes- tiff was entitled to maintain his action in suage of the plaintiff, placed a cornice respectof that alone, even though no rain upon his messuage projecting over the had fallen. Fry v. Prentice, 14 Law plaintiff's garden, by means whereof Journ. n.s. c p. 298, thus cited in 6 Harr. quantities of rain flowed from the cornice Dig. 314, CHAP. X.] EVIDENCE. 589 vations would rest on the party claiming the benefit of them.Ji In Parker v. Griswold,^ the plaintiff, in an action on the case for the diversion of a watercourse, alleged that the defendants di- verted the water out of its natural course, and away from the land of the plaintiff, and prevented the stream from flowing to the land of the plaintiff, as it otherwise would have done, and that the plaintiff could not in consequence use his land in so large and beneficial a manner as he might and otherwise would have done, but was thereby, during the said time deprived of the use and enjoyment of his said land, and all the benefits, and advantages which he otherwise might and would have derived from said land. It was held, that a sufficient cause of action was shown, although the declaration did not aver the existence of any mill, or other works of the plaintiff on his land for the operation of which the water so diverted was needed.^ 1 Bliss u. Rice, 17 Pick. 23, 33, 34 ; [Pratt V. Lamson, 2 Allen, 288, 289. But in Burnliam u. Kempton, 44 N.H. 78, 90, the Court, having stated the above propo- sitions, said, " We find ourselves unable to assent to this doctrine. To us it seems that twenty years' maintenance of a dam in a particular mode is evidence of a grant or right so to maintain it ; and twenty years' use of the water in a par- ticular way is evidence of a right thus to use the water. The same proof of user which establishes the right is equally conclusive in establishing the limitations of that right. Twenty years' accustomed flow and use of a certain .stream, or pond of wateV, is as good evidence of right to the one party as to the other. Twenty 3"ears' support of a mill-dam, is evidence of a grant to build and maintain just such a dam, constructed and used substantially in the same manner. Twenty years' use of the water, raised by such a dam, to drive a grist, saw, and fulling mill, at all seasons, or at certain seasons, is evidence of a grant to use so much of such water as shall be necessary at those seasons to drive those mills or similar ones. It necessarily implies also, a grant by the owner of the right to obstruct the stream by the dam, and to force all the water not used by these mills over the dam, and of course necessarily to limit the right of the riparian owner to such use as he may make of the water after it has passed over the dam."] 2 Parker v. Griswold, 17 Conn. 288. 3 A., in the year 1798, conveyed to B. a parcel of land bordering on a wat^- course, with liberty to B. to use the water to operate his mill, or any other use he might see cause to put it to, at any time when it ran over the grantor's dam above. B. occupied the premises so conveyed, and used the water to operate his mills until July, 1843. In an action then brought by.B. against C, the owner of a mill privilege below, for raising the water, by means of a permanent dam, and thereby setting it back upon B.'s works, it was held, first, that whether B.'s right to use the water was, under his deed from A., only a qualified right, or not, C. having no right or license to do the acts complained of, had thereby violated the right of B., for which B. was entitled to a, recovery ; and secondly, that for this purpose, it was not necessary for B. to prove any specific actual dam- age resulting therefrom. Whether the plaintiff, when those acts were committed by the defendant, was interfering with the rights of his grantor, by using the water, when it did not run over his darti, was an inquiry, the Court held, not com- petent for the defendant to make ; and as the defendant claimed no right under the said grantor, he was as to the plain- 590 LAW OP WATERCOURSES. [CHAP. X. § 430. So where an individual constructs a dam so as to flow backwater on the land of another person, it is a presumption of law that the act is a damage, and no special damage need be proved to sustain a suit.i Thus, where A. brought an action against B. for flowing back the water of the river Presumpscott, to the injury of his riparian rights, it was held, that, if the plain- tiff could prove that the natural flow of the stream was changed by any person not having a legal right to change it, he might re- cover nominal damages, although no actual injury had been occasioned.^ [So in Amoskeag Manuf. Co. v. Goodale,^ it was held that where one, by means of a dam, wrongfully causes the water of a river to flow back upon the lands of a riparian pro- prietor perceptibly higher than its natural level, he is liable there- for to such proprietor in nominal damages, though no actual damage is caused, as Bartlett J. said, "for the infringement of his right, which by repetition might ripen into an easement, has been held a suf&cient cause of action."^] § 431. The drawing of a seine in the several fishery of another, although no fish be taken, entitles the owner to damages, merely on the ground, that a repetition of such acts, if acquiesced in for twenty years, would deprive the owner of his rights.^ § 432. It may, in short, be said to be an elementary principle tiff a wrongdoer. The Court considered ^ Per Slierman J., in Chapman v, no principle to he better settled, than Thames Manuf. Co., 13 Conn. 269. In that as against a'wrongdoer, -actual pos- the case of Patrick t'. Greenway, tried session, in an action of this description, before Mr. Justice Lawrence at Oxford was a sufiicient title for the plaintiff to Spring Assizes, 1796, which was an action maintain an action. Branch v. Doane, of trespass for fishing in the plaintiff's 18 Conn. 233, and 17 Conn. 402. several fisheries, it appeared in evidence, 1 Woodman v. Tufts, 9 N.H. 88; Pas- that the defendant fished tliere, but did torius V. Fisher, 1 Rawie, 27 ; [Eastman not take any fish ; neither was it alleged V. Amoskeag Manuf. Co., 44 N.H. 143, in the declaration, that the defendant 159; Snow v. Cowles, 22 N.H. 296, 802; caught any fish. The plaintiff obtained Bassett u. SaUsbury Manuf. Co., 28 N.H. a verdict, which, in the following term, 438; Tillotson v. Smith, 32 N.H. 90, 96.] Easter, 1796, the defendant moved to set 2 Whipple V. Cumberland Manuf. Co., aside ; but the Court of Common Pleas 2 Story CO. 661. refused even a rule to show cause, upon 8 [Amoskeag Manuf. Co. u. Goodale, the ground that the act of fishing was 46 N.H. 53.] not only an infringement of the plaintiff's * [Tillotson u. Smith, 82 N.H. 90, 96 ; right, but would hereafter be evidence of Snow V. Cowles, 22 N.H. 302; Cowles i?. the using and exercising of the right by Kidder, 24 N.H. 379; Bassett k. Salisbury the defendant, if such an act were over- Manuf Co., 28 N.H. 455; Gerrish v. New looked. 1 Wms. Saund. b. note to Mellor Market Co., 30 N.H. 484; Eastman v. v. Spateman. Amoskeag Manuf. Co., 44 N.H. 159; Branch v. Doane, 18 Conn. 233.] CHAP. X.] B'VIDENCE. 591 of law, that wherever there is a wrong there is a remedy to redress it, and that every injury imports damage in the nature of it ; and that if no other damage be established, the party injured is enti- tled to nominal damages. This principle, moreover, applies more strongly where there is not only a violation of the plaintiff's right, but the defendant's act, if continued, may become the foundation, by lapse of time, of an adverse right, and hence actual perceptible damage is not indispensable as the foundation of an action. i And with regard to the rights of riparian proprietors on a watercourse, it is abundantly well established, that the law tolerates no further inquiry than whether there has been a violation of right. If that appears, the partj^ injured is entitled to nominal damages at least.^ § 433. The defendant may show, in mitigation of damages, in an action for the diversion of a watercourse, that the diversion was rather a benefit than an injury to the plaintiff;^ or that it ' [Ante, § 135, and cases in note ; Phear on Riglits of Wafer, 107 ; Munroe V. Stickney, 48 Maine, 462 ; Butman v. Hussey, 12 Maine, 40? ; ante, § 430. See Elliot V. Fitcliburg R.R. Co., 10 Cush. 191, 196, 197; Cummings v. Barrett, 10 Cush. 186, 191; Bower v. Hill, 1 Bing. (N.C.) 549.] ^ See ante, § 135 in note; Embrey v. Owen, 6 Exch. 353, and in note at the end of § 129 ; Webb v. Portland Manuf. Co., 3 Sumn. 189 ; Bolivar Manuf. Co. V. Neponset Manuf. Co., 16 Pick. 241; Crooker v. Bragg, 10 Wend. 260 ; Bald- win V. Calkins, 10 Wend. 167 ; Butman V. Hussey, 12 Maine, 407 ; [Munroe v. Stickney, 48 Maine, 462; Cummings v. Barrett, 10 Cush. 186, 191; Crossley v. I/ightowler, L.R. 3 Eq. Cas. 296 j] Blanchard v. Baker, 8 Greenl. 253 ; Ripka V. Sergeant, 9 Watts & S. 9; Hulme u. Shreve, 3 Green (N.J.J 116 ; Welton -v. Martin, 7 Missou. 307; Northam v. Hurley, 18 Eng. Law & Eq. 104 ; s.c. 1 El. & Bl. 665. 3 [In Elliott V. Fitchburg R.R. Co., 10 Cush. 191, which was an action for divert- ing the water of a small brook, passing through land of the plaintiff, by means of a dam, the jury were instructed, that, if the defendants, or one Clark, under whom they claimed, had by certain artifi- cial means, proved in the case, increased the flow of water in said brook, equal to the quantity of water the defendants had diverted therefrom, then the defendants were not liable in this action. This direction was held by the full Court to be correct. Shaw C.J. said, " The ques- tion was not, if the defendants had caused a damage to the plaintiff, amounting in law to a disturbance of his right for which an action would lie, whether it would be barred by an advantage of equal value, conferred in nature of a set-off; but whether the improvements of Clark upon his meadow, taken together as a whole, including the dam and ditches as parts of one and the same improvement, any damage was done to the plaintiff; and this we think was correctly so left." In Embrey o. Owen, 6 Exch. 360, Alder- son B. referred to the case of Dakin u. Cornish (not reported) which had been tried before him, where water was taken from the river Ayr to work a steam engine ; there was an artificial channel from the river to a reservoir in' the yard of a mill, the water was there mixed with other water obtained from the earth ; the whole was then used for the steam engine, and what remained was transferred into another tube and carried back into the river. The question was, whether that was an injury to some other mills lower down the stream. " I left it to the jury 592 LAW OP WATERCOURSES. [CHAP. X. was made in virtue of a verbal agreement between the plaintiff and the defendant ; or that the plaintiff entered into such agree- ment with the defendant with the view of extorting money from him ; or for showing that the defendant was not a wrongdoer ab initio.'^ And so in an action for overflowing the plaintiff's land.^ § 434. In an action for the continuance of the diversion of a watercourse, or of any nuisance done to or by means of a water- course, the verdict and judgment for the plaintiff in a former action, in which the same matter was in controversy between the parties, may be given in evidence as conclusive ; and that the de- fendant has discovered new evidence, not in his power at a former trial, forms no exception to the rule. But, in order to avail him- self of this conclusiveness, the plaintiff must be careful not to waive it by pleading ; as if the defendant should plead a license, and the plaintiff in his replication does not rely on the estoppel of the former judgment, but replies, no license ; the jury, in such case, are not precluded from inquiring into the exact truth of the case.^ § 435. Tliough a jury, on the trial of an action for the con- tinuance of a nuisance, by diverting or obstructing water, and overflowing land, should give damages for a little longer time than they ought, yet this is no ground for a new trial, if the plaintiff offers to remit such part of the damages as has been wrongly assessed*.* to say, whether the same quantity of overflowing the plaintiff's land, in wliich water continued to run in the river, as if it was suggested, that the acts complained none of its water had entered the premises of as injurious, instead of being an in- of the defendant, telling them, that, if jury, were really a benefit to, the plaintiff's they were of that opinion, they should land. But the Court said, "Noinfringe- find a verdict for the defendant." See ments of the rights of another can be and compare Tourtellot v. Phelps, 4 justified on the ground that the act is a Gray, 370, 374, 375, where the Court say, benefit to the owner, if it is done against "As owner of the soil through which the his will." And in another action for in- watercourse flows the defendant has a jury to the plaintiff by flowing his land, right, as such owner, to all the benefits the same Court held, that the jury could to be derived from the natural flow of the not take into consideration, on the ques- stream, and to any beneflts added to it tion of damages, any benefit that such by the improvements of others," and see flowing might cause to another part of also Webb u. Portland Manuf. Co., 3 the plaintiff's land. Gerrish v. New Sumn. 189 ; ante, § 101.] Market Manuf. Co., 30 N H. 478. See 1 Addison v. Hack, 2 Gill, 221; and also Webb v. Portland Manuf Co., 3 see also ante, § 288, et seq. Sumn. 202, 203.] -' McKeUip V. McHhenny, 4 Watts, » Kilheffer «. Herr, 17 S. feEawle, 319. 317. [See, however, Tillotson v. Smith, i Hodges v. Hodges^ 5 Met. 205. 32 N.H. 90, 96, which was an action for CHAP. X.J EVIDENCE. 593 § 436. Where the plaintiff complains of an hindrance to an acquired privilege of obstructing or diverting the water, it will be incumbent on him, unless he can show an express grant, to carry his evidence of the enjoyment of the privilege as far back as pos- sible, in order to raise the presumption of right by grant.^ It has been shown, that, in general, the uninterrupted enjoyment of water, in any particular manner, for the period limited by the act of limitation for the right of entry upon land, is equivalent to a grant.^ When a right is thus claimed, the evidence must go to show an exercise of the right by the occupier of the land to which it is represented as being appurtenant. The defendant, in answer, may show that the use has been by mere favor, or any thing to counteract the effect which the enjoyment unexplained would produce.^ The defendant may show, in answer, that the enjoyment was by connivance or consent of one who has had only a temporary interest in the estate out of which the easement is claimed ; and this will avoid the right which might otherwise arise.* § 437. In an action for diverting a watercourse, a person claim- ing a right to the use of the water, is not admissible as a witness, to prove the course of the stream.'' But where the plaintiff, owner of a mill, carried on business in it in company with an- other person, and agreed to make a deduction in the rent, on account of backwater, occasioned by the defendant's dam ; it was held, that, in the action brought by the plaintiff to recover damages for the obstruction, such other person was not interested, and therefore was a competent witness.^ And in an action for obstructing the course of the water, by one of two grantors against the grantee, in which the construction of the deed came in ques- tion, it was held that the other grantor was a competent witness 1 1 Peake's Ev. 294. had, on the prerious inclosure of the 2 See ante, § 200, et seq. ; Belknap v. common at E., obtained an allotment Trimble, 3 Paige, 577. there in respect to his estate. Held, that 3 See ante, §§ 220-222. The plaintiff, it was properly left to the jury to say, being possessed of a house and land in whether the evidence was referable to an E., had, for sixty years, exercised rights of exercise of the right in E., and a mistake common in W. It appeared that this of the boundary, or to an exercise of the was done near the boundary of the two right in W. Hetherington v. Vane, 4 B. & commons of W. and E., which lay open Aid. 428. and uninclosed, and adjacent to each ■• See ante, § 216, et seq. ; and Wall v. other; that the parties exercising the Nixon, 3 Smith, 316. right did not, at the time, know the ^ Jebb v. Povey, 1 Esp. 679. exact boundary; and that the plaintiff « Sumnerr. Tileston, 7 Pick. 198. 88 594 LAW OP WATERCOURSES. [CHAP. X. to establish a collateral fact, as to the situation of the premises at the time of thegrant.' § 438. In an action for a nuisance in the erection of a mill-dam, which overflows the plaintiff's land, his declarations, and those of any former owner of the land, made when he was the owner, respecting the defendant's right so to do, may be given in evi- dence, in proof of an executed license, which, as has been shown, is in equity, not countermandable.^ § 439. A former judgment may be given in evidence. In an action for the continuance of a nuisance, it has been adjudged in Pennsylvania, that a verdict and judgment for the plaintiff in a former action, in which the same matter was in controversy between the parties, are conclusive evidence ; and that the defendant had discovered new evidence, not in his power at a former trial, formed no exception to the rule at law or in equity. But in such action, the plaintiff, to avail himself of this conclu- siveness, must take care not to waive it by pleading ; as, if he plead a license, and the plaintiff does not, in his own replication, rely on the estoppel of the former judgment, but replies, no li- cense, the jury are not precluded from inquiring into the truth of the case.^ 10. Actions of Covenant and Assumpsit. § 440. We have thus treated of the remedy by the action of trespass on the case, for injuries done to or Jy means of a water- course, as the proper and ordinary remedy in such cases ; but the circumstances of a case maj' be such as to warrant an action of covenant.* It was held in a case, concerning a watercourse, that the devisee of an equity of redemption (the legal estate being in a mortgagee) was not liable in covenant, as assignee of all the estate and right of the original covenantor.^ In another case, an 1 Baker v. Sanderson, 3 Pick. 348. had bargained and sold to them, for 2 MoKellip V. Mcllhenny, 4 Watts, 317. certain considerations, so much of the See ante, §§ 318-326. river Caldew running through his land 3 Kilheffer v. Herr, 17 S. & Rawie, called D'Holme, as should be sufficient 319. for the grinding of corn at all times at * As to covenants running with the land, the city mills. There was a covenant see ante, §§ 256-273 ; and see Kinney v. that G. D. &c. should not divert or ob- Watts, 14 Wend. 38. struct any part of the water so granted. It 6 The facts of the case were as fol- was then alleged, that all the estate, lows: The Corporation of Carlisle sued right &c. of 6. D. in the said lands &c. the defendants in covenant, for that G. D. came to and vested in the defendant by CHAP. X.] ACTIONS OP COVENANT AND ASSUMPSIT. 595 action of covenant was brought by a reversioner against an as- signee of the grantee : and the declaration stated, that A. and B. did grant a license for a term of years to C, to continue a chan- nel open through the bank of a navigation, in order that the waste water might pass through the channel to the mills of C. ; the latter paying a certain annual sum therein mentioned. The breach assigned was the non-payment of that annual sum. The grant, for a term of years, of an interest in any such incorporeal hereditament, the Court thought might operate as the grant of an interest within the 32 Hen. VIII., so as to make the assignee of the grantee liable to an action for a breach of covenant, brought by the reversioner.^ § 441. Where tenants in common of a watercourse and dam, and of several mills depending for water upon such dam, made partition, by which some of the mills were apportioned to each ; and each of the parties covenanted with the other to keep in repair distinct and separate portions of the dam ; it was held, that case for not repairing would not lie by one of them against the grantee of the other, and that covenant was the proper remedy.^ § 442. The breach of covenant charged in the declaration, in an action of covenant, being that, during a specified period of time, the defendant deprived the plaintiff of the water necessary assignment. The breach was, that the Uable to an action of covenant as as- defendant had erected a wear across the signees. Mayor &c. of Carlisle v. Bla- river Caldew, near the city mills, higher mire, 8 East, 487. up the stream, and so had diverted the l Portmore (Earl of) v. Bunn, 1 B. & water, whereby the mills had become C. 694. But in this case, by the deed Jess serviceable. The defendants, amongst produced in evidence, A. and B. were other pleas, said that the estate did not described as persons having the greatest come to them by assignment &c. It proportion of share in the profits of the was objected on their behalf, at the trial, navigation ; and by this deed it appeared, that the action was improperly brought that the grantor had not the power of against tliem as assignees of all the estate granting the privilege, of which the deed &Ci of G. C, the same being vested in as set out in the declaration purported to one W., as mortgagee in fee, while the be a grant, and therefore there was a defendants were only seised of the equity variance. Held, also, that the deed of redemption, as devisees in trust, under showed that the assignee of the grantee a will. The learned Judge, being of was not bound by the covenants, inas- opinion that the plaintiffs had failed in mucli as it appeared that the grantors their averments, directed a nonsuit, and had not any legal or equitable estate in the Court of King's Bench confirmed his the real hereditament, which the deed opinion. They held it to be clear, that set out in the declaration purported to the devisees of an equitable estate (the grant. only character to be ascribed to the de- ^ Wilbur v. Brown, 2 Denio, 356. fendants upon the record) could not be 596 LAW OF WATERCOURSES. [CHAP. X. for his mill, by diverting it therefrom, the plaintiff is not limited in proving acts committed by the defendant, to the period stated in the declaration ; but he may prove previous acts, in conse- quence of which the injury was sustained during that time.^ § 443. The circumstances may be such as to warrant also an action of assumpsit, for the use and occupation of a watercourse and the water running therein.^ Where a contract respecting the use of water, under seal, has afterwards been varied in the terms of it by a distinct simple contract, made upon a sufficient consideration, such substituted or new agreement must be the subject of an action of assumpsit, and not of an action of cove- nant; and where several things unconnected with a deed are, with other stipulations in a deed, afterwards made the subject of a parol contract, assumpsit may be sustained by the breach of it.^ An action of assumpsit, founded on a contract under seal, respect- ing water-power, which contract was afterwards altered and modified, and in other respects confirmed, by a contract not under seal, it has been expressly held, was properly brought.* 11. Equitable Remedies. § 444. It is well established that Courts of Equity have eon- current jurisdiction with Courts of Law, in cases of private nui- sances ; and the interference of the former by injunction, is founded upon the ground of restraining irreparable mischief, or of suppressing oppressive and interminable litigation, or of pre- venting a multiplicity of suits. ^ They will, as a general rule, 1 Hollingsworths v. Dunbar, 5 Munf. (3d Am. ed.) 1742, 1743; Burnham v. 199. Kempton, 44 N.H. 78 ; Koath v. Driseoll, 2 Davis V. Morgan, 4 B. & C. 8, and 20 Conn. 556 ; Wright v. Moore, 38 fully cited ante, § 278. Ala. n.s. 593 ; Burden v. Stein, 27 Ala. 3 1 Chitt. PI. (16th Am. ed.) 116. n.s. 104; Carlisle v. Cooper, 6 C. E. * Mill-Dam Foundry v. Hovey, 21 Green, 576, 579, and cases cited. But it Pick. 417. For the facts and circum- was held in Burnham v. Kempton, supra, stances attending this ease, see ante, after a very full examination of the § 274. authorities, that even in the instances 8 2 Story, Eq. Jurisp. 925, et seq. ; named in the text as grounds, for the Eden on Injunct. 268 (Am. ed. 1839) ; interposition of equity, Courts of Equity [Holsman v. The Boiling Spring Bleach- will not ordinarily take upon themselves ing Co., 1 McCarter (14 N.J. Ch.) 335; to decide the fact that a nuisance exists, Ballou V. Hopkinton, 4 Gray, 328 ; Bemis when that fact is controverted, but will V. Upham, 13 Pick. 169; Bardwell v. require that the party asking the inter- Ames, 22 Pick. 333; Wight v. Packer, ference of the Court shall first establish 114 Mass. 473, 475 ; Shields u. Arndt, 3 his right at law.] Green, Ch. (N.J.) 234; 3 Dan. Ch. Pr. CHAP. X.] EQUITABLE REMEDIES. 597 interfere in those cases of private nuisance only, where the right of the party complaining is clearly established, and the injury, which he must necessarily sustain, if the work be allowed to pro- ceed, is of such a nature that no adequate compensation can be afforded by damages only, and when, says Sir Thomas Plummer, " delay itself would be a wrong." ^ — " The leading principle," said Lord Brougham, " on which I proceed in dealing with this application — the principle which I humbly conceive, ought, generally speaking, to be the guide of the Court, and to limit its discretion in granting injunctions, at least where no very special circumstances occur — is, that such a restraint should be imposed as may suffice to stop the mischief complained of, and where it is to stay injury, to keep things as they are for the present." ^ Past iujuries are in themselves no ground for an injunction, — the province of the injunction being to prevent future mischief, and not to afford, for instance, a remedy for a past diversion of water. ^ If the injuries by diversion are continued, or the right to continue them set up and persisted in by the defendants, in a bill for an injunction, a Court of Equity, if the facts be properly established, will interfere effectually to protect the complainants.* § 445. Cases of the obstruction of watercourses, the diversion of streams from mills, back-flowage &c. have long been regarded in England as of a nature calling for the remedial interposition of a Court of Equity.^ In Robinson v. Lord Byron,^ where an injunction was prayed for against using the water of a stream ill any other manner than it had been used before ; and it appeared that the defendant sometimes withheld the water, and at others discharged it in such quantities as to create a danger of sweeping away the plaintiff's mills ; the injunction was granted as prayed, 1 In Winstanley v. Lee, 2 Swanst. tures v. Morris Canal Co., 1 Saxton, Ch. 336. [Burnhara I'. Kempton, 44 N.H. (N.J.) Ch. 157; Smith o. Adams, 6 78. But a Court of Equity will not en- Paige, 435. join the raising of a dam below so as to ' Universities of Oxford and Cam- interfere with a drainage easement on a bridge v. Richardson, 6 Ves. 706 ; Lane meadow above, which constitutes no part v. Newdigate, 10 Ves. 194 ; Chalk v. of any mill privilege, where an adequate Wyatt, 3 Meriv. 688; Martin v. Stiles, remedy for such injury is provided at Mosel. 145. [But it is said not to be the law. Bull V. Valley Falls Co., 8 R.I. 42.] peculiar province of a Court of Equity 2 Blakemore v. Glamorganshire Canal to construe contracts and conveyances of Navigation, 1 My. & K. 185. water-powers. Fish o. Wilber, 7 Barb. 3 [Burnham v. Kempt. Head, 56 N.H. 386, 399.] 2 Per Shaw C.J., in Boston Water Power Co. o. Boston and Worcester Rail- Road Co., 23 Pick. 360. 8 Smith, Comm. on Stat, and Const. Law, § 325; Wilkinson v. Leland, 2 Peters (U.S.) 663; Albany Street (Case of), 11 Wend. 149 ; Rice v. Parkman, 16 Mass. 830 ; Varick v. Smith, 5 Paige, 159 ; Nor- 622 LAW OP WATERCOURSES. [CHAP. XI. private property, therefore, is wanted merely for ornamental purposes, this right cannot be exercised, as the purpose must be useful?- [§ 466 a. This subject was very fully and satisfactorily treated by Mr. Chief-Justice Bigelow, in a late case in Massachusetts,^ who said, " In many cases there can be no difficulty in determin- ing whether an appropriation of property is for a public or private use. If land is taken for a fort, a canal, or a highway, it would clearly fall within the first class ; if it was transferred from one person to another or to several persons solely for their peculiar benefit and advantage, -it would as clearly come within the sec- ond class. But there are intermediate cases, where public and private interests are blended together, in which it becomes more difficult to decide within which of the two classes they may be properly said to fall. There is no fixed rule or standard by which such cases can be tried and determined. Each must neces- sarily depend upon its own peculiar circumstances." — "Many enterprises of the highest public utility are productive of great and immediate benefits to individuals. A railroad or canal may largely enhance the value of private property situated at or near its termini, but it is not for that reason any less a public work, for the construction of which private property may well be taken." — " It has never been deemed essential that the entire community, or any considerable portion 'of it, should directly enjoy or participate in an improvement or enterprise, in order to constitute a public use within the true meaning of the words of the constitutional limitation.^ Such an interpretation would greatly narrow and cripple the authority of the legislature, so as to deprive it of the power of exerting a material and beneficial influence on the welfare and prosperity of the State. In a broad and comprehensive view, such as has been heretofore taken of the construction of this clause of the declaration of rights, every thing which tends to enlarge the resources, increase the indus- trial energies and promote the productive power of any consid- erable number of the inhabitants of a section of the State, or man v. Heist, 5 Watts cSb S. 171; Hardin i See Boston and Roxbury Mill Corp. V. Goodlet, 3 Yerg. (Tenn.) 41; Dunn v. u. Newman, 12 Pick. 476. City Council, Harp. (S.C.) 189 ; Lindsay 2 [Talbot v. Hudson, 24 Law Rep. 228 ; V. Charleston Commissioners, 2 Bay s.c. 16 Gray, 417, 423, 425-427.] (S.C.) 54; Cotrill v. Myrick, 12 Maine, » [Appleton C.J. in Allen v. Jay, 60 222 ; Dyer v. Tuscaloosa Bridge Co., 2 Maine, 140.] Port. (Ala.) 296. CHAP. XI.J EMINENT DOMAIN. 623 which leads to the growth of towns and the creation of new sources for the employment of private capital and labor, indi- rectly contributes to the general welfare, and to the prosperity of the whole community. It is on this principle that many of the statutes of this commonwealth by which private property has been heretofore taken and appropriated to a supposed public are founded. One of the earliest and most familiar instances of the exercise of such a power under the Constitution is to be found in the Mass. St. 1795, c. 74, § 1, for the erection and regu- lation of mills. By this statute the owner of a mill had power for the purpose of raising a head of water to operate his mill, to overflow the land of super-riparian proprietors, and thereby to take a permanent easement in the soil of another, to the entire destruction of its beneficial use to him, on paying a suitable com- pensation therefor. Under the right thus conferred, the more direct benefit was to the owner of the mill only ; private property was, in effect, taken and transferred from one individual for the benefit of another, and the only public use which was thereby subserved was the indirect benefit received by the community by the erection of mills for the convenience of the neighborhood, . and the general advantage which accrued to trade and agricul- ture by increasing the facilities for traffic and the consumption of the products of the soil.^ In like manner, and for similar pur- poses, acts of incorporation have been granted to individuals, with authority to create large mill-powers for manufacturing es- tablishments, by taking private property, even to the extent of destroying other mills and water privileges on the same stream."^ — " And it is because they thus lead incidentaMy to the promo- tion of one of the great public industrial pursuits of the common- 1 [See Olmstead v. Camp, 33 Conn. ness. Where the legislature has power 532, 547, 548; Todd v. Austin, 8 Am. to require one public easement to yield Law Keg. n.s. 9.] to another more important, the intention " [Boston and Roxbury Mill-Dam to grant such power must appear by ex- Corp. V. Newman, 12 Pick. 467 ; Hazen press words, or by necessary implication, V. Essex Co., 12 Cush. 478; Common- Such implication can arise only when wealth V. Essex Company, 13 Gray, 249 ; requisite to the exercise of the power Great Falls Manuf. Co. i;. Fernald, 47 expressly granted, and it can be extended N.H. 444; Amoskeag Manuf. Co. i). Head, no further than the necessity of the case 56 N.H. 386, 399-401. Powers in deroga- requires. Hickpk the interpretation, which has been given in other jurisdictions to the term public use, in reference to the right of taking private property for such a use; to the legislative practice under the pro- vincial and State governments before and at the time when the Constitution was adopted ; to the language of the Constitution itself; to the early and con- tinued legislative practice under the Constitution ; to the decisions of the courts in this State ; or to the character of our business and the natural produc- tions and resources of the State, we are drawn to the conclusion, that the legis- lature have power to authorize a private right that stands in the way of an enter- prise set on foot for the improvement of the water power in a large stream like this river [Salmon Falls] to be taken without the owner's consent, if suitable provision is made for his compensation." The same question arose in Amoskeag Manuf. Co. v. Head, 56 N.H. 386, and the decision in Great Falls Manuf Co. «. Fernald was sustained. So in Ash v. Cummings, 50 N.H. 591.] 40 626 LAW OF WATERCOURSES. [CHAP. XI. fer it to another, when the public is not interested in the transfer.^ The possession and exertion of such a power would be incompat- ible with the nature and very object of all government ; for, it being admitted, that a chief end for which government is insti- tuted, is, that every man may enjoy his own ; it follows, neces- sarily, that the rightful exercise of a power by the government of taking arbitrarily from any man what is his own, for the pur- pose of giving it to another, would subvert the very foundation principle upon which the government was organized, and resolve, the political community into its original chaotic elements.^ In the matter of Albany Street, Chief Justice Savage (in comment- ing on the section of law under which the Corporation of the city of New York had proceeded in widening a street) says, that, " the Constitution, by authorizing appropriation of private prop- erty to public use, impliedly declares, that, for any other use, private property shall not be taken from one and applied to the private use of another." It is in violation, he says of natural right ; and if it is not in violation of the letter of the Constitution, it is of its spirit.^ In Bloodgood v. Railroad Company, Mr. Sena- tor Tracy says, " these words of the Constitution should be construed as equivalent to a constitutional declaration, that pri- vate property without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation." * Chancellor Bland, of Maryland, in giving his opinion in an impor- tant case, sa3'^s, "The government of this Republic, by virtue of that eminent domain, which, for public purposes, is intrusted to all governments, may take the property of any individual and cause it to be applied to the use of the public, on making him a reasonable compensation. But," says he, " it cannot arbitrarily take prop- erty from one citizen and bestow it on an other ; because such an act, although not specially prohibited by the Constitution, would be contrary to the fundamental principles of the goverment itself." ^ ' Pittsburgh v. Scott, 1 Penn. St. 139; = Bloodgood v. Mohawk & Hudson Beekman v. Schenectady and Saratoga Railroad Co., 18 Wend. 56. Railroad Co., 3 Paige, 45 ; Varick v. 3 Albany Street (in the matter of), 11 Smith, 5 Paige, 159 ; Taylor v. Porter, "Wend. 149. 4 Hill, 140; [Hazen v. Essex Company, < Bloodgood k. Railroad Co., 18 Wend. 12 Cush. 475, 477 ; Clock «. White, 2 59 ; see Embury v. Connor, 2 Sandf. 98. Swan, 540 ; Sadler v. Langham, 34 Ala. ^ Hepburn's case, 3 Bland, 98. And 311 ; Heyward v. Mayor of N.Y., 3 Seld. the Chancellor refers to Campbell's case, ?i4 ; Wilkinson u. Leland, 2 Pet. 627, 2 Bland, 230 ; and Partridge u. Dorsey, 628.] 3 H. & John, 302. [See Hazen v. Essex Company, 12 Cush. 477.] CHAP. XI.] EMINENT DOMAIN. 627 As has been declared by a learned Judge in Virginia, " Liberty itself consists essentially, as well in the security of private prop- erty, as of the persons of individuals ; and this security of private property is one of the primary objects of civil government, which our ancestors, in framing our Constitution, intended to secure to themselves and their posterity, effectually and for ever." ^ [In Jessup V. Loucks,^ Thompson J. said, " It is so well settled by the fundamental law, the Constitution, that private property can- not be taken for private use, that it is always assumed as a postu- late, and no argument is needed to sustain it. Following this principle to its legitimate results, one of which is that when pri- vate property is taken for public use by a corporation invested with the right of eminent domain, if that use ceases it returns or reverts to the owner of the soil from whom it is taken. This is always the case where the right is but an easement." ^ — "Ad- herence to this rule is the only mode by which a corporation is to be held from diverting its acquisitions obtained in the name of public necessity, to private uses, and doing indirectly what can- not be done directly."] § 468. There are no instances in which private property of any denomination can be taken by State authority for the mere purpose of raising a revenue (unless in the regular mode of tax- ation) ; and an assumption of power to that extent would be entirely destructive of individual right, and annihilate, at the pleasure of the State, all distinctions between nieum and tuum. Therefore, canal commissioners, who are authorized by the legis- lature to take water enough from a watercourse for canal naviga- tion, have no authority, for the purpose of creating hydraulic power, to sell or lease the surplus water for the benefit of the public revenue. Although in conducting the water to the canal through a feeder, the State agents must necessarily exercise a discretionary power, yet the water can only be taken by them for canal purposes; and if taken and rented to an individual, no title would pass against the riparian owners entitled to it by law.* § 469. Lots bounding upon a river, and immediately below a State dam erected for the use of a canal, were sold by the New 1 Green J., in Crenshaw u. Slate s [gee Lancet). Harvey, 55 Penn. St. Kiver Co., 6 Band. 245. 16.] 2 [Jessup V. Loucks, 55 Penn. St. 361.] * Buckingham v. Smith, 10 Ohio, 288. 628 LAW OF WATERCOURSES. [CHAP. XI. York commissioners of the land office as water lots bounding upon the river ; and it was held, that the purchaser of such water lots was entitled to the water privileges connected with such lots at the time of the sale, by the natural flow of the surplus water over the State dam, so far as could be used without inter- fering with the right of navigation ; and that the State officers could not afterwards lease such surplus waters, and authorize the lessee to prevent them from flowing over the dam, to the injury of the water privileges connected with the water lots thus sold. The language of the Court, in the appeal of this case, was, " The government has the power, under the Constitution, to appropriate the private property of its citizens, just so far, and no farther, than is necessary for the purpose and object of the appropriation ; and that ma^ be an absolute and exclusive right to land or water, or it may be a partial or common or usu- fructuary right, according to the nature of the property or the circumstances of the case. But when sueh purpose is accom- plished, the right of the State is exhausted, and the whole of the residue of the property, whatever it may be, belongs to the citizen." ^ § 470. So, canal commissioners are not authorized to dispose of the water power of a stream to persons who have been injured by the canal, to pay them for their damages ; ^ and where the mill of a person is likely to be injured by a dam erected above it to supply a canal feeder, the canal commissioners have no power to dig a race across another person's land, without con- sent, to conduct the water from the feeder to the mill-owner, and so compensate him for his loss ; and if a threat is, made to dig such a race, an injunction will lie.^ § 471. Although, in Ohio, the law authorizes canal commis- sioners to dispose of the water for hydraulic purposes, with a view to raise a revenue to aid in defraying the expense of the canal, still this relates only to the water which is necessary for the navigation of the canal, and which can be used for no other purposes, without interfering with that navigation. It does not authorize them to receive a surplus quantity of water into the canal, that they may dispose of it ; for the reason that private 1 Varick v. Smith, 5 Paige, 137, and 2 M'Artliur v. Kelley, 5 Ohio, 84. on appeal, 9 Paige, 547. And see Harris 8 iijij_ V. Thompson, 9 Barb. 850. CHAP. XI.] EMINENT DOMAIN. 629 property can only be taken by the legislature or its agents when necessary for the public welfare, and that, in such case, compen- sation must be made.^ '§ 471 a. But a party may renounce a constitutional provision made for his benefit, and a law, therefore, which provides for the transfer of property from one individual to another with the consent of the owner, is not unconstitutional. And where such a law does not require the consent to be in writing, it may be manifested by parol acts and declarations, so as to effect a trans- fer of the title, notwithstanding the Statute of Frauds.^ 5. Of the Nature and Kind of Qompensation. § 472. The constitutional 'obligation on the part of the govern- ment to make compensation when taking private property for the benefit of the public, is as it were a delt, and as such should be paid in money ; and the inhibition imposed upon State gov- ernments, by the Constitution of the United States, that they shall not make any thing but gold and silver a lawful tender for a debt, should be extended to the case of such a debt.^ A certain learned Judge, entitled to high respect, it is true, has expressed an opposite opinion, and considers, that although there is a primary convenience in money, as a medium of com- mercial exchange, yet it rests with the legislature to determine the Mnd of compensation to be made.* This opinion was ex- pressed in commenting upon the case of Van Home's Lessee v. Dorrance,^ in which case it was held, that no just compensation could be made except in money, that being the common standard, by comparison with which the value of any thing may be ascer- tained. It was not only a sign which represented the respective value of commodities ; but a universal medium, easily portable, liable to little variation, and readily exchanged for any kind of property. Compensation is a recompense in value, a quid pro quo, and must be in money. ' Land or any thing else may be a compensation, yet it must be at the election of the party. 1 Cooper V. Williams, 5 Ohio, 244. People w- The Mayor of Brooklyn, 6 2 Embury v. Connor, 3 Comst. 611, Barb. 209 ; Livermore v. Jamaica, 23 Vt. and see ante, Ch. VIII. 361.] 3 Smith on Stat, and Const. Law, « Rogers J., in McMaster v. Common- p. 471; Seymour v. Carter, 2 Met. 520. wealth, 3 Watts, 296. [See 2 Kent, 394 and note ; Jacob v. The » Van Home v. Dorrance, 2 Dall. 313. City of Louisville, 9 Dana, 114; The 630 LAW OP WATERCOURSES. [CHAP. XI. § 473. It has been said of the above decision, that its accuracy had been questioned, and that, if it be a correct exposition of the Constitution, the legislature had violated the provision in question in more instances than one.^ This remark was made upon the assumption (of which there are other instances) that an estimate made of the benefits to accrue to the owner of prop- erty taken for public use, and that a direction that the amount of such estimated benefit shall be deducted from the value of the property taken, were in confiict with the decision in Van Home V. Dorrance. But if the subject is attentively considered, there does not appear this conflict. The damage to the party whose property is condemned to public use, is the value of the property, less the actual amount of benefit accruing to the residue of the property of the same individual, by reason of the use made of that taken .2 To that extent, it is a just compensation. That a just and full compensation must be made in money is certain ; but if in appropriating property of the value of four thousand dollars, when, by the same appropriation, the value of what remains is increased two thousand dollars, and the value of the property taken is the rule of damages, the owner actually takes two thou- sand without the least consideration, and receives more than the Constitution enjoins to be paid, because it is more than a compensation.^ 1 Huston, J., in Satterlee v. Mathew- Jamaica, 23 Vt. 861 ; Milwaukee & Mis. son, 16 S. & Rawie, 179. R.R. v. Eble, 4 Chand. 72; Palmer Co. 2 Smith on Stat, and Const. Law, v. Ferrill, 17 Pick. 58.] In some instances, p. 470, [post, § 513. The defendants in such acts direct an assessment of benefit an action for overflowing the plaintifl''s to lots owned by persons whose land is land by the erection and maintenance of not taken for pubhc use, for the advantage a dam, oifered to show that the mill and of those who may he injured by the im- dam were a public benefit, and a benefit provement; and such acts have also re- to the plaintiff; the evidence was held ceived judicial sanction. McMaster v. inadmissible. Engard «. Erazier, 7 Ind. Commonwealth, 3 Watts, 296. But see 294.] People v. Mayor &o. of Brooklyn, 6 3 Opinion of Wood C,J., Symonds v. Barb. 209, and" 4 Const. 419, s.c. That City of Cincinnati, 14 Ohio, 174 ; [2 Kent, the intrinsic value of the land is not the 394 ; Jacob v. The City of Louisville, 9 true rule of damages, and that in assess- Dana, 114 ; Evansville & C. R.R. u. Fitz ing the compensation, the advantage or Patrick, 10 Ind. 120; Same v, Cochran, injury resulting to the owner of lands, 10 Ind. 120; Rice v. Turnpike Co., 7 from the construction of a railroad (e.g.), Dana, 81 ; Woodfolk v. N. & C. R.R., 2 may be considered. Whiteman v. Rail- Swan, 422 ; Railway v. Lagarde, 10 La. road Co., 2 Harr. (Del.) 614. [In a recent An. 150 ; Giesy v. Cin., Wil. & Zanesv. case in New Hampshire (Petition of the R.R., 4 Ohio St. 308; Little Miami R.R. Mount Wash. R.R. Co., 35 N.H. 134), it V. CoUett, 6 Ohio St. 182; Pacific R.R. was decided that in assessing damages V. Chrystal, 25 Missou. 544 ; Livermore v. for land taken for a turnpike, or free CHAP. XI.J EMINENT DOMAIN. 631 § 474. Acts of legislation like those just considered, have in this country long been acquiesced in, and have received, more- over, judicial sanction. In many of our turnpike and canal «acts, there is a direction to consider the advantages accruing from the road or the canal, as well as the injury done to the owner of the land taken ; and such a provision received judicial sanction in the case of Livingston v. Mayor &c. of New York,^ which was the case of land taken for a street. In a case in the Supreme Court of Ohio, for the value of property taken for private uses, it was held, that it was competent for the defence to show the benefit conferred on the owner by the appropriation ; and that such benefit may be considered in estimating the damages. "It is contended by the plaintiff's counsel," s*y the Court, " that by compensation to the owner in money (the words used in the Con- . stitution of Ohio) is signified the actual value of the property appropriated, in money, subject to no deduction whatever. We cannot adopt this opinion. If such were the intention of its authors, they probably would have used language like this, — Provided the value of the property he paid in money, to the owner.'" ^ It has been held in Virginia, that the advantages to be derived to the owner of land condemned for the use of The James River and Kanawha Company, from the improvement, to which the charter required the assessors to have regard, are such advan- tages as particularly and exclusively affect the particular tract or parcel of land whereof a portion is condemned, but not advan- tages of a general character which may be derived to the owner in common with the country at large from the improvement.^ In Rexford v. Knight, in the Supreme Court of the State of New York,* it was expressly hfcld, that where land is taken and appro- priated by the State, for a canal, and a claim for damages is made by the owner of the land, which claim is acte^ upon by the ap- highway, compensation is to be given for the Court, in giving their opinion, said the actual value of the land taken, with- that, under a similar provision, the Su- out regard to any speculative advantages preme Court of Kentucky was the only or disadvantages to the owner from the tribunal of which they were aware, that making of the highway. See Cushman has come to a conclusion different from V. Smith, 34 Maine, 247 ; Hatch v. Vt. theirs. See Jacob v. City of Louisville, Central R.R. Co., 25 Vt. 49 ; Keitenbaugh 2 Dana, 114. V. Chester Valley R.R., 21 Penn. St. 100.] ^ James River & Kanawha Co. o. 1 Livingston v. Mayor &c. of New Turner, 9 Leigh (Va.) 413, (Court of York, 8 Wend. 85. Appeals). 2 Symonds o. City of Cincinnati, 14 < Rexford v. Knight, 15 Barb. 627. Ohio, 147, Read J., dissenting, thougli 632 LAW OF WATERCOURSES. [CHAP. XI. praisersi who decide that the benefits and advantages arising from the canal are equal to the loss sustained by the claimant, this adjudication has the same effect in passing the title to the State, as. an award of damages followed up by the payment thereof to the claimant. .If the benefits equal or exceed the damage, the claim is extinguished ; and a statute allowing benefit to be set off against damage where private property is taken for public use, is not unconstitutional. § 474 a. Where the land of an individual is taken by the au- thority of the legislature, for a public use, and a full compensa- tion is paid to the proprietor for a perpetual easement therein ; and the same land is afterwards appropriated by legislative au- thority, to another pubiic use of a like kind ; the owner of the land is not entitled to any further compensation. ^ 6. Of the Provisions for Indemnity/. § 475. Whenever the legislature assumes to authorize the tak- ing of private property, they are not solely to judge of the value of the equivalent. This can be constitutionallj' ascertained only in three modes ; first, by the parties, that is, by stipulation between the legislature and the proprietor ; secondly, by com- missioners mutually elected by the parties ; and thirdly, by the intervention of a jury, or other mode equally equitable. The two first-mentioned modes approximate to an ordinary bargain, and the will of the parties whose interests are affected, or that of their agents, is exercised. The last-mentioned mode — the inter- vention of a jury &c. — is resorted to when it is supposed the parties will be unable to agree ; and here is the important con- stitutional guard, and the proper restraint, upon the exercise of legislative authority on such occasions.^ In one of the cases just cited,3 it was held; that an act of the State of Pennsylvania, by which a " board of property" were to decide upon the value of the land to be taken, without the participation of the party, or the interposition of a jury, was unconstitutional and void. But the damages in such cases may be assessed in any equitable 1 Chase v. Sutton Manuf. Co., 4 Cush. a, particular remedy for all damages, all 152. other modes of remedy are by necessary 2 Van Home v. Dorrance, 2 Dall. 313; implication excluded. Spring v. Russell, Armstrong v. Jackson, 1 Blackf. (Ind.) 7 Greenl. 273.] 374 ; Tolly v. Railroad Co., 9 Barb. (N.Y.) 3 Van Home v. Dorrance, supra. 449. [The legislature having prescribed CHAP. XI.J EMINENT DOMAIN. 633 and fair mode to be provided by law, without the intervention of a jury, inasmuch as trial by jury is only required on issues of fact, in civil and criminal cases, in Courts of Justice.^ § 476. The constitutionality of the legislative power of taking private property depends upon the provision for a just indem- nity ; ^ so that a statute incorporating a company to take private property without the consent of the owner, to promote any work for the public benefit, and making no provision for his indemnity, is unconstitutional and void.^ Thus the erection of a dam across a navigable water by an individual, under the authority of a statute of New Jersey, providing no remedy to the owner of a meadow overflowed by means of the dam, was held to be an in- jury for which the owner had his action for damages.* And so, if the legislature should authorize a public improvement by means of a canal, and the execution of the work would require or pro- duce the destruction of, or diminution of, the value of private prop- erty, without affording at the same time means of relief and indemnification, the owner of the property destroyed or injured may have his action at Common Law against those who caused the damage.^ An act authorizing one to build a dam on his own land upon a river which is a highway, merely protects him from an indictment for a nuisance ; and if, in doing this, he overflows his neighbor's land, he is liable to an action therefor.^ So strictly is the rule adhered to, that if an attempt is made under a statute 1 3 Kent, 339, note b; Beekman v. ^ Stevens v. Prop'rs of Middlesex Schenectady and Saratoga Railroad Co., Canal, 12 Mass. 466. 3 Paige, 45 ; Bonaparte «. Camden & " Crittendon v. Wilson, 5 Cow. 165 ; Amboy Railroad Co., 1 Bald. C.C. 205 ; [Eastman v. Amoskeag Manuf. Co., 44 Railroad Co. v. Davis, 2 Der. & Bat. N.H. 143, 160; Hooksett v. Amoskeag (N.C.) 464; Willyard U.Hamilton, 7 Ohio, Manuf. Co., 44 N.H. 110; Thatcher;;. 118; Louisv. C. & C. Railroad Co. u. Dartmouth Bridge Co., 18 Pick. 501, 503; Chappell, 1 Rice (S.C.) 383. Amoskeag Manuf. Co. v. Goodale, 46 2 [Bensley v. Mountain Lake &c. Co., N.H. 57 ; Petition of Mt. Washington Co., 13 Cat. 306 ; Cobb v. Smith, 16 Wis. 661 ; 35 N.H. 134 ; ante, § 332. The owners Thien v. Voegtlander, 3 Wis. 461 ; Amos- of a dam across tide-waters, erected under keag Manuf. Co. v. Head, 56 N.H. 399, and in accordance with a legislative grant, 400.] are not thereby protected from liability 3 Thatcher v. Dartmouth Bridge Co., to the owner of an ancient mill injuriously 18 Pick. 501 ; and see also Perry v. Wil- flowed by such dam ; and, if such grant son, 7 Mass. 393 ; Cobb v. Smith, 16 Wis. makes no provision for ascertaining and 661 ; [Ash v. Cummings, 47 N.H. 591, 613, recovering the damages thus directly re- and cases ; Harding v. Stamford Water suiting to such mill, the owner thereof Co., 41 Conn. 87.] has a remedy at Common Law. Lee v. * Sinnickson v. Jackson, 4 Harr. (N.J.) Pembroke Iron Company, 57 Maine, 481.] 129. 634 LAW OP WATERCOUESES. [CHAP. XI. to take such property, without such an indemnity, a Court of Chancery will interfere by injunction. The trustees of a vil- lage, in the State of New York, had been empowered, by an act of the legislature, to supply it with water by means of conduits ; and for this purpose it was provided that they might enter on lands of individuals, to make reservoirs and lay conduits, and provided compensation only for the owners of the laud on the spring, from which the Water was to be conducted. It was held, that there being no provision made for indemnifying the owners of the land through which the water ran, in its natural course, for the deprivation of the water, an injunction would lie to pre- vent any proceeding to divert the water from its natural course, until adequate provision was made for compensating the persons who would sustain loss by the diversion.^ Again in the case of Jennings ex farte^ the water of a certain river was diverted from a mill and other hydraulic works, the right to erect which was claimed under a legislative grant; and it was held-, that the ap- praisers were bound to appraise damages to the owners of the works ; and the appraisers having refused to act, on the ground that the property in the river was in the State, the Court directed that a mandamus should issue. § 477. The Constitution of Mississippi is explicit as to the time when the compensation must be made, and requires that " the compensation shall be first made ; and under that provision, it has been held, that payment is a condition precedent, and that such payment must precede the seizure for public use, and that any act which authorizes such seizure for public use, without pro- viding such previous compensation, is unconstitutional and void.^ The Constitution of New York, and the constitutions of some other States, do not require that compensation shall be first made ; but merely declare that private property shall not be appropriated to public purposes without just compensation. In Rogers v. Bradshaw, in New York,^ it was held, that where pri- vate property was taken for private use, it was not necessary that 1 Gardner v. Newburgh, 2 .John. Ch. v. Eble, 4 Chandl. 72.] The Civil Code 162 ; [Aeli v. Cummings, 50 N.H. 591, 620.] of Louisiana lias provided that there must 2 Jennings ex parte, 6 Cow. 518. be tlie previous indemnity (Civ. Cod. ' Tiiompson v. Grand Gulf Railroad Louis, art. 489); and so did the Code Co., 3 How. (Miss.) 240. [See Cushman Napoleon (art. 545). u. Smith, 34 Maine, 247 ; 2 Kent, 340 and l Rogers v. Bradshaw, 20 John. 735. note; The Milwaukee & M. Bailw. Co, CHAP. XI.] EMINENT DOMAIN. 635 the amount of compensation should be actually ascertained and paid before such property was taken and appropriated to the public use ; and both in that case, and that of Pittsburgh v. Scott, in Pennsylvania,^ it was held sufficient if a certain and adequate remedy was provided by which the individual could obtain such compensation without unreasonable delay. When the case of Bloodgood V. Hudson and Mohawk Railroad Company first came before the Supreme Court of New York,^ that Court held, that the legislature might authorize a railroad company, by their agents, surveyors, and engineers, to enter upon the lands of an individual for the purpose of making a survey and examinations, so as to determine the most advantageous route for the proper line or course whereon to construct their road, previous to their acquiring a title to the lands required for that purpose, or the assessment and payment of damages. It is also held, that the company might enter upon the land in like manner, previous to acquiring title to the land, or having the damages appraised or paying the same. The purchase of land, it was held, was a con- dition precedent to the vesting of the fee-simple, but not to the right to enter, and take possession and use the land for the pur- poses of a railroad. But when this case came under review in the Court of Errors,^ that decision was overruled, and it was de- cided, that it was a condition precedent that the damages should be assessed and paid before the company had any right to enter upon, and actually appropriate the land for the purposes of a railroad. It was not to be presumed the legislature intended, or that it meant, to authorize the company to enter upon the land of an individual, pull down his building and other erections, before assessment and payment- for the same ; or to leave the individual to seek an uncertain remedy by action. The citizen whose property is thus taken from him, is not bound to trust to the solvency of an individual, or even a corporation, for 'just com- pensation.* 1 Pittsburgh v. Scott, 1 Penn. St. 309. that the compensation, or offer of it must 2 Bloodgood V. Hudson & Mohawk precede, or be concurrent with the seizure R.R. Co., 14 Wend. 51. and entry upon priyate property under the 3 18 Wend. 17. authority of the State. The government ' Chancellor Kent, in a copious note is bound, in such cases, to provide some to the second volume of his Commenta- tribunal for the assessment of the com- ries, after citing many authorities in re- pensation or indemnity, before which each gard to the right of eminent domain, party may meet and discuss their claims proceeds to say : " The better opinion is, on equal terms ; and if the government 636 LAW OP WATERCOURSES. [chap. XI. proceeds without taking these steps, their ofiScers and agents may, and ought to be restrained by injunction." 2 Kent, 339, note. He further says, " The settled and fundamental doctrine is, that govern- ment has no right to take private property for public purposes, without giving a just compensation; and it seems to be neces- sarily implied, that the indemnity should, in cases which wilt admit of it, be previously and equitably ascertained, and be ready for reception concurrently in point of time, with the actual exercise of the right of eminent domain." It may be remarked that Chancellor Kent has not given the foregoing opinion in view of any consti- tution requiring, in direct terms, a previous indemnity, but iti reference to constitu- tions containing nothing more than the general provision, that private property shall not be taken for public uses without full compensation being made, and in reference also to the universal principles of justice. But, as was said by Lord C.J. Denman, " frequently the amount of ccmpensation cannot be ascertained till the work is done." Lisley v. Lobley, 7 Ad. & El. 124. For further authorities on this subject, see the note of Chancellor Kent above referred to. [Penrice v. Wallis, 37 Miss. (8 Geo.) 172. In Boynton V. The Peterboro' & Shirley R.R. Co., 4 Cush. 467, Shaw C.J. says, " The right to damages for land taken for public use, accrues and takes efEect at the time of taking, though it may be ascertained and declared afterwards. The time in the case of railroads, prima facie, and in the absence of other proof, is the time of the filing of the location." Charlestown Branch Railroad v. Middlesex, 7 Met. 78 ; Davidson v. Boston & Maine Railroad, 3 Cush. 91. In Ash v. Cummings, 50 N.H. 591, 621, Sargent J. said, "In cases where the State, or a county, or a town, is to be made liable for the damages which an individual may suffer by having his prop- erty taken for the public use, it is not so important that the compensation should be paid or secured in advance, provided the Jaw provides a certain and expeditious way of ascertaining and recovering it, because there the presumption and the fact are, that these municipalities are always responsible. But with an individ- ual or a corporation the case may be very different, and hence in such cases the sug- gestion of Chancellor Walworth, in Blood- good V. The Mohawk & Hudson R R. Co., 18 Wend. 9, that the land-owner must be made sure not only of a remedy to as- certain the amount of liis damage and to enforce its payment, but also of a cer- tain and definite fund out of which he is to be paid. Ordering the payment of a sufficient sum of money in advance to indemnify against all damages that would be likely to be assessed, or the securing in some other way a sum which shall be perfect indemnity, is simply making the necessary provision for some certain fund out of which the land-owner is to be paid, when from the nature of the case there is no other certain and definite fund on which he can with certainty rely."] CHAP. XII.] ACTS FOR EXCOUEAGEMENT OP MILLS. 637 CHAPTER XII. STATUTES FOR THE ENCOURAGEMENT AND SUPPORT OP MILLS, BY AUTHORIZING THE OWNERS AND OCCUPANTS THEREOF TO OVERFLOW THE LAND OF OTHER PERSONS. 1. As founded on the Doctrine of Eminent Domain. 2. The Provisions of Statutes of different States. 3. Their Effect in abolishing the Common-Law Remedies. 4. The "Public Good," as the Basis of such Statutes, and their broad Provisions and Construction to this End. 5. Do not authorize the overflowing of existing Mills. 6. How and when the La^d becomes condemned to be overflowed. 7. How a Mill once used becomes abandoned. 8. Claim for Damages waived by Parol. 9. Prescriptive Right to flow without Payment of Damages. 10. In Respect to Land overflowed which is under the Jurisdiction of another State or of the United States. 11. Of the Complaint under the Statute of Massachusetts and the Proceedings following it. 12. Of the Complaint under the Statute of Maine and the Proceedings following it. 1. As founded on the Doctrine of Eminent Domain. § 478. This chapter is a protraction of the preceding one, or an additional illustration of the subject of the exercise of the high prerogative of sovereignty of encroaching upon the exclusive right which every citizen has to use his possessions without the interference of any other person. The contents of the chapter preceding disclose, that if the public interest can in any way be promoted by taking private property, it in a great degree rests in tlie wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with private rights for that purpose. As it has been said by a distinguished jurist,^ it has been upon this prin- ciple that the legislatures of several States have authorized the condemnation of lands of individuals for mill-sites where, from 1 Chancellor Walworth, in Beekman u. Saratoga and Schenectady Railroad Co., 3 Paige, 73. 638 LAW OF WATERCOURSES. [CHAP. XII. the nature of the country, such mill-sites could not be obtained for the accommodation of the inhabitants without overflowing lands thus condemned. The statutory law upon this subject, in some of the States, gives the right of flowing first, and then im- poses on the mill-owner a subsequent liability of paying damages, to be afterwards annually assessed ;i while in other States the land-owner is divested of his title to the land itself, and the damages therefor are assessed and paid upon, or concurrently with, the grant of a permission to erect a mill.^ § 479. The Supreme Court of the State of New York (judg- ment of the court by Hand J.) say, " The legislature of this State, it is believed, has never exercised the right of eminent do- main in favor of mills of any kind. Sites for steam-engines, hotels, churches, and other public conveniences, might as well be taken, by the exercise of this extraordinary power." ^ But nothing can be more clear, than that legislative acts of this character and for such object essentially promote the good of a community in its progress from a wilderness to cultivation, as was the case with the North American Colonies in the early part of their history, when lands were of comparatively little value, and the support of grist-mills and saw-mills was a- measure of even vital necessity; and they were consequently encouraged in everj'^ possible man- ner.* Mill-sites were, in some instances, appropriated from com- mon lands, by the votes of their proprietors ; and mills were often exempted from taxation by the municipal corporations within ' [Such is the law of MasBaehusetts. act, in the same manner as if the proprie- The jnill acts do not give to the mill- tor had derived his title from some other owner a right to take and use the land source. Dean v. Colt, 99 Mass. 487, 488.] of the proprietor above, against his will, '^ [See post, § 483.] but they do give him an authority to use ' Hay v. Cohoes Co., 3 Barb. 42. [But his own land and water privilege to hia in New York, where persons are in the own advantage and for the benefit of the actual use and occupation of premises on community. These mill acts are a pro- which mills are located, and they and vision by law, for regulating the rights those under whom they claim have been of proprietors, oh one and the same in possession thereof for a number of stream, from its rise to its outlet, in a years, and an adjoining proprietor erects manner best calculated, on the whole, to a dam below such mills, upon the same promote and secure their common rights stream, by means of which the water is in it. Bates v. Weymouth Iron Co., 8 set back upon the wheels of such mills, Cush. 548, 653. A deed of land through thereby reducing the power there'of and which a stream runs, though it contain injuring the mills, an action will lie for the usual covenants of warranty, does damages by the mill-owners. Brown v. not estop the grantor from subsequently Bowen, 30 N.Y. 519.] erecting a dam below the land and thereby * 2 Am. Jurist, Art. 11. flowing it under the protection of the mill CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 639 which they were established. In many instances they were erected in parts of the country still covered by the primitive forests, and where the extent of the flowing, and even the owners of the lands, were unknown. i Even at the present day, in the State of Georgia, the legislature have provided, that whoever will build a grist-mill on land so circumstanced, shall be entitled to- the grant of an extensive tract of land, and whoever will build a saw-mill, to a grant of a much more extensive tract.^ 2. Provisions of Statutes of different States. § 480. The statutory law in Massachusetts, encouraging mills by authorizing their owners and occupants to overflow the lands of other persons, by paying such damages as may be assessed in the mode prescribed, is ancient. The old Massachusetts statutes speak of mills as greatly beneficial to the public ; and the preamble of Prov. St. 12 Anne, c. 1, an act for upholding and regulating mills, recites, that they sometimes fall into despair, and are ren- dered useless and unserviceable, if not totally demolished, to the hurt and detriment of the public, as well as the loss to the partners who are ready to rebuild. The Prov. St. also of 12 Anne, c. 8, speaks of " mills serviceable to the public good and the benefit of ' 2 Am. Jurist, Art, II. See post, practice arose originally from a sense of § 487. general convenience; and in so strong a 2 Hotclikiss, Stat. Law of Georgia, 384. point of view does this seem to have Thebuildingof mills was in ancient times, been considered, that a man might have in England, encouraged in a different claimed the suit by prescription, even manner. It was then important, says from the villeins of a stranger. In process Woolryoh, to the settlers in and inhabi- of years, when commerce began to spread, tantsof different districts, that they should and new erections were prospering on have free access to some mill for the pur- every side, many of the tenants and in- pose of grinding their corn. Lords of habitants, whose ancestors had derived manors, for the purpose of meeting the benefit from the ancient mills, began to exigency, erected mills on their respective employ their own particular workmen, domains for the public advantage ; but and the old millers found themselves de- they fettered the gift with the condition serted by degrees, by those whose duty that the inhabitants and residents within it was to have continued their support, their respective seigniories should bring They were, therefore, necessitated to seek their corn to be ground to the mill so redress, and the writ of secta ad molendinum built; and this custom, which thus had or secfamo/endtW, was the ordinary remedy a reasonable commencement, was called which they employed on those occasions. " doing suit " to the mill. Consequently, The enforcing of this writ, which is now whether the millers to whom the respec- suspended bj- the modern action on the live lords conceded these advantages, case, brought back the inhabitants to the make their claims by prescription, which suit, and the service which they owed, supposes a grant from the lords, or by Woolrych on the Law of Waters and of custom, it appears clear that this old Sewers, &c., p. 108. 640 LAW OP WATERCOURSES. [CHAP. ZII. the town;" and gives to mill-owners liberty to continue and improve the pond for their best advantage, without molestation, paying damages for raising the water &e. These statutes took away the right which before the land-owner possessed of removing from his land a nuisance ;i and the Prov. St. of Geo. II. c. 4, gave treble damages for the trespass of taking up, breaking down, or damnifying any dam made use of for the enclosing of water im- proved for the benefit of any mill. In 1795, the provisions of these provincial acts were revised, the act of that year, c. 74, providing that the mill-owner may flow any lands not belonging to him (not merely a small quantity, as in the St. 12 Anne), which shall be found necessary to raise a suitable head of water to work his mill, paying damages &c. The jury, however, are to determine how far the circumstances of the case do justify such flowing. The St. of 1824, c. 153, provides for the recovery of damages sustained by the owner of the land either above or below the mill ; and the St. of 1825, c. .109, gives the mill-owner a right of tendering the amount of damages ; thus putting trespass and contract upon the same footing.^ § 481. Between the Revised Statutes of Massachusetts, which went into operation in May, 1836, and those which were before in force, there is no substantial difference.^ [Neither is there any substantial difference between the General Statutes of Massachu- setts, which went into operation in June, 1860, and the Revised Statutes.*] By the General Statutes it is provided, that any person may erect and maintain a water-mill, and a dam to raise water ^ for working it, [across any stream not navigable® upon 1 [The mill act of 1714, Ancient Char- lands above, did not prevent the grantee ters, 404, respecting the flowing of lands and his assigns from availing themselves by mill-owners, applied as well to mills of the subsequent mill acts to determine then existing, as to mills to be erected the damages caused by the flowing of afterwards ; and from that time to the land by means of their dam. Burnham prelent, remedies by mill-owners for flow- v. Story, 3 Allen, 378. See Brady v. ing lands have been under the provisions Blackinton, 113 Mass. 240, 241.] of that act, and similar acts subsequently - See the opinion of Putnam J., in passed. The owner of land which is Roxbury Mill Dam Company «. Newman, flowed by means of a dam erected prior 12 Pick. 467. See also the opinion of to 1714 has no right to break down the Shaw C.J., in French v. Braintree Manuf. dam, but must seek his remedy under Co., 23 Pick. 216. the mill acts. Burnham v. Story, 3 Allen, 8 Rev. Laws of Mass. ch. 116, s. 4. 378. Accepting a grant prior to 1714 < [Genl. Sts. c. 149. See the Statutes of liberty to set up a mill, not damnifying in the Appx. p. 1.] other grants previously made, and under 5 [gee lyiurdock v. Stickney, 8 Gush, a restriction that the same should be so Hi] enjoyed that the water should not be ^ [The owners of a dam erected across kept back to the injury of the owners of a navigable river, where the tide ebbs CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 641 his own land, or land on which he is authorized by grant or other valid authority to place the same'], although it may flow back upon lands not belonging to such mill-owner, he being liable for the payment of damages, in the manner specially provided ; which is, that any person whose land is overflowed by any dam, may obtain compensation thei-efor, upon his complaint before the Superior Court for the- county where the land, or any part of it, lies;^ provided that no compensation shall be awarded for any damage sustained more than three years before the institution of the complaint.^ The Revised Statutes of Maine, on the subject, are similar,* and so also are the provisions of the statute author- izing the flowing of another's land, of Rhode Island.^ § 482. In one important respect, the law on the subject of flowing land of North Carolina is similar to that of Massachu- setts, Maine, and Rhode Island ; that is, it permits the flowing of and flows, which caused the land above to be flowed, are not liable to a complaint for flowage, by the owner of such land. See Cogswell v. Essex Mill Corporation, 6 Pick. 94 ; Bryant v. Glidden, 36 Maine, 36; Strout «. Millridge Co., 45 Maine, 76; Murdock v. Stickney, 8 Cush. 113; Cobb V. Smith, 16 Wis. 661.] ' [Where A., owning on one side of a stream, built a mill and abutted one end of his dam upon the land of B., who owned on the opposite side of the same stream, without lawful authority, and B. afterwards built a mill below on his own land and thereby flowed the mill of A., it was held that B. was justified in so doing. Parker C.J. said, " The defend- ant, B., had lawful right to take 'down the dam, erected without his consent upon his premises ; and, having this right, it would be singular that he should be answerable for consequential damages, for the use of his own property, to one who had no title to the property supposed to be injured." Jewell o. Gardiner, 12 Mass. 311; See Hodges o. Raymond, 9 Mass. 314.] 2 [Since the passing of the St. of 1824, c. 153 (which is incorporated into the Genl. Stats, c. 149), this process has been maintainable for the recovery of damages caused by flowing land below a mill-dam. Shaw v. Wells, 5 Cush. 537. But for wrongful overflowing of land below a dam, the remedy is by action at law. Gile w. Stevens, 13 Gray, 146, 149.] s [In the trial of a complaint for flowage, it is no objection that the dam- ages for three years are assessed in one entire sum. Bradstreet u. Erskine, 50 Maine, 407.] 1 See the Rev. Laws of Maine in the Appx. [The .Penobscot River, above the tide, is not a navigable stream within the meaning of the Maine statute of 1840, regulating water mills, although a highway floatable for boats, rafts, or logs, and as such subject to the public use. Veazie v. Dwinel, 50 Maine, 479. The owner of a mill dam, on such a stream, is bound to provide a suitable, safe, and convenient passage through or by his dam, for rafts, logs, and other lumber. Veazie v. Dwinel, supra. To obstruct or occupy such a passage with any waste material, or to an unreasonable extent even with valuable property, is ■- public nuisance. Veazie v. Dwinel, supra.] 5 See Laws of Rhode Island (Ed. 1857), and Appx. [A late Act in Con- necticut, of 1864, known as the Flowage Act (Rev. of 1866, p. 89), is based upon similar principles. Olmstead v. Camp, 33 Conn. 582; Todd v. Austin, 8 Am. Law Reg. n.s. 9.] 41 642 LAW OP WATERCOURSES. [CHAP. XII. land first, and then provides for the payment of annual damages.^ The 74th chapter of the Revised Statutes of North Carolina, on " mills and millers," puts together in a condensed form all the enactments contained in the acts of 1809, 1813, and of 1833. In describing " the person " authorized and directed to prosecute his complaint in the manner prescribed, the language of the legis- lature is very broad: "Any person who. may conceive himself injured by the erection of any public grist-mill, or mill for domes- tic manvfactures or other useful purposes, and be desirous of re- covering damages from the proprietor of any such mill, shall apply by petition to the Court of Pleas and Quarter Sessions of the county in which the land, to which the damage is done, is situate, setting forth in what respects he is injured by the erec- tion of said mill." The question arose, in Waddy v. Johnson,^ what within the meaning of the legislature, is the case of " dam- age done to land" by the erection of a mill. The decision of the Court was, that when land is overflowed, the owner may recover full compensation for all the injury he has sustained thereby, whether it be more or less direct, whether it affect his dominion in the land by taking away its use, or impair the value of that dominion by rendering the land unfit for a place of residence, or whether the injury reaching beyond its immediate mischief, ex- tends also to the person, or the personal property of the peti- tioner. But the plaintiff must state in his petition in what respect he was injured, and his proofs cannot go beyond his allegations.^ 1 A conveyance made to defeat or Act of Assembly of North Carolina, the delay a party injured by the erection verdict of the jury and the judgment of of a mill, in the recovery of his damages, the Court thereon, are conclusive as to is held, in North Carolina, void as to the assessment of damages up to the such party, and the owner of the mill, time when such judgment was rendered, notwithstanding his conveyance of it. An application for relief from damages, continues still liable for the damage, assessed for a period subsequent to the Purcell V. McCullum, 1 Dev. & Bat. time of the judgment, can only be heard (N.C) 221. For the statute of North if the dam is taken away or lowered. Carolina, and its construction as to com- The washing out of the channel and plaint and proceedings under it, see other causes of a similar kind, furnish no Gillett D. Jones, 1 Dev. and Bat. (N.C.) reason for abating the damages. Beatty 339 ; Fellow v. Fulgham, 2 Murph. 254 ; v. Conner, 12 Ired. 341. The case of Wilson V. Myers, 4 Hawks, 73. Pugh v. Wheeler, 2 Dev. & Bat. (N.C.) 2 AVaddy v. Johnson, 5 Ired. (N.C.) 50, cited and approved; see as to the 333. latter case, ante, § 427. An executor or 3 Bridgers v. Purcell, 1 Ired. 232. administrator has a right to a remedy by In a proceeding to recover damages for petition, under the Act of North Caro- ponding water by a mill-dam, under the Una (Rev. Stat. c. 74), to recover dam- CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 643 § 483. By the statute law of both Virginia and Kentucky, a person owning the land on one side of a watercourse, who pro- poses to erect " a water grist-mill, or other machine or engine useful to the public," may make application to the Court, through which by appraisement by a jury, he obtains the right to use the opposite bank, and the right to flow the lands of others, provided the flowing does not extend to a house, yard &c. and be not a public nuisance. The issuing, execution, and return of the writ ad quod damnum, to the value of the land, imme- diately divests the title of the owner of the land, and vests it in the Commonwealth in full and absolute dominion ; such owner remaining entitled only to damages assessed by the jury. A grant also by the proper tribunal to erect a dam and establish a mill (the precautionary proceedings prescribed by the statute having been complied with), vests in the grantee so much of the public right to the stream as is necessary for the full enjoyment of the mill erected under the order. On an application to add to the height of an existing dam, the only inquiry is. What dam- ages will be occasioned by the proposed addition ? and no assessment is to be made of such other damages accruing pre- viously to the alteration, and not contemplated by the original jury.^ This statute law of Virginia and Kentucky has been sub- stantially adopted in the States of Indiana,^ Missouri,^ Mississippi, Alabama,^ and Florida.^ ages for the OTerflowing by a mill-pond Baud. 58 ; Humes u. Shugart, 10 Leigh, of his testator's or intestate's land, in the 332.] lifetime of such testator or intestate. 2 Indiana Laws, 65 (Rev. Code of Howcott V. Warren, 7 Ired. 20. So a 1831). remedy by petition, to recover damages 3 Missouri Laws, 587 ; Hook v. Smith, for flowing a mill-pond, may be had 6 Missou. 225. against the executors or administrators < Aik. Dig. Laws of Alabama, 325; of the person who committed the injury. Clay's Dig. of ibid. 876. [See Hendricks Howcott v. Coffield, 7 Ired. 24. In u. Johnson, 6 Porter, 472. But the courts these two cases, the cases of Gillet v. of Alabama in 1859, declared a statute of Jones, 1 Dev. & Bat. (N.C.) 343, Waddy this character unconstitutional. Sadler V. Johnson, 5 Ired. and Fellow v. Fulg- v. Langham, 34 Ala. 311, 333.] ham, 8 Mur. (N.C.) 254, were cited * The Act of Florida enacts, that when and approved. any person, owning lands in the State, or 1 See the Stat, of Virginia in Appx. ; any watercourse, the bed whereof belongs Stat, of Kentucky of 1797, which is an to himself, may desire to erect a mill, or act to reduce into one the several acts olher machine or engine of public utility, and concerning mill-dams and other obstruc- does not own the land on the opposite tions in watercourses. 1 Stat. Law of side thereof upon which to abut a dam, Kentucky, p. 606. [See Nichols v. Aylor, he may apply for a writ of ad quod dam- 7 Leigh, 546, 562 ; Hunter v. Matthews, num to the Board of County Commis- 1 Rob. Va. 468; Coalter v. Hunter, 4 sioners, having given ten days' notice of 644 LAW OP WATERCOURSES. [CHAP. XII. [§ 483 a. The provisions of the Massachusetts mill acts have effected a change in the Common Law to this extent. By the Common Law, the rights of each successive riparian proprietor to the reasonable use of the mill power of the stream are equal ; each has a right to a reasonable use of it as it passes through his own land only, with a right incident thereto to erect such dams, canals, sluices, and waterways, as to fit it for the actual working of mills. By the right given by the mill acts to any proprietor to flow back beyond his own limits, the Common Law is changed to some extent.i Before any mills are erected, the right of each pro- prietor is the same ; it is a right to appropriate the power of the stream, by the actual erection of a mill, though the head and fall within the limits of his own land are insufficient, and in order to get sufficient head he raises his dam so as to flow beyond his own limits. The necessary consequence is, that when one proprietor, under the common right, has in fact appropriated the power, the proprietor below is so far restricted in his right of appropria- tion, that he cannot erect a mill on his own land, and flow back the water, to the destruction of the mill already erected by au- thority of law. This priority of first possession necessarily arises from the nature of appropriation, where two or more men have an equal right to appropriate, and where the actual appropria- such application, to the owner of such who shall return the same to the Board land, or his agent; and the said Court of Commissioners ordering the writ; shall thereupon order such writ to be and the party applying for the same, issued, commanding the sheriff of the shall pay the value of the land ascer- county to summon and impanel twelve tained, and the damages assessed, to the householders of the county to meet upon person entitled. But in no case is the the land so proposed for the abutment, writ to be granted, if the jury in their on a certain day, to examine the same; report state that the injury likely to re- provided, that nothing in the act shall be suit to the neighborhood from the erec- construed to interfere with any building, tion of a dam, by sickness or otherwise, or other structures ; and in all cases will be greater than the benefit to be where there shall be any land condemned, derived from the same. And if any either party aggrieved shall have the person thus obtaining permission to erect right of appeal to the Circuit or Supreme a mill or other works, fail to erect the Court of the State. The householders same for the space of two years, he shall are impartially to view the land proposed lose the right which he acquired by said for abutment, and to circumscribe by permission. (Thompson's Dig. Laws of certain metes and bounds one acre Florida, 401, 402.) This statute, it will thereof, and to appraise the same ac- be perceived, on comparing it with the cording to its value, and to examine what Act of Virginia (as contained in the other lands, above and below, may be Appx.), is very similar to the Virginia overflowed by the erection of the pro- Act. posed dam and mill, and to ascertain the ' 1 Bates v. Weymouth Iron Co., 8 value of the same ; which inquest, when Cush. 552, 553.] made, shall be delivered to the sheriff CHAP. XII. J ACTS FOR ENCOURAGEMENT OP MILLS. 645 tion by one necessarily excludes all others, the first in time is the first in right.^ By the rule that all proprietors of land through which a watercourse passes have an equal right to the use of the power of the stream for mill purposes, it is not to be understood that each or any one has a right to the natural flow of the stream in the manner in which it ran originally, or as it would run if no mill were erected on it, or to be worked by it ; in its mere natural flow, it affords no power. Dams must be made to raise it, and canals and sluices to conduct, apply, and discharge it. The right to erect these works, and to'change the natural mode of the flow of the current, is incident to the right of applying it to the working of mills, and this right therefore is common to every ripa- rian proprietor. Each therefore must exercise his own reasonable right with a just regard to the like reasonable use by all others. The mere erection of a dam, and the use of water in driving wheels, must necessarily derange its steady and constant natural flow, and substitute a different manner as to time and mode of holding it up and letting it down. So far as such mode is reasonably in- cidental to the use of the stream for mill purposes, it is the right of the proprietor, and constitutes, in part, the mill privilege which the law gives him.-] 3. Their Effect in Abolishing the Oommon-Law Remedies. § 484. The effect of the statutes authorizing the flowing of land not belonging to the mill-owner, and providing a mode for estimating and recovering compensation therefor, take away, as has already been stated, the right which the land-owner primd facie possesses of removing from his land a nuisance. For the same reason the only judicial remedy of the land-owner is the one prescribed by the statute, which is substituted for the action on the case.^ This was so expressly held in Massachusetts before ' [Gary v. Daniels, 8 Met. 466.] proper manner. Barrett v. Parsons, 10 2 [Per Shaw G.J. in Gould v. Boston Gush. 367.] Duck Co., 13 Gray, 450, 451; Drake v. 3 [Veazie v. Dwinel, 50 Maine, 485; HamiltonWoolenCo., 99Mass. 579, 580; Aldrich u. Cheshire R.R. Co., 21 N.H. Oecum Co. v. Sprague Manuf. Co., 35 362 ; Woods v. Nashua Manuf. Co., 4 Conn. 496. An upper mill proprietor of N.H. 527; Fiske v. Framlngham Co., 12 a more ancient mill on a watercourse has Pick. 68 ; Wood v. Hustis, 17 Wis. 416 ; not a right as against a more recent mill- Burnham v. Story, 3 Allen, 378; Spring owner below, to use the water as his own v. Russell, 7 Greenl. 273 ; Ash v. Gum- convenience or interest may dictate, but mings, 50 N.H. 591, 616, and cases cited; is bound to use it in a reasonable and Henniker v. Contoocook Valley Railroad, 646 LAW OF WATERCOURSES. [chap. XII. the enactment of the Revised Statutes, on the ground, that from a general purview of the acts authorizing flowing, made expressly to relieve mill-owners from the difHculties and disputes to which they were before subject, there could be no doubt of the intention of the legislature to take away the action at Common Law ; an action which might be renewed for every new injury, and so har- ass the owner of a mill with continual lawsuits.^ The object of the Massachusetts Act of 1795 has been construed to be twofold : first, to give a remedy for damages already sustained ; and sec- ondly, to establish a measure of damages for the future.^ But by the General Statutes of Massachusetts (c. 149, § 31), and by those of Maine (c. 126, s. 28), it is expressly enacted that no ac- tion can be sustained at Common Law for erecting or maintaining any mill or dam, except in the special cases provided to enforce the payment of damages, after they have been ascertained by the ■process of complaint.^ The Supreme Court of Massachusetts held in 1849, that the remedy by assumpsit or debt, given by the 29 N.H. 146, 152, and cases cited ; Fehr V. Schuylkill Navigation Co., 69 Penn. St. 161; Large o. Orvis, 20 Wis. 698; King V. ShuflFord, 10 Ired. 100.] It is held in Pennsylvania, that a person whose ark is obstructed in Penn's Creek, cannot use the Common-Law remedy of abate- ment, but must pursue the remedy pointed out by the Act of Assembly; Spiglemoyer v. Walter, 3 Watts & S. 540 ; and the erection of a mill-dam across a navigable stream, by the owner of the land through which it passes, is held in that State not a public nuisance to which the Common-Law remedy of abatement may be applied, the appropriate mode of redress being under the provisions of the act of the legislature. Criswell v. Clugli, 3 Watts, 330. But if a statute gives a remedy in the affirmative (without a negative expressed or implied) for a mat- ter which was actionable by the Common Law, the party may sue at Common Law, as well as upon the statute. Com. Dig. Action upon Statute (C.) ; Crittenden v. Wilson, 5 Cowen, 165. [But the Common Law remedy is still open to a land-owner against the mill-owner, who abuses the privileges granted under the mill acts or neglects to fulfil his duties under them. Pehr V. Schuylkill Navigation Co., 69 Penn. St. 161.] I Stowell o. riagg, 11 Mass. 364; [Hill V. Sayles, 12 Met. 143. At Com- mon Law, the mill-owner was not au- thorized to build and maintain his dam in such a manner as to flow the land of pro- prietors above his mill on the same stream. And a continuance of his dam, to their injury, would be deemed a nui- sance. Strout V. Millridge Co., 45 Maine, 76.] '■^ Commonwealth v. Ellis, 11 Mass. 464 ; [Colt J. in Craig v. Lewis, 110 Mass. 379.] And see Woolcot Manuf. Co. v. Upham, 5 Pick. 292; Walker v. Oxford Woollen Manuf. Co., 10 Met. 203. 3 [Henderson v. Adams, 5 Cush. 610, 612. In Wisconsin, it has been held, that where the amount of compensation to be paid to the owner of lands flowed by a mill-dam, by reason of such flowage and for the right to floiY the same, has been determined pursuant to the charter or law authorizing it to be erected and maintained, and the owner of such dam neglects to pay it, a Court of Equity has the power, and will, at the suit of the land-owner, interfere to abate the dam, if the owner of the dam will not pay tlie award. Ackerman v. Horicon &c. Co., 16 Wis. 150 ; Zweig v. Horicon &c. Co., 17 Wis. 362. In Massachusetts, the person entitled to receive the annual CHAP. XII.J ACTS FOR ENCOURAGEMENT OP MILLS. 647 Revised Statutes (^c. 116, s. 24),^ to enforce payment of the annual compensation or gross damages, awarded under the provi- sions of the same chapter, for the flowing of land for the pur- poses of a mill, is not cumulative, but is substituted for, and takes away, the Common-Law remedy by an action on the judg- ment; and that such action can only be brought against the owner or occupant of the mill, and it must be alleged in the declaration, that the defendant is such owner or occupant.^ Although not so expressly provided by the statute of flowing of North Carolina, as by the statutes of Massachusetts and Maine, its main object has been construed to be to restrain a malicious exer- cise of the Common-Law right of action. " Suits," says Gaston J., " were common between the owners of adjoining lands and the proprietors of mills, because of the lauds of the former compensation or gross damages has a lien therefor, from the time of the insti- tution of the original complaint, on the mill and mill-dam, with their appurte- nances, and the land under and adjoining the same and used therewith. Gen. Stats, c. 149, § 24.] 1 [See Gen. Stats, c. 149, § 25, in which it is provided, that the person entitled to receive the annual compensa- tion or gross damages may maintain an action of contract therefor in the Superior Court, against the person who owns or occupies the mill when the action is brought, and shall therein recover the whole sum due and unpaid for the three years then last past, whoever has owned or occupied the mill during that time ; and he shall be entitled to full costs, although the sura recovered does not amount to twenty dollars. See Carpen- ter u. SpSncer, 2 Gray, 407.] 2 Leland u. Woodbury, 4 Cush. 245. [See Fuller v. French, 10 Met. 359; Abbott V. Upham, 13 Met. 172 ; Fitch v. Stevens, 2 Met. 505; Carpenter v. Spencer, 2 Gray, 407.] The point de- cided in 1846, in Hill v. Sayles, 12 Met. 143, upon the complaint under the Mas-, sachusetts Act, was, that the dam raised by the defendant, for a head of water for working his mill, should not be kept up so as to flow the defendant's meadow during a certain portion of the year. This was within the jurisdiction of the jury by statute, and their finding is con- clusive. Subsequently, in 1849, in a suit between the same parties, held (4 Cush. 549), that the verdict of a sheriff's jury, having restricted a mill-owner from keep- ing up his dam and flowing the land above during certain months in the year, he is liable to the land-owner, in an action at Common Law, for flowing the land during those months ; altliough he cause such flowing through a canal cut by him by the side of a stream, after the verdict, instead of causing the water to flow back in the natural stream, as it flowed before the verdict ; and that it is no defence to such action to show, that the flowing complained of was not occasioned by the particular structure, which occasioned the obstruction at the time of the trial by the sheriff's jury, and which the jury had in view in giving their verdict, but a, different one ; that the new channel dug by the defendant was of greater capacity, and would carry off the water more freely and fully from the plaintiff's land, than the old channel, and was kept open dur- ing the months specified in the verdict ; or, that since the verdict of the jury, the defendant had added .a large amount of machinery to his mills. It is not any particular structure of stone, wood, or earth to be kept open, to which such a judgment applies; it applies to any con- trivance, made to raise a head of water, the effect of which is to immerse the complainant's meadow during summer. 648 LAW OP WATERCOURSES. [CHAP. XII. being drowned by the mill-ponds of the latter. For the slightest, as well as the most serious, injury of this kind, the remedy was the same, an action on the case repeated time after time, until the nuisance was put down, or one or the other of the parties ruined in the controversy. It was unquestionably because of the mischiefs, real or supposed, which were disclosed by suits of this description, that the legislature interfered by providing a new remedy, which it was their will should be pursued instead of the former one." ^ § 485. In reference to the statute of flowing of Alabama, the Supreme Court of that State, in giving judgment in Hendricks v. Johnson,^ take occasion thus to speak in relation to the remedy : " Instances were rare, in which mills could be erected without subjecting their owners to consequences which might prove ruinous, and the statute was evidently enacted to obviate this mischief, existing in the Common Law. For this reason the first act was entitled 'An act to encourage the building of public mills, and directing the duties of millers.' It was enacted as early as 1811, by the then territory of Mississippi ; and the gen- eral provisions of this act are similar to those of the act now in force, which was enacted in 1812, and which is only an amend- ment of the former act. Neither the one nor the other contains any provision by which the person acting under it is directly promised any immunity from prosecutions or' actions, nor are the rights of any proprietor to the uses of the stream of water di- rectly divested by these enactments. Yet such must have been the intention of those who framed these acts, for otherwise no conceivable object could be obtained by them, and no encourage- ment would be held out to build public mills, according to the title of the act, if those erecting them were to continue subject to the onerous provisions of the Common Law." § 486. But it is expressly provided by the Virginia and Ken- tucky statutes, and the statutes of other southern and western States, modelled in this, as well as in other respects, after the former, that a license duly obtained to erect a mill, after the in- quest of the jurors, will afford no bar to an action for injuries that were not actually foreseeii and estimated by the inquest.^ The 1 Gaston J., in deliyering the judg- " Hencjricks v. Johnson, 2 Port. (Ala.) ment of the Court in Waddy v. Johnson, 472. 6 Ired. (N.C.) 333. 3 Commonwealth v. Faris, 5 Eand. (Va.) 691. CHAP. XII.] ACTS FOR ENCOURAGEMENT OF MILLS. 649 construction given to the statutes of Massachusetts and Maine, authorizing lands to be flowed situated above or below ^ any mill- dam, does not authorize a mill-owner to make a canal or artificial stream in such a manner as to lead the water into the lands of another person ; and therefore, the remedy of the party whose land is thus flowed, is by an action at Common Law.^ Under those statutes also, when the time during which a mill-dam may be kept up is restricted, by the verdict of a sheriff's jury, to cer- tain months in each year,^ and the mill-owner keeps it up during the other months of the year, and thereby flows another's land, he is liable to the land-owner in an action at Common Law for the damage done by such flowing ;* and so where a mill had been ' [Since the passing of the Statute of 1824, c. 153 (which was incorporated into the Rev. Sts. c. 116, and into Gen. Sts. c. 149), this process has been main- tainable for the recovery of damages caused by flowing land below a mill- dam. But damages caused by occasional abuse of the right of flowing are not thus recoverable. Por wrongful overflowing of land below a dam, the remedy is by action at law. Per Metcalf J., in Gile v. Stevens, 13 Gray, 146, 149; Shaw «. Wells, 5 Cush. 537.] 2 Kske V. Framingham Manuf. Co., 12 Pick. 67. See Riley v. Park, 11 Met. 424. [The remedy for an obstruction of a watercourse, and preventing the water from flowing to the land of an owner below, as it has been accustomed to flow, by erecting a dam, and closing the gates at night for the purpose of collecting the water, is by an action of tort, and not by a complaint under the toill acts. Thomp- son V. Moore, 2 Allen, 350. See Hill v. Sayles, 12 Met. 142 ; Andover ;;. Sutton, 12 Met. 182; Eames v. New-England Worsted Co., 11 Met. 571; Murdock v. Stickney, 8 Cush. 116.] 8 [By Gen. Sts. c. 149, § 3. "The height to which the water may be raised, and the length of time, or period, for which it may be kept up in each year, shall be liable to be restricted and regu- lated by the verdict of a jury." See Murdock v. Stickney, 8 Cush. 113. A verdict of a. jury on a complaint under the mill act, which declares that the "flowing is necessary to the height of the present dam and no higher," and fixes that height by reference to a mark in the rock, authorizes the owner of the mill to raise the water to the height to which a dam of that height would raise the water, and not merely to the height to which that dam itself reaches. Wilmarth V. Knight, 7 Gray, 294. Thomas J. said, " Looking at the provisions together, it is quite plain that the statute regards the height to which the water may be raised and the height of the dam as the same thing ; in other words, measures the one by the other."] * Hill i: Sayles, 12 Met. 142 ; Johnson V. Kittredge, 17 Mass. 76. So, if a mill- owner, after a verdict of a jury fixing the height of his dam or the manner of his using the water, without any change in the situation, refuses or neglects to comply with the requirements of the verdict, he is liable to an action at Com- mon Law, and not to a complaint under the mill act. Leonard v. Wading River Reservoir Company, 113 Mass. 235; Brady v. Blackinton, 113 Mass. 241. The owner of a mill is liable in tort for damages occasioned by keeping his dam above the height fixed by an award of arbitrators vested by the terms of the submission to them with all the powers of a court and jury under the mill act. Winkley v. Salisbury Manuf. Co., 14 Gray, 443. See Short v. Woodward, 13 Gray, 86 ; Bates v. Sloan, 5 Allen, 178 ; Wight V. Packer, 114 Mass. 473, 474; Gordon v. Somerville Mills, 14 Allen, 219. So where the height is fixed by an agreement clearly intended as a substi- tute for proceedings under the mill acts. Burnhara v. Story, 3 Allen, 378 ; Knapp !;. Douglas Axe Co., 13. Allen, 1; Mor- 650 LAW OF WATBECOUESES. [CHAP. XII. abandoned/but the dam kept up, an action at Common Law was held to lie.i The remedy for a town against a mill-owner, who overflows a road which the town is obliged to repair, and does repair, is an action on the case, and not by a complaint under the statute.^ [§ 486 a. The statutes in relation to the right of erecting mills and mill-dams, and of flowing lands, are not to be so construed as to excuse or justify the erection of a dam in such a manner as to destroy the pubUc easement or right of way in a stream upon which it is constructed." Although a dam is shown to be within the protection of the mill acts, and its owner is authorized to maintain a head of water therewith for the operation of his mills, he is not authorized, wholly or substantially, to obstruct the navigation of the stream. Of this right, the public cannot be deprived, nor, in its use, unreasonably obstructed. A dam which impedes or obstructs the rights of the public, in floating boats or logs, in a stream in which they can be floated, must be held to be fro tanto a nuisance;^ while the mill proprietor may erect and maintain his dam, he must, at the same time, keep open, for the use of the public, a convenient or suitable passage-way, through or by his dam, to enable the public to transport such property as the stream in its natural capacity is capable of floating. The use of both parties must be a reasonable use, and the rights of both must be exercised in a reasonable manner."] 4. The Public Good, as the Basis of such Statutes, and their broad Provision and Construction to this end.^ § 487. An opinion has been entertained by sQine persons, that the enactment of the above statutes is an abuse of the rigrht of eminent domain, an infringement of the spirit of the Constitution, and not within the powers delegated by the people to the legis- lature ; though mills might with propriety have been considered public easements, and as of public convenience and necessity, in ton J. in Brady v. Blackinton, 113 Miss. * [Veazie v, Dwinel, 50 Maine, 486, 241.] 490; Knox v. Chaloner, 42 Maine, 150; 1 Balrd v; Hunter, 12 Pick. 566. Dwinel v. Veazie, 44 Maine, 167.] 2 Andover u. Sutton, 12 Met. 182 ; and 5 [Veazie v. Dwinel, 50 Maine, 487; see Commonwealth v. Msher, 6 Met. Parks (>. Morse, 62 Maine, 260; Dwinel 438 ; Commonwealth v. Stevens, 10 Pick. v. Veazie, 44 Maine, 175.] 247. 6 [See Olmstead u. Camp, 33 Conn. ' [Treat w. Lord, 42 Maine, 552, 561.] 550.] CHAP. XII.] ACTS FOR ENCOURAGEMENT OF MILLS. 651 the first settlement of the country.^ The observation was made by the late Chief- Justice Parker, of Massachusetts — when speak- ing of the statutory law of that State subsequent to the Revolu- tion, by which was re-enacted in substance the provincial acts to which we have referred — " We cannot help thinking," says he, " that this statute was incautiously copied from the ancient co- lonial and provincial acts, which were passed when the use of mills, from the necessity of them, bore a much greater value, compared to the land used for the purposes of agriculture, than at present."^ The real question is, whether authorizing the flowing of another's land is sufficiently for the public good to justify depriving the owner of the use of it, even for a just compensa- tion ; as it is not pretended that the legislature can take the property of one individual, and without his consent, give it to another, even for a fair compensation.^ It seems, however, to be abundantly well settled, that it is sufficiently for the public good ;* for the statutory law, of which we have given an account, has too long been engrafted in the jurisprudence of the States in which it has been enacted, revised, and amended, through a long course of legislation, and too steadily sustained by judicial sanction, to be now declared not to be within the eminent domain of the government.^ More especially should this long and uninterrupted public acquiescence be deemed conclusive, when it is considered 1 Am. Jurist, Vol. 2, p. 30. See ante, long acquiescence of oUr citizens in its § 479. provisions, it must be deemed to be the 2 Stowell V. Flagg, 11 Mass. 364. settled law of the State. Nor are we in- [See Murdock v. Stickney, 8 Cush. 113, clined to extend its peculiar provisions 116; Bates .w. Weymouth Iron Co., 8 by implication. It is not believed that Cush. 548, 653 ; Williams v. Nelson, 23 there is any existing public exigency Pick. 141, 143 ; Shaw C.J., in Hazen u. which requires this Court to determine, Essex Company, 12 Cush. 476, 477.] that the proprietors of the many thou- 3 See ante, § 467, et seq. sands of acres of land, in this State, now 4 [In Jordan v. Woodward, 40 Maine, overflowed by the operation of mill-dams, 317, Rice J. said, " The mill act, as it has should be prohibited from all beneficial existed in this State, pushes the power use of such lands by which the capacity of eminent domain to the very verge of of mill-ponds may be diminished ; nor constitutional inhibition. If it were a that the sinking of a pier, or the driving new question, it might well be doubted of a pile in a mill-pond, by the owner of whether it would not be deemed to be in the land overflowed, is an unlawful act." conflict with that provision of the Con- Similar considerations prevailed in Great stitution of Maine which secures private Falls Manuf. Co. u. Fernald, 47 N.H. property from being taken for public use, 444 ; and in Ash a. Cummings, 50 N.H. unless the public exigencies require it. 591.] We do not intend to question the au- * [See Talbot v. Hudson, 16 Gray, 417, thority of the existing mill act of this 24 Law Rep. 228, and ante, § 466 a ; State. From its great antiquity, and the Miller v. Troost, 14 Minn. 365.] 652 LAW OF WATERCOURSES. [CHAP. XH. that the line of demarcation between a use that is public and one that is strictly and entirely private, is a line not easily drawn. ^ Such considerations as these appear to have had much influence with the Court in giving judgment in the case of the Boston and Roxbury Mill-Dam Corporation v. Newman,^ in which case it was held, that the construction of dams by a corporation, for obtaining the head and fall of the waters of a navigable stream and worJcing mills, was such a public enterprise as authorized the legislature to appropriate private pfoperty thereto. The Court, in giving judgment, after referring to the various mill acts of Massachusetts, say, " It is certainly apparent, that the legislature have considered it for the public good to encourage the erection of mills, and have subjected the property of the citizens to the control of the mill- owners, they paying the damage. In these cases the damage has been sustained by reason of the flowing of the lands. But in the case at bar, the damage is in laying bare the flats of the tide- water, so as to make a fall for the water into the pond or full basin. But we do not perceive that there is any difference in the principles applicable to the two cases.^ The object in each is to get a head and fall for mill purposes." Chief-Justice Shaw, in giving the judgment of the Court in Fiske v. Framingham Manu- facturing Company,* and in reference to the earlier statutes of Massachusetts for the encouragement and support of mills, says, " They are somewhat at variance with that absolute right of do- minion and enjoyment which every proprietor is supposed by law to have in his own soil ; and in ascertaining their extent, it will be useful to look into the principle upon which they are founded. We think they will be found to rest for their justification, partly upon the interest which the community at large has in the use and employment of mills, and partly upon the nature of the property, which is often so situated that it could not be benefi- cially used without the aid of this power." ^ In Tennessee it has ' [See Talbot v. Hudson, 16 Gray, tinuous, originating in more elevated 417 ; 24 Law Rep. 228, and extracts from grounds, and seeking their outlet in the that case, ante, § 466 a ; Olmstead v. sea, or in some lake or lai^ger river com- Camp, 33 Conn. 532, 547.] municating with the sea ; " and it was '■> Boston and Roxbury Mill-Dam Corp. held that the Massachusetts mill act does V. Newman, 12 Pick. 467. not apply to tide-mills. See post, § 567.] 8 [In Murdock v. Stickney, 8 Cush. * Fiske v. Framingham Manuf. Co., 113, 116, Shaw C.J. said, " We are of 12 Pick. 68. opinion, that the mill acts, in their prin- 5 [Talbot v. Hudson, IG Gray, 417 ; 24 ciple and provisions, apply only to running Law Rep. 228 ; ante, § 466 a. In Olmstead streams of water, descending and con- v. Camp, 33 Conn. 650, McCurdy J. said, CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 653 been held, that the legislature might make grist mills public mills, and authorize the condemning the lands of individuals for the use of such mills, providing compensation for the lands.^ [ § 487 a. In Murdock v. Stickney,^ Shaw C.J. said, " As the effect and object of the mill act are to take away a Common- Law remedy for damage done to one's land by a mill-owner, it is to that extent in derogation of the Common Law, and not to be carried by construction beyond its plain intent and meaning." The learned Chief Justice, having stated the principle on which the mill act is founded, as quoted in a subsequent section,^ and the effect of an exercise of the right conferred by it upon a mill- owner, to do damage by overflowing the land of another, adds, " Here the law steps in and declares, that, in consideration of the advantage to the public, to be derived from the establishment and maintenance of mills, the owner of the land shall not have an action for this necessary ^consequential damage against the mill-owner to compel him to prostrate his dam, and thus destroy or reduce his head of water ; but it authorizes him to keep up his head of water to his own best advantage, having at the same time provided what the law deemed an adequate and practicable remedy for all the damage sustained, by a compensation in monej^, to be paid by the owner of the mill. Whether, if this were an original question, this legislation would be considered as trench- " Very many highly important statutes lie as an active agent take and hold and aiiect individual rights most injuriously, occupy the property in actual possession, but are justified by reason of public policy. The term 'public use' is synonymous Statutes of limitation indirectly take the witii public benefit or advantage. It is property of one man and give it to an- equivalent to the language, so familiar in otlier. The law allowing one estate held our statute in relation to higliways, ' of in common to be sold at auction on the common convenience and necessity.' " petition of one who has an interest, may The decision of Lowell v. Boston, 111 operate to driv« the principal proprietor iMass. 454, is based upon a similar course from his house and homestead ; and yet of reasoning by Wells J. Tlie opinion the law is perfectly proper and necessary, will well repay a careful perusal. Tliat Tile flowage law is based upon a similar there may be a taking for a use public necessity. A water privilege formed by in tlie broad sense of utility or advantage, a, slope extending through the lands of see Ash v. Cummings, 50 N.H. 6'20, 621 ; various proprietors is substantially a Amoskeag Manuf. Co. u. Head, 56 N.H. right held in common. It consists of 400.] the whole descent. One tenant owning i Harding v. Goodlet, 3 Yerg. (Tenn.) perhaps only a, bog or rock, or a sand- 41. [See Hazen v. Essex Co., 12 Cush. bank on the stream, may by his stu- 475 ; Talbot v. Hudson, 16 Gray, 417 ; 24 pidity, obstinacy, or inordinate greed, Law Rep. 228.] destroy the interests, however valuable, - [Murdock v. Stickney, 8 Cush. 113, of all the others. In none of the cases 116.] to which we have referred does the pub- ■• [ § 491 a.] 654 hAW OF WATERCOURSES. [CHAP. XII. ing too closely upon the great principle, which gives security to private rights, it seems now too late to inquire, such legislation having been in full operation in this State a century and a half ; but we think the principle itself is manifest."] § 488. Indeed the legislature, as well as courts of law, seem to have been disposed rather to enlarge, than to curtail, the statutory privileges of mill-owners.-' First, we have seen, that the origin of the mill laws in Massachusetts, as to flowing, was to encourage and sustain grist and saw mills, and not other machin- ery moved by water, for other purposes. But by the General Statutes of Massachusetts,^ and by those of Maine,^ the owner of any water-mill is invested with the privileges in question ; and " it may not be certain," says a learned Judge, " that, with the greater demand and increase in machinery of all kinds, the words should not have a broader construction than the original subject- matter."* In other portions of th^ United States, the policy has been to legislate full as broadly on this subject. The statute authorizing the taking of private property for flowing in the State of Florida, extends to all who " may desire to erect a mill, or machine or other engine of public utility; " ^ that of North Carolina, to mills, and to " mills for domestic manufactures; '" ^ and that of Indiana, to any " water grist-mill, saw-mill, or any other machin- ery to be propelled by water," '' [and that of Michigan, to such mills only as are in the habit of grinding for toU.^] If a black- smith's shop, in which the bellows is worked by a water-fall, can be considered a mill, yet, if there is only a right to use the water for that purpose at the will of the owners of the dam, the owner of the shop is not liable to the payment of damages for the flow- 1 See note to Stowell v. Flagg, 11 ^ See Waddy u. Thompson, 5 Ired. Mass. 366 (Edit. 1848). (N.C.) 333. ^ Appx. p. i. ^ Rev. St. Indiana, s. 1. 3 Appx. p. 768. 8 [Merrill v. Cahill, 8 Mich 55. Under i Per VV'oodbury J., in United States the statute of Micliigan regulating the u. Ames, 1 Woodb. & M., 87. The Act duties of millers and mill-owners, millers of Tennessee, of 1777, does not authorize who hold themselves out to the oommu- the condemnation of land for the erection nity as millers, grinding for the public of a grist-mill, saw-mills and paper-mills ; generally, are bound to a similar im- it extends only to the condemnation of partiality to that required of common lands for grist-mills. Harding ti. Goodlet, carriers, innkeepers, and those following 3 Yerg. (Tenn.) 41. such public arocations. And it is clearly' ' Thomp. Dig. Laws of Florida, their duty to receive grain when the mill 401. is running, as to grind it when received. Merrill v. Cahill, supra.] CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 655 ing of the water. The shop would not be a mill for whose use the water was either raised or continued.^ § 489. Secondly: a broad construction has been given to the statutes of Maine and Massachusetts, with respect to the privi- lege of creating reservoirs remote from, but auxiliary to, the pond lower down.2 A reservoir of this kind, and for the purpose of raising and preserving the water for the use of mills lower down on the stream, and carried by other water-falls, has been held in Maine to be within the statute for the support and regulation of mills ; and the only remedy for overflowing the land of others, by means of such reservoir, is by proceeding pursuant to the statute.^ In Wolcott Manufacturing Company v. Upham, in Massachusetts,* the reservoir for the use of the mill was erected more than three miles from the pond at which the mill was sit- uated ; and it was held, that the owner of the land lying between the two dams, which was overflowed by the water from the reservoir, must apply for damages in the mode provided by the statute. The Court thought it very common that two or more ponds were required for a mill, though they were not often so' re- mote from each other as in this instance. If the owner of a mill erects a dam at the outlet of a natural pond, which flows into the stream upon which his mill is situated, for the purpose of creat- ing a reservoir for the use of his mill, the owner of land flowed by means of such dam cannot maintain an action at Common Law therefor, but must proceed in the manner provided by the Massachusetts Mill Act, c. 116 of the Revised Statutes. [Gen- eral Statutes, c. 149.] ^ ' Nelson v. Butterfield, 21 Maine, 220. reservoir dam for their common benefit, 2 [See Brace v. Yale, 10 Allen, 441 ; and the titles to the different privileges s.c. 97 Mass. 18 ; 99 Mass. 488 ; Perrin afterwards become united in the same V. Garfield, 37 Yt. 304 ; Fiske v. Framing- person, a conveyance by him of the lower ham Manuf. Co., 12 Pick. 68 ; Shaw v. mill-site by metes and bounds gives no Wells, 5 Cush. 537; Nelson ■;. Butter- right to the use of the reservoir dam. field, 21 Maine, 220; Clinton v. Myers, 46 Brace v. Yale, 4 Allen, 393.] N.Y. 511 ; Dodd v. Austin, 34 Conn. 78.] * Wolcott Mauuf. Co. v. Upham, 5 ' [A deed of a mill-site described by Pick. 292. metes and bounds gives no right to the ^ Shaw v. Wells, 5 Cush. 537 ; Brad- use of a reservoir dam above, which is ley v. Rice, 13 Maine, 198, and see ante, owned by the grantor, although the § 41. [In Bates v. Weymouth Iron Co., stream is small and the use of the reser- 8 Cush. 554, Shaw C.J. said, " There is voir dam is necessary to the beneficial no doubt that a reservoir dam is a mill- use of a mill upon the granted premises, dam within the meaning and provision of If the owners of different mill-sites upon the mill acts. It is not necessary that the same stream join in the erection of a the dam be immediately connected with 656 LAW OF WATERCOURSES. [chap. XII. [§ 489 a. Where the defendants caused an unnatural accu- mulation of water in a reservoir above the mill-pond, whence the plaintiff and defendants drew the water to propel their respective mills, and subsequently let it pass into its ordinary channel over the plaintiff's flume, it was held, that if the water was rightfully accumulated, the defendants must exercise ordinary care in letting it out ; but if it was detained without legal authority as to the plaintiff, they let it out at their peril.i But in Bates v. The Weymouth Iron Company,^ where it appeared that a mill- or quite near the mill ; it is sufficient, thougli at a considerable distance, tliat it be directly and obviously subservient to the purpose of carrying a mill. Wolcott WooUenManuf. Co.;;. Upham,5Piok.292; Fiskei). FraminghamManuf. Co., 12 Pick. 68. And when the remedy under the mill act can be had, it is exclusive, and a bar to an action at Common Law as for a nui- sance. Stovpell V. Flagg, 11 Mass. 364." In Drake v. Hamilton Woolen Co., 99 Mass. 580, 581, Chapman C.J. said : The miU-owner may " erect a dam far above his mill, to be used as a reservoir dam. He is authorized by our statutes to flow the land above such dam on payment of damages. By means of such a dam he may hold back the water in his reservoir till he needs it for his works in a season of drought, and then let it down in such quantities as considerably to increase the volume of the stream. Such reservoir dams are becoming more important, than they formerly were, because the clearing, cultivation, and drainage of marshy and swampy grounds is gradually destroying the natural reservoirs which formerly supplied more or less water to most of our streams through the whole year. The principal question raised in the present case is, to what extent a riparian proprietor, who has erected a reservoir dam for the benefit of his mill, situated at a distance of several miles below, may so let down the water in seasons of drought as to increase the volume of the stream, without exceeding his rights as such proprietor, and becoming liable to pay damages to intermediate proprietors for the interruption it may occasion to the drainage of their lands. The Court are of opinion that it is not an unreason- able exercise of his rights to increase the volume of the stream to any extent that shall not exceed the usual and ordinary flow, nor ' overflow the natural banks. This will enable the proprietors of mills to avail themselves of all the power which a reasonable use of the stream affords, and will subject the proprietors of the lands that border on the stream to no unreasonable burden."] 1 [Frye v. Moor, 53 Maine, 583.] 2 [In Bates v. Weymouth Iron Co., 8 Cush. 548, Shaw C.J. said, "In the present case the Court are inchned to the opinion that the defendants were not justified by the mill acts, in placing a dam across the brook, and creating a reservoir thereby, so as to flow the plain- tifl"s land, when the purpose was, not to carry any mill erected on that stream, but to increase in a small degree the quantity of water in the defendant's lower pond, for the use of his mills, said pond being supplied from another source. A reservoir dam must still be a mill-dam, in order to be within the mill acts, and the main purpose and design of the acts were to supply some mill on the same stream. The mill power which could be supplied from the brooks above would manifestly be very small. On one occa- sion in the middle of February, the water was raised from the brook, and after being kept up a week it rose to the height of the reservoir dam, and carried a very small stream over it. But if the res^rvoir could be used to raise the water of that stream, for a mill on that stream, it might be neither necessary nor useful to keep it up a whole year, or to keep up a mill at all ; and so the complainant might be wholly relieved, or held subject to a lesser servitude." The decision was not, however, rested on this con- sideration.] CHAP. XII.J ACTS FOR ENCOURAGEMENT OP MILLS. 657 owner had erected a reservoir dam on his own land, across a natural stream other than the stream on which his mill was situ- ated, and constructed an artificial channel from the reservoir to his mill-pond for the purpose of conducting water from the reser- voir to his mill, and also to enable him to use the reservoir for the purpose of holding the surplus water of the mill-pond, he was held liable, notwithstanding the Massachusetts mill acts, to an action on the case for the flowing therebj^ occasioned of the land of another person situated above the reservoir on the stream across which the reservoir dam was built. Shaw C.J. said, " The grant of power made by the mill acts is, to raise the water of that stream, and being in derogation of common right, it is not to be extended by construction beyond the just and fair meaning of the terms. The reason and principle, on which the right is founded, limit it to raising the water of that stream." i] 5. Do not authorize the flowing of existing Mills. § 490. In Massachusetts, before the Revised Statutes, a lower proprietor on a stream was not allowed, under the construction of the former statutes, to raise a dam (without a right acquired by grant, prescription, or actual .use) so as to destroy a mill of an upper proprietor which he has actually built or is engaged in building.2 The General Statutes of Massachusetts, of 1860, ex- pressly enact, that no dam shall be erected to the injury of any mill lawfully existing above or below it,^ on the same stream, nx)r to the injury of any mill-site on the same stream, on which a mill or mill-dam has been lawfully erected and used, unless the right to maintain a mill on such lai^t-mentioned site, has been lost or defeated by abandonment or otherwise ; [nor shall any mill- dam be hereafter erected or raised to the injury of any such mill-site which has been occupied as such by the owner thereof: provided, that such owner within a reasonable time after com- mencing such occupation, completes and puts in operation a mill 1 [See Kske v. Framingham Manuf. taken under the power of eminent domain Co., 12 Pick. 72.] over any other private property. The ^ Bigelow V. Newell, 10 Pick. 348 ; power of eminent domain stands on a Hatch V. Dwight, 17 Mass. 289 ; Cook v. different principle from the rule applica- Stearns, 11 Mass. 533 ; [Veazie «. Dwinel, ble to the general mill acts. Hazen v. 50 Maine, 486, 486 ; Dwinel v. Veazie, 44 Essex Company, 12 Cush. 476.] Maine, 167. But a mill or mill privilege ' [Murdock v. Stickney, 8 Cush. 117, is, in principle, not exempted from being 118; Dean v. Colt, 99 Mass. 482.] 42 658 LAW OP WATERCOURSES. [chap. XII. for the working of which the water of such stream shall be ap- plied ;] nor shall anj?^ mill or dam be placed on the land of any person, without such grant, conveyance, or authority from the owner, as would be necessary by the Common Law, if no provi- sion relating to mills had been made by statute.^ Under a similar provision of the Revised Statutes of 1836, it had been held, that where a riparian proprietor had commenced the erection of a mill, — where none had existed previously, — and before it was finished a lower proprietor began and compltted a mill-dam, whereby the privilege of the upper proprietor was destroyed, the erection of the dam by the lower proprietor was lawful ; and the upper proprietor could not maintain an action on the case for the injury, but his remedy must be by complaint under the statute.^ 1 [See Genl. Sts. c. 149, § 2. Where the defendant was owner of an existing mill-dam, and the plaintiff rightfully erected a mill-dam above it on the same stream, it was held, that the defendant had no right to increase the height of his dam to a level with the plaintiff's wheel, and thereby to obstruct the wheel by backwater. Sumner v. Tileston, 7 Pick. 198; Veazie v. Dwinel, 50 Maine, 486; Gary v. Daniels, 8 Met. 466. In a case • which arose under a similar provision in the statutes of Maine, it appeared that the plaintiffs were the owners of a saw- mill, dam, and mill-site, from March 10, 1846, to Feb. 17, 1849. Upon this site a saw-mill had been erected, and continued from 1826 to the time of the commence- ment of the action. In 1844, a saw-mill was erected upon a mill-site on the same stream and about two rods above the plaintiffs' mill ; and this saw-mill and mill- site were purchased by the defendants, and they continued to occupy it till the suit was commenced. The jury found that by reason of improved machinery in the defendants' mill, less water was re- quired to carry it than was necessary to carry the machinery in the plaintifis' mill, and in consequence thereof the plaintiffs' mill was rendered less beneficial and profitable than it was before the defend- ants' mill and machinery were put in operation. It was held, that the plaintiffs were entitled to recover in an action on the case. Wentworth v. Poor, 38 Maine, 243. See Brace u._ Yale, 97 Mass. 18 ; B.C., 99 Mass. 488; Thomas u. Hill, .31 Maine, 252.] 2 Baird v. Wells, 22 Pick. 812. [In Storm u. Manchaug Co., 13 Allen, 15 Hoar J. said, " Before the Revised Statutes, if an upper proprietor was building a mill, he was held to have so far appropriated the water privilege that a lower proprietor could not erect a new dam, or raise an old one, to his injury. By a slight and perhaps unintentional change of phrase- ology introduced into those statutes, it was held that he law was changed; and that nothing but an existing mill could prevent the lower proprietor from putting a mill-dam upon his own land, although the effect of it might be to destroy an upper privilege which its owner had previously begun to occupy. Baird v. Wells, supra. This was altered, and the old rule restored, by St. 1841, o. 18, There is nothing in the statute now in force which vests any rights of flowing in the mill-owner before he has actually exercised them ; or which gives the land- owner compensation for any restriction upon the use of his land until the flowing takes place. A statute authority, in dero- gation of Common Law rights of .property, is not to be extended by construction." See Bemis v. Upham, cited in Wash, on Easem. (3ded.) 534; Nevada County &c. Canal Co. v. Kidd, 37 Cal. 282 ; Kidd ». Laird, 15 Cal. 179; Kelley v. Natoma Water Co., 6 Cal. 105; M'Kinney v. Smith, 21 Cal. 381 ; Maeris v. Bicknell, 7 Cal. 261 ; Ortman v. Dixon, 13 Cal. 33. CHAP. XII.J ACTS FOR ENCOURAGEMENT OP MILLS. 659 It appeared in evidence in this case, that the dam of the lower proprietor was erected in April, 1837, and the mill of the upper proprietor was not completed till December after ; that the upper proprietor's race-way from his brook for the purpose of procuring a head of water, was not begun until September or October of the same year ; and that the upper proprietor's mill-site was one on which a mill or mill-dam had never before been erected and used; so that, in the opinion of the Court, the case was not within the true meaning and express words of the statute.^ [§ 490 a. In a late case^it was decided, that, if an existing mill is injured by the erection of a dam for a new mill upon the stream below, the remedy is by an action of tort, and not by complaint under the mill acts. Colt J. said, " This question, though now for the first time presented in this precise form, has been virtually decided in this Commonwealth. In Thompson v. Moore,^ the remedy for an injury caused by a dam and mill to an owner of land below was held to be by action of tort, and not by complaint under the statute. And yet the section upon which the defend- ant relies is quite as applicable to such a case. In Hill v. Sayles,* it was decided that where the time during which a mill-dam may be kept up is restricted by verdict of a sheriff's jury to certain months in the year, the mill-owner is liable to an action at Com- mon Law for flowing the plaintiff's land at other times." ^] § 491. Under the earlier laws of Massachusetts, it was never determined whether, as a general right, and under what circum- stances, limitations, and conditions, a lower proprietor on a water- course may raise a dam so as to obliterate and submerge a fall higher up, and thereby prevent the erection of a mill on a suitable It was decided, in Dean v. Colt, 99 Mass. title will be good against a new-comer 486, that if the owner of amill on a stream, only to the extent of that use ; the iiew- who has lowered his wheel pit, so that by comer may use the water before and after lowering the wheel itself he might use it comes to the mill, so that the driving unappropriated water power, continues of the mill be not interfered with. Ort- to use the wheel as before, and shows no man v. Dixon, 13 Gal. 33.] intention to lower it, the owner of a mill ^ [Brigham v. Smith, 12 Allen, 89.] lower on the stream may appropriate * [Thompson v. Moore, 2 Allen, 3.50.] such power, provided he does not injure * [Hill v. Saylea, 12 Met. 142.] the upper mill as it exists ; and is not ^ [See also Stowell v. Flagg, 11 Mass. estopped by the fact that the proprietor 364 ; Murdock v. Stickney, 8 Gush. 113; of the upper mill holds under him by deed Bigelow v. Newell, 10 Pick. 356 ; Gary v. of warranty.] Daniels, 8 Met. 477; Smith o. Agawam ' [Where the first appropriator has Canal Co., 2 Allen, 355.] used the water only to drive his mill, his 660 LAW OF WATERCOUBSES. [CHAP. XII. site ; ^ and whether it is competent for a mill-owner, under the Revised Statutes or General Statutes, to flow another's lands, having dwelling-houses, or other buildings upon them, was never distinctly decided,^ [until the case of McNally v. Smith,^ in which it was held, that the fact that there was a dwelling-house upon the land does not exempt the land from being flowed. The action in this case was against the mill-owner, at Common Law, for flowing the land of another. It appeared by the declaration, which was demurred to, that the defendant had a right to erect his dam and flow the plaintiff's land under the statute for the regulation of mills ; that there was a dwelling-house upon the land, and the water was set back into the cellar, and thereby rendered the house unhealthj' and untenantable, and created a nuisance, but the Court decided that the action could not be sustained, the remedy was under the mill ^cts.*] Mills are at all events protected by the statute ; and if a riparian proprietor has fully completed his dam and mill, the statute authorizes him to maintain it ; though if an upper proprietor places a dam on that part of his land which is already flowed by a dam below, he does it in his own wrong.^ Unless a mill is built in connection with a dam, or the parti/ has an intent forthwith to erect such mill, he is not a mill-owner within the purview of the statute, and is liable at Common Law only for flowing others' land by means of such dam.^ 1 See Bigelow v. Newell, ubi sup. by operation of law, by the flowage of 'i See opinion of Shaw C.J., in French the same under the Mill Act of Rhode V. Braintree Manuf. Co., 23 Pick. 216. Island. If it had been averred in the 8 [McNally v. Smith, 12 Allen, 455.] pleadings, and established in proof, that 4 [McNally v. Smith, 12 Allen, 455. the plaintiffs set up such a right to the See Eames v. New-England Worsted Co., eel-dam by flowage, under the Mill Act 11 Met. 570 ; Bates v. Sloan, 5 Allen, 178 ; of Rhode Island, then a very important Winkley v. Salisbury Manuf. Co., 14 question might have arisen, whether un- Gray, 445.] der that act, it was competent for any 6 See opinion of Shaw C.J., in French mill-owner to raise his dam so as to flow u. Braintree Manuf. Co., 23 Pick. 216. back upon and affect any water privilege 6 Ifitch V. Stevens, 4 Met. 426 ; Veazie or dam, already in existence across the u. Dwinel, 60 Maine, 485; Baird w. Wells, stream above his mills; or whether the 22 Pick. 312. Whether under the Mill right of flowage is confined to cases where Act of Rhode Island, which was in ex- no dam is erected, or in the course of istence in 1835, a mill-owner might raise erection, and the only flowage is mere his dam, so as to affect any water privi- land." Upon this question the learned lege already on the stream, and above Judge gave no opinion, as it was not his run, Mr. Justice Story, in Mann v. raised by the pleadings. In regard to Wilkinson, 2 Sumn. 273, observed, " Nor this particular subject under the Mill- have they " (the plaintiffs) "averred, that Dam Act of Rhode Island of 1857, see they have acquired any right to the same Appx. p. 777. CHAP. XII.] ACTS FOR ENCOURAGEMENT OF MILLS. 661 [§ 491 a. The owner of land bordering upon a stream may lawfully dig a canal upon his own land which will prevent it from being flowed by the erection or raising of a dam below, if he does not thereby divert the water from its natural course ; and the fact that the owner below has already begun to build or raise his dam, is imhiaterial.i In the case .cited, Hoar J. said, " There is certainly nothing in the language of the statute as it now exists which gives any easement directly in the land below. It provides, in effect, that the erection of the dam shall not be an actionable nuisance, although its incidental consequences may be the flowing of land not belonging to the mill-owner. And the nature and extent of the right which is thus conferred, have been frequently stated in opinions given in adjudged cases, though the question itself has not been directly decided. Thus in Williams V. Nelson,'^ in which the point decided was that the flowing of land for a period of twenty years, without payment or claim of dam- ages, is evidence of a right to flow without payment of damages. Chief- Justice Shaw, in his statement of the principles upon which the decision was based, remarked, " The statute, strictly speaking, does not confer on the mill-owner the right to flow the land of another ; it conveys no interest in the nature of a leasehold or easement, or otherwise, or any authority to make any actual use of the other's land as a pond or reservoir. ^ The owner may still embank against the water, if he pleases, and thus preserve his own land from being flowed. But the extent of the power con- ferred on the mill-owner by the statute is, to erect and maintain the dam on his own land, and keep up his head of water to his own best advantage, notwithstanding it may flow back on the * 1 [Storm u, Manchaug Co., 13 Allen, Co., 13 Allen, 10. But he may use it for 10.] watering his cattle, or irrigating his crops 2 [Williams v. Nelson, 23 Pick. 141.] and gardens, or any other reasonable pur- ' [Boston Manuf. Co. v. Burgin, 115 pose which does not practically and in a Mass. 340, 342 ; post, 504 note ; Seeley perceptible and substantial degree impair u. Brush, 35 Conn. 419, 423. The owner the right to run the mill ; and so he may of a mill-dam does not, by proceediiigs take and carry away the water when under the mill act, acquire any title in formed into ice, for use or sale ; provided the land flowed, or in the water itself, he does not thereby appreciably diminish but a mere right to raise the water by the head of water at the dam of the mill- his dam. The owner of the land thereby owner. Gray J., in Paine u. Woods, 108 flowed must not indeed draw off by canals, Mass. 173; Cummings «. Barrett, 10 aqueducts, or ditches, the water which Cush. 186 ; State v. Pottmeyer, 33 Ind. has been raised by the dam. Cook v. 402 ; Seeley v. Brush, 35 Conn. 419, 423. Hull, 3 Pick. 269 ; Storm v. Manchaug As to taking ice, see further, Marshall v. 662 LAW OF WATERCOURSES. [CHAP. XII. land of others.' " In Murdock v. Stickney,^ where the question was whether the mill acts applied to tide mills, the Court said, " The principle on which the mill act is founded is not, as has sometimes been supposed, the right of eminent domain, the sov- ereign right of taking private property for public use.^ It is not in any proper sense a taking of the property of an owner of the land flowed, nor is any compensation awarded by the public. It does not even authorize the mill-owner to use the land of an- other for a reservoir, against his consent ; the owner of the land may, if he choose, dike out his meadow, and thereby prevent the flow of the water upon it. But the principle seems to be this : A man may place a dam on his own land, in order to raise a head of water for mills, in the use of which the public have an interest ; this is the extent of the direct authority given by the statute. But in doing this, by force of the natural law by which fluids seek a level, the water may, without the purpose and against the wish of the mill-owner, overflow the land of another, and do him some damage." ^ — " Whether after the dam is raised and the laud flowed, the right to have the whole water of the stream con- tinue by its natural course without diversion ; and especially whether, after a payment of gross damages, the right to the use of the whole pond, without diminution, should be regarded as Acquired by purchase, are questions involving different considerations, and upon which we have now no occasion to express an opinion. For we can see no reason to doubt that the owner of land adjoin- ing a stream, until his landisflowed by a mill-dam, has all the right to use it which other land-owners enjoy. His land may be well suited for the creation of a mill-pond, but he is under no obliga- tion to keep it in that condition for the benefit of 14s neighbor. His Common-Law right is not to be taken from him or limited, unless by a clear provision of the statute." *] Peters, 12 How. (N.Y.) Pr. 218; Mill « [Storm v. Manchaug Co., 13 Allen, River &c. Co. v. Smith, 34 Conn. 4&2 ; 13, 14, 15. In Bearse v. Perry, 117 Mass. Edgerton v. Huff, 26 Ind. 35 ; State v. 211, it appeared that, prior to the passage Pottmeyer, 83 Ind. 402.] of the St. of 1866, c. 206, allowing the 1 [Murdock v. Stickney, 8 Cush. 113.] owner of land, appropriated to the eulti- 2 [Wells J. in Lowell v. Boston, 111 vation of the cranberry, to erect and Mass. 464, 466 ; ante, § 466 a, note. But maintain a dam across any stream not see the remarks of Bigelow C.J., in Tal- navigable, the plaintiff built a dam at the bot 0. Hudson, 16 Gray, 417; 24 Law outlet of a pond to flow his cranberry Eep. 228 ; ante, § 466 a.] bog. The defendant afterwards, in 1861, '^ [See Bates v. Weymouth Iron Co., dug a ditch on his own land and diverted 8 Cush. 548, 553.] the water of the pond, but such ditch CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 663 [§ 491 6. Under the above provision that no dam shall be erected across a stream to the injury of any mill lawfully existing either above or below it on the same stream, other proprietors may still construct and maintain dams across the stream at any point either above or below an existing mill, for the purpose of raising a head of water to propel, operate, and work mills of their own, erected on the adjoining land, provided that their arrange- ments are so made that they will not unreasonably withhold and detain the water above, nor throw it back from below, so as to affect, impede, delay, or obstruct the movement and operation of the wheels and machinery of the previously existing mill.^ And in all such cases the material question arises, as to the state of the water to which the general rules in regard to the erection of mills and dams upon streams not navigable are applicable ; to which there can be no other answer than that they refer to the stream when the water is flowing in it at its ordinary height ; not when it is substantially exhausted by the severity of a drought, or swollen into a flood by long continued rains or the sudden melting of snow. It may not always be easy to ascertain or determine what that height is ; but it is safe to afiSrm that it cannot exceed the height to which the water has risen when the bed of the stream is full, and when any increase will cause an im- mediate overflow of its banks. If in that state and condition of the stream the dam below will not cause backwater upon the wheels of the mill above, nor be the occasion of any impediments in its free action or in the full operation of the machinery and works contained in it, the maintenance of the dam will be a reasonable exercise of the right incident to the land. It is ob- would not have diverted any water, had portion of the water which was kept back not the plaintiff's dam been built. The and raised by the dam, the plaintiffs could Court said : " The defendant did nothing make out no cause of action against him. whicli would divert the water from its The water itself was of common right, accustomed flow, or withdraw it from Neither of them could claim any exclusive the banks which contained it in its ordi- title. The plaintiffs' only right was the nary and natural condition. He was not natural one to have the water flow as it bound to maintain embankments to hold had been accustomed to flow. But for the water which the plaintiffs undertook, their own wrongful detention of the water, without right, to accumulate in the pond ' the defendant's act would not have caused by the construction of their dam ; nor to any diversion. It was the plaintiffs' dam abstain from excavations or other changes that threw the water into the defendant's upon the surface of his own soil, which ditch."] would not affect the stream or the pond ^ [Thurber v. Martin, 2 Gray, 394 ; In their natural condition. Even if he Smith v. Agawam Canal Co., 2 Allen, did it for the purpose of withdrawing a 357,] 664 LAW OF WATERCOUBSBS. [CHAP. SII. viously one of the chief and leading purposes of the statute to regulate the enjoyment by the riparian proprietors of their re- spective rights in such manner that the whole power of the stream, and all the uses to which the entire volume of its running water can be applied in the accomplishment of any beneficial object, shall be distributed among, and availed of, by them. Under such provisions, the maintenance of a dam by any riparian proprietor, who would avail himgelf of the privilege to which he is entitled, to such height that, in the common and ordinary state of water in the stream, it would not injuriously affect any existing mill, or mill-site upon which a mill or mill-dam has been lawfully erected and used, would be only an exercise and enjoyment of his right, and therefore could not subject him to liability for damages aris- ing from an extraordinary accumulation of water by the opera- tion of natural causes.^] 6. Mow and when Land becomes condemned to be overflowed. §492. According to the obvious meaning and intent of the statutes authorizing the overflowing the lands of others, for the encouragement of the erection and support of mills, an inchoate right to the privilege of flowing, according to the provisions of the statute, is acquired by commencing a dam. But unless the work is proceeded in to complete the dam, and a mill in connection with it, the party does not become entitled, as mill-owner, to the privilege in question. No person can avail himself of the privi- lege of a mill-owner merely by erecting a dam ; and the question is a proper one for the consideration of the jury, whether there is a bond fide intention to erect without unreasonable delay, a mill to be operated by the water raised by the dam.^ 1 [Smith V. Agawam Canal Co., 2 Al- that intention, and what is an effectual len, 355. See Monongahela NaT. Co. v. prosecution thereof, the jury are to con- Coon, 6 Penn. St. 383 ; China o. Soutli- sider whether the acts were sufficient to wide, 12 Maine, 238 ; Pixley v. Clarlc, 35 put a reasonably prudent man on inquiry, N.Y. 520.] and whether the prosecution of the work 2 Hatch V. Dwight, 17 Mass. 289. [If was sucli as was reasonable and proper, the purpose to talje the water be effectu- and naturally to be expected in view of ally prosecuted, the right accrues from * the time, place, and circumstances. It the first manifestation of that purpose.; is not necessary that the works should but th« effectual prosecution is a condition be completed so that tliey could be suc- precedent to the vesting of any right, and cessfuUy used for the purpose for which therefore the negation of the prosecution they were constructed ; but if the parties denies the accrual of the right. And in began their work with what they knew determining what is a manifestation of were insufficient pecuniary means to com- CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 665 § 493. Under the first section of the Statute of Alabama, which is explicit, that any person owning the land on one side of a watercourse, may make the application for building a mill ; and under the fifth section, which prescribes that the same form shall be pursued when the applicant is the owner of land on both sides ; if none of the matters appear by the inquest or other evidence, which authorizes the Court to decide against the application, the leave must be granted, and as to all other matters, they become questions of compensation, and must be determined as such. It is held, that from this it results, that the first applicant acquires an inchoate right to the privileges which are conferred by the statute ; and provided he proceeds in the case, with reasonable diligence, he is entitled to a decree establishing his mill. Where one, begins the erection of a mill and completes it, after the application of another, for the writ of ad quod damnum, and for the purpose of defeating the right acquired by the application, he is entitled to no consideration if his mill be overflowed, and to no redress against the party who was proceeding lawfully to obtain a confirmation and establishment of his mill. But although the application may thus give the inchoate right to him who first ap- plies, it can only be made complete and operative by the judgment rendered in the case, and not even then, unless every condition required by the judgment is complied with.^ § 494. In Fitch v. Stevens,^ in which the action was founded on the Revised Statutes of Massachusetts,^ it appeared that in the spring or summer of 1836, Stephen Stevens built a dam on his own premises, but never erected a mill upon it ; that in 1837, the plaintiffs instituted their complaint against him for flowing their lands in consequence thereof; and that afterwards, in 1838, Jonathan C. Stevens, the defendant, built a saw-mill on his own plete it within a reasonable time, their Braddy, 8 Clarke (Iowa) 33. A judg- want of money is no excuse for delay in ment for damages caused by the flowing the prosecution of the work. Kimball v. of lands by a, mill-dam, which were not Garhart, 12 Cal. 27.] foreseen and estimated by the jury of in- 1 Hendricks v. Johnson, 6 Port. (Ala.) quest, under a writ of ad quod damnum, 472. [In Iowa, where a license is granted affords no ground for an injunction for the erection of a mill-dam, under a against the owner of the mill-dam, nor writ of ad quod damnum, the proceedings does it affect his rights under his license, amount to a condemnation of so much of Lummery v. Braddy, supra.] the land, and of the right of the owner ^ pitch „. Stevens, 4 Met. 426. thereto, as may be afeected by the flowing ^ gee [Genl. Sts. c. 149, § 4] Appx. back of the water, when the dam is raised p. i. to the height prescribed. Lummery v. 666 LAW OP WATERCOURSES. [CHAP. XII. land, about half a mile below the dam in question, and drew water from the pond raised by it, by means of a trench, for the driving of his mill. The Court held, that, upon these facts, the complaint for flowing was prematurely brought, and that an action would have well lain at Common Law. " And however," said the Court, " it might have been, if the dam and mill had been built at the same time, though by different persons, yet here no intent was proved on the part of Stephen Stevens to erect a mill at any time ; none was erected on his land, and the space of two years actually intervened between the building of the dam by Stephen, and the erection of the mill by Jonathan C. on his own land. We come to the conclusion, therefore, that Stevens was not liable, at the time of filing of the original complaint, to be proceeded against under the statute, and that if he had pleaded in bar to the process, he would, under the facts as now presented, have prevailed in his defence. And whatever might have been the decision, if the complaint had been filed against both Stephen and Jonathan C. after the erection of the mill, as the case now stands, we consider the proceedings void as against the present defendant, because Stephen Stevens neither built nor occupied the mill ; and it is open to the defendant to take the objection that the original party was not liable, and that he is not bound by the verdict and judgment against Stephen, being- neither party nor privj' to it." ^ § 495. Under the Statute of Virginia, after a County Court has granted leave to one applicant to build a mill, if applica- tion be made by another to build a mill lower down upon the same stream, and the party who first obtained leave, shows that the dam for the second mill would be several feet higher than the fall between the two mill sites, and would, if built, de- stroy the privilege previously granted to him, the Court, in the exercise of a sound discretion, ought to refuse the second appli- cation.^ 1 [In the General Statutes, it is ex- pletes and puts in operation a mill for the pressly enacted that no mill-dam shall be working of which the water of such hereaftef erected or raised to the injury stream shall be applied, c. 149, § 2. Sub- of any mill site which has been occupied stantially the same had been enacted in as such by the owner thereof; provided, 1841.] that such owner within a reasonable time ^ Humes v. Shugart, 10 Leigh, 332. after commencing such occupation com- CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 667 7. How a Mill once used hecomes abandoned. § 496. Although a riparian owner has no right, under the statute, to flow back to the injury of an existing mill of another above, yet if the mill and mill-site above are abandoned and left unoccupied, the rule does not apply. And the owner of a mill privilege on which a mill has formerly stood, but on which no mill is actually standing, is entitled to an action against any one, who, by erecting a dam below, renders the site useless for the purpose of erecting a mill ; unless the owner has abandoned it with an intention to leave it unoccupied.^ It may be impossible always and at all times, after a mill has been erected and the statute has attached to it, to keep the water flowed to the re- quisite height, and to keep the mill in constant operation ; the dam may be carried away by floods, the mill destroyed by fire, or both become dilapidated with age and wear. In all these cases, it may be necessary to take away the remains and rebuild. But it would be wholly inconsistent with the nature of the right granted, and with the object and purposes of such a grant, to hold, that, because the dam is temporarily removed, parties hold- ing lands on the stream above or below are remitted to their original rights, and the statute right of the particular mill is extinguished. Therefore, some time must be allowed to the mill-owner to repair his dam and replace his mill ; but, when no time is fixed by law, it must be a reasonable time, and what that is, must depend upon the circumstances of the case. If all the circumstances bearing upon the question are admitted or proved, it must be deemed a question of law to be decided by the Court.2 § 497. An express declaration by the owner of a mill-site which has been occupied by him, that it is no longer his intention to keep up the mill, accompanied with corresponding acts, such as removing the dam and mill, and giving notice of such intention to those whose lands he has flowed, and to whom he has paid damages, will be deemed an abandonment and extinguishment of the privilege.^ 1 Hatch V. Dwight, 17 Mass. 289; Braintree Mannf. Co., 23 Pick. 216; Hodges w. Hodges, 5 Met. 205 ; FuUer v. [Curtiss v. Smith, 35 Conn. 156.] French, 10 Met. 359. 3 French v. Braintree Manuf. Co., ubi 2 Opinion of Shaw C.J., in French v, supra. 668 LAW OF WATERCOURSES. [CHAP. XII. § 498. If the owner of a mill-site cease to use the same for an unreasonable length of time, the privilege is thereby lost ; and the entire and continued disuse of such mill-site for twenty years, is strong primd facie evidence of a non-user for an unreasonable length of time ; and unless rebutted by clear and satisfactory proof, it is conclusive. 1 § 499. Where a mill-owner suifers his mill and dam to go to decay, and ceases to flow the land until a highway is made across the land, it is an abandonment ; and he cannot, by granting his mill privilege and right to flow, authorize his grantee to over- flow such highway by means of a new dam on the site of the old one.^ 8. Claim for Damages waived hy Parol, ^e. § 500. The claim of a complainant, under the statute, to re- cover damages for flowing his land, by means of the respondent's mill-dam, is a demand for money pursued in a special form ad- apted by the legislature to the particular case, and, therefore it has been held, it may be waived hj parol? In Seymour v. Carter,* there was a complaint and petition for a jury to assess damages done by the respondent's flowing the complainant's land, which the respondent claimed a right to flow without compensation.- To prove this right, the respondent introduced the testimonj'' of a witness who built the dam in 1825, and conveyed it to the respond- ent in 1831, and who deposed, that before the dam was erected, the complainant requested and urged him to build it and erect a mill, for the benefit of the ireighborhood, and promised that if it should overflow his land, he would not demand any damages ; and there was also other evidence which established the same fact. The Court said, " The respondent, a mill-owner, relies upon no grant or license from the complainant, either to erect or maintain his mill on his own land. The right was fully given him by law. The St. of 1795, c. 74, § 1, in force when this mill was erected, ' Ibid. such an adjustment of damages is good 2 Commonwealth v. Fisher, 6 Met. 433. only between the original parties. It ^ Clement v. Durgin, 5 Greenl. 9. will not bar the right of a subsequent [Chapman J. in Darling v. Blaekstone owner of the land flowed to recover dam- Manuf. Co., 16 Gray, 189 ; Snow v. ages. Fitch v. Seymour, 9 Met. 402 ; Moses, 53 Maine, 546, 547 ; Quinn v. Seidensparger v. Spear, 17 Maine, 123 ; Besse, 64 Maine, 368 ; Walton J. in Snow v. Moses, 63 Maine, 546.} Hersey v. Packard, 56 Maine, 401. But * Seymour v. Carter, 2 Met. 520. CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 669 declares, that ' it shall be lawful for 'the owner of such mill to continue the same head of water to his best advantage ; ' giving the owner whose lands are thus flowed, a special remedy for his damages in money. But it seems very clear, that it is a good defence to a claim for a sum of money, that it has been paid or satisfied by agreement, or waived ; and that proof of payment, accord, and satisfaction, or waiver, may be proved by parol." § 501. Upon a complaint to the regularly established tribunal by the owner of land overflowed by a mill-dam, against the owner of. the dam, the latter may not only set up a right to overflow it without payment of damages, or for an agreed composition, but may traverse the complainant's title to the land overflowed, or deny that he himself is owner of the dam, or that the com- plainant has sustained any damages ; and if issue be joined upon either point, an appeal lies, in Massachusetts, to the Supreme Court ; although it is otherwise where the quantum of damage is the only question. ^ § 502. The difference between a waiver of a claim for mere pecuniary damages by parol, and an oral license to erect and continue a dam on one's own land, is, that the latter, under the Statute of Frauds, is of no legal validity, as against a subsequent grantee of the land.^ In Maine, it is held, that a permanent right to overflow the land of the complainant, under the statute, without paying damages, cannot be established by proof of a parol agreement made with his grantors ; ^ for, say the Courts of that State, " in the case of flowing, the owner of the land flowed can maintain no process, unless he has sustained damages in his lands by being flowed ; the Common-Law remedy is taken away, and the only remedy for redress is by this process of complaint ; the owner's hands are tied ; the flowing may continue without license, till damage is sustained;" although, generally, "the law gives a right of action, and even if no actual damages are found, the action will be sustained, and nominal damages recovered."* In any event, the license is good only between the original parties. " It would seem," say the Court, in Seidensparger v. Spear,^ " to be imperiously required of courts of justice not to relax the rule 1 Lowell V. Spring, 6 Mass. 898. ' SeidensJ)arger v. Spear, 17 Maine, 2 Stevens !). Stevens, 11 Met. 251. 123. That no interest in land can be acquired ^ Hathorn v, Stimson, 12 Maine, 188. by parol, see ante, § 887. * Ubi sup. 670 LAW OP WATERCOURSES. [CHAP. XII. of law as to the effect of licenses by parol, or as to the extent of presumptions against the lawful owner's right. It is so easy a thing for one, who would secure a right to flow another's land, to obtain a deed conveying that right for such length of time, and to such height and extent as may be agreed upon, that it may be regretted that any dispensation with such a requisition, should in any degree be tolerated, considering the temptations to mis- represent, or to forget what transpired in years gone by, when the whole rests merely in recollection, without being reduced to writing." 1 § 503. The general ground upon which the above-mentioned case of Carter v. Seymour was decided, has been explained to be, that " nothing then appearing showed that any easement or privi- lege in favor of the mill-owner had been created in or over the estate of Seymour. If there was no service due to the estate of the mill-owner, there was none due from the estate of the land- owner. If it was subject to no such service, it was under no incumbrance. The case proceeded on the ground that the act of the mill-owner was the exercise of a statute right ; that the right of Seymour was to demand a sum of money, as owner, for the time being, of the land flowed ; that this was a mere personal right, which might be discharged or waived by parol ; and that this personal right, both as against the original builder of the mill and his successor, was thus waived. But if the statute gives the right to each successor of the land flowed to claim an- nual damages, then Seymour's grantee has that right. He is barred by nothing which Seymour has done. But it is said, that it would be gross injustice, which the law will not warrant, after Seymour encouraged Jones to build the mill, and waived damages for flowing, because the mill would be for the benefit of his estate, if Seymour's successor can now claim damages of the mill-owner. It may be very unjust for Seymour's grantee to take the estate thus benefited, and to demand any damage. But the true answer is, that the agreement, if it extended to future damages, could not bind the estate, because it was not in writing." ^ 1 [Walton J. in Snow v. Moses, 58 2 j-jtch v. Seymour, 9 Met. 462; Maine, 547.] For the validity o£ parol Newell v. Smith, 15 Wise. 106. In this licenses in general, and for' a full consid- case A. orally requested B. to erect a eration of the interest conveyed by them, mill-dam, and orally promised him, that see ante, Ch. VIII. And for tlieir effect if the dam should flow his land he would in particular as relates to flowing land, not claim damages for the flowing. B. see ante, § 887. built a dam and mill, and flowed A.'s CHAP. XII.] ACTS FOE ENCOURAGEMENT OP MILLS. 671 9. Prescriptive Right to flow without payment of Damages. § 504. It has been rendered very clear, in a preceding chapter,^ that to raise a dam on one's own land, by which the water is set back on another's, is a tort, for which an action at Common Law would lie ; and it has been, in another chapter,^ rendered equally clear, that if such a dam is continued for twenty years, as of right, and without action or protest, on the part of the land-owner, it is evidence of a right, or presumptive evidence of an express grant. The question then is, whether these principles are ap- plicable to the case of flowing as regulated by the statutes now under consideration. The case of Williams v. Nelson, in Massa- chusetts,^ was a case upon the statute of that State, for flowing by the mill-dam of the respondents ; and the very question pre- sented was, whether they could defend, by showing that they had kept up their mill-dam and flowed the ■ land in question more than forty years, without payment or claim for damages on the land, and afterwards conveyed the dam and mill to C, who continued to flow the land. A. entered a complaint against C. to recover damages for this flowing, and it was decided that he had waived his right to damages, by his agreement with B., and could not recover. A. afterwards conveyed his land to D., with a covenant . that it was free from all incumbrances and D. brought an action against him for breach of this covenant, alleging the right of C. to flow the land without payment of damages. It was held, that C. had no such right as against D. by virtue of A.'s oral agreement with B. [See Short V. Woodward, 13 Gray, 86 ; Smith v. Goulding, 6 Gush. 154. So where the owner of land which was flowed by a dam gave to the owner of the dam a writ- ing, not under seal, in which he ac- knowledged the receipt of " full payment for all dues or demands for damage " to the land by the flowing, and "dis- charged" the owner of the dam "from all liabihty for any flowage ; " and he afterwards conveyed the land by a deed, in which he covenanted that it was free from incumbrances except the right of flowage, but did not admit any right of flowage, it was held that his grantee was not estopped to claim damages for flowing by the dam subsequent to the convey- ance. Craig V. Lewis, 110 Mass. 377. Colt J., in this case, said : " Taking such a deed is no waiver of the claim to dam- ages, nor is it notice to the grantee that there had been a payment of all future damages by the mill-owner to the grantor." 110 Mass. 880 ; Snow v. Moses,, 53 Maine, 546.] 1 Ante, Chap. X. 2 See ante, §§ 216-234, 372-387. 3 Williams v. Nelson, 23 Pick.' 141. [A judgment recovered, under the mill acts of Massachusetts, in 1810, by a land- owner, against a mill-owner for past dam- ages for flowing, but making no provision for future compensation, is not conclusive against a prescriptive right set up by a subsequent mill-owner, in 1851, to flow without paying compensation; although the plaintiff in the second complaint is successor to the plaintiff in the first suit; but such judgment is competent evidence for the jury, upon the question of such prescriptive right, subject to the direc- tion of the Court as to its effect and operation. Kay v. rieteher, 12 Cush. 200.] 672 LAW OP WATERCOURSES. [CHAP. XII. part of the then complainant, or those under whom he claimed. The Court gave this opinion : " Where a mill-owner and his pre- decessors have in fact enjoyed and exercised the right of keeping up his dam and flowing the land of another, for a period of twenty years, without payment of damages, and without any demand or claim of damages, or any assertion of the right to damages, it is evidence of a right to flow without payment of damages, and will be a bar to such claim." ^ So under the Act of Virginia, the payment of damages assessed may be presumed, if much time has elapsed during which the owner of the land has acquiesced in the building of the mill, without any claim on his part.^ § 505. The above decisions seem to be opposed, however, by that in Tinkham v. Arnold, in Maine,^ which was that the undis- turbed enjoyment of any known legal right, such as the flowing of lands for the support of mills, for any term of time, furnishes no presumptive evidence of a grant. It went upon the ground, that as the erection and continuance of the dam were lawful and n^A^/wZ, and made so by statute, neither the erection nor continu- ance of it could be considered as proof of a grant, because they might be as well done without grant. But in answer it may be said, that it sometimes happens, that a right may be acquired, and a grant presumed, where there is no actual use made of the ^ [But the exercise of a right of flow- has a right to maintain his dam for an age under the statute of Massachusetts is agreed price, or without any compensa- not the enjoyment of an easement in the tion, or any other matter which may land flowed. It is not adverse to the title show that the complainant cannot main- or possession of the owner ; and being tain the suit," and the judgment is for permitted by law, and not actionable ex- the respondent, it will establish his rights cept by complaint for compensation, it to maintain his dam at an agreed price, will not ripen into title by lapse of time, or without compensation, as the case When the right has become absolute by may be ; but it will not establish his payment of gross damages, or by exercise claim to other rights in the complainant's of the right without compensation for land. It is conclusive upon the right to more than twenty years, it is commonly aflfect the land incidentally by keeping called an easement. But it is an ease- up a head of water, because that is the ment in respect of the use of the stream res adjudicata. But a claim of right to only, and not an interest in a right over occupy the land with the water of a pond the land flowed. Wells J., in Boston or reservoir, to the exclusion of the Manuf Co. K.Burgin, 115 Mass. 340,342; owner, or the restriction of his right of Murdock v. Stiekney, 8 Cush. 113 ; Storm occupation and use, is not within the i;. Manchaug Co., 13 Allen, 10; Williams iss.ue presented by the complainant. V. Nelson, 23 Pick. 141. If, in defence to Wells J. in Boston Manuf. Co. v. Burgin, a complaint for flowage under the Gen- 115 Mass. 340, 343, 344.] eral Statutes of Massachusetts, c. 149, 2 Young v. Price, 2 Monf. (Va.) 534. the respondent answers in bar, " that he '^ Tinkham v. Arnold, 3 Greenl. 120. CHAP. XII.] ACTS FOR ENCOURAGEMENT OP MILLS. 673 land of another, and where, therefore, the owner could bring no action, during the time the privilege is used, which, after a certain length of time, is taken to be evidence of a grant. Of this nature is the enjoyment of light in a house. The owner does no act upon the property of another, for which an action would lie ; he has a right to the light as it comes to him over the land of another, and yet an enjoyment for twenty years gives a right, and raises the presumption of a grant.^ The case of a land-owner against a mill-owner, is considered in some respects similar. The former could maintain no action, simply for erecting and keeping up the dam ; but he could file and prosecute his claim for dam- ages, or he could make his claim in pais, and thus rebut the presumption of a grant from mere enjoyment. The mill-owner, by force of the statute, may raise and maintain his dam without grant or license of the owner of the land flowed by it ; but he cannot maintain it free of all claim for damage ; and if he main- tains it twenty years free of all claim for damage, it seems to warrant the legal presumption of a grant or other lawful origin of such right, and establishes the right upon the principle of pre- sumed grant.^ § 506. With regard, however, to the case of Tinkham v. Ar- nold, the report of the case does not make it appear, whether the owner of the land flowed suffered any damage ; and the language used by the Court may require to be limited and applied to the time during which no damages were occasioned by the flow of the water.^ However true it may be and is, that, by the Common Law, an action may be maintained for causing the over- flowing of another's land, although no actual injury be proved ;* yet in Stowell v. Flagg,^ the Court held, that the process is given by the acts in relation to flowing " only to those who have act- ually suffered damage." The Court expressly held in Hathorn V. Stinson,^ that inasmuch as the Common Law right to maintain an action against the mill-owner for flowing his neighbor's land, is taken away by the statute, and the statute affords no remedy except in those cases where damages have been actually sustained, the continuing to flow, under such circumstances, ought not to 1 See ante, §§ 204, 244, 809, 314. « See ante, §§ 426-433. 2 Such is the reasoning of C.J. Shaw, 6 Stowell v. Flagg, 11 Mass. 364. in Williams v. Nelson, 23 Pick. 141. 6 Hathorn v. Stinson, 10 Maine, 183. 8 Nelson v. Butterfield, 21 Maine, 220. .43 674 LAW OP WATERCOURSES. [chap. XII. prejudice the title of the owner of the land thus flowed ; because his hands are tied, and he can neither resort to his action at Common Law, nor to process under the statute.^ In another case in Maine, of a complaint under the statute of flowing, the report stated, that there was no evidence that any portion of the land in question had been fenced in, and there was no testimony tending to prove, that profit could be derived from the land, or that it could be injured by the flow of the water. The case, the Court said, therefore fell within the class of cases, upon which they, after mature consideration, decided, thaf while the owner of the land suffers no damage, and can, therefore, maintain no suit or process, or in any way prevent such flowing, he cannot be presumed to have granted or in any manner to have surrendered or relinquished any of his legal rights.^ But where damages have been occasioned by the flowing, and the owner of the land flowed has had the power to maintain a process to recover them, the Court held, that a prescriptive right to flow the laud, without payment of damages, may be acquired.^ 1 See also Seidensparger v. Spear, 17 Maine, 1^3; 2 [This doctrine lias been reasserted and maintained in several later cases in Maine. See Wood v. Kelley, 30 Maine, 47, and other cases below. In a complaint under the statute of Maine, for flowing land, to establish a prescriptive right of the mill- owner to flow, it must appear that he and his grantors have been accustomed to flow the land without interruption for twenty years or more, prior to the date of the complaint, thereby causing during that period actual damage. Gleason v. Tuttle, 46 Maine, 288. But damages are not to be presumed from the mere act of flowing. Underwood o. The North Wayne Scythe Co., 41 Maine, 291. They must be proved to have been of yearly occur- rence, unless a temporary omission to flow may have been occasioned by the leaky condition or prostration of the dam, in which case the time necessarily and rea- sonably spent in repairing or rebuilding the dam, will not interrupt the running of the twenty years, or prevent the ac- quisition of the right to flow. Gleason v. Tuttle, 46 Maine, 289 ; Dana v. Valentine, 5 Met. 8 ; Wood v. Kelley, 30 Maine, 47.] 8 Nelson v. Butterfield, 21 Maine, 220 ; [Underwood v. North Wayne Scythe Co., 41 Maine, 291; Gleason u. Tuttle, 46 Maine, 288. In Prescott v. Curtis, 42 Maine, 64, 71, the respondents pleaded that they had flowed for upwards of twenty years before the date of the com- plaint, doing the same damage, if any, that had been done, within the three years, and which was the subject of the complaint. " Whether damage was donp within three years before the origin of the complaint," said Tenny C.J., " was not a question to be settled at the trial, by the jury ; but the damage for the twenty years and upwards must have been shown absolutely, in order to make out the prescriptive right." See Gleason V. Tuttle, 46 Maine, 288. To establish a right by user, to flow water upon a com- plainant's land, in a case where the de- fendant's proof showed that the only interruption to the flowing was during the rebuilding or repairing of the dam, it must be proved that damage was done thereby to the land-owner ; that the dam- age must have been such as would enable him to maintain a process to prevent such flowing or to recover for it ; that the dam- age should be of yearly occurrence ; that he knew or had the means of knowing of CHAP. XII.J ACTS FOR ENCOURAGEMENT OP MILLS. 675 10. In respect to Land overflowed, which is under the Jurisdiction of another State, or of the United States. § 507. The legislature of a State cannot authorize, by statute, the flowing of land of another person in another State. ' It was not denied, but, on the contrary, it was admitted by the defend- ants in Farnum v. Blackstone Canal Company,^ that the State of Rhode Island possessed no legislative authority to authorize the raising of any dam locallj'- within that State, whereby the waters of the Blackstone River would be flowed back to the injury of property locally situated in Massachusetts, and the Court were thus spared the decision of the question. [§ 507 a. And in Wooster v. Great Falls Manufacturing Com- pany ,3 it was decided that, where the owner of land is damaged by its overflow, by means of a dam erected to operate a mill situated in another State, across a river, the boundary of the two States, he may recover the damages in an action at Common Law.*] § 508. The territory belonging to the United States, and situ- ated within the limits of any one State, and over which jurisdic- tion has been ceded to the United States, and which is used for exclusive and constitutional objects, is subject to the legislation of Congress, and not to that of the State. The Courts of Massa- chusetts cannot take cognizance of offences committed upon lands in the town of Springfield, in that State, which have been purchased by the United States for the purpose of erecting arsenals, to which the consent of the State has been granted ; ^ and it seems, that the statute laws of Massachusetts respecting the flowing of land were not intended to authorize the flowing back upon public lands of the United States.^ It is very certain that in a place over which jurisdiction has been ceded to the Buch flowing; and that it must have been ^ See ante, § 421. continued for twenty years, and that for " Farnum v. Blackstone Canal Corpo- that period it was flowed as high or higher ration, 1 Sumn. 46. than during the three years next before ' [Wooster v. Great Falls Manuf. Co., filing the complaint, with the qualification, 39 Maine, 246.] however, that the omission to flow during * [See Worster v. Winnipiseogee Lake the time while the dam was being rebuilt Co., 25 N.H. 625.] or repaired, should not prevent the ac- ^ Commonwealth v. Clary, 8 Mass. 72. quiring of such right Wood w. Kelley, ^ United States v. Ames, 1 Woodb. & 30 Maine, 47.] M. 76. 676 LAW OF WATERCOURSES. [OHAP. XII. United States, the State laws cannot be permitted to embarrass the object of the cession ; and, therefore, the'statutes of Massa- chusetts authorizing the flowing of land, do not apply to the case of machinery used by the United States at Springfield — that being a place over which jurisdiction has been ceded to them — so as to authorize a mill-owner to flow back in a way to impair in any degree the use of the machinery.'^ But where the United States own land situated within the limits of any State, and over which they have never had cession of jurisdiction, the rights and remedies in relation to it are usually such as apply to other land- owners within the State, and the lex rei sitce will govern ; except where the Constitution, treaties, or statutes of the United States, otherwise provide.^ 11. Of the Complaint under the Statute of Massachusetts and the Proceedings following itfi § 509. A person in possession of the land under a deed, and claiming title, may maintain a complaint against a mill-owner for flowing, although such title be defeasible. The flowing is not a disseisin of the owner of the land ; and, therefore, if such flowed land be conveyed by the owner, the grantee may complain against the mill- owner for damage.* 1 United States v. Ames, supra. receive the damages, to be accounted for 2 United States v. Ames, supra. The under the trust. Davis v. Charles River United States (without a cession of juris- Branch Railroad Co. 11 Cush.506; Howe diction) have no other rights within the u. Ray, 110 Mass. 298, 300. So a person several States than as a land-owner, and whose title is limited to a life-interest when they grant a portion of their domain, may maintain the process and have judg- only such rights as are incident to the ment for past damages. Howe u. Ray, land pass to the purchaser. Hendricks v. 110 Mass. 298, 301. The right to have Johnson, 6 Port. (Ala.) 472. the jury "also ascertain and determine 3 See the Gen. Sts, in Appx. p. 1. by their verdict what sum " would be " a * Charles v. Monson and Brimfield just and reasonable compensation," for Manuf. Co., 17 Pick. 70. [In Vaugh «. future damages, both annual and in gross, Wetherell, 116 Mass. 138, it was hel^ is not dependent upon the possession of that a mortgagor may maintain a com- an absolute fee by the complainant, plaint under the mill act for damages suf- Chapman C.J., in Howe v. Ray, 110 Mass. fered while he was in possession of the 301 ; Paine <;. Woods, 108 Mass. 160. land, although his right of possession has The grantor of lands which are flowed at been terminated by foreclosure of the the time of sale by means of a mill-dam mortgage before suit brought. Paine v. lawfully erected and maintained, but in Woods, 108 Mass. 160; Walker v. Oxford respect to which no proceedings to assess Woollen Manuf. Co., 10 Met. 203. See damages have been taken, is entitled only Meacham u. The Fitchburg R.E. Co., 4 to such damages as have accrued at the Cush. 291. A person holding land as time of sale, unless he especially reserves trustee may maintain the process, and future damages ; and, in the absence of CHAP. XTI.] LAWS OF MASSACHUSETTS. 677 § 510. In Holmes v. Drew,^it was decided, that the respondent was not answerable for damage done before she became owner of the mill and dam. Yet the statute provides, that the complain- ant can recover damages for the next preceding three years. But that case puts this modification on the generality of the words, viz., provided the respondent, as such mill-owner, has caused such darhage. So in the case above referred to of Charles v. Monson and Brimfield Manufacturing Company,^ the correlative proposi- tion was held, that an original complaint would lie against those who have ceased to be owners and occupants of a mill, for the damage which accrued whilst they were owners. This decision, which was upon the old statute, went on the ground, that, by a reasonable construction, the terms " owner and occupant," as applied to the mill, must be intended those who were owners and occupied, for the time being, and caused the damage.^ The case of Walker v. Oxford Woollen Manufacturing Company,* required the Court to go but a step further in the same direction. That was a case where the complainant had ceased to be the owner of the land flowed ; and of course, if he could not have the process, under the statute, he was without remedy. It was accordingly held, that if an owner of land, which is flowed by a mill-dam, Buch reservation, the grantee is entitled and a mortgagee of the mill out of pos- to all 'damages which may accrue after session is a proper party defendant to the purchase of the lands flowed ; and such proceedings, and, making no dis- each of them may recover such damages claimer, he will be enjoined. Wight v. by proceedings under the mill-dam act, Packer, 114 Mass. 473. As to lis pendens, in Wisconsin. Sabine v, Johnson, 35 Wis. in Massachusetts, see Act 1877, c. 229.] 185. The proceeding under the mill act ^ Holmes v. Drew, 7 Pick. 141. of Massachusetts (Genl. Sts. c. 149) is ^ Ubi sup. one which affects the estates of both the •* [The grantee of land, having a mill landowner and the mill-owner, and subse- and dam erected thereon, who has given quent purchasers must take notice of a his grantor a bond of defeasance which suit pending between them, and are liable is not recorded, is the owner of such mill to be affected by its results. Lis pendens and dam, and liable to a complaint for is notice to all the world. This is true, flowing, under the Massachusetts mill though the damages to be paid are de- act. Hennessey v. Andrews, 6 Cush. 170. termined by an award rendered upon a So a lessor for years of a dam, which is submission entered into under a rule of used to raise a head of water to drive a Court giving the referees the powers of mill, subsequently erected by the lessee, a sheriff's jury. And if, in such a case, and who retains an interest in the water the complainant has elected to take the raised by the dam, is liable to the owner gross sum awarded, the subsequent pur- of land above, for the flowing occasioned chaser's failure to pay such sum within by such dam. Sampson v. Bradford, 6 the time limited by the act forfeits his Cush. 303.] right under the act, and makes the further * Walker v. Oxford Woollen Manuf. maintenance of the dam a nuisance to Co., 10 Met. 203. be restrained by proceedings in equity ; 678 LAW OF WATERCOURSES. [CHAP. X . sells and conveys the land before he has proceeded against the mill-owner for damages, he may afterwards maintain a complaint, on the Revised Statutes, c. 116, and have the jury assess the damages caused by flowing the land while he owned it.i § 511. After an owner of land flowed by a mill-dam has a verdict for annual damages allowed and recorded, he may main- tain an action against the owner or occupant of the mill for the sum due and unpaid for the three years next preceding the com- mencement of such action, although the mill and dam are de- stroyed ; provided the owner has not abandoned his privilege. And a mortgagee of a mill and privilege, who has taken and kept possession for condition broken, is liable to be proceeded against under the Revised Statutes (c. 116, § 24), for the unpaid an- nual damages for flowing land, which have been awarded by ver- dict against the mortgagee.^ § 512. In a complaint for flowing the land of the complainant, the description of the land [alleged to be flowed and injured, and the statement of the damage, must be such, that the record of the case will show with suflicient certainty the matter heard and determined therein. 3] But a general description of the land is sufficient, and such a description as is suflicient for the purpose of directing the view of the jury is all that is required.* If the complaint (under St. 1795) does not state, that the water was raised by the defendant for the purpose of carrying a water-mill, it is a defect in substance ; though it may be cured by a plea in which the respondent avers, that he was owner of a mill on and below the dam, and, as such owner, has a right to raise the water by means of the dam.^ 1 [The right to the damage already to recover such damages as the complain- accrued by flowing is a chose in action, ant might have recovered if he had re- Tvhich may be assigned in equity, but mained alive. Darling v. Blackstone not in law, without the assent of the par- Manuf. Co., 16 Gray, 187.] ties liable to pay. But the assignee may ^ Fuller v. French, 10 Met. 359. See sustain a process for it in the name of ante, § 510, note. " the assignor. Howe v. Ray, 110 Mass. ^ [Gen. Sts. r. 149, § 5.] 298, 301 ; Charles v. Monson & Brimfield < Commonwealth v. Ellis, 11 Mass. 462. Manuf. Co., 17 Pick. 70 ; Walker v. Ox- « slack v. Lyon, 9 Pick. 62. [So in ford Woollen Manuf Co. 10 Met. 208. Maine, a complaint for flowage, under Upon the death of the complainant pend- R.S. of 1841, c. 126, § 6, must contain ing proceedings under the mill act, the such a description of the land alleged to administrator of his estate may be ad- be overflowed, and such a statement of mitted to prosecute the complaint, and the damages caused thereby, as will ex- CHAP. XII.J LAWS OP MASSACHUSETTS. 679 [§ 612 a. Several complaints by different complainants, being pending at the same time in the Court having jurisdiction, under the Massachusetts mill act, it is the duty of the Court to cause all the complaints to be considered and determined by the same jury. The more correct and proper course, in such case, is to issue only one warrant reciting the several cases ; but, if separate warrants are issued, the sheriff should, regard them as a joint warrant, and cause the several cases to be tried together by the same jury.^] § 513. As to the assessment of damages by the jury, it has been held (in conformity to the doctrine laid down in the pre- ceding chapter) ^ that, in determining whether any damage be done to the land, any benefit to be derived from the flowing may be taken into view.^ In Avery v. Van Deusen,* the Court con- sidered, that the right of the jury to estimate the benefit derived from the overflowing, necessarily resulted from the issue they were to try — the general question of damage being before the jury. [But in Gile v. Stevens,^ it was held, that the benefit occasioned to a meadow below a mill-dam, by a ditch dug at the time of the erection of the dam by the owner of the dam through his own land below the meadow, cannot be set off against the damages done to the meadow by subsequent flowing occasioned hibit in the record with suiiicient certainty on the case for damages caused by such the matters determined in the suit; but dam. The process by complaint, under it is not necessary to allege that the lands K.S. Maine, c 92, § 1, cannot be sustained were overflowed by reason of the head of upon these facts.] water made necessary for the mills of the i [Richardson v. Curtis, 2 Cush. 341.] respondents, nor that the respondents 2 gee ante, §§ 473, 474. built their danis and mills upon their own ^ Palmer v. Ferrill, 17 Pick. 58. [The land, or upon the land of another with mill act of Massachusetts provides, that his consent. Prescott v. Curtis, 42 Maine, the jury, in estimating the damage to the 64 ; Gleason v. Tuttle, 45 Maine, 292. land of the complainant, shall take into But in Jones v. Skinner, 61 Maine, 25, consideration any damage occasioned to it was held that a complamt for flowage, his other land by the dam, as well as the under the R.S. of Maine, c. 92, §1 (1857), damage occasioned to the land overflowed, containing no allegation of defendants' and they shall also allow by way of set- ownership of the land on which the dam off' any benefit occasioned by such dam causing the flowage was erected, was to the complainant, in relation to his lands, bad on demurrer. See Farrington v. Blish, Gen. Stats, c. 149, § 16 ; Davis v. Charles 14 Maine, 425. So in Crockett v. Millett, Kiver Branch R.R. Co., 11 Cush. 506 ; 65 Maine, 191, it was decided that a per- Meacham v. Fitchburg R.R. Co., 4 Cush. son whose land had been overflowed by 291 ; Paine v. Woods, 108 Mass. 160, 172 ; a reservoir dam ere.cted by the defendants Fuller v. Chicopee Manuf. Co., 16 Gray, upon their own land, but for the use of 46.] a mill not owned by them nor standing * Avery v. Van Deusen, 5 Pick. 182. upon their la.nd, may maintain an action ' [Gile v. Stevens, 13 Gray, 146.] 680 LAW OF WATERCOURSES. [CHAP. XII. by the dam ; and the cost of the ditch is immaterial in assessing such damages ; and in the same case, it was also held, that evidence that the withholding of water in the spring from other lands, situated like the complainant's, was a benefit greater than the injury occasioned by letting down the water in the dry season, is inadmissible, unless it appears that the water was withheld from the complainant's la.nd in the spring, as well as suffered to flow upon it in the dry season.] § 514. On a complaint for flowing a meadow, and thereby rendering it less productive, evidence on the part of the defend- ant that other meadows on the same stream had also become less valuable, is inadmissible, unless accompanied with proof that such meadows were similar to the plaintiff's meadow.* Where by the erection of a mill-dam, a tract of meadow, wood, and arable land, belonging to the complainant, was overflowed and injured, evidence of damage done to his upland adjoining the meadow is admissible;^ and if, on a complaint to recover damages for over- flowing the complainant's land, he would claim consequential damages to other land belonging to him, he must set forth such claim in his complaint.^ [The manifest object of the remedial clauses of the mill act is to secure to a land-owner, whose land has been flowed, or directly damaged by water raised by a dam for mill purposes, by another on his own land, a fair and ade- quate compensation for that damage, arising directly from that cause. The law does not justify an allowance for remote, possi- ble, or speculative damages, or damage to any other subject than land, or by any other means than raising water by a dam for mill purposes.* The rule admits all direct damage, by raising water upon a complainant's land, as preventing all valuable growth, or by saturating it, so as to render it unfit to produce good grass ; ^ 1 Standish v. Washburn, 21 Pick. 237. effect of those ordinary periodical freshets 2 Monson and Brimfield Manuf Co. v. which can be foreseen with reasonable Fuller, 15 Pick. 554; Palmer v. Ferrill, certainty. Sabine o. Johnson, 35 Wis. ubi sup. 185. Damages may be recovered, under 8 Monson & Brimfield Manuf. Co. u. a complaint on the mill act, for flooding Puller, supra. a well and the cellar of a house on the * [Palmer Company v. Ferrill, 17 Pick, complainant's land. Fuller v. Chicopee 58 ; Eames v. New-England Worsted Co., Manuf. Co., 16 Gray, 46. A complaint 11 Met. 571. In determining the com- cannot be maintained on the mill act to plainant's damages the jury are to con- recover damages occasioned to an unira- sider not only the increased flowage of proved and unappropriated mill site. Ful- the land at an ordinary stage of the water, ler v. Chicopee Manuf Co., 16 Gray, 43.1 from repairs of the dam, or new and more ' [Wilson v. New Bedford, 108 Mass. economical mill machinery, but also the 265, 266. In Fuller v. Chicopee Manuf. CHAP. XII.J LAWS OP MASSACHUSETTS. 681 by separating one part of the complainant's land from another, so as to render bridges or causeways necessary ; or other direct damage.! But where the complainant seeks, further, to recover for damage done to other lands, uplands not reached or affected by the water raised by the dam, but in consequence of noxious and offensive smells, proceeding from the land flowed, when not covered by water, by means of which such uplands are rendered less eligible and valuable as building lots, the claim is too remote, and not within the scope of the mill act.^ The mill act, however, affords no warrant or excuse to the mill-owner for erecting or continuing a nuisance on his own land or the land of another. The remedy in such case is by indictment, or action on the case.^] § 515. A verdict and judgment in a process for the assessment of damages, finding that the complainant has sustained no dam- ages, is no bar to another complaint for subsequent damages. Nor is a recovery at Common Law for damage occasioned by the erection of a mill-dam, a bar to process under the statute for damage by the continuance of it.* Where the respondent does not plead, the sheriff's jury are bound to give some damages, and upon their failure to do so, the proceedings and judgment thereon will be. quashed.^ § 516. By the statute of Massachusetts of 1829, the land-owner was permitted to have not only his annual damages assessed, and Co., 16 Gray, 46, it was decided tliat fact that the land had become deteriorated damages caused by raising tlie pond, so by the flowing when purchased by the as to affect injuriously the water of the complainant. Bates o. Ray, 102 Mass. plaintiff's well, were recoverable ; and 458 ; Hosmer v. Warner, 15 Gray, 46.] no distinction was made as to whether it ^ [Eames v. New-England Worsted affected the well by overflowing or perco- Co., 11 Met. 570, 571 ; Fuller v. Chicopee lation. " This principle is just," Chap- Manuf. Co., 16 Gray, 46.] man C.J. remarked, in Wilson a. New " [Eames u. New-England Worsted Bedford, 108 Mass. 266; "for the water Co., ubi supra. Peat dry, or in process often injures land which it never over- of curing upon a meadow, is personal flows ; and, where the soil is porous, the property, and damages occasioned to it water may by percolation render a dwell- by the flowing of the meadow, cannot be ing-house uninhabitable, or destroy the recoyered by complaint under the mill value of large tracts of land."] act. Nor can damages, in such case, be 1 [In estimating damages on a com- recovered for tlie loss of manure placed plaint for flowing land; regard is gener- upon a meadow for the purpose of culti- ally to be had to what would have been vating it, as a special item of injury, the ordinary state of the land had no dam Gile v. Stevens, 13 Gray, 146.] existed, although the dam was erected < Staples v. Spring, 10 Mass. 72. and had affected the land many years ' Van Deusen v. Comstock, 3 Mass. before the period covered by the com- 184 ; [Axtell v. Coombs, 4 Greenl. 322 ; plaint ; and no regard is to be paid to the ante, § 501, and note.] 682 LAW OF WATERCOURSES. [CHAP. XII. be entitled from time to time to recover the same, but he acquired the farther right to have gross damages also assessed, for a per- petual servitude, or permanent flowing of his lands, with the right of election to take either yearly or gross damages ; and the General Statutes have substantially re-enacted the same pro- visions.i § 517. The Revised Statutes make no provision for a re-assess- ment of gross or annual damages assessed against a mill-owner for flowing, after the land-owner has elected to take the gross damages. A mill-owner can only maintain a complaint for re- assessment of annual damages caused by his flowing, when he stands hable for such damages under an existing judgment ; and, therefore, cannot maintain such complaint, when the land-owner has elected the gross damages.^ [A complaint against a mill- owner for increased compensation for flowing, under the Revised Statutes, c. 116, § 33 (General Statutes, c. 149, § 34), must set forth a former judgment between the said parties, or their prede- cessors, fixing a sum to be paid for annual damages, and must demand an increase thereof ; otherwise it will be treated as an original complaint.^] § 518. Referees, to whom a complaint for flowing was sub- mitted, under a rule of Court, assessed all past damages done to the complainant by such flowing, up to the time when they re- turned their award into Court, and also assessed future yearly damages, and a sum in gross, for all damages thereafter to be sustained. The award was immediately accepted, and judgment rendered thereon ; and the complainant seasonably elected to take the sum in gross. The respondent, as soon as the award was published, iiled a notice, and gave a copy thereof to the complainant, that he waived all right to flow the land in question, and that he should not thereafter flow the same, but should draw down the water raised by his mill-dam ; and he immediately drew 1 See Gen. Stats, in Appx. ; Hunt v. arrearages of annual compensation under Whitney, 9 Met. 603:; Fowler u.Holbrook, E.S. Maine, c. 92, § 15, the plaintiff 17 Pick. 191. must show himself the party entitled to 2 Stevens v. Fitch, 2 Met. 507 ; Snell such annual compensation by a record of V. Bridgewater Cotton Gin Manuf. Co., a valid judgment upon his complaint for 24 Pick. 296. [The General Statutes flowage of the same lands, on which have made no change in this respect.] judgment such annual compensation was 5 [Ray V. Fletcher, 12 Cush. 200. To awarded. Prentiss v. Parks, 65 Maine, sustain an action against the subsequent 659.] owners or occupants of a mill-dam for the CHAP. XII.] LAWS OP MASSACHUSETTS. 683 down the water accordingly. He besides paid to the complainant all past damages, as assessed by the referees, and the cost of the proceedings on the complaint, pursuant to the judgment on the award. In an action by the complainant to recover gross dam- ages, it was held that the respondent was not bound to pay them.^ The subject was somewhat considered in Fowler v. Holbrook,^ and it was there suggested, in the opinion of the Court, that there might be a right of election, on the part of the owner of the dam, to waive his right to flow the land of another, and that, by so doing, he might exonerate himself from the payment of gross damages. It was said, however, if he had such right, it was requisite he should remove the obstruction, and so restore the land to the other party as it was before it was flowed ; and that he should give reasonable notice of his election to abate the ob- struction, rather than pay the estimated damages. This he had not done ; on the contrary, he had kept up a head of water to the extent and in the manner authorized by the verdict of the jury that assessed the gross damages. But the circumstances of this case are dissimilar to those of the preceding- case. There the mill-owner, immediately on the publication of the award assessing the gross damages, being dissatisfied therewith, drew down the water of his pond, and had not since overflowed the land of the plaintiff ; and he also immediately gave notice of his abandonment of all claim of right to flow the land. § 519. Where the owner of land which was flowed by means of a mill-dam, obtained a judgment on a verdict of a sheriff's jury, that assessed his annual damages, and afterwards he filed a com- plaint against the mill-owner, alleging that the dam and the water had been raised higher than was allowed by the former verdict, and praying for a new assessment of his annual, and also gross, damages, upon which a sheriff's jury were impanelled, who decided that the dam had not been raised higher than was allowed by the former verdict, but they assessed annual damages to a greater sum than was assessed by the former verdict, and also assessed gross damages ; — this verdict could not be sustained, because the complainant had not alleged that he was dissat- isfied with the annual compensation established by the first jury .3 1 Hunt V. "Whitney, 4 Met. 603; 2 Fowler w. Holbrook, 17 Pick. 191. [Wight V. Packer, 114 Mass. 473, 474.] » Leonard v. Schenok, 3 Met. 357 ; 684 LAW OF WATERCOURSES. [CHAP. Xir. § 520. By the General Statutes, the question whether any part of the land described in the complaint,. and situated in the county, was injured bj^ the respondent's mill-dam, cannot be tried by a jury at the bar of the Court, but is open to the sheriff's jury who view the land.^ [But the question of a prescriptive right to flow the land is not open before the sheriff's jury, but must be tried at the bar of the Court.^] [§ 520 a. Where the verdict of a jury declares that the " flowing is necessary to the height of the present dam and no higher," and fixes that height by reference to a mark in a rock, the owner of the mill is authorized to raise the water to the height to which a dam of that height would raise the water, and not merely to the height to which that dam itself reaches.'^ But an award of arbitrators authorizing the owner of a mill " to raise the water " in the river across which it is built " two inches above an iron bolt" specified, does not give him the right to keep his dam two inches above the iron bolt, if that raises the water higher.*] § 521. Where it is adjudged that the respondent has no right to flow the land without the payment of damages, and that he pay a certain sum as the yearly damage, he is thereby estopped Stevens v. Fitch, 2 Met. 508. [The twen- award or agreement equivalent thereto, ty-ninth section of the General Statutes raises his dam for the purpose of creating of Massachusetts, c. 149, is as follows: a greater head of water, rendered neces- " Tlie provisions of this chapter sliall not sary by some change in his mill or ma- aflect the right to keep up, maintain, and chinery. It was first enacted in the use any water-mill and mill-dam now General Statutes. This Court had pre- lawfully existing, except as is herein viously held that, if, after a judgment expressly provided ; but when the owner fixing the height of a dam, the owner or occupant of a mill or dam makes any should erect new mills or introduce new material change, by raising tlie dam or machinery into the old mills requiring a altering the machinery or the manner of greater head of water, he would be au- using the water, so as to cause additional thorized to raise his dam, and a com- damage to the land of another, it shall be plaint therefor could be maintained under considered as a new mill or dam in re- the mill acts." Johnson v. Kittredge, 17 spect to such additional damage, and the Mass. 76 ; Leonard v. Schenck, 3 Met. remedy and proceedings to recover com- 357.] pensation therefor shall be substantially i [See Genl. Sts. c. 149, § 8 ; ] Charles such as are provided in this chapter re- v. Porter, 10 Met. 37 ; Van Deusen v. epecting a new dam." The Court in Comstock, 3 Mass. 187 ; [Nutting w. Page, Leonard d. Wading River Reservoir Co., 4 Gray, 581. See as to the practice in 113 Mass. 236, referring to this provision, Maine, post, § 534.] said : '! We think that'the last provision, 2 [Wilmarth v. Knight, 7 Gray, 294.] in this section was intended to apply to ' [Ibid.] . the case of a mill-owner who, after the « [Winkley v. Salisbury Manuf. Co., right to maintain his dam at a certain 14 Gray, 443.] height has been fixed by a verdict, or an CHAP. XII.] LAWS OP MASSACHUSETTS. 685 to plead, in bar of a complaint for an increase of such sum, a right by prescription, or by a grant previous to the judgment, to flow the land without payment of damages. And so he is likewise estopped to plead in bar, that no damage is done to the land ; for that question must be determined by the jury impanelled to assess the damages.! [§ 521 a. Upon a complaint to the regularly established tribu- nal by the owner of land overflowed by a mill-dam, against the owner of the dam, the respondent may answer in bar, that the complainant has no estate or interest in the land alleged to be flowed or injured, or that the respondent has a right to maintain his dam for an agreed price, or without any compensation, or any other matter which may show that the complainant cannot main- tain the suit ; but he shall not answer that the land described is not injured by the dam.^ Either party may appeal, as in other civil actions.^] § 522. All matters which may be pleaded in bar of a complaint for flowing land, are conclusively settled against the respondent, by a verdict found in favor of the complainant, on an issue tried at the bar of the Court ; and the respondent cannot give any of those matters in evidence to a sheriff's jury, impanelled to ap- praise the damage sustained by the complainant.* If the com- plainant obtains judgment on a verdict of the sheriff 's jury, he is entitled to the costs of former trials in which the verdicts re- turned for him are set aside for irregularity.^ § 523. The verdict of the jury who make an appraisement of 1 Adams v. Pearson, 7 Pick. 341 ; bound to give the complainant some [Hersey v. Packard, 56 Maine, 395.] damages. Van Deusen v. Comstock, 2 [Gen. Sts. c. 149, § 8. See Perley 3 Mass. 184 ; Axtell v. Coombs, 4 Greenl. V. Spring, 6 Mdss. 398 ; Johnson v. Kit- 322. By paying money into court for tredge, 17 Mass, 76; Charles i/. Porter, divmages already incurred, and offering 10 Met. 37 ; Nutting v. Page, 4 Gray, to pay a certain sum annually for future 581 ; Wilmarth v. Knight, 7 Gray, 294 ; damages, the respondent admits the com- Axtell V. Coombs, 4 Greenl. 322. The plainant's right of action, and cannot respondent, under a plea of the general . afterwards rely on a plea in bar, previ-^ issue, with a specification of defence that ously filed, denying such right. Hosmer he has a right to keep his dam at the v. Warner, 7 Gray," 186.] height complained of, cannot, at the trial, ■' Gen. Sts. c. 149, § 12. deny the complainant's title to the land ■• Charles w. Porter, 10 Met. 37; How- flowed. Tyler ii. Mather, 9 Gray, 177. ard v. Proprietors &c., 12 Cush. 259 ; If the respondent claim to be wholly ex- [Darling v. Blackstone Manuf. Co., 16 enipt from the payment of damages, he Gray, 189, 190.] must plead to issue at the bar of the * Pitch v. Stevens, 2 Met. 506. Court; otherwise the sheriff's jury are 686 LAW OP WATERCOURSES. [CHAP. XII. the yearly damages done to the land, under the Stat. 1795, re- turned, allowed, and recorded, is to be the measure of the yearly damages, until one party or the other shall, by a like, process, ob- tain an increase or diminution thereof. It has the effect of a composition by deed ; and an action of contract may be brought on the record ; but no execution issues, and no scire facias lies for the future damages. The owner of the land may require security for the payment of such damages from time to time ; if the mill-owner neglects or refuses to give such reasonable secu- rity as the Court shall offer, he is to have no benefit of the act. The composition thus established runs with the land, so that it binds not only parties to the record and privies, but their gran- tees.^ § 524. A certiorari^ and not a writ of error, lies to the Supe- rior Court for a revision of their proceedings by the Supreme Judicial Court ; on which the latter Court can only afSrm the proceedings if found to be irregular, or quash them, if the Court below has exceeded its jurisdiction, or proceeded in a man- ner not warranted by the statute, or other authority on which it acts.^ § 525. Where proceedings against a party, under the Revised Statutes, on a complaint of flowing, are not authorized by the provisions of c. 116,^ and judgment for damages is recovered against him, a writ of certiorari will be granted to remove the proceedings, for the purpose of quashing them, although he might have prevented such judgment by a proper defence to the complaint. A writ of certiorari was awarded where A., whose land was flowed by a dam erected by B., instituted a complaint, and recovered damages against B. and it was not alleged in the com- plaint, nor true in fact, that B. had erected a mill, or had an intention forthwith to erect one, in connection with his dam.* 12. Of the Complaint under the Statute of Maine, and the Proceed- ings folbowing it.^ § 526. Under the laws of Maine — authorizing the flowing of 1 Commonwealth v. Ellis, 11 Mass, 2 Commonwealth v. Ellis, supra; 466. [See Bryant v. Glidden, 36 Maine, Palmer Co. v. Ferrill, 17 Pick. 58. 86; Clark v. Rockland Water Power Co., » [ggg (jenl. Sts. o. 149.] 52 Maine, 80.] « Barnard v. Eitch, 7 Met. 605. * See the Rev. Stat, in Appx. CHAP. XII.j LAWS OP MAINE. 687 land by mill-owners not belonging to them — where the owner of land flowed by a mill-dam sells the mills and dam, and retains the land, the right to flow the land, to the extent to which it was then flowed, without payment of damages, passes by the grant. But where the owner sells the land flowed, and retains the mills and dam, without reserving the right to flow, he is not protected from the payment of damages.* It is no defence that the ownership of the land flowed ceased, before instituting the complaint.^ § 527. One who is neither the owner nor the occupant of a water- mill, for the use of which the water has been raised or continued, nor the owner or occupier of a mill-dam, is not liable to the owner of the land flowed, although he may be benefited by the • flow of the water. Thus, if a blacksmith's shop, in which the bel- lows is worked by a watar-fall, can be considered a mill, yet if there is only a right to use the water for that purpose at the will of the owner or occupant of the dam, and at such times and un- der such restrictions as lie may please to presciibe, the owner of such shop is not liable to the payment of damages for the flowing of the water .^ § 528. Where the proprietor of land overflowed by a dam owned by different persons, proceeded by separate complaints, and recovered judgment for yearly damages against each owner of the dam for flowing different portions of the complainant's land ; and where, afterwards, one of the respondents becomes sole owner of the dam ; if the proprietor of the land seek an increase of his yearly damages, he may combine the whole subject-matter in one complaint against the then owner of the whole dam.* § 528 a. All the owners of a mill-dam complained of should be joined in a complaint under the provisions of the Maine Rev. St. c. 126 ; [but if they be not all joined in the complaint, the process should not abate, but the complaint be amended, and the other owners be summoned in.^ And in a complaint for flowing 1 Preble v. Reed, 17 Maine, 169 ; and Butler v. Huse, 63 Maine, 447, 454. A see Hathorne v. Stinson, 10 Maine, 224. complaint for flowage cannot be sustained 2 Bean v. Hinman, 33 Maine, 480. if either of several respondents had the 3 Nelson v. Butterfield, 21 Maine, 220. right to flow the complainant's premises, * Jones V. Pierce, 16 Maine, 411. in the manner and to the extent stated in ' [Hill V. Baker, 28 Maine, 9 ; Moor the complaint. Butler v. Huse, 63 Maine, V. Shaw, 47 Maine, 88. See ante, § 412 a ; 447.] 688 LAW OF WATERCOURSES. [CHAP. XII. land owned by tenants in common, by means of a mill-dam, all the co-tenants must join. Such a process, brought by one of the co-tenants alone, cannot be maintained. i] [§ 528 h. The statute of Maine giving protection to mill-dams, extends only to such streams as are not navigable ; ^ a complaint, therefore, for flowing land by means of a mill-dam, should allege it to have been erected on a stream not navigable. But the omission of such an allegation should be taken advantage of before verdict, for the process being considered a civil suit, no motion in arrest of judgment, in that State, can be allowed.^] § 529. The owner of the dam at the time when the yearly damage by flowing becomes due, is liable to pay it for the whole of that 3'ear ; and the mortgagee in possession, for this purpose, must be regarded as owner.* § 530. In proceedings under the statute, the respondent must plead any matter showing sufficient cause why further proceed- ings should not be had against him, though such plea be not among these enumerated ; and if such matter pleaded be in its nature preliminary to the appraisement of damage by the com- missioners, it will be tried at the bar of the Court, previously to the issuing of the warrant. In such case, if the plea involves matter triable by jury, with other matter cognizable only by the commissioners, the finding as to the latter part will be rejected as surplusage.^ § 531. In a complaint by the owner of the land, under the statute of Maine, to recover damages occasioned by its being flowed by a mill-dam, the question whether the plaintiff has suffered any damages, is to be determined only when the amount of damage is under consideration.^ § 532. One J. T. and other individuals named only as such, gave a bond to one R. G., submitting to arbitrators " his claim for '^ [Tucker v. Campbell, 36 Maine, ^ Axtell v. Coombs, 4 Greenl. 322. 346 ; Moor v. Shaw, 47 Maine, 88 ; Davis [As to the duties of commissioners ap- V. Stevens, 57 Maine, 693; Webster v. pointed under a complaint for ilowing Holland, 58 Maine, 168.] lands under the Mill Act of Maine, see ^ [See Cogswell v. Essex Mill Corp., Bryant v. Glidden, 39 Maine, 458.] 6 Piclv. 94 ; Strout v. Millbridge Co., « Nelson v. Butterfield, 21 Maine, 220. 45 Maine, 88.] [The respondent is precluded from plead- 8 [Bryant v. Glidden, 36 Maine, 36 ; ing in bar that the land is not injured by Strout V. Millbridge Co., 45 Maine, 88.] such dam, and, consequently, that it was 4 Lowell V. Shaw, 15 Maine, 242; not overflowed thereby. Prescott u. Cur- [Bryant v. Glidden, 36 Maine, 45.] tis, 42 Maine, 64.] CHAP. XII.] LAWS OF MAINE. damages occasioned to his land by the erection and continuance of the dam across Saco River at Union Falls." The arbitrators, re- citing that they had viewed the premises, awarded that J. T. " and other proprietors of the Union Falls Mills " should pay to R. G. a certain sum, and costs. It was held, that here were sufficient indications that the award was between the parties to the bond ; that the award was of itself a bar to any further claim for damages, and operated to secure to the obligors the right to flow the land in future, without payment of damages to the obligee ; and that, therefore, it was mutual and final. ^ § 533. A special act of the legislature, relieving mill-owners from a statute obligation to keep a passage open for fish, four months in the year, will not affect their liability to the owners of land, for the increased injury to them by fiowing.^ [§634. In Prescott v. Curtis,^ Temiey C.J. said, "By the Revised Statutes of Maine, c. 126, § 9, the respondents may plead, that the complainant has no right, title, or estate in the lands alleged to be flowed ; or that he has a right to maintain such a dam, and flow the lands, for an agreed price, or without any compensation ; or any other matter, which may show that the complainant cannot maintain his suit ; but he shall not plead in bar of the complaint, that the land described therein is not in- jured by such dam. The only ground for the complaint under the statute is, that the complainant has sustained damages in his lands by their being overflowed by a mill-dam. Sect. 5. If the lands have not been overflowed by the mill-dam alleged in the complaint, they have not been injured by such dam. But the respondent is precluded from pleading that the land is not injured by such dam."* And it was also decided in this case, that the issue, whether the complainant has suffered damage in his lands by their being overflowed by a mill-dam, must first be made before the commissioners appointed by the Court. Their report may be impeached ; and then this question, with othefs, ' Gordon v. Tucker, 6 Greenl. 247. whether it was prejudicial to the com- 2 Ilathorne v. Stinson, 12 Maine, 183. plainant or not, are questions, in the first 3 [Prescott u. Curtis, 42 Maine, 70. instance, for the commissioners, who are Whether, during the three years next to be appointed in pursuance of the stat- preceding the filing of the complaint, tlie ute. Gleason v. Tuttle, 46 Maine, 291-; complainant's meadow has been annually Prescott v. Curtis, 42 Maine, 64.] overflowed, and, if so, whether it was * [See Cowell v. Great Falls Manuf. occasioned by the respondent's dam, to- Co., 6 Greenl. 285 ; Nelson v. Butterfield, gether with tlie extent of the flowing, and 21 Maine, 230, 231.] 41 690 LAW OF WATERCOURSES. [CHAP. XII. if such exist in the ease, may be regularly presented to a jury for decision. The issue presented by a plea in bar, that the lands were not overflowed by reason of the head of water raised by the dam, is virtually the issue, whether the complainant has or has not suffered the injury .i] [§ 534 a. Upon the coming in of the report of the commission- ers provided for by the twelfth section of the statute of Maine, the case is to be tried by a jury in Court, at the request of either party. Upon this trial, the report is to " be given in evidence, subject to be impeached by evidence from either party." Such report can be impeached only for partiality, bias, prejudice, or inattention or unfaithfulness in discharging the trust, or for error of such extraordinary character or grossness as should furnish a just inference of the existence of such influences. Until im- peached, the report of the commissioners is conclusive upon the parties.^ The verdict of the jury, impanelled to try the case in Court, after the commissioners' report has been returned, is defective, if it do not find the yearly damage ; or if it do not find " what portion of the year the land ought not to be flowed," or if it assess, in one aggregate sum, the damage which accrued be- fore, and also that which accrued after, the complaint was filed. No judgment can be rendered upon a verdict which finds neither the amount of "yearly damages," nor " what portion of the year the land ought not to be flowed." ^J 1 [Prescott 0. Curtis, 42 Maine, 64 ; not be found to be different in different Nelson v. Butterfleld, 21 Maine, 220.] years and be incorporated with those 2 [Bryant v. Glidden, 36 Maine, 36.] caused before the complaint was filed. 3 [Bryant v. Glidden, supra ; Cogswell This course would depriTe the owner of V. Essex Mill Corp., 6 Pick. 94. The the land of his hen and other parties of damages occasioned for three years be- rights secured to them by the statute, fore the complaint is filed, may be assessed Where " yearly damages " are found, the in one aggregate sum. The subsequent timeof their commencement is determined damages are to be " yearly damages," for by " the institution of the original com- the recovery of which the owner of the plaint," and not by the time of finding land has a lien " from the time of the in- the verdict. Bryant v. Ghdden, 36 Maine, stitution of the original complaint on the 45 ; Clark v. Rockland Water Power Co. , mill and mill-dam." The damages can- 62 Maine, 80.] CHAP. XIII.] PUBLIC RIVERS. 691 CHAPTER XIII. OP SUCH WATERCOURSES AS ARE SUBJECT TO PUBLIC USE. 1. When a Watercourse is a Public Higliway. 2. Tlie Common-Law • Distinction between Rivers boatable and navigable, and how far the distinction has been recognized in this Country. 3. Public Right to the Banks of Public Rivers. 4. Obstructions to the Navigation of Public Rivers. 5. Remedies in Cases of Obstruction to Navigation. 1. When a Watercourse is a Public Highway. § 535. It was mentioned in the beginning of the work, that a watercourse, as subservient to the rules of law, in respect to the right to its use, is to be regarded in two points of view ; first, where it is altogether private, as in the case of shallow streams ; and secondly, where it is both private and public, that is, where the private property therein is subject to public use.^ All rivers above the flow of tide-water, are, by the Common Law, primd facie private ; but when they are naturally of suffi- cient depth for valuable flotage, the public have an easement therein for the purposes of transportation and commercial inter- course ; and, in fact, they are public highways by water.^ Such 1 See ante, §§ 1-5. cannot be deprived by the sovereign of ^ [Morgan v. Reading, 3 Sm. & M. any government, based upon an ac- 366, 407 ; People v. St. Louis, 6 Oilman, knowledgment of the righte of its citi- 351 ; O'Fallon v. Daggett, 4 Missou. 343 ; zens." See per Putnam J., in Stetson Baker v. Lewis, 33 Penn. St. 301 ; Cox v. Faxon, 19 Pick. 154. But in Treat r. V. State, 3 Blackf. 193 ; Gavit u. Cham- Lord, 42 Maine, 552, May J. said, that bers, 3 Ohio, 495; Davis v. Winslow, 51 the State, by virtue of its sovereignty or Maine, 264; Brown o. Chadbourne, 31 right of eminent domain, may abridge, Maine, 9 ; Moor v. Veazie, 32 Maine, control, or destroy a public easement in 356, 357 ; Treat v. Lord, 42 Maine, 552 ; a stream, within its limits ; but until it Morgan v. King, 35 N.Y. 454; s.c. 30 does so by positive legislation, all persons Barb. 9 ; Lorman v. Benson, 8 Mich. 18 ; may lawfully enjoy such easement in Hickok 0. Hine, 28 Ohio St. 523. All common with the State. A conveyance the citizens of a country have by the by the State of all Its right, title, and Common Law, an inherent right in com- interest in, and to the lands over which a mon to navigate its navigable waters ; navigable stream flows, does not authorize not tide waters only, but also navigable the grantee, or those claiming under him, freshwater rivers and lakes. Moor v. to use exclusively or to destroy the pub- Veazie, supra. And of this right, Shep- lie easement in said stream. Treat v. ley, C.J., in the above case, said, " They Lord, supra.] 692 LAW OP ■WATERCOURSES. [chap. XIII. is the Common Law, as laid down in the excellent treatise of Sir Matthew Hale/ which in England has ever commanded pro- found respect. It certainly has the merit of defining, with much precision, what constitutes a public highway by water and of illustrating, with an equal degree of perspicuity, the distinction between such rivers as are exclusively private, and those in which the community may assert an interest. Fresh rivers, of what kind soever, says he, do of common right, belong to the owners of the adjacent soil ; but that such rivers, as well as those which ebb and flow, may be under the servitude of the public interest ; that is to say, they may be of public use for the carriage of boats.^ As instances, he mentions the Wye, the Severn, and the Thames, which he says are public rivers, juris publici, as well above as below the flowing of the tide, and as well in the parts where they are of private as of public (as in the case of tide rivers) property ; ^ and nuisances and impediments therein are liable to be punished by indictment.* They are called public rivers, not in reference to the property of the river, for that is hi the indi- viduals who own the land,^ but in reference only to the public use.^ ' Harg. Tracts, De Jure Maris &c. [As to the authorship of this treatise, see ante, § 54.] ■■i [Mellen C.J., in Spring v. Eussell, 7 Greenl. 273, 290; Dwinel v. Barnard, 28 Maine, 567 ; Moor v. Veazie, 32 Maine, 343; Stuart v. Clark, 2 Swan (Tenn.), 9. But the public character of a stream is not dependent on its being capable of public use daring all seasons of the year. A distinguishing criterion consists in its fitness to answer the wants of those whose business require its use. Most of the great rivers of Maine whicli are held to be subject to the public use as passage- ways, are capable of floating timber to market, only in the spring and fall, and occasionally at other times, when their channels are filled with water. Brown V. Chadbourne, 31 Maine, 9; Treat o. Lord, 42 Maine, 652 ; Folger v. Robinson, 3 Oregon, 458 ; Weise v. Smith, 3 Oregon, 445; Thunder Bay River Booming Co. V. Speechly, 31 Mich. 336 ; Morgan xj. King, 35 N. Y. 459. The character of a river as a public highway is not so much determined by the frequency of its use for navigation, as it is by its capacity of being used, by the public, for purposes of transportation and commerce. Hickok a. Hine, 23 Ohio St. 523, 627.] 3 [Mellen C.J., in Spring v. Russell, 7 Greenl. 290, speaks of tne Saco River in Fryeburg, Maine, as one of the same character; " not a navigable river, how- ever deep and large, in Common-Law language, being above tide waters ; but one under servitude to the public interest, and over the waters of which the pubUo have a right to pass." So the Andros- coggin River, at Berlin, though not technically a navigable stream, is of suf- ficient capacity to float logs, rafts &c., and being so, is, by the law of Maine, a public highway. Gerrish v. Brown, 61 Maine, 266 ; Thompson v. Androscoggin Co., 54 N.H. 545] * [Veazie v. Dwinel, 50 Maine, 488, 489; Knox v. Chaloner, 42 Maine, 150.] 5 See Chap. I. ; [Lorman u. Benson, 8 Mich. 18.] 8 Royal Fishery in the River Banne, Davies, 152 ; Carter v. Murcot, 4 Burr. 2162; Callis on Sewers, 78; [Dwinel «. CHAP. XIII.] PUBLIC RIVERS. 693 § 535 a. In Munson v. Hungerford, it was held by the Supreme Court of the State of New York, that a stream, in which the tide does not ebb and flow, and which is not navigable for boats or vessels or rafts, and has not been declared a public highway by statute, is not a navigable stream, within the meaning of the authorities, so as to subject it to the use of the public, but is alto- gether private property.^ § 536. It is of great importance, that the law upon this subject in this country should be well understood and well settled, as the territory of the United States is distinguished, particularly for such rivers as come within the above description of public high- ways by water ; and to them has the public at large been exten- sively indebted for the easy and convenient communication by them afforded, between the maritime cities and the rapidly growing and productive regions of the interior. They have im- parted energy to- the enterprising genius of the people, and been Barnard, 28 Maine, 568. " In this re- spect such a river resembles a highway on land ; for the land over which a high- way is laid out is private property ; yet the highway belongs to the public for the common use." Mellen C.J., in Spring v. Russell, 7 Greenl. 290. The right of passage in a, highway by land extends over every part of it. So the right of passage in a public river, is. a right to pass in all and every part of the channel. " The absence of any right to go extra viam in case of the channel being choked, and the want of a definite obligation on any one to repair, only render it more important, in order to make the highway an effectual one, that the right of passage should extend to all parts of the channel." Lord Denman C.J., in Williams v. Wilcox, 8 Ad. & Bl. 314. Riparian ownership confers no authority upon the proprietors of land, to interfere with or obstruct the right of passage in the adjacent stream, to the injury of another. Veazie v. Dwinel, 60 Maine, 479. A pier erected in the navigable water of the Mississippi Biver, for the sole use of the riparian owner, as part of a boom for saw logs, without license or authority of any kind, except such as may arise from his owner- ship of the adjacent shore, is an unlawful structure, and the owner is liable for the sinking of a barge run against it in the night; such a structure differs very ma- terially from wharves, piers, and others of like character, made to facilitate and aid navigation; and it also has a verv different standing in the courts from piers built for railroad bridges across naviga- ble streams, which are authorized by acts of congress or statutes of the State. Atlee V. Packet Co., 21 Wallace, 389. See Dana v. Jackson Street &c. Co., 31 Cal. 118.] i Munson v. Hungerford, 6 Barb. (N.Y.) 265; [Curtis v. Keesler, 14 Barb. 511.] It is not enough that a stream is capable (during a period in the aggregate of from two to four weeks in the year, when it is swollen by the spring and autumn freshets) of carrying down its rapid course whatever may have been thrown upon its angry waters to be borne at random over every impediment. [Munson v. Hungerford, supra. And if the owner on each side of such a stream has built a dam across it, which would be endangered by floating logs down the stream, when swollen by freshets, and any one threatens to do so, the owner of the land is entitled to an injunction. Curtis V. Keesler, supra.] 694 LAW OF WATERCOURSES. [CHAP. XIII. the means of transforming deserts and forests into cultivated and fruitful fields, flourishing settlements, and opulent cities. That portion of the river Connecticut, which is as high up from tide water as the State of New Hampshire — it there affording jfJoto^e — is, by the Common Law, a public highway.^ The Potomac is part of the Jus publicum, and any obstruction to its navigation would, upon the most established principles, be a public nuisance.^ This river, above tide water was not originally navigable ; but it has been made so in a qualified manner, by law in Maryland, to which State it entirely belongs.^ The river Mississippi is pre-eminently an open highway,* and upon principles of international law, the right of passage in it, by a citizen of one State, within the juris- diction of another, is classed among imperfect rights ; but the right was made perfect by the Constitution of the United States, which provides that the citizens of each State shall be entitled to the privileges of the several States.^ Under the ordinance of 1787, stipulating that " the navigable waters leading into the Mississippi and St. Lawrence shall be common highways, and for ever free," he who owns the land on both banks, owns the entire river, subject only to the easement of navigation ; and he who owns the land upon one bank only, owns to the middle of the river, subject to the same easement.^ The river Muskingum is a common highway under the ordinance above mentioned, and the legislature cannot authorize a dam to be built across which ob- structs its navigation.'^ 1 Scott V. Wilson, 3 N.H. 321 ; and see Cowper v. Hall, 5 Ohio, 320 ; [M'CuUoch Moffett V. Brewer, 1 Greene (Iowa) 348; jj. Aten, 2 Ohio, 307 ; Hopkins v. Kent, Moor V. Veazie, 32 Maine, 343. 9 Ohio, 13 ; Bennett v. Hotter, 6 Ohio, " Georgetown w. Alexandria Canal Co., 604; Lamb v. Ricketts, 11 Ohio, 311; 12 Peters, 91. [Any obstruction placed Blanchard v. Porter, 11 Ohio, 138.] in d public navigable stream may be '' Hogg v. Zanesville Canal Co., 6 treated as a nuisance, and is the subject Ohio, 410 ; [Cox v. State, 3 Blackf. 193 ; of an indictment. Rhodes v. Otis, 33 Spooner v. MeConnell, 1 McLean, 337- Ala. 578.] 383. ■' That the Ohio River is navigable 8 Binney's case, 2 Bland, 99. is an historical fact, which all courts may < [Morgan v. Reading, 3 Sm. & M. 866, recognize," M'Lean J., in Stateof Pennsyl- 407 ; O'Fallon v. Daggett, 4 Missou. 343 ; vania v. The Wheeling&e. Bridge Co., 13 M'Manus v. Carmichael, 3 Iowa, 1 ; Peo- How. (U.S.) 556 ; and being a public navi- ple V. St. Louis, 5 Oilman, 351 ; Godfrey gable stream, of right it should remain free V. City of Alton, 12 HI. 29; Schurmeier and unobstructed. In this case the Wheel- u. St. P. & Pac. R.R., 10 Min. 82.] ing Bridge was held to be an obstruction of 5 Per Catron C.J., in Corporation of the free navigation of the Ohio by vessels Memphis v. Overton, 8 Yerg. (Tenn.) propelled by steam, and it was also held 389. that a law of the State of Virginia au- 8 Gavit V. Chambers, 3 Ohio, 495 ; thorizing this obstruction was inoperative. CHAP. XIII.] PUBLIC EIVERS. 695 § 537. If a stream is naturally of sufficient size to float boats or mill-logs, the public have a right to its free use for those two pur- ' poses, unincumbered with dams &c.^ [In Maine, all streams of sufficient capacity, in their natural condition to float boats, rafts, or logs, are deemed public highways, and as such, subject to the use of the public ; and this is true of them, although they can be 1. Because it impaired the obligation of the compact between Virginia and Ken- tucky, that the use and navigation of the Ohio, so far as the territory of Vir- ginia or Kentucky is concerned, shall be free and common to the citizens of the United States. 2. Because it is in con- flict with the legislation of Congress, which regulates the commerce among different States and'with foreign nations carried on upon this river. Mr. Houck, in his Treatise on the Law of Navigable Rivers, §§ 186-209, very fully discusses "the subject of bridges and other obstructions that may be constructed across navigable rivers," and he divides the cases into two classes. (1.) those in which the third clause of the seventh section of the first article of the Constitution of the United States, which secures to Congress the right to regulate commerce with foreign nations, and among the several States, forms the turning-point; and (2.) those in which the fourth article of the Ordinance of 1787, securing the free navigation of the navigable streams leading into the Missis- sippi and St. Lawrence, is involved; and he concludes his discussion by mak- ing the following points : — 1. That the States are the absolute owners of the navigable rivers, their beds and shores. Pollard ■;. Hagan, 3 How, (U.S.) 212. 2. That the States continue to exert all powers over the same not granted to Congress. 3. That a State can authorize ob- structions to navigation, although no subordinate body acting under it can exert the same power. Commonwealth V. Breed, 4 Pick. 460; Georgetown v. Alexandria Canal Co., 12 Peters, 91. 4. That a State may pass laws to cause navigable rivers to be improved, and grant power to collect tolls from vessels passing up and down the same to defray the expenses thereof. Hart v. Hill, 1 Whart. 136; Moor v. Veazie, 32 Maine, 343 ; s.c. 14 How. (U.S.) 668. 6. That, while the States have power to grant to individuals the privilege to erect bridges over navigable rivers, yet these bridges must be so constructed as not to be in conflict with any law of Congress which exists, and is the para- mount law. Oilman «. Philadelphia, 3 Wallace, 713-744. 6. That it is for Congress to determine, where its full power shall be brought into activity, and as to the regulations and safeguards which shall be provided to secure the national right. Oilman v. Philadelphia, 3 Wallace, 713-744. 7. That the Ordinance of 1787 has no binding force on the States carved out of the North-west Territory. Illinois River Packet Co. v. The Peoria Bridge Asso- ciation, 38 111. 467-482; Pollard v. Hagan, 3How.(U.S.)212;Permolit).rir3tMunic- ipality &c. 3 How. (U.S.) 589; Strader V. Oraham, 10 How. (U.S.) 82. 8. That Congress may regulate all bridges over navigable waters. Oilman V. Philadelphia, 3 Wallace, 729. See Silliman v. Troy & West Troy Bridge Co., 11 Blatchf. 275.] I Wadsworth ii. Smith, 2 Pairf. 278 ; [Brown v. Chadbourne, 31 Maine, 9; Moore v. Sanbome, 2 Oibbs (Mich.) 519; Morgan v. King, 18 Barb. (N.Y.) 277; s.c. 31 Barb. (N.Y.) 9; Louman o. Ben- son, 8 Mich. 18; Barclay R.R. Co. v. Benson, 36 Penn. St. 194 ; Thunder Bay River Booming Co. t. Speechly, 31 Mich. 336. But streams that are so small and shoal that no logs can be driven in tliem without being propelled by persons trav- elling on their banks, are not navigable in any sense to give the public a right of way in them. Treat v. Lord, 42 Maine, 552 ; Brown v. Chadbourne, supra. See Middleton v. Plat River Booming Co., 27 Mich. 533.] 696 LAW OP WATERCOURSES. [CHAP. XIII. Tised for those purposes only at certain seasons of the year.^] In Varick v. Smith, in New York,^ the Vice-Chan cellor held, that the doctrine that fresh-water rivers, above tide-water, belong to the owners of the soil adjacent, though capable of being used for the purposes of navigation, had been sanctioned and confirmed by repeated decisions in that State, and applied to streams which were navigable for boats and rafts, which had been declared to be public highways by statute. [In the recent case of Morgan v. King,^ it was declared to be the true rule in regard to this point, that the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks. It is not essential to the right that the property to 'be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance. - Nor is it necessary that the stream should be capable of being thus navigated against its current as well as in the direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary capac- ity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported. Nor is it essential to the public easement that the capacity of the stream, as above defined, should be continuous, or, in other words, that its ordinary state, at 'all seasons of the year should be such as to make it navigable.* If it is ordinarily subject to periodical fluctuations in the volume and height of its water, attributable 1 [Veazie v. Dwinel, 50 Maine, 484; public must be interested, in Alabama. Berry i;. Carle, 3 Maine, 269 ; Spring And whether a stream is a public high- V. Russell, 7 Maine, 373 ; Brown v. Chad- way or not, is a question of law, after the bourne, 31 Maine, 9 ; Knox u. Chaloner, facts are ascertained. Rhodes «. Otis, 42 Maine, 160; Gerrish v. Brown, 51 33 Ala. 678.] Maine, 256 ; Lancey v. Clifford, 54 Maine, ^ Varick v. Smith, 9 Paige, 547. 489. See Rhodes v. Otis, 33 Ala. 678; s [Morgan v. King, 35 N.Y. 454, 459; Eowe V. Granite Bridge Corp., 21 Pick. s.c. 30 Barb. 9 ; Slater w. Fox, 12 Sup! 344, 347 ; Bailey v. Phil., W., & B. R.R. Ct. N.Y. (5 Hun) 544, 546.] Co., 4 Harring. 389. A mere capacity to * [Buta stream is not a public highway float a log is not sufficient to render a river at those times when, in its natural condi- navigable in California. Rivers are not tion, it cannot be used as such, nor has regarded as navigable in that State unless an upper riparian proprietor a right to they are sufficient to float a vessel used make it such by detaining the water until in transporting freight or passengers, or a flood can be caused sufficient for float- rafts of timber. American River Water ing logs, to the prejudice of a proprietor Co., «. Amsden, 6 Cal. 443. Before ariver below. Thunder Bay River Booming or creek can become a public highway, the Co. i-. Speechly, 31 Mich. 386.] CHAP. XIIT.] ■PUBLIC RIVERS. 697 to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily con- tinue a sufficient length of time to make it useful as a highway, it is subject to the public easement.^ The rule is substantially the same in Maine,^ and in Michigan.^] In Scott v. Wilson, in New Hampshire,* it was held, that the river Connecticut, above the ebb and flow of the tide, had been so long used for the pur- poses of boating and rafting, that it must be considered a Ijighway.^ But the public right is not derived from previous enjoyment. When a stream is, inherently and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs, the public easement exists.® § 538. The public likewise have a right to travel on a public ' [Thunder Bay River Booming Co. v. Speeohly, 31 Mich. 336. It was decided in The Montello, 20 Wallace, 430, that the navigability of a stream, for the purpose of bringing it within the terms " navi- gable waters of the United States," does not depend upon the mode by which commerce is conducted upon it, as whether by steamers, or sailing vessels, or Durham boats ; nor upon the difficul- ties attending navigation, such as those made by falls, rapids, and sand-bars, even though these be so great as that, while they last, they prevent the use of the best means, such as steamboats, for carrying on commerce. It depends upon the fact whether the river, in its natural state, is such as that it aflTords a channel for use- ful commerce.] 2 [See cases cited in note (1), on page 695, and note (1), on page 696.] 3 [Moore v. Sanborne, 2' Gibbs, 519. But it is said that a stream cannot be considered as navigable, because during a period in the aggregate of from two to four weeks in the year, when it is swollen by the spring or autumn freshets, it is capable of carrying down its rapid course whatever may be thrown upon its angry waves, to be borne at random over its impediments. Munson v. Hungerford, 6 Barb. 265. See Rhodes v. Otis, 33 Ala. 578. And in Middleton v. Flat River Booming Co., 27 Mich. 533, it was held that the right of floatage on a stream which is not valuable for navigation, is not so far paramount to the use of the water for machinery, as to authorize the sacrifice of the latter to the former in- terest. Post, § 554 note, § 558 note.] 4 Scott V. Wilson, 3 N.H. 321. When timber is forfeited under the act regulat- ing the mode of putting pine timber into the Connecticut River, the title of the former owner is wholly lost, and a eon- tract with the person who has taken it up, to pay him for his trouble and take it away, does not revest the title until the contract is executed. lb. Pine tim- ber put into the Connecticut River, and which may have been liable to forfeiture, cannot be seized as forfeited after the owner has regained the possession of it, and has it in his custody. Barron v. Davis, 4 N.H. 338. ^ [So in Connecticut. Adams v. Pease, 2 Conn. 481.] 6 [Brown v. Chadbourne, 31 Maine, 9. In this case, Wells J. said, " If a stream could be subject to public servitude, bj' long use only, many large rivers in newly settled States, and some in the interior of this State, would be altogether under the control and dominion of the owners of their beds, and the community would be deprived of the use of those rivers, which nature has plainly declared to be public highways." See Dwinel v. Bar- nard, 28 Maine, 554 ; Parker C.J., in Commonwealth v. Chapin, 6 Pick. 199 ; Ersing v. McMaster, 1 Kerr (N. Bruns.) 501 ; Rowe v. Titus, 1 Allen (N. Bruns,) 326.] LAW OP WATERCOURSES. [CHAP. XIII. river upon the ice ;'^ and, therefore, if any one cuts holes through the ice upon or near the place where there has been a winter way for twenty years, he is liable to the payment of all damages sustained thereby by those travelling upon such way, without carelessness or fault on their part. The waters of the river Penobscot are, of common right, a public highway, and though the right so to use it by all the citizens, is generally exercised when its waters are in a fluid state, yet when they are congealed, the citizens have still a right to traverse that surface at pleasure. Assuming that the riparian owners have as good a right to the use of the water as the public generally have to the right of passage, the use of the privilege should be such, as may be most beneficial and least injurious to all who have occasion to avail themselves of it.^ § 539. A riparian proprietor does not, in England, make his watercourse a public one, or one subject to public use, by mak- ing it at his own expense beatable by artificial means, as by locks, or by uniting other waters, unless the improvement be made by public authority, or for a long continuance of time it has been used by the public.^ In this country, likewise, such little streams 1 [Great ponds, containing more than the settled parts of the State, public ten acres, which were not before the year rivers and streams, not broken by falls 1647 appropriated to private persons, or rapids, are traversed up and down were by the Colony ordinance made upon the ice, in such well marked and public, to lie in common for public use. beaten ways, as are most convenient for Fishing, fowling, boating, bathing, skat- the public. They are not proper subjects ing, or riding upon the ice, taking water for the application of the statute laws for domestic or agricultural purposes or provided for the location of public roads for use in the arts, and the cutting and or highways ; nor are they susceptible of taking of ice, are lawful and free upon being governed by the rules and princi- these ponds, to all persons who own land pies by which easements of this kind adjoining them, or can obtain access to may be otherwise acquired on land. Yet them without trespass, so far as they do we do not hesitate to regard them as not Interfere with the reasonable use of public rights so far under legal protection, the ponds by others, or with the public as to entitle a party to a civil remedy right, unless in cases where the legislate who is wantonly and unnecessarily dis- ure have otherwise directed. The remedy turbed by others, while attempting to for any unreasonable or excessive use of participate in their enjoyment."] the liberty of cutting ice on a great pond, s Harg. Tracts, Hale's Treatise, De being the violation of a public right, is Jure Maris &c. In England a- person, by indictment. Towns may regulate by license from the crown, may make the use of the ponds by reasonable locks upon a public river flowing through by-laws. Eoxbury v. Stoddard, 7 Allen, his land for the advantage of the naviga- 158.] tion ; and the owners of barges passing '■! French v. Camp, 18 Maine, 433; through the same, are under obligation [State V. Wilson, 42 Maine, 9, 25. In to pay such tolls as the Privy Council French v. Camp, Weston C.J. said, "It shall appoint. Cro. Car. 132; Cov<^. 47. is matter of general notoriety, that in all CHAP. XIII.] PUBLIC RIVERS. 699 as are not boatable, that is, as cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are wholly and absolutely private ; hot subject to the public interest, nor to be regarded as public highways by water.^ [Streams which are so small and shoal that no logs can be driven in them with- out being propelled by persons travelling on their banks are not navigable in any sense to give the public a right of way in them.^] If a person be the owner on both sides of such a watercourse, and at his own expense makes it boatable by artificial means, it does not thereby become public ; it is still private property, and cannot be infringed, even by the legislature, without a satisfaction being made.^ § 540. But should a person obstruct the flow of the waters of a stream over their accustomed bed, so that it could not be used as formerly for the purpose of boating or floating rafts or logs, and should turn them into a new channel, he would tliereby authorize the public to make use of them in the new channel, as they had been accustomed to use them in their former channel.* [And if the new channel becomes obstructed, the public have a a right to effect a suitable passage over the former channel, causing thereby no unnecessary damage.^ In the case cited the Court said, " The owners and occupants of the mills on the de- fendant's privilege had used the new channel over fifty years, running their rafts through the sluice until they could not safely use it longer, by reason of the breach in the side dam above the sluice. The defendant had a right to use the water for floating his rafts. The channel had been obstructed by the plaintiff 's mill- dam, and the waters to be used for floating rafts had been turned into a new channel, which was in such a condition that it could not be safely used without expensive repairs, which it was the plaintiff 's duty to make, or to provide some suitable passage-way, which he neglected to do, after notice. The defendant had all the rights of passage for his rafts through the side dam which he would have had through the mill-dam, if the side dam and sluice had never been made, and he had a lawful right, in the use of 1 Gates V. Wadlington, 1 McCord ' [Dwinel v. Veazie, 44 Maine, 167. (S.C.) 580. -A- wrongful diversion of the waters of a 2 [Treat c. Lord, 42 Maine, 552 ; navigable river from its bed does not Brown v. Chadbourne, 31 Maine, 9.] extinguish the title of the State or add 3 Wadsworth v. Smith, 11 Maine, 278. to that of private individuals. Wain- 4 [Dwinel v. Barnard, 28 Maine, 554.] wright v. McCuUough, 63 Penn. St. 66.] 700 LAW OF WATERCOUESBS. [CHAP. XIII. reasonable care, and causing no unnecessary damage to the plain- tiff, to effect a suitable passage for his rafts."] But on the same principle that a riparian owner may improve his watercourse, by locks or otherwise, he may make a new watercourse upon his own land, and withhold its use from all who will not make com- pensation, and authorize its use by those who will. Nevertheless, those who have been injured by the opening of such new water- course, may abate it as a nuisance, or recover damages for the in- jury in an action at law.^ § 541. The legislature of a State cannot, by declaring a river navigable, which is not so in fact, deprive the riparian owners of their rights to the use of the water for hydraulic and other pur- poses, without rendering them compensation ; ^ and the provisions of the legislative resolutions of Ohio, providing for the assess- ment of damages to the riparian owners upon navigable streams, are construed to extend to all streams which have been by the legislature declared navigable.^ Indeed, as has been shown by the law of eminent domain,* a State has not the right, without making compensation, to destroy the property of individuals situ- ated upon a watercourse, in making it navigable, when it is not so by nature ; or in appropriating such watercourse to the public use, by artificial erections and improvements.^ A company in- corporated for the purposes of lock navigation, cannot claim the privileges of a riparian owner ; and, therefore, it has no right to swell the water beyond what it derives from the act of incorpora- tion ; and being by this required to make compensation " for any damage done to lands or property," must do so under all cir- cumstances, when its works are the cause of the injury ; and is answerable for injury even in times of flood, from the swelling back of the water by its dam, upon its neighbors.^ A stream in 1 Dwinel v. Barnard, 28 Maine, 554. 454.] See the opinion of Chancellor 2 Walker u. Board of Public Works, Bland, in Binney's case, 2 Bland Ch. 158. 16 Ohio, 540; Moor. k. Veazie, 32 Maine, [But the legislature has the power to •''*3. judge when the pubhc exigency requires 3 Walker v. Board of Public Works, that private property be taken for public ubi sup. See State v. Galium, 2 Speers, uses. And it is witliin the range of its IS.C.) 581. powers to change the course of a public * Ante, Chap. XI. river, for the public convenience, pro- 5 [A statute declaring a private stream, vision being made for compensation to on which riparian owners have vested those injured by the change. Spring v. interests, a public highway,'without pro- Eussell, 7 Greenl. 273, 292.] viding compensation to the owners, is « Monongahela Nav. Co. v. Coons, 6 null and void. Morgan u. King, 35 N.Y. Penn. St. 379. CHAP. XIIJ.] PUBLIC RIVERS. 701 Pennsylvania, which has been declared by the legislature to be a public highway, is a " navigable " stream in the sense in which all boatable rivers are viewed by the Courts of that State ; ^ but such declaration will not divest property previously acquired to the middle of the stream by a grant from the State.^ At the same time an act of a State legislature imposing reasonable tolls, as a compensation for improving the navigation of a public river, is constitutional and valid, unless it conflicts with the power of Con- gress in actual exercise.^ [§ 641 a. The general doctrine to be deduced from the au- thorities in reference to the use of navigable rivers, or public streams, as public highways, is, that each person has an equal right to their reasonable use. What constitutes reasonable use depends upon the circumstances of each particular case, and no positive rule of law can be laid down to define and regulate such us^, with entire precision, so various are the subjects and occa- sions for it, and so diversified the relations of parties therein interested. In determining the question of reasonable use, re- gard must be had to the subject-matter of the use, the occasion and manner of its application, its object, extent, necessity, and duration, and the established usage of the country. The size of the stream, also, the fall of water, its volume, velocity, and pro- spective rise or fall, are important elements to be taken into the account. The same promptness and efficiency would not be ex- pected of the owner of logs thrown promiscuously into a stream, in respect to their management, as would be required of a ship- master in navigating his ship. Every person has an undoubted right to use a public highway, whether upon the land or water, for all legitimate purposes of travel and transportation ; and if, in doing so, while in the exercise of ordinary care, he necessarily and unavoidably impede or obstruct another temporarily, he does not thereby become a wrong-doer, his acts are not illegal, and he creates no nuisance for which an action can be main- tained.*] 1 See post, Pt. II. of this chapter. S. & Rawle, 71 ; Hart ». Hill, 1 Whart. 2 Coovert v. O'Connor, 8 Watts, 447. 136. And see Monongahela Nav. Co. v. Coons, * [Davis u. Winslow, 51 Maine, 264, 6 Watts & S. 101; Susquehanna Canal 297. See Lancey v. Clifford, 54 Maine, Co. 0. Wright, 9 Watts & S. 9. 489, 490. A party has a right to direct 8 Thames Bank v. Lovell, 18 Conn, his logs floating in a stream into his mill- 566. And see Spring w. Russell, 7 Greenl. pond, and for that purpose it is not un- 273 ; Shrunk v. Schuylkill Nav. Co., 14 reasonable for him to use temporary sheer 702 LAW OF WATERCOURSES. [CHAP. XIII. 2. The Common-Law Distinction between Rivers loatahle and " navigable,'^ and how far the Distinction has been recognized in this country. § 542. It has appeared, that the line of demarcation of the Common Law between such streams of water as are private, and such as are altogether public, is that at which they begin to partake of the sea. Below this point the water is not only pub- lic for all floatable uses, but the bed or soil over which the water runs is also public ; both the use and the property, in other words, are public.^ The river Hudson, for example, is entirely private property, in one part ; is subject as such to public use in another part ; and is wholly and entirely public property from its mouth to as high up therefrom as the tide flows.^ In that part of the stream wherein the entire right of property is in the pub- lic, it is called by the law " navigable," which in the technical sense, and different from the common acceptation of that word, is confined in its application to fresh rivers only to the extent to which they are propelled backward by the ingress and pressure of the ocean tides. § 543. To determine whether a river is "navigable" in the Admiralty acceptation of that term, regard must be had to the ebbing and flowing of the tide.^ In the Supreme Court of or guide booms, which should not ob- ownership of the soil in public navigable struct the passage through the channel, rivers, is in the king. Woolrych, Law of as a teamster may temporarily incumber Waters, 40. In this country, Taney C.J. the liighway while loading or unloading said, in Martin u. Waddell, 16 Peters, his team. Veazie o. Dwinel, 60 Maine, 367, 410, " When the Revolution took 493 ; Gerrish v. Brown, 51 Maine, 263 ; place, the people of each State became Canfield «. City of Erie, 1 Mich. (N.P.) themselves sovereign; and in that char- 106 ; s.c. 27 Mich. 479. " Whilst one is acter hold the absolute right to all their reasonably exercising his own right, by a navigable waters and the soils under temporary occupation of a particular part them for their own common use, subject of the street with his carriage or team, only to the rights since surrendered by another cannot occupy the same place at the Constitution to the general govern- the same time." Gary v. Daniels, 8 Met. ment." See also Pollard v. Hagan, 3 478, per Shaw C.J. The navigation of How. (U.S.) 212; Goodtitle v. Kibbe, 9 public rivers is governed by the same How. (U.S.) 471 ; Mayor &c. of Mobile principle that is applied to other common v. Eslava, 9 Porter, 601 ; Barney v. The highways. Sherlock «. Bainbridge, 41 City of Keokuk, Sup. Ct. U.S. Oct. T. Ind. 35. See this case for statement of 1876, 4 Centr. Law Journ. 491 ; City of points of similarity. See also State v. St. Louis v. The People &c., 5 Gilm. Thompson, 2 Strobh. (s.c.) 12.] 550-675; Hart o. Mayor of Albany, 9 1 [Stuart w. Clark, 2 Swan (Tenn.) 9.] Wend. 684; The People u. Canal Ap- 2 [In England, " where there is a com- praisers, 33 N.Y. 467.] mon right of navigation exercised," the » Sir Henry Constable's case, 6 Co. CHAP. XIII.] PUBLIC RIVERS. 703 the United States, in a case which . came up from the District Court of the eastern district of Louisiana, the question was pre- sented of admiralty jurisdiction, in the river Mississippi, which the Court considered was to be determined by the ebbing and flowing of the tide ; and in determining the question, the ordi- nary state of the water, uninfluenced by any extraordinary fresh- ets, was to be regarded.^ 107; [Commonwealth v. Eoxbury, 9 Gray, 526 ; Harg. Law Tracts ; De Jure Maris &c. Houck, in liis Treatise on Navigable Rivers, § 51, remarks, " The United States Supreme Court in the case of the Propeller Genesee Chief v. Fitz- hugh, 12 How. (U.S.) 443, repudiated the supposed Common-Law definition of a navigable river, and admiralty juris- diction was thus carried wherever ships float and cargoes are received and dis- charged, whether the tide ebbs and flows or not. This decision was afterwards affirmed in The Magnolia, 20 How. (U.S.) 296, and more recently in the case of The Steamboat A.D. Hine v. Trevor, 4 Wall. 655. Mr. Justice Miller says, that such jurisdiction is exclusive, and our great rivers are thus placed upon an equality with the ocean. It is remarkable to no- tice the gradual progress of the United States Supreme Court to this sound, reasonable, and broad principle. Under the influence of precedents and usage in the case of The Thomas Jeiferson, 10 Wheat. 428, and again in The Steamboat New Orleans v. Piioebus, 11 Peters, 175, the jurisdiction of courts of admiralty was declared to be limited by the tide ; but when the commerce of the rivers of the west, inferior only to that of the ocean, demonstrated the necessity of admu-alty jurisdiction, and the rule of the Common Law was investigated and properly under- stood, the Chief Justice could not help coming to the conclusion, that the de- scription of a public river was substituted in the place of the thing intended to be described." In the case of The Daniel Ball, 10 Wall. 557, it was maintained that the doctrine of the Common Law as to the navigability of waters has no applica- tion in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or indeed any test at all, of the navigability of waters. The test of a navigable river in this country is its navigable capacity. This is to be determined as a matter of fact. Those rivers are to be regarded as public navi- gable rivers in law, which are navigable in fact; and they are navigable in fact when they are 'used or are susceptible of being used in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contra- distinction from the navigable waters of the States, when they form, in their ordi- nary condition, by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary mode in which such commerce is conducted by water. See also. The Montello, 11 Wall. 411; Chicago V. McGinn, 51 111. 266, 272.] ' Peyroux v. Howard, 7 Peters, 324. [In McManus o. Carmichael, 3 Clarke (lowaj 1, it was held that the Mississippi is a navigable water, both by virtue of its actual size and use, and by force of public acts, laws, and declarations so re- garding it. Therefore a riparian owner has not such property in or possession of a sand-bar, below high-water mark, though within the medium JUum aquce as will en- able him to maintain trespass against one removing the sand. Barney v. The City of Keokuk, Sup. Ct. U.S. Oct. T., 1876, 4 Centr. Law Journ. 491. The owner of land on the bank of a tidal river has, by the English law, only a right of access to the river as one of her Majesty's subjects ; and has not the same easements or private rights as those of the owner of land on the bank of an inland stream. Lyon v. Fishmongers' Company, L.R. 10 Ch. Ap. 679. In Tomlin v. The Dubuque, Belle- 704 LAW OF WATERCOURSES. [chap. XIII. § 544. It was urged in Rex v. Smith,i that the river Thames, above London bridge, was not "navigable," although it was flowing and reflowing, inasmuch as the tide beyond that limit vue & Miss. R.E. Co., 32 Iowa, 109, 110, Day C.J. said, " The question is, can the plaintiff recover damages for being de- prived of access to a navigable river, by reason of the building of a railroad along its banks. " " The doctrine deducible from adj udged cases is, that by the rules of the Common Law the owner of land along the shore of a navigable river is entitled to no right, either in its shores or waters, as an incident to his ownership, except the contingent ones of alluvion and derelictum. Hence he is not entitled to damages, for an improvement made' along the banks of such river, by autliority of the State, the effect of which is to deprive him of free access to the stream. This question was directly passed upon, in the case of Gould v. Hudson River R.R. Co., 6 N.Y. 543, which was an action of tres- pass, to recover of the railroad company damages sustained by plaintiff in conse- quence of the construction of the railroad between his farm and the channel of the Hudson River, between high and low water mark. The Court of Appeals, af- firming the decision of the Supreme Court, held, ' that the owner of lands, adjoining a navigable river in which the tide ebbs and ilows, has no private right or property in the waters of the river, or in the shore between high and low water mark, and is therefore not entitled to compensation from a railroad company which constructs, in pursuance of a grant from the legislat- ure, a railroad along the shore, between high and low water mark, so as to cut off all communication between such land and the river otherwise than across the road.' And that 'wliatever rights the owner of the land, in such cases, has in the river, or in its shore below high-water mark, are public rights, which are under the control of the legislative power, and any loss sustained through the act of the legislature affecting them is damnum absque injuria.' " In the recent well- considered case of Stevens v. The Paterson & Newark Railroad Co., in the Court of Errors and Appeals of New Jersey, in which this question was involved, Beasley C.J., an- nouncing the opinion of the Court, after a full review of the subject, uses this lan- guage : " The result is that there is no legal obstacle to a grant, by the legislat- ure, to the defendants of that part of the property of the public, which lies in front of the land of the plaintiff, and which is below high-water mark. It may be true that by such appropriation the plaintiff will sustain a greater inconvenience than will other citizens whose land does not run along this river. But the injury to all is in its essence and character the same, the difference being only in degree. All persons who have occasion to approach this river over that part of the bank oc- cupied by the railroad of the defendants may perhaps experience some incon- venience from the interposition of such works ; the railroad, therefore, is some- what of an impediment to the public rights of fishery and navigation. But no one, it is presumed, will pretend that such impediment is on that account illegal, if authorized by the legislative authority. Nor can the plaintiff complain because a diificult access to the water is a greater hardship to him, owing to the easy use of the water in connection with his prop- erty in its natural condition, than it is to those who live at a distance from it." The whole judgment of the learned Chief Justice will amply repay a careful perusal. The case determines, that the State of New Jersey is the absolute owner of all navigable waters within the territorial limits of the State, and of the soil under such waters. The legislature may there- fore lawfully grant any portion of such soil, lying below high-water mark, to any person, without making compensation to the adjacent riparian proprietors. Stevens V. Patterson &c. R R. Co., 34 N.J. Law, 532; S.C., 20 N.J. Eq. 126; 10 Am. Law Reg. N.s. 165. See Hoboken Land and Improvement Co. «. Mayor &c. of Hobo- ken, 36 N.J. Law, 540 ; on the other hand 1 Rex V. Smith, 2 Doug. 441. CHAP. XIII.] PUBLIC RIVERS. 705 was occasioned by the pressure and accumulation backward of fresh water. But the distinction attempted was, by Lord Mans- in Yates v. Milwaukee, 10 Wall. 497, 504, Miller J., speaking with reference to lots of land bounded by a navigable rirer, said, " But whether the title of the owner of sueh a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream ; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the pro- tection of the rights of the public, what- ever those may be. This proposition has been decided by this Court in the cases of Dutton V. Strong, 1 Black, 25, and The Kailroad Company w. Schurmier, 7 Wall. 272. The Supreme Court of Wisconsin has gone further, and asserts the doctrine that the title of the owner of such a lot extends to the centre of the stream, sub- ject to the easement of the public in its use for navigation, and that he may con- struct docks or landing-places for goods or passengers, taking care that vessels employed in navigating the stream are not impeded in their passage, nor pre- vented from the use of all parts of the stream which are navigable. Walker v. Sliephardson, 4 Wis. 48(5. ■ This riparian right is property, and is valuable, and, though it must be enjoyed in due sub- jection to the rights of the public, it can- not be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be de- prived in accordance with established law, and if necessary that it be taken for the public good, upon due compensation." It was decided in Attorney-General v. Chambers, 4 Ue G. M. & G. 200, that, in the absence of all evidence of particular usage, the extent of the right of the crown to the sea-shore landwards is prima facie limited by the line of the medium high tide between the springs and the neaps. The seashore must be understood to be the margin of the sea, in its usual and ordinary state. Thus, when the tide is out, low-water mark is the margin of the sea ; and, when the sea is full, the margin is high-water mark. The shore is, there- fore, all the ground between the ordinary high-water mark and low-water mark. Parsons C.J., in Storer v. Freeman, 6 Mass. 439 ; Doane v. Willcutt, 5 Gray, 335; Cutts V. Hussey, 15 Maine, 238; Galveston v. Menard, 23 Texas, 349. Ordinary high-water mark seems to be the line of high-water at ordinary tides. Porter v. Sullivan, 7 Gray, 443; Com- monwealth V. Charlestown, 1 Pick. 182; Brown v. Lakeman, 17 Pick. 444 ; Com- monwealth V. Koxbury, 9 Gray, 477, 482, 483, 491, and note to that case ; Cortelyou V. Van Brandt, 2 John. 362; Galveston V. Menard, 23 Texas, 399 ; Howard v. IngersoU, 13 How. (U.S.) 321,323. 324; Teschemacher v. Thompson, 18 Cal. 11. Under the colonial ordinance of Massa- chusetts, 1647, the ebb of the tide, when from natural causes it ebbs the lowest, and not the average or common ebb, is to be taken as the low-water mark. Sparhawk . Philadelphia, 42 Penn. St. 2-30 ; Barclay Boad u. Ingham, 36 Penn. St. 200 ; People !j. Canal Commissioners, 33 N.Y. 461. See notes to post, § 546 ; Crill v. City of Rome, 47 How. (N.Y.) Pr. 398. The Tualitin Kiver and Mary's Kiver, in Ore- gon, are navigable streams. Weise u. Smith, 3 Oregon, 445 ; F«lger v. Pearson, 3 Oregon, 455. The Mississippi River is a navigable stream, and a riparian proprietor thereon owns the fee of the soil only to ordinary high-water mark. Tomlin y. Dubuque &c. R R. Co., 32 Iowa, 106. And although such propri- etor is the owner of a saw-mill on the river, he has no right, without legislative authority, to erect a solid pier of masonry within tlie navigable channel of the river in order to fasten thereto a boom for the protection of logs. Northwestern Union Packet Co. v. Atlee, 2 Dillon, 479. See Haiglit V. Keokuk, 4 Iowa, 199. In New Jersey, the right of the owners of lands bounded on a navigable river ex- tends only to the actual high-water mark, all below that belongs to the State. The owner's right, given by legislative au- thority, to acquire an exclusive property in the latter, by wharfing out or other- wise improving it, gives him no property in the laud while it remains under water. State V. Jersey City, 25 N.J. (Law) 625.] ' [In a late case in Indiana, it was held that the Ohio River being a great navigable highway between States, the public have all the rights that by law appertain to navigable streams, as against riparian owners. The title of the ripa- rian owner extends to low-water mark. Bainbridge v. Sherlock, 7 Am. Law Reg. N.s. 720 ; s.c. 29 Ind. 364 ; Sherlock v. Bainbridge, 41 Ind. 35 ; Stinson v. Butler, 4 Blackf.-285. In Pennsylvania, the same rule is held as to the title of the riparian proprietor. Flanagan v. Philadelphia, 42 Penn. St. 229; M'Keen i'. Delaware Division &c., 49 Penn. St. 440 ; Zug v. Commonwealth, 70 Penn. St. 138. So" in New York. People v. Canal Com- missioners, 33 N.Y. 461. In Bainbridge V. Sherlock, 29 Ind. 369; 7 Am. Law Reg. N.s. 720; Sherlock v. Bainbridge, 41 Ind. 35, it was held that riparian owners may extend wharves to and into the navigable portion of the river Ohio, provided they do not unnecessarily ob- struct navigation. The space between high and low water mark in such streams belongs to the owner of the upland, and may be built upon by him. Flanagan t. Philadelphia, 42 Penn. St. 229 ; Gough u. Bell, 2 Zabr. 441 ; Thurnian v. Morri- son, 14 B. Monr. 367 ; Clement o. Burns, 43 N.H. 609. O'Fallon v. Daggett, 4 Missou. 343 ; Rice v. Ruddiman, 10 Mich. 125; Whitaker u. Burhaus, 62 Barb. 237; Baltimore and Ohio 11. R. Co. u. Chase, 43 Md. 23, 34, 85; Dutton v. CHAP. XIII.] PUBLIC RIVERS. 709 rule remains unaltered in that State.^ The question was directly- passed upon in the Court of Chancery of New York, in Varick v. Smith,^ whether the complainant, in the character of riparian pro- prietor, was to be regarded as the owner of the bed of the river Oswego, to the middle of the stream, adjacent to his possessions described in the bill; and Williams V.C. considered it as settled in that State, that grants of land bounded on rivers above tide- water extend usque ad filum aquce, and if the stream is in point of fact navigable for boats or other craft, the public have the easement of a right of passage, and nothing more. Upon an appeal of this case, in 1842,^ it was, however, contended, that the decision of the Court of Errors, in the case of Canal Appraisers v. The People, on the relation of Tibbetts,* and certain remarks of the Chancellor himself, made in the course of his opinion in that case, and some few facts given in evidence by the defendants, threw a doubt upon the point. V.C. Gridley, in delivering his opinion upon making the decree appealed from, said it was true, that the counsel in the case just mentioned, contended that the Common-Law doctrine was not atall applicable in New York ; but, said he, " it would seem to be enough that the most strenuous advocates for the right of the State to the bed of navigable rivers — Senators Beardsley and Tracy — with this very evidence before them, took the precau- tion to repel, by unequivocal language, the application of the principle contended for in the case before cited, to any other river than that of the Mohawk; and expressly reserving their judgments as to all other cases." An opinion seems to have been entertained, that the various acts of the legislature in relation to the river Mohawk, were evidence, that the State was the owner Strong, 1 Black, 25 ; The Railroad Co. Valley K.B. Co. v. Trone, 28 Penn. St. V. Schurmier, 7 Wall. 272 ; Yates v. Mil- 206.] waukee, 10 Wall. 497 ; Stevens o. Pat- i See Palmer v. Mulligan, 3 Gaines, erson&o. R.R. Co., 34 N.J. (Law) 532. 307; Shaw u. Crawford, 1,0 John. 236; A Court of Equity will not interfere by People v. Piatt, 17 John. 15 ; Hooker v. injunction to prevent the erection of a Cummings, 20 John. 90 ; Jennings, ex wharf in tide-waters, unless it appears parte, 6 Cowen, 518 ; Canal Commission- that the plaintiff will be materially and ers v. The People, 5 Wend. 423 ; People sulistantially injured by such erection, v. Canal Appraisers, 13 Wend. 355; Thornton v. Grant, 10 R.I. 477. The [The People v. Canal Appraisers, 33 N.Y. ownership of the land adjoining a navi- 472.] gable river in Pennsylvania gives to the - Varick v. Smith, 5 Paige, 137. riparian owner title to a spring situated ^ g Paige, 547. between high and low water mark, sub- * Canal Appraisers v. The People ex ject only to the public easement. Lehigh rel. Tibbetts, 17 Wend. 674 (in 1836). 710 LAW OP WATERCOURSES. [chap. xiri. of the bed of that river. But all of doubt or uncertainty upon the subject in New York, if any remained, were removed by the decision in the Court of Errors in that State in the case of the Commissioners of the Canal Fund v. Kempshall,^ in which the judgment of the Supreme Court, in favor of the riparian owners, was unanimously afSrmed.^ § 547. This rule of the Common Law has also been recognized in the States of Massachusetts and New Hampshire, and has been applied by the Courts of both to the river Connecticut at a point far above that to which the water is propelled backwards by the 1 Commissioners of Canal Fund v. Ketnpshall, 26 Wend. 404. - [The People v. The Canal Apprais- ers, 33 N.Y. 472 ; Avery v. Fox, 1 Abb. U.S. 246. In Morgan v. King, 35 N.Y. 454, 458, Smith J. said, " By the Common Law of England, those rivers are navi- gable in which tlie tide flows and reflows ; all others are not navigable. Upon this distinction is based a very important rule relating to the ownership of the bed of the stream and the right of fishing in its waters, to wit, that navigable or tidal rivers, so far as the tide ebbs and flows in them, belong to the king ; and rivers not navigable, that is fresh-water rivers, belong to the owner of the adjacent soil. The distinction has no reference, how- ever, to the right to use the stream for the purpose of passage or transportation, the rule in that respect being that the public have not only a right to all tide- waters, but also a right of way or ease- ment paramount to the rights of the riparian owners, in all rivers which, though not tidal or navigable in the sense of the former rule, are navigable in fact. And, by the same law, a river is, in fact, navigable, on which boats, lighters, or rafts may b& floated to market." It is navigability in fact which forms the foun- dation for navigability in law, and from the fact follows the appropriation to public use, and hence its publicity and legal navigability. Per Woodward J., in McManus v. Carmichael, 8 Clarke (Iowa) 1. See Furman t. The City of New York, 5 Sandf. 83; The People v. The Canal Appraisers, 83 N.Y. 486. In Tom- lin V. The Dubuque, Bellevue, and Miss. R.R. Co., 32 Iowa, 106, Day C.J. said : " One of the Common-Law consequences of navigability, as fully shown by McMa- nus V. Carmichael, is that the riparian proprietor owns the fee of the soil to ordinary fiigh-water mark, and that the proprietorship of the bed of the stream, below ordinary high-water mark, is in the State for the use of the public." And in Musser w. Hershey, 42 Iowa, 361, Day J. said : " It is the settled doctrine in this State that a riparian proprietor upon a navigable stream owns only to ordinary high-water mark, that is, to the edge of the bank, and that the whole bed of the river is in the public." (Haightw. The City of Keokuk, 4 Iowa, 199 (212).) " The party, who entered the land in question from the general government, acquired proprietorship only to ordinary high-water mark, and of course could confer no greater rights upon his grantee. It is true such party would have the right to construct below high-water mark,- bridge-piers and landing-places, and to reclaim the soil, if he conformed to the regulations of the State and did not ob- struct the paramount right of navigation. Dutton V. Strong, 1 Black, 23; Kailroad Company v. Schurmier, 7 Wallace, 272; Lockwood ii. N.Y. & New Haven Rail- road, 37 Conn. 387; Yates v. Milwaukee, 10 Wallace, 497 ; Grant v. Davenport, 18 Iowa, 179. This right, however, does not exist in virtue of any proprietorship of the soil between high and low water mark. It is a mere franchise appurte- nant to the riparian proprietorship, and depends upon the ownership of the adja- cent soil. It is not the subject of sale independently of a, conveyance of the land to which it is appurtenant. Phillips V. Rhodes, 7 Met. 822."] CHAP. xm.J PUBLIC RIVERS. 711 ingress and force of water from the sea/' It has been recognized also as law in the States of Connecticut,^ Maine,^ Maryland,* Vir- ginia,^ Ohio,^ Indiana,' [and Vermont.^] In Illinois it is held, that the portion of the river Mississippi upon which that State is bounded, is not a" navigable "stream at Common Law, and that therefore, the riparian ownership extends to the middle of the stream.^ § 548. On the other hand the doctrine of the Common Law on this subject has been held to be inapplicable in Pennsylvania to the great rivers of that State, which are boatable far above tide- water, or where they are technically " navigable." ^^ It was settled in Carson v. Blazer, ^^ that such rivers are " navigable," although 1 Commonwealth v. Chapin, 5 Pick. 199 ; Scott V. Wilson, 3 N.H. 321 ; State V. Gilmanton, 9 N.H. 461 ; Gray v. Bart- lett, 20 Pick. 186. [See State v. Canter- bury, State V. Boscawen, 28 N.H. 195; Cobb V. Davenport, 32 N.J. (Law) 369; People V. Tibbetts, 19 N.Y. 523.] '■^ Adams v. Pease, 2 Conn. 48 ; Chap- man V. Kimball, 9 Conn. 38 ; East Haven V. Hemingway, 7 Conn. 186; Middle- town 0. Page, 8 Conn. 231 ; [HoUister v. Union Company, 9 Conn. 436. By the law of Connecticut, the right of a propri- etor bounding upon the sea, terminates at ordinary high-water mark, with certain privilege in the adjoining shore and waters. 1. That of access to the deep sea. 2. That of wharfing out, doing no injury thereby to free navigation. 3. The right by accretion to whatever lands are by natural or artificial means re- claimed from the sea. He has the right to sea-weed cast by extraordinary floods above ordinary high-water mark. But sea-weed cast and left upon the shore, that is between ordinary high and low- water mark, may lawfully be appropriated by the first occupant. Mather v. Chap- man, 40 Conn. 382. See Wheeler v. Spinola, 54 N.Y. 377.] 3 Berry v. Carle, 3 Greenl. 269; Spring V. Russell, 7 ib. 273; Spring v. Seavey, 8 ib. 138 ; Wadsworth v. Smith, 11 Maine, 278. < Brown v. Kennedy, 5 H. & John. 195. 5 Hays V. Bowman, 1 Band, 417 ; Mead u. Haynes, 3 ib. 33. 6 Gavitt V. Chambers, 3 Ohio, 495; Lamb v. Ricketts, 11 Ohio, 311 ; Walker 1). Board of Public Works, 16 Ohio, 540. [The Oliio is held to be a pubUc higliway in Indiana and Ohio. Gavitt v. Cham- bers, supra; Porter v. Allen, 8 Ind. 1. See La Plaisance Bay Harbor Co. v. Monroe, Walk. Ch. 155 ; Lorman v. Ben- son, 8 Mich. 18 ; Rice u. Ruddiman, 10 Mich, 141.] 7 Cox V. The State, 3 Blackf. (Ind.) 193. 8 [Newton v. Eddy, 23 Vt. 319.] 8 Middletown v. Pritchard, 3 Scamm. (III.) 500; [Jones v Soulard. 24 How. (U.S.) 41 ; Bailey v. Mittenberger, 31 Penn. St. 37. See The People v. City of St. Louis, 5 Oilman, 351 ; Seaman v. Smith, 24 111. 523 ; Morgan v. Reading, 3 Sm. & M. 404.] 1° [It .will appear, from the decisions in Pennsylvania, that the absolute title of the riparian proprietor on a navigable river extends to high-water mark only, and that between ordinary high and ordinary low-water mark, his title to the soil is qualified, it being subject to the public rights of navigation over it, and of improvement of the stream as a highway. He cannot occupy to the prejudice of navigation or cause obstructions to be placed upon the shore between these lines, without express authority of the State. Agnew J. in Wainwright «. Mc- CuUough, 63 Penn. St. 66, 74 ; Bailey v. Miltenberger, 31 Penn. St. 37 ; Poor v. McClure, 77 Penn. St. 214.] 11 Carson v. Blazer, 2 Binn. 475.j 712 LAW OP WATERCOURSES. [CHAP. XIII. there is no flow and re-flow of the tide, and that they belong to the State in the same manner and to the same extent, as an arm of the sea; and that, therefore, the riparian owners have not an exclusive right to fish therein immediately in front of their lands, but the right of fishery in them is open to all. " The qualities," said Mr. J. Yeates (in giving his opinion in this ably argued case), " of fresh or salt water cannot, amongst us, determine whether a river shall be deemed navigable or not ; neither can the flux or reflux of the tides ascertain its character. Pursuing such a rule would, in fact, in the first case, render the river Delaware ah unnavigable stream throughout the confines of the State ; and in the second, would confine itsnavigable quality to its several courses south from Trenton. To assert that in either in- stance the proprietors of lands on the margin of that river have the sole right of fishery to the middle of its bed, corresponding to their title in front of it, is, I presume, a doctrine which the warmest advo- catesfor the right of exclusive fisheries would scarcely contend for." The decision in this case was recognized and established, with much deliberation, in Shrunk v. The Schuylkill Navigation Company,^ in which Tighlman C.J., in giving the judgment of the Court, said, " Many of our rivers, such as the Mississippi, Ohio, Alleghany, and Susquehanna, are navigable,^ even in their natural state, by vessels of considerable burden, and whether if such rivers existed in England, the rule of the Common Law might not have been different, may certainly admit of a question." ^ § 549. Mr. J. McLean apprehended, that the Common-Law doctrine, as to the " navigableness " of streams, could have no ap- plication in this country, and that the fact of navigableness did, in no respect, depend on the flowing of the tide ;* and to that effect it has been held in South Carolina ^ and Tennessee.^ In Alabama every stream of water suited to the ordinary purposes of navigation, whether it ebbs and flows or not (where the govern- 1 Shrunk v. Schuylkill Nav. Co. 14 9 Watts, 228; Coovert v. O'Connor, 8 S. & Rawle, 71. Watts, 447. -' [And are all held to be public high- ■• Bowman v. Wathen, 2 McLean C.C. ways. Baker v. Lewis, 33 Penn. St. 301 ; 876 ; [Sponner v. McConnell, 1 McLean, Dalrymple v. Mead, 1 Grant's Cas. 197. 360.] Commonwealth v. Fisher, 1 Penn. 462; 5 Cates v. Waddington, 1 McCord Carson u. Blazer, 2 Binn. 475; Wain- (S.C.) 580. Wright u. MeCuUough, 63 Penn. St. 66, « Elder v. Burrus, 6 Humph. (Tenn.) 73.] 358. 3 See also Union Canal Co. v. Landis, CHAP. XIII.] PUBLIC RIVERS. 713 ment has not expressly granted any part of the bed thereof), is not only a public highway, but the owners of land bounded upon it can assert no private right of soil to the bed of the river. ^ It has been held by the Supreme Court of North Carolina, too, that what is a " navigable" river in that State does not depend upon the rule of the Common Law ; but that waters which are suffi- cient in fact, to afford a common passage for people in vessels, are to be taken as " navigable." ^ In commenting upon the inap- plicability of the Common Law on the subject, one of the judges, in one case, in that State, pronounced it, entirely inapplicable, and remarked, that by the rule of the Common Law, Albemarle and Pimlico Sounds, which are inland seas, would not be deemed " navigable" waters, and would be the subject of private property ; it makes no difference whether there is, or ever was, any tide in Albemarle Sound. ^ There is much force in the following reason- ing of Judge Turley, of Tennessee, upon this subject, in deliver- ing the opinion of the Supreme Court of that State : " All laws are, or ought to be, an adaptation of principles of action to the state and condition of a country, and to its moral and social position. There are many rules of action recognized in England as suitable, which it would be folly in the extreme, in countries differently located, to recognize as law ; and, in our opinion, this distinction between rivers ' navigable ' and not ' navigable,' causing it to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short courses of her rivers, and the well-known fact that there are none of them navigable above tide-water but for very smallcraft, well warrants the distinction there drawn by the Common Law. But very different is the situation of the continental powers of Europe in this particular. Their streams are many of them large and long, and navigable to a great extent above tide-water ; and accordingly we find tha;t the Civil Law which regulates' and governs those countries has adopted a very different rule." * 1 Bullock V. Wilson, 2 Port. (Ala.) 436. 2 Wilson v. Forbes, 2 Dev. (N.C.) 30 ; ["To make a stream navigable," said [Barclay Koad w. Ingham, 36 Penn. St. Goldthwaite J., in State of Alabama v. 201 ; Flanagan v. Philadelphia, 42 Penn. Bell, 5 Port. (Ala.) 379, " three circum- St. 229.] stances must concur; first, the stream ^ Collins v. Benbury, 3 Ired. (N.C.) must have sufficient width ; second, it 277 ; and see Ingraham u. Thrpadgill, 8 must have sufficient depth ; and third, Dev. (N.C.) 59. it must be free from insurmountable ob- ■• Elder v. Burrus, 6 Humph. (Tenn.) structions."] 866. [In Barney v. The City of Keokuk, 714 LAW OF WATERCOURSES. [chap. XIII. § 550. As above stated, the foregoing decisions conform to the Civil Law, by which all rivers in which the flow of water is peren- nial belong wholly to the public, and the public right extends to the use of the banks as well as to fishing.^ Navigable rivers, in the language of the Civil Law, are not merely rivers in which the tide flows and reflows, but rivers capable of being navigated, that is, navigable in the common sense of the term.^ In the words of the Digest, a navigable river is '■^.statio iturve navigio." In the code Napoleon, navigable rivers are spoken of as '■'■ flottahles" that is, rivers admittii;g floats.^ § 550 a. A collision took place in the river Mississippi, near the bay of Goulah, and there was much doubt in Waring v. Clarke,* whether the tide flowed so high, the evidence being con- flicting ; but the majority of the Court thought there was suffi- cient proof of tide there, and consequently it was not necessary to consider whether the admiralty power extended higher. But Sup. Ct. U.S. Oct. T. 1876, 4 Centr. Law Journ. 491, 494, Bradley J. said: "The confusion of navigable with tide water, found in the monuments of the Common Law, long prevailed in this country, not- withstanding the broad difEereiTces exist- ing between the extent and topography of the British Island, and that of the American continent. It had the influ- ence for two generations of excluding the admiralty jurisdiction from our great rivers and inland seas. And under the like influence it laid the foundation in many States of doctrines with regard to ownership of the soil in navigable waters above tide-water, at variance with sound principles of public policy. Whether, as a rule of property, it would now be safe to change these doctrines, where they have been applied, is for the several States thems.elves to determine. If they choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections. In our opinion of the subject, the correct principles were laid down in Martin v. Waddell, 16 Pet. 367 ; Pollard v. Hagan, 3 How. U.S. 212 ; and Goodtitle v. Kibbe, 9 How. U.S. 471. These cases related to tide-water, it is true ; but they enunciate principles which are equally applicable to all navi- gable waters. And since this Court, in the case of the Genesee Chief, 12 How. U.S. 443, has declared that the great lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense; entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters. It properly belongs to the States by their inherent sovereignty, and the United States has wisely ab- stained from extending (if they could extend) its survey and grants beyond the limits of high water. The cases in which this Court seemed to hold a con- trary view depended, as most cases must depend, on the local laws of the States in which the lands were situated."] 1 Dig. 43, 12, 13, 14; Inst. 212; 2 Doraat, Civ. Law, 882, b. 1, t. 8, s. 1, 2. 2 It is navigability in fact, that con- stitutes navigability in law. McManus u. Carmichael, 3 Iowa, 1-52; Woolrych on Waters, p. 40. ■< Dig. 43, 12, 13, 14, 15; Zouch, El. Jur. Descriptio Juris et Indicii Maritimi, part 1,8. 5 ; Code Napoleon, b. 2, t. 2, c. 2, art. 556, 560-563 ; B. 2, t. 1, c. 3 ; Ord. Louis. 14, s. 3, art. 5. < Waring u. Clarke, 5 How. (U.S.) 441. CHAP. XIII.] PUBLIC RIVERS. 715 this case shows the unreasonableness of giving a construction to the Constitution which would measure the jurisdiction of the admiralty by the tide. ^By an act of Congress passed the 26th of February, 1845,^ the admiralty jurisdiction is made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide. This act extended the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same, and it has been held to be consistent with the Constitution of the United States. The ground upon which the act rests is not the power granted to Congress to regulate commerce, but the lakes and navigable waters connect- ing them were within the scope of admiralty and maritime juris- diction as known and understood, in the United States, when the Constitution was adopted. The admiralty jurisdiction granted to the Federal Government by the Constitution is not limited to tide-waters, but extends to all the public navigable lakes and rivers where commerce is carried on between different States, or with a foreign nation.^ Over the commercial waters of a State, Congress can exercise no commercial power, except as it regards an intercourse with other States of the Union, or foreign coun- tries.^ 3. Public Right to the Banks of Public Rivers. § 551. By the Civil Law, which prevails in the greatest part of Europe and in Louisiana, the privilege of towing on the banks of navigable rivers is embraced in the public right of navigation.* In this respect it is at variance with the Common Law.^ Bracton, it is true, has adopted the doctrine, of the civilians, and his pas- sage — Riparum etiam usus publicus gentium sicut ipsius fluminis — is plainly taken from Justinian ; apd though the same doctrine is quoted by Callis in his work on Sewers, it is impeached by the otherwise unanimous current of authority. The little to be found in the books upon the subject, prior to the time of Lord Hale, he 1 5 Stat, at Large, 726. Roman Civil Law. [See Eeimold u. ? Case of the Propeller Genesee Chief, Moore, 2 Mich. N.P. 15.] 12 How. (U.S.) 443. * [See 3 Kent, 417; Bickel v. Polk, 5 8 Per McLean J., in the Passenger Harr. 325 ; Chambers v. Turry, 1 Yeates, Cases, 7 How. (U.S.) 283. 167; Bethune v. Turner, 1 Greenl. Ill ; 4 Just. Inst. L. 2. tit. 1, s. 4; Coop. Pearsall y. Post, 20 Wend. Ill ; 22 Wend. Just. Tit. I)e Usu et Proprietate Riparum. 425.] The Civil Code of Louisiana follows the 716 LAW OP WATERCOUESES. [CHAP. XIII. has collected, and, after commenting upon it, he very evidently con- cludes that no such right as the one in question existed, inasmuch as he says, that, where private interests are involved, they shall not be infringed without satisfaction being made to the party injured.! The doctrine, therefore, of the Civil Law on this sub- ject conflicts with the principle of the Common Law, and with one of the characteristics of the express written American Con- stitutional Law, that public convenience is to be viewed with a due regard to private property. The statute of 19 Hen. VII., c. 18, relative to the navigation of the river Severn, allows a towing path to the navigators upon making reasonable compen- sation for the inconvenience they may thereby receive ; and it thereby distinctly affords a negative to the idea of a Common- Law right without compensation. In a modern case, by an act of Parliament authorizing certain persons to make a certain part of the river Avon navigable, and to set out and appoint towing paths, it was required that satisfaction should first be given to the owners of the land, and commissioners were appointed to settle by inquisition what satisfaction every person having a particular estate or interest therein, should receive for his re- spective interest.^ But the question was brought directly before the King's Bench in Ball v. Herbert,^ whether, at Common Law, the public have the right of towing on navigable rivers ; and it was expressly decided, that they had not.* Lord C.J. Kenyon • De Jure Maris et Portibus. [Rafts- Ind. 389. Log-owners and river-drivers men on navigable streams have no right are liable to the riparian proprietor for to moor tlieir rafts in such a manner as damage occasioned by travelling upon to deprive wharf-owners of access to their the banks of the stream to propel their wharves. Harringtonu. Edwards, 17 Wis. logs. Hooper w. Hubon, 57 Maine, 273. 586, The defendant owning a vessel and Barrows J., in this case said, " The water a wharf upon a navigable stream, and nialces and defines the highway. The finding a raft of lumber belonging to the facilities for navigation, afTorded by it, plaintiff fastened in the stream so as to are privileges which, like those of air and obstruct the approach of his vessel to his light,. are too great to be suffered to be- wharf, untied the raft, doing no unneces- come the subjects of private property, sary damage ; and not being in charge of But the exercise of the common privilege any person, it floated away. It was held must not be made an occasion for en- that he was not liable for the loss of the croachment upon that which is legiti- lumber. Harrington v. Edwards, supra.] mately the exclusive property of another. 2 Bath River Niivigation Co. v. Willis, The right which the public enjoy in a 2 Cases relating to Railways and Canals, 7. navigable or floatable stream is, in gen- 8 Ball V. Herbert, 3 T.R. 253. eral, limited by its banks. The proper * [See Lorman v. Benson, 8 Mich. 18 ; definition of the word bank, in this con- Ensrainger v. People, 47111. 384; Chicago nection, is, 'a steep acclivity on the side V. Laflin, 49 111. 172 ; Talbott o. Grace, 30 of a lake, river, or the sea.' These banks CHAP. XIII.] PUBLIC RIVERS. 71T said he remembered when the case of Peirse v. Lord Fauconberg was sent to that Court from the Court of Chancery ; and it was then the current opinion in Westminster Hall, that the right of towing depended on usage, without which it could not exist. Some of the passages, he said, in Lord Hale, which seem to favor are the boundaries within which the ex- ercise of the common right must be con- fined." In Grand Rapids Booming Co. V. Jarvis, 30 Mich. 308, it was maintained by tlie Court, that persons exercising the public right of navigating a stream by running logs down it, or collecting, di- viding, and storing them, are bound to do it with due regard to the correspond- ing rights of riparian owners to the use of their lands ; and they can with no more propriety be allowed, for the sake of rendering the business of thus navi- gating the stream more safe, convenient, and profitable to them, to raise the water so as to flow the lands of such owners, than the latter can be allowed, for their convenience and profit, to erect or main- tain, in connection with their lands, dams or other obstructions to the navigation which the river in its natural condition may afford ; and damage thus caused to the lands of the riparian proprietors can- not be treated as damnum absque injuria. In this case the Court, referring to the river in controversy, said, " This river, so far as it is navigable for vessels, or floatable tor logs, is but a public highway by water; the right to navigate the one or float the other is but a right of passage, including only such rights as are incident to that right and necessary to render it reasonably available. And, though the drover has the right to drive his herds of cattle along a public road, no one will contend that he has a right to convert a certain length of the highway into a cattle- yard, and occupy it for that purpose for months or weeks, or even a day, while he is purchasing, collecting, and bringing in his droves, assorting, dividing, or selling them ; and much less will it be contended, however convenient it might be to the drover, or however necessary to render his business profitable to him, that he has the right, not only to appropriate the highway for tliis purpose, but to allow his cattle to spread themselves over the fields of adjoining owners, though the tendency of the cattle to do so, when col- lected in dense masses, might be about as natural and as strong as that of water set back by a jam of logs, to spread over the adjoining lands. Every man sees at once that, however convenient such a right might be to the drover, and however necessary to enable him to make his busi- ness profitable, it is a convenience and necessity for which he must pay, and that to allow llim, against the will of the owner, thus to appropriate the lands or their use, would be to deprive him of his property, or, which is essentially the same thing, the use and enjoyment of his property. Yet the invasion of private right by the taking or appropriation of the owner's land in this way would be no more clear or unjustifiable, — and the injury would be much less permanent, — than thus to allow him annually to overflow the own- er's land for weeks at a time, and to pre- vent the raising of crops, by means of booms, which operate as dams, erected, not for the purpose ot facililating the pas- sage of logs, but for stopping, collecting, assorting and holding or storing them, until the convenience or profit of their owners may call for their removal for the purpose, and in the progress of, manu- facture." " It is a transparent fallacy to say that this is not a taking of his prop- erty, because the land itself is not taken, and he utterly excluded from it, and be- cause the title, nominally, still remains in him, and he is merely deprived of its beneficial use, which is not the property, but simply an incident ot property. Such a proposition, though in some instances something very like it has been sanctioned by courts, cannot be rendered sound, nor even respectable, by the authority of great names. Of what does property practically consist, but of the incidents which the law has recognized as attached to the title, or right of property ? "] 718 LAW OP WATERCOURSES. [CHAP. XIII. the Common-Law right, are rather applicable to banks of the sea, and to ports. 1 § 552. The Supreme Court of Illinois, and that of Tennessee, have, however, decided, agreeably to the Civil Law, that the right of navigators was not limited to the bare privilege of floating upon the river Mississippi, but included the right to land, and fasten to the shore, as the exigencies of the navigation may require ; and that such was a burden upon the owner of the land, which he must bear as a part of the public easement.^ Such, doubtless, had become established usage in respect to the great river in question, and, if so, the decision is in accordance with the opinion of the Court in Ball v. Herbert. It was observed by Lord C.J. Kenyon, in that case, that " perhaps small evidence of usage be- fore a jury would establish a right by custom, on the ground of public convenience."^ § 553. In Mississippi, the banks of a river, which is a public highway, are private property, subject to the exclusive appro- priation of the owner, and are not subject to the use of the public, although the river itself may be a public highway.* The banks of navigable rivers, in Missouri, are public highways, and, though owned by private individuals, fishermen and navigators are entitled to a temporary use of them in landing, fastening, and repairing their vessels, and exposing their sales or merchandise ; yet this right has its reasonable qualifications and restrictions, and will not allow a navigator to land for an unreasonable length of time, and, under pretence of repairing, employ teams, &c., thereby unreasonably obstructing the owner's enjoyment of his property.^ 1 See this case cited and approved by ^ [gee Harrington «. Edwards, 17 Wis. the Judges in Blundell v. Caterall, 5 B. 586 ; post, § 553 a.] & Aid. 91. [See Brown v. Chadbourne, * Morgan v. Reading, 3 Sm. & M. 366. 31 Maine, 23-26; Treatw. Lord, 42 Maine, [See Brown v. Chadbourne, 31 Maine, 23 552, 563 ; Ledyard v. Ten Eycli, 36 Barb. -25 ; Magnolia v. Marshall, 39 Miss. 110- 102.] 136.] '^ Middletown u. Pritchard, 3 Scam. * O'Fallon v. Daggett, 4 Missou. 343. (111.) 520; Godfrey v. Alton, 12 111. 29; See Lewis v. Keeling, 1 Jones, 299. [The Alton V. Illinois Transp. Co., 12 111. 38; Missouri river is a navigable stream, and Corp. of Memphis v. Overton, 3 Yerg. hence, as in other cases of navigable (Tenn.) 390. That the right of the pub- rivers in that State, the proprietors of lie to tow vessels and boats upon the land on its banks own only to the water's banks of navigable rivers, may be ac- edge. Benson y. Morrow, 61 Missou. 345.] quired by usage, see Kinlock v. Nevile, 6 M. & W. 794. GHAP. XIII.] PDBLIC RIVERS. 719 [ § 553 a. In Maine, it is held that streams which are so small and shoal, that no logs can be driven in them without being pro- pelled by persons travelling on their banks, are not navigable in any sense to give the pnblic a right of way in them. But if a stream is, inherently and in its nature, capable of being used for the purposes of commerce, for the floating of vessels, boats, rafts, or logs, a public easement exists therein ; and the right of the public none the less attaches to such a stream, though it may be necessary for persons floating logs or boats therein sometimes to go upon its banks. 1 The stream, in order to have the character of a public highway, must, in and of itself, have a capacity for floating logs. " Such a stream," said May J., in Treat v. Lord,^ " as well as our larger rivers, will, as experience has universally shown, from its windings and the rush of its waters, especially in times of freshets, cast many of the logs which float upon its bosom, upon its shores, intervals, and banks, thereby rendering it necessary to go upon such uplands for the purpose of making a clear drive.^ To meet such necessity, it is provided by the Re- vised Statutes, c. 67, §§ 10 & 11, that all logs or other timber lodged upon any lands adjoining any of the waters within this State, shall, in certain contingencies, and upon certain conditions, be forfeited to the owner or occupier of such lands ; and that the owner of such timber may at any time before such forfeiture, enter on such lands and remove the same, tendering a reasonable compensation for all damages as the statute requires. While, therefore, it is true, that persons driving logs may go upon the banks of our public streams and rivers as necessity may require, it is also true, that a stream which is so small and shoal in its bed, that no logs can be driven in it without being propelled by persons travelling on its banks, is private property, and not subject to such public servitude as is cLiimed in the case."* In a recent case in Indiana,^ it was held that the public rights, in reference to the Ohio, are upon the river, and not upon the banks. The right to use the river as a highway does not imply the right to use the banks for the purposes of landing, to receive and dis- charge freight and passengers. The navigator has no legal right- 1 [Treat v. Lord, 42 Maine, 552.] * [See Brown o. Chadbourne, 81 2 [Treat v. Lord, 42 Maine, 563.] Maine, 9.] s [See Dalrymyle u. Mead, 1 Grant's * [Bainbridge v. Sherlock, 7 Am. Law Cas 197.] Eeg. n.s. 720; s.o. 29 Ind. 364; s.c. 41 Ind. 35.] 720 LAW OF WATERCOURSES. [chap. xm. to land, without consent of the riparian owner, at places other than those that have in some way become public landing-places, except in cases of peril or emergency.-'] 4. Obstructions to the Navigation of Public Rivers. § 554. All obstructions to the free use of such streams of water as are here under consideration, are prohibited by the law of the land, and belong to that class of offences against the public which are denominated "public nuisances."^ A sense of the 1 [Gregory C.J., in this case, said, " The Ohio Rirer is a great liighway, between States under national sanction, yet we suppose it would not be in conflict with the authority of the General Govern- ment, for this State, within her teri'itorial limits, to provide for and regulate by law public landing-places along its shore, for the benefit of trade and commerce, and, for this purpose to exercise the right of eminent domain." Bainbridge v. Sher- lock, ubi supra; s.c. 29 Ind. 364; s.o. 41 Ind. 35 ; Wetmore v. Atlantic &c. Co., 37 Barb. 70. As to the right to go upon the well-known landings &c. on a river, see Baker v. Lewis, 33 Penn. St. 301; Godfrey v. City of Alton, 12 111. 29 ; Lor- man v. Benson, 8 Mich. 33 ; Harrington V. Edwards, 17 Wis. 586. Where riparian proprietors have laid out and sold their land in lots, as delineated upon a plan having streets indicated thereon, termi- nating upon a navigable stream, such streets will be considered as dedicated to the use of purchasers of such lots and of the public, down to the water at all stages of the tide, unless there be some express reservation of the flats, although the lines upon such plan, indicating the boundary of the tier of lots nearest the river, be drawn at high-water mark. Stetson v. Bangor, 60 Maine, 313. But the owner of a ferry has no right to make the termi- nation of a public road, above high-water mark, the landing-place of his boat, when the fee of the land is not in tlie public, without having the land condemned to that use, and making compensation to the owner. Prosser v. Davis, 18 Iowa, 367.] ^ [Highways, whether by land or water, are designed for the accommo- dation of the public, for travel or trans- portation, and any unauthorized or unreasonable obstruction thereof is a public nuisance in the eye of the law. They cannot be made the receptacles of waste materials, filth, or trash, nor the depositories of material of any description, so as unreasonably to obstruct their use as highways. Davis v. Winslow, 61 Maine, 296 ; Veazie v. Dwinel, 50 Maine, 479, 490; Gerrish u. Brown, 51 Maine, 256. If the owners of a mill cast the slabs, edgings, and other waste of the mill into the river, to be floated away by the stream, and thereby the navigation of the river is obstructed, or the rights of private individuals are infringed upon, they will be liable to an action for the damage caused thereby. Gerrish o. Brown, supra; Veazie v. Dwinel, supra ; Washburn v. Gilman, 64 Maine, 163, 169 ; Simpson o. Seavey, 8 Maine, 138. See Dwinel v. Veazie, 44 Maine, 167 ; Has- kins 0. Haskins, 9 Gray, 390 ; ante, § 140 d. Nor would the practice of cast- ing waste .material into a stream, or the channel provided for rafting boards and running logs, however long it may be continued, give a, prescriptive right to continue the same if the stream or chan- nel is thereby obstructed. Veazie v. Dwinel, 50 Maine, 491, 492. All hin- drances or obstructions to navigation, without direct authority from the legislat- ure, are public nuisances. Knox u. Chaloner, 42 Maine, 150 ; Newark Plank Road Co. V. Elmer, 9 N.J. Eq. 754 ; South Carolina R.R. Co. , Robinson, 2 Doug, jectors who may be authorized to build 307. them, or it may lay down for itself, with " Williams v. Wilcox, 8 Ad. & EU. 314. regard to bridges belonging to the com- 3 [See State of Pennsylvania o. The monwealth, such a mode of construction Wheeling &c. Bridge Co., 13 How. (U.S.) as will sufficiently preserve for vessels 618; People v. Horton, 5 Hun (N.Y.) 516. the natural passage by the stream, at the The sovereign power of the State, that is same time that the public may be accom- to say, the legislature, alone, has the power modated by an artificial way across it. and is charged with the trust of deciding The right of passage upon bridges cross- whether the public good may be better ing streams is to be enjoyed in subor- served by causing bridges to be thrown dination to the general right of the over a navigable stream than by suffering appropriate public authorities to make the natural passage upon its channel to from time to time all such needful re- remain free. The legislature is the only pairs, alterations, and improvements as tribunal that is to reconcile these con- the public good may require. Ames J., flicting interests. It is under precisely in Middlesex Railroad Co. u. Wakefield, the same obligation to make suitable 103 Mass. 265, 266; Commonwealth v. provision to preserve the navigation of Esse.x Co., 13 Gray, 239. As to the the river, having in view the magnitude effect of the ordinance of 1787 upon the and comparative importance of that in- authority of States or individuals to con- terest, as it is to provide for the accom- struct bridges or place other obstructions modation of public travel by means of over or upon the rivers coming within its bridges. The bridges must necessarily purview, see Hogg v. The Zanesville be a great obstruction to navigation, and M. &. C. Co., 6 Ohio, 410 ; Spooner v. it is for the legislature, acting as the best McConnell, 1 McLean, 337-883 ; Cox good of the public on the whole may re- v. State, -3 Blackf . 193 ; Palmer v. quire, to prescribe as a condition to pro- Cuyahoga Co., 8 McLean, 226 ; Williams CHAP. XIII.] PUBLIC EIVERS. 723 Maris, notices the several nuisances which may be committed to ports as follows : tilting or choking up the port by sinking ves- sels, throwing out filth or trash ; decays of wharves, piers, or quays ; leaving anchors without buoys ; building new wears or enhancing old ; the straitening of the port by building too far into the water; impeding the mooring of ships in the ground adjacent, if it has been anciently used without paying any thing for it ; the towing or hauling of vessels up or down a river or creek, to or from a port town ; and the suffering a port or public passage to be filled or stopped, is a nuisance in those who are bound to repair it.^ § 556. To construct and moor a floating storehouse or vessel, for the receiving and delivering of goods and merchandise in any public river, or any port or harbor, or in the basins, or in the docks, thereof, is such permanent appropriation, and exclusive occupation of a public river, and such an obstruction thereof to its free and common use, as to be indictable as a public nuisance.^ Under an act of the legislature, giving an individual and his assigns the right of erecting and maintaining a dam upon navi- gable waters, if the dam is so constructed as to impede the navi- gation beyond what the act authorized ; it will be held, that this renders it pro iawto a nuisance.^ [This principle applies also to rivers which are not navigable in the strict sense of the word as used in the Common Law — to streams capable in their natural state of floating boats and logs.* ] And no amount of collateral u. Beardsley, 2 Carter (Ind.)59; Works such improTements were authorized. V. The Junction R.E. Co., 5 McLean, Williams v. Beardsley, and other cases 425 ; Columbus Ins. Co. «. Cftrtenius, 6 above cited.] McLean, 209 ; Columbus Ins. Co. v. i Russell on Crimes, 485. See also Peoria Bridge Co., 6 McLean, 70 ; U. Brucklesbank v. Smith, 2 Burr. 656. States V. The R.E. Bridge Co., 6 M*cLean, 2 Hart v. City of Albany, 9 Wend. 521. 617 ; Illinois River Packet Co. v. Peoria ' Renwick v. Morris, 3 Hill, 621 ; Bridge Association, 38 111. 467-482; Hogg v. Zanesville Canal Co., Wright Woodman v. Kilbourn Manuf. Co., 6 Am. (Ohio) 180 ; [Knox v. Chaloner, 42 Maine, Law Reg. n.s. 244, 245; Gilman v. 160.] Philadelphia, 3 Wallace, 713-744. It < [Knox o. Chaloner, 42 Maine, 160. was not the intention of that ordinance. In this case Appleton J. said, " The pub- in declaring the navigable streams of the lie right of passage is not aflFected nor North-western Territory public highways, intended to be affected by the statute in to prohibit the making of such improve- relation to mills. The right of passage mentB as might be demanded by the still remains to the public, for which the public interests or convenience of the mill-owner must make suitable provision people of the States through which they at his peril, or pay, upon suit, the dam- flow, though some inconvenience might ages arising from his omission." pp. 156, arise to those who were in the habit of 157. See Amoskeag Manuf. Co. u. using them in a particv^r manner, before Goodale, 46 N.H. 53, 56.] 724 LAW OP WATERCOURSES. [CHAP. XITI. benefit, resulting from any manner of obstruction to the local community, can divest it of such character ; an abridgment of the right of navigation can only be justified when the erection is productive of a greater public benefit.^ [The Common Law allows the owner of the soil over which a floatable, but innavi- gable, stream flows, to build a dam across it and erect a mill thereon, provided he constructs a convenient and suitable passage- way for the public, by or through his dam.^ In the case cited, Dickerson J. said, "We find the public right of way over the stream, and the land-owner's right of soil under it, and his right to use its flow. The rights of both these parties are necessary for the purposes of commerce, agriculture, and manufactures. The products of the forest would be of little value if the riparian proprietors have no right to raise the water by dams and erect mills for the manufacture of these products into lumber. The right to use the water of such streams for milling purposes, is as neces- sary as the right of transportation. Each right is the handmaid of civilization ; and neither can be exercised without in some de- gree, impairing the other." ^ The owner of a mill upon a navi- gable or floatable stream is bound to exercise his rights in such manner as not to interfere unreasonably with the rights of the public in the use of the stream ; and he will be liable to an action by any citizen whose reasonable use of such stream, to float logs to market, he prevented.*] § 557. In Rex v. Russell,^ a point somewhat novel was pre- sented. It was the trial of an indictment for a nuisance by erecting staiths in a river, and the jury were directed to acquit the defendants if they thought that the abridgment of the right of passage, occasioned by such erections, was for a public pur- pose, and produced a public benefit, and if the erections were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river ; and the Judge pointed out to the jury, that, by means of the staiths, coals were supplied at a cheaper rate, and in better condition, than they otherwise could 1 Gould u. Carter, 9 Humph. (Tenn.) 9; Knox v. Chaloner, 42 Maine, 157; 369 ; Eex o. Russell, 6 B. & C. 566 ; Veazie v. Dwinel, 50 Maine, 487 ; DaTls Commonwealth f. Bilderback, 2 Pars. v. Winslow, 51 Maine, 289.] (Penn.) 447. i [Parks o. Morse, 52 Maine, 260; 2 [Lancey v. Clifford, 54 Maine, 487. Veazie v. Dwinel, 50 Maine, 479.] See ante, § 481, note, § 640.] 5 Eex v. Russell, 6 B. & C. 656. 8 [Brown v. Chadbourne, 31 Maine, CHAP. XIII.] PUBLIC RIVERS. 725 be, which was a public benefit. It was held by Mr. J. Bailey and Mr J. Holroyd, that the above direction to the jury was proper ; but the Chief-Justice (Lord Tenterden) dissented ; he being of opinion, that the price and condition of coals were points not properly to be taken into consideration in the question raised by the indictment ; and that the question properly to have be6n taken was, whether the navigation and passage of vessels on a navigable river were injured by the erections in question. ^ § 558. The public right of navigation seems to have ever been regarded as paramount to the right of fishery.^ That is, should an individual, in the exercise of the exclusive piscatory right, — which he has by virtue of riparian ownership, or which he has by a special grant in those waters, the right to the soil of which is primd facie in the government, — set a seine therein, he can have no redress if he is disturbed by the passage of water-craft. To determine, in such an event, which right should yield to the other, it is only necessary to consider the nature of the two rights, and it will appear obvious at once, that the right of navigation necessarily supposes a free passage, and from its nature excludes every interruption of it. This has been moreover so expressly decided in a case in the State of New Jersey. M. owned a fishery on the Passaic River, and while his net was out in the river. P., who was the owner of a vessel, was navigating it, and in so doi^g he ran through and injured the net, so as to deprive M. of the use of it. The decision was, that the right of fishing must yield to the right of navigation, where the two rights come in conflict, and that where one right only can be enjoyed, that of navigation 1 [Hex V. GrosTenor, 2 Stark, 511 ; Ee- Florida, 325. A wire cable laid across gina V. Russell, 6 A. & E. 143, 3 El. & Bl. the Wallamet river, as a guy on which to 942; Kegina v. Randall, 1 Carr. & M. run a ferryboat, is not an unlawful 496; Regina v. Betts, 16 Q.B. 1022. obstruction to navigation, unless it act- Obstructions in navigable rivers made nally prevents or renders hazardous the in aid of commerce, which do not mate- navigation of the river by others. The rially injure free navigation, have been "Vancouver, 2 Sawyer, 381. Wliere the held not to be nuisances. Delaware and mere presence in a ship canal of a float- Hudson Canal Co. v. Lawrence, 2 Hun ing elevator is not of itself an obstruction (N.Y.) 163. Tims, the erection of a to navigation, but it only becomes such wharf in tide-waters is not a nuisance when used in a particular manner, a if the navigation is not injured by it. Court of Equity will not direct the re- Thornton V. Grant, 10 R.I. 477 ; Com- moval of the elevator, but simply forbid monwealth v. Wright, 3 Am. Jur. 185 ; its use in such unlawful manner. People East Haven v. Hemenway, 7 Conn. 186; v. Horton, 5 Hun (N.Y.) 516.] Wetmore v. Atlantic "White Lead Co., ^ [Ante, § 65, note, § 537, note, § 554, 37 Barb. 70, 96; Geiger o. Filor, 8 note.] 726 LAW OF -WATERCOURSES. [CHAP. XIII. must be the one. At the same time, it does not swallow up and obliterate the right of fishery ; and where both rights can at the same time be enjoyed freely and fairly, that of navigation has no authority to trespass upon and incommode the other. The right of navigation, though superior, does not take away the right of fishery, but onlj limits it ; and limits it only so far as it inter- feres with its own fair, useful, and legitimate exercise. If the master of a vessel, under the pretence of exercising his right, should wantonly turn out of his regular course to run upon a net, or lie in wait till the net be spread, and then crowd sail to reach it ; or if he should, unnecessarily and wantonly, anchor on fishing ground ; in these, and in like cases, he is answerable in damages. 1 § 559. In an' action for disturbing plaintiff's fishery in the river Tweed, it was proved that the defendant's vessel was moored against a rock on the bank of the river, where she delivered her cargo ; and that the plaintiff was prevented, by the situation of the vessel, from taking as many fish as he would have otherwise done. It further appeared, that vessels frequently lie there ; and that there were mooring rings upon the rock, to one of which was fastened the defendant's vessel. The opinion by Wood B. was, " All persons have a right to come there in ships, and to unload, moor, and stay as long as they please. Nevertheless, if they abuse that right, so as to work a private injury, they are liable to an action. The question will therefore be, whether the defendant has abused his right. The privilege of the plaintiff must be subservient to the right of the public. It would be of mischievous consequence, if the owner of a fishery could prescribe how and where they are to moor in a navigable river. The only case I remember like this, is where a man obstinately refused to move his ship from opposite a wharf, although it would have been just the same if he had moved a little one way or the other ; and therefore he abused his right, and the plaintiff recovered. The defendant had a right to moor and remain where his ship lay, as long as convenience required. Yet if he acted wantonly and maliciously, for the purpose of injuring the fishery, the plain- tiff is entitled to a verdict ; but not otherwise." ^ § 560. Where the plaintiff stated in his declaration his posses- 1 Post u. Munn, 1 South, (N.J.) 61. 2 Anonymous, Durham Assizes, 1 Camp. 616, note. CHAP. XIII.] PUBLIC RIVERS. ' 727 sion of a fishery in a public navigable river, and of oysters and oyster brood lying in the bed of the river, and charged that the defendant, by negligent navigation of his vessel, at times of the tide unseasonable, placed her so that she struck against, and set- tled upon, the bed of the river, and destroyed large quantities of oysters and oyster brood ; it was held, that a tidal navigable river is a highway at all times and states of the tide, and is not suspended during such periods of the tide as leave the channel too shallow to float vessels ; and that any grantee of the crown of the soil, in such river, must take it subject to such right.^ § 561. Free and unobstructed navigation of streams naturally navigable, being a primary object, the legislature of a State may promote it by artificial means, and render the water more useful to the public for the purposes of transportation, though the priv- ilege of fishing of tjie riparian owners may be thus impaired.^ [And it was held in Moor v. Veazie,^ that the State, having the right to make improvements in. its navigable rivers, for the more safe, convenient, and useful enjoyment of the common right of navigating them, may encourage new modes of navigation, and for that purpose may grant an exclusive use (for a ferm of years) of the waters in the new mode, as a compensation for the skill, expense, and risk required for its introduction. This it may do without an infringement upon, or a diminution of, the common right of navigation existing at the time.*] 5. Remedies in Cases of such Obstructions. § 562. The aiithors of all obstructions to the free navigation of public rivers are of course liable, at Common Law, as the ^ Mayor &c. of Colchester v. Brooke, of the provisions of the Constitution 9 Jur. 1090 ; 7 Ad. & El. 339. of Maine, or of that of the United 2 Hart V. Hill, 1 Whart. 136. States. Moor v. Veazie, 32 Maine, 343; 3 [Moor V. Veazie, 32 Maine, 343.] s.c. 31 Maine, 36. Shepley C.J. said, * [An act of the legislature of Maine " The right of the State to impair and granted to certain individuals the sole diminish the common right of passage right of navigating the Penobscot Eiver and of transportation, in the accustomed above Oldtown by steamboats, for twenty manner, for the purpose of increasing years, upon condition (1) that the navi- the facilities for its more safe, convenient, gation of said river in certain specified and useful exercise in ' another manner, parts should be improved j (2) that a has been asserted and exercised in most steamboat should be built and run over of the States; and, in many of them, the route; (3) that a canal or railroad with the sanction of their highest judicial should be built around Piscataquis Falls tribunals." 82 Maine, 358, 359. See within seven years ; and it was held per Appleton J., in Knox v. Chaloner, 42 'that the act was not repugnant to any Maine, 156, 157]. 728 LAW OF WATBECOURSES. [CHAP. XIII. authors of public nuisances, to indictment ; ^ and if such obstruc- tions are licensed by the legislature, or permitted by statute, it is incumbent on the defendant, in an indictment against him, to bring his case within the act of the legislature, as an exception.^ Certain persons, who were incorporated as a company, were authorized by the legislature to erect a dam across a river which was a public highway, in a certain manner, and within prescribed limits. They proceeded to erect the dam at or near the place, and an indictment at Common Law was found against them for thus causing a nuisance. It was held, that judgment must be arrested, if the indictment contained no averment that the dam was beyond the limits prescribed in the charter, and does not, in any way, allege that the dam was not erected in pursuance of the authority given bj' the charter. The indictment was not for the violation of any statute, but for a nuisance upon a river which was a public highway. The statute modified the Common Law, and, so long as it should be in force, suspended the privi- leges previously enjoyed, which were inconsistent therewith; and the Common Law, so far as the modification in question extended, no longer existed.^ § 563. It is well known that public nuisances, of every de- scription, are subject to be abated; the remedy by abatement being in all respects concurrent with that by indictment.* In Arundel v. McCulloch,^ the question was, whether the doings of the defendant, in cutting down and removing a bridge over a public river, erected without authority from government, were justifiable ; and the Court declared it to be clear, that when any public way is unlawfully obstructed, any individual, who has occasion to use it in a lawful way, may remove the obstruction ; ® and they considered it settled, that he may even enter upon the land of the party erecting or continuing the obstruction, for the purpose of removing it, doing as little damage as possible to 1 Russell on Crimes, 274 ; Rex u. "Wood. & M. 407 ; Cobb v. Smith 16 Wis Ward, 4 Ad. & El. 384 ; Gates o. Blen- 661.] coe, 2 Dana (Ken.) 158. 4 Coates v. New York, 7 Cowen, 558 ; 2 Commonwealth ;;. Church, 1 Penn. Mills u. Hall, 9 Wend. 315 ; Renwick v. St. 384. Morris, 3 Hill, 621 ; [Knox v. Chaloner! 8 The State v. Godfrey, 24 Maine, 232. 42 Maine, 150.] See also Rex u. Mayor &c. of Liverpool, 6 Arnndel v. McCulIooh, 10 Mass. 70. 3 East, 86. [A State may authorize ob- 6 [Harrington v. Edwards, 17 Wi.s. struetions in its navigable waters. Flana- 586; State v. Parrott, 71 N.C. 311 • gan V. Philadelphia, 42 Penn. St. 231 ; Beach v. Schoff, 28 Penn. St. 195 ; King United States v. New Bedford Bridge, 1 v. Sanders, 2 Brevard, 111.] CHAP. XIII,] PUBLIC EITERS. 729 the soil. As nothing more was done, than was necessary to pro- cure a safe passage for the defendant's vessel, the Court were satisfied that no trespass was committed by him. Yet an indi- vidual cannot abate a public nuisance, if he is no otherwise injured than as one of the public ; ^ though the corporation of a city, whose duty it is to prevent obstructions in a navigable river, will be considered a party aggrieved, and may by its own act, without indictment, abate them as nuisances.^ As lapse of time will not bar a prosecution for a public nuisance,^ and as the rem- edy by abatement is concurrent with that by indictment, although a public nuisance may have existed a very long time (more than twenty years), the remedy by abatement wiU not be barred.* § 564. The Common-Law remedies for a public nuisance will not be affected by a statute imposing a penalty for the offence, unless an intent is evinced to exclude these remedies ; ^ for, as a general rule, the simple addition of a penalty by statute for an offence at Common Law, is merely cumulative, and in the absence of a plain meaning to the contrary, such statute detracts nothing from the ordinary remedies at law.^ But the remedy by abatement cannot be applied to the erection of a dam which ob- structs navigation, if an appropriate mode of redress is provided by the legislative act which authorizes it. By an act of the legis- lature of Pennsylvania, the erection of a dam was permitted, and the use of the water granted on the condition that there should be no interference with the navigation and passage of fish. It was by an excess beyond the limit prescribed, the pourt held, that the act was violated, and the appropriate redress for such mischief, was not utterly to demolish and destroy the dam, but to remove that excess, and adapt the erection to the design of the law. This was provided for by the requisition of the act of the previous inspection of three commissioners ; and by the direction of it, that, in case of conviction, the supervisors of highways should remove the grievance, by making the dam conform to the 1 Mayor &c. of Colchester v. Brooke, Maine, 293 ; Gerrish v. Brown, 51 Maine, 7 Ad. & El. N.8. 339 ; [Brown v. Perkins, 256.J 12 Gray, 89, 101, 102.] « Russell on Crimes (Am. ed.), 274; 2 Hart V. Mayor of Albany, in error, Renwick v. Morris, ubi sup. ; Miles v. 9 Wend. 571. Hall, ubi sup. 3 [Ante, § 264 ; Knox v. Chaloner, 42 ' Dwarris on Stat. 678, 679 ; Renwick Maine, 150, 156 ; Commonwealth v. Up- «. Morris, 7 Hill, 575. ton, 6 Gray, 476, 477 ; People v. Cunning- « Ibid. ; Commonwealth v. Ruggles, ham, 1 Denlo,-536; Davis v. Winslow, 51 10 Mass. 391. 730 LAW OP WATERCOURSES. [pffAP. XIII. object of the act, at the cost of the owner. ^ One whose ark is obstructed by a dam in Penn's Creek, in Pennsylvania, cannot use the Common-Law remedy of abatement, but must resort to that provided by the statute.^ § 565. But, notwithstanding the above ordinary remedies for public nuisances, by indictment and by the act of the party aggrieved, it is now well settled, that a Court of Equity may take jurisdiction of them, hy an information filed by the Attorney- General. And the interposition of that court in such cases, though rare, is said to be by no means a modern branch of equi- table jurisdiction.^ The doctrine has been recognized by the Supreme Court of Massachusetts, that where it is obviously nec- essary that a nuisance should be immediately suppressed, as in the ease of a powder-house, or a slaughter-house, or a chemical laboratory, equity will interfere until the slower process by in- dictment can be put in motion.* § 566. But the very fact, that there have been doubts on the subject of equitable jurisdiction in cases of public nuisances, should be sufficient to induce caution on the part of a Court of Equity ; and in eases of public nuisance, there is an undisputed jurisdiction in the Common-Law Courts by indictment ; and a Court of Equity ought not to interfere in a case of misdemeanor, 1 Criswell !). Clugh, 3 Watts, 330. ney-General v. Cleaver, 18 Ves. 211. 2 Spigelmoyer v. Walter, 3 Watts & Chancellor Kent, in 2 John. Ch. 382, re- S. 540. And see Brown v. Common- marks, that the equity jurisdiction, in wealth, 3 S. & Kawle, 273. > cases of public nuisance, in the only cases 3 Eden on Injunct., 262, who refers in which it had been exercised, that is, in to an information filed by the Attorney- cases of encroachment on the king's soil, General in the reign of Elizabeth. It is had lain dormant for a century and a half; now settled, that a Court of Equity may that is, from Charles I. down to the year take jurisdiction in cases of public nui- 1795. But the jurisdiction has been finally sance by an information filed by the At- sustained, upon the principle, that equity torney-General ; though the jurisdiction can give more adequate and complete seems to have been acted on with great relief than can be obtained at law. caution and hesitancy. Thus it is said. Whilst, therefore, it is admitted by all, by Lord Eldon, that instances of the in- that it is confessedly one of delicacy, and terposition of a Court of Equity, in Eng- accordingly, the instances of its exercise land, upon the subject of public nui- are rare, yet it may be exercised in those sauces, are confined and rare, and none cases in which there is imminent danger is to be collected from what has been of irreparable mischief before the tardi- done in the Court of Exchequer upon ness of the law could reach it. George- discussion of the right of the Attorney- town v. Alexandria Canal Co., 12 Pet. General, by some species of information, 91. to seek on the equitable side of that court * Rowe v. Granite Bridge Corp., 21 relief as to nuisance, and, if those terms Pick. 344 ; [Haskell v. New Bedford, 108 may be used, preventive relief. Attor- Mass. 216", and cases cited.] CHAP. XIII.] PUBLIC RIVERS. 731 when the object sought can be as well attained in the ordinary tribunals. A bill or information was filed in the Court of Chan- cery of New Jersey, by the Attorney-General, in the name of the State, charging the defendants with being in the act of erecting a bridge over the Passaic River, which is a navigable stream, in such a way as to interfere materially with the navigation ; and it called upon the court, on the ground that the bridge would be a serious detriment to the community and a publi^ nuisance, to interfere and prevent the further erection of the same ; and also to order the same to be abated. By the erection of the bridge, the information charged, great mischief and irreparable injury would ensue to the public. The application for an injunction was, however, denied, on the ground that a Court of Equity ought not to interfere in a case of misdemeanor, when the object sought can be as well obtained in the ordinary tribunals ; and in this case, the proper course was by indictment at Common Law.^ Still, in all cases of public nuisances requiring immediate sup- pression, the equity side of the Courts of Common Law in the United States have jurisdiction.^ § 567. If an individual receives special damage from a public nuisance, it renders it, as regards him, a private nuisance, he having suffered to that extent beyond the rest of the community ; and it has therefore been long well established, that he may maintain an action on the case as if it were a private nuisance, for such particular dama^e.^ In an action on the case for a nuisance, the declaration alleged, in substance, that the defend- ants wrongfully placed beams and spars in a certain navigable river, whereby the access from the river to the plaintiff's public house was obstructed, and " divers persons, who would other- 1 Attorney-General v. New Jersey K.R. part. If a person may by the exercise of &.Transp. Co., 2 Green (N.J.) Ch. 136. ordinary prudence avoid a personal injury ^ Georgetown v. Alexandria Canal Co., arising from a public nuisance, and' does 12 Pet. 91. not exercise such prudence, he cannot 3 Cary v. Brooks, 1 Hill (S.C.) 365; recover damages for the injury arising Brown v. Scofleld, 8 Barb. 239 ; [Veazie from it. Irwin v. Sprigg, 2 Bland, 2. If, V. Dwiuel, 50 Maine, 490; Powers v. for example, a person knows that there is Irish, 23 Mich. 429 ; City of Phila- an obstruction in a street and he attempts delphia v. Collins, 68 Penn. St. 107; to pass the place, when, in consequence Clark V. Peckham, 10 E.I. 35 ; Low v. of the darkness of the night, or of a rise Knowlton, 26 Maine, 128 ; Hall v. Kit- of water over the street, he cannot see the son, 4 Chand. (Wis.) 20.] But it seems obstruction, he has no reason to complain that it does not follow, that, because a of the injury he may sustain on the occa- person receives a special damage from a sion ; he takes the risk upon himself, public nuisance, he can maintain a suit President &c. v. Dusouchett, 2 Cart, for the same, if there be negligence on his (Ind.) 586. 732 LAW OP WATERCOURSES. [chap. XIII. wise have come to the plaintiff's house and taken refreshments there, were hindered and prevented from so doing." It was held, that the declaration did not state a public nuisance, and that, even if it had done so, the plaintiff would have a right of action for the particular injury to himself ; and that the general alle- gation of particular damage to himself was sufficient, and with- out alleging the loss of any particular customers.^ The erection 1 Rose V. Grovlfe, 3Dowl. Pr. Gas. n.s. 61. [The owner of a wharf upon a tide- water creek cannot maintain an action for an illegal obstruction to the creek, this being a common damage to all who use it; but for an obstruction adjoining the wharf which prevents vessels from lying at it in the accustomed manner, this being a particular damage, he can maintain an action. Brayton v. Fall River, 113 Mass. 218. In this case Mor- ton J. said : " An individual cannot main- tain a private action for a public nuisance by reason of any injury which he suffers in common with the public. The only remedy is by indictment or other public prosecution. But if, by reason of a pub- lic nuisance, an individual sustains pecu- liar injury, differing in kind, and not merely in degree or extent, from that which the general public sustains from the same cause, he may recover damages in a private suit for such particular in- jury." The tendency of the decisions in Massachusetts " has been to restrict the right to bring a private suit within nar- rower limits than seem to have been adopted in some of the English cases." The learned judge having stated several of the decisions in Massachusetts added : " In this case the evidence tended to show that the effect of the sewers had been to fill up the creek, directly in front of, and adjoining the plaintiff's wharf, so that his vessels which he was accustomed to employ to bring grain to his wharf and elevator could not lie at the wharf on account of the diminished depth of water. We are of opinion that this was an injury, special and peculiar to him, for which he may maintain his action. He has a right to the water at his wharf at its natural depth. By the filling up of the creek his use of his wharf for the purposes for which it had been constructed and actu- ally used, was impaired, and he was subject to an inconvenience and injury which was not common to the public." s.c. 113 Mass. 227, 228. See Blood v. Nashua & Lowell R.R. Co., 2 Gray, 137; Brightman o. Fairhaven, 7 Gray, 271 ; Willard v. Cambridge, 3 Allen, 574 ; Fall River Iron Works Co. v. Old Colony & Fall River R.R. Co., 5 Allen, 221; Brewer v. Boston, Clinton, & Fitehburg R.R. Co., 113 Mass. 52, 68; Harvard College V. Stearns, 15 Gray, 1 ; Haskell V. New Bedford, 108 Mass. 216 ; Brown u. Gugy, 10 Jur. u.s. 525; 2 Moore P.C. N.s. 341 ; Duke of Buccleugh v. Metropol- itan Board of Works, L.R. 5 H.L. 418; Metropolitan Board of Works v. McCar- thy, L.R. 7 H.L. 243 ; Chamberlain v. The West End of London &c. Railway Co., 2 B. & S. 605-617 ; Beckett v. The Mid- land Railway Co., L.R. 3 C.P. 82; Ricket V. The Metropolitan Railway Co., L.R. 2 H.L. 175 ; Thornton v. Grant, 10 R.I. 487, 488. In Lyons v. Fishmongers' Company, 1 App. Cas, 662, 671, 672, it was held that the right to the exclusive access to par- ticular land on the bank of a tidal river is a private right to the enjoyment of the land, the invasion of which may form the ground for an action for damages, or for an injunction. It is not necessary that the access should be entirely de- stroyed. This right of access is not held by the owner of the particular land in common with the rest of the public, for other members of the public have no ac- cess to or from the river at the particular place ; and it becomes a form of enjoy- ment of the land, and of the river in con- nection with the land, the disturbance of which is actionable. This right of access to or from a tidal river was treated in the above case, as depending on the same principle with the right of access which a man has from a public highway to his house adjoining. Lord Selborne said : " The cases as to the alterations of the CHAP. XIII.] PUBLIC RIVERS. 733 of a dam in navigable tide-water, under an act of the Pennsyl- vania legislature (of 23d March, 1803), which causes the forma- tion of an obstruction in the water below, subjects him who erected or maintains it to any damage, in an action on the case, which such obstruction may occasion to any navigator.^ The £!ourt, in a case in Maryland, left it for the jury to decide whether, by the obstruction of an embankment in the river Patapsco, the plaintiff had sustained special damage.'^ An action on the case will lie by the owner of salt meadow on a navigable stream, for obstructing by a dam the natural ebb of the tide, and thereby injuring the grass on such meadow.^ Where the legis- lature of Massachusetts authorized a corporation to build a mill- dam across a navigable river, of a given height, and to keep up the same head of water throughout the year, but provided no remedy for any person whose lands should be thereby injuri- ously flowed, it was held that the remedy must be by an action level of public highways, by which houses immediately adjoiuing have been de- prived of their access to and from the highway, seem to be authorities a fortiori on this point, because they had not the element of a right jure naturce," See Moore v. The Great Southern & Western Railway Company, 10 Ir. CiL. Rep. (N.S.) 46; Hickok v. Hine, 23 Ohio St. 523 ; Potter J. in Clark v. Peckham, 10 R.I. 38. It is a doctrine recognized by a great number of cases, that while the shore itself, and the space between high and low water mark, is public for passage, the littoral owner has a right of access to the great highway of nations, of which he cannot be deprived ; Clement v. Bums, 43 N.H. 609, 617, 619; Roman ». Watlien, 2 McLean, 376 ; Blanchard v. Collins, U Ohio, 138; Crawford v. Dela- ware, 7 Ohio St. 459 ; Martin v. Waddell, 16 Pet. 367 ; Clark u. Peckham, 10 R.I. 35, 38 ; and this littoral right of access is valuable, is property, and can only be taken on compensation being made. Yates V. Milwaukee, 10 Wallace, 497, 504. So far as concerns the front of his land, the littoral owner has the undoubted right of access to it ; and no one could do any thing in front of his land to make it less accessible, without rendering himself liable for damages. Richardson v. Bos- ton, 24 How. (U.S.) 188; Harrison v. Sterrett, 4 H. & McHen, 540. But wher- ever the tide-water flows, and so long as it flows, it is a portion of the great highway. So long as the dock is not filled by the owner of the bank, it is subject to the jus publicum of bsing used for passage by the whole public. Even if the littoral owner fills out his whole front, so long as the adjoining owner does not wharf out, he has the right of access to the sides of his wharf ; he has indeed no exclusive right to tlie use of the water opposite the adjoining land ; he has it in common with the world ; and to him it is of especial value as giving him additional facility of access to his wharf. Potter J. in Clark v. Peckham, 10 R.I. 38. But a right given by the legislature to the owner of the shore on navigable water, to build a wharf in front of his land, does not, by implication, carry witli it a right to have, as against the adjoining proprietors, the water-space kept open so that vessels can be moved along the sides of such wharf. Keyport Steamboat Co. v. Farmers' Transporta- tion Co., 3 C. E. Green, 611.] 1 Bacon v. Arthur, 4 Watts, 437. 2 Harrison v. Sterrett, 4 H. & McHen. 540. ' Turner v. Blodget, 5 Met. 540, note. 734 LAW OF WATERCOURSES. [CHAP. XIII. at Common Law, and not by a process under the statute respect- ing mills.^ § 568. If a dam is built on a navigable river, in conformity with the provisions of law, and the shute has been rendered in- navigable by flood or accident, the owner of the dam would not be liable for damage occasioned thereby, before he had time to repair it ; nor, in ■• an action for a private nuisance, would he be liable for an erroneoiis opinion as to the safety of running through the shute in its damaged condition.^ § 569. In an action on the case for obstructing a public river to the plaintiff's injury, the declaration averred, that on, &c., at the county of M. (in which the suit was brought), the defend- ant built a dam across the east fork of White River, in said county, the said river being then and there navigable. It was held, that, after verdict, the declaration could not be objected to, for not stating more explicitly, that the river was a public highway.^ § 670. An action on the case for a nuisance created by a dam in a river which is a public highway, is local, and cannot be sus- tained elsewhere than in the county where the dam is erected ; unless in the case where the dam erected in one county injures land which is situated in another; for then the action may be maintained in either county.* § 671. It being well established, that a Court of Equity may interpose by the preventive remedy by injunction, in cases of alleged apprehended and irreparable mischief from private nui- sances, and as public nuisances become private as regards an in- dividual reasonably apprehending therefrom a particular injury to himself, he may file a bill in equity in respect of a public nuisance, under such circumstances.^ 1 Cogswell V. Essex Mill Corp. 6 Pick. C.J., in Kowe v. Granite Bridge Corp., 21 94; [Bryant v. Glidden, 36 Maine, 86 | Pick. 844; [Hickok v. Hine, 23 Oliio St. Strout V. Millbridge Co., 46 Maine, 77 ; 623.] Though the grant of a right to Cobb V. Smith, 16 Wis. 661. The mill erect wharves, and employ steamboats, act of Massachusetts does not apply to if destructive of the paramount rights of tide mills. Murdock v. Stickney, 8 Cush. general navigation and fishing, may be 118.] void; the remedy is not by injunction, ^ Eoush V. Walter, 10 Watts, 86. which is only applicable to special injuries 3 Tyrrell v. Lockhart, 3 Blackf. (Ind.) in violation of private rights. Delaware 136. and Maryland Railroad Co. v. Stump, 8 < Oliphant v. Smith, 3 Peun. 180 ; and Gill & J. 479. See as to remedies in see ante, 427-433. equity for private nuisances, ante, § 444 ' See opinion of the Court, by Shaw et eeq. CHAP. XIII.J PUBLIC EITEES. 735 § 572. But the principle undoubtedly is, that in case of a pub- lic nuisance, where a bill is filed by a private person, asking for relief by way of prevention, the plaintiff cannot stand in a Court of Equity unless he avers and proves some special injury.^ In an attempt to restrain the obstructing of a street, by the filing of a bill for an injunction, which averred that the defendant was building a house upon the street to the injury of the plaintiffs as owners of the lots on and adjoining the street, the injunction was granted, Chancellor Kent saying, that there was a special griev- ance to the plaintiffs, affecting the enjoyment of their property and the value of it ; that the obstruction was not only a common or public nuisance, but worked a special injury to the plaintiffs.^ It was held by the same Court in 1834, that, where lands are dedicated to the use of the inhabitants of a city or incorporated village, for a public square, a bill may be filed not only in the name of the corporation, to restrain the erection of a nuisance thereon, but the grantee of a lot adjoining such square may file a bill to restrain the grantor from violating a covenant that it shall be kept open for the benefit of his lot ; and he may join with the corporation in the suit.* In such cases it is not necessary that the Attorney-General should be a party, although the nuisance is one which subjects the author of it to indictment.* Thus in Sampson v. Smith,® the Vice-Chancellor said, " Here the plaintiff represents that something has been done which is highly injurious to himself, and also to certain other individuals ; which averment it was not necessary for him to make. In a case so constituted, I do not see, if the Attorney-General were a party, that I could make a decree which would bind the question between the de- fendant and the public ; and, unless having the Attorney a party, would enable me to make a decree which would bind the public, through the Attorney-General, it appears to me that it is not necessary to make him a party." 1 Crowder v. Tinkler, 19 Ves. 616 ; ^ Trustees of Watertown u. Cowen, 4 Georgetown v. Alexandria Canal Co., Paige, 610. ubi sup. ; Mohavylt Bridge Co. v. Utica * Spencer v. Birmingham and London and Schenectady Railroad Co., 6 Paige, Railway Co., 1 Cases relating to Railways 554. and Canals, 169; Georgetown w. Alexan- 2 Corning v. Lowerre, 2 John. Ch. dria Canal Co., 12 Pet. 91. 439. 5 Sampson v. Smith, 8 Sim. Ch. 272. APPENDIX. 47 APPENDIX. ACTS FOR THE ENCOURAGEMENT OF THE ERECTION AND SUPPORT OF MILLS. ACT OF MASSACHUSETTS. ERECTION AND KEGULATION OF MILLS. (Genl. Stats, c. 149.) Section 1. Any person may erect and maintain a water-mill, and a dam to raise water for working it, upon and across any stream not navigable, upon the terms and conditions, and subject to the I'egulations, hereinafter expressed. Sect. 2. No such dam shall be erected, to the injury of any mill law- folly existing, either above or below it, on the same stream, nor to the injury of any mill-site on the same stream, on which a mill or mill-dam has been lawfully erected and used, unless the right to maintain a mill on such last-mentioned site has been lost or defeated, by abandonment or otherwise ; nor shall any mill-dam be hereafter erected or raised to the injury of any such mill-site which has been occupied as such by the owner thereof; pro- vided, that such owner within a reasonable time after commencing such occupation completes and puts in operation a mill for the working of which the water of such stream shall be applied ; nor shall any mill or dam be placed on the land of any person, without such grant, conveyance, or au- thority from the owner, as would be necessary by the Common Law, if no provision relating to mills had been made by statute. Sect. 3. The height to which the water may be raised, and the length of time, or period, for which it may be kept up in each year, shall be liable to be restricted and regulated by the verdict of a jury. Sect. 4. A person, whose land is overflowed, or otherwise injured by such dam, may obtain compensation therefor, upon his complaint before the Superior Court for the county where the land or any part thereof lies ; provided that no compensation shall be awarded for damage sustained more than three years before the institution of the complaint. 740 APPENDIX, Sect. 5. The complaint shall contain such description of the land, alleged to be flowed or injured, and such statement of the damage, that the record of the case will show, with sufficient certainty, the matter heard and de- termined therein. Sect. 6. The complaint may be filed in the Court in term time, or in the clerk's ofiice in vacation, and in either case notice thereof shall be given to the owner or occupant of the mill, by delivering to him, or leaving at his dwelling-hoftse, an attested copy of the complaint, or if he is not found within the State, and has no dwelling-house therein, by leaving such copy at the mill in question, fourteen days at least before the complaint is to be heard ; or the complainant may, fourteen days at least before the sitting of the Court to which his complaint is brought, cause the owner or occupant of such mill or dam to be served with an attested copy of the complaint, by delivering or leaving such copy, in like manner as when the complaint is filed as aforesaid. Sect. 7. The notice shall be served by any oflScer authorized to serve any other civil process between the same parties. Sect. 8. The respondent may answer in bar that the complainant has no estate or interest in the land alleged to be flowed or injured, or that the respondent has a right to maintain his dam, for an agreed price, or without any compensation, or any other matter which may show that the complain- ant cannot maintain the suit ; but he shall not answer, that the land de- scribed is not injured by the dam. Sect. 9. If any plea or answer is filed by the respondent, the replica- tion and other pleadings, and the trial of the issue, whether of law or of fact, shall be conducted in like manner as in actions at the Common Law. Sect. 10. If an issue is decided in favor of the respondent, or if the complainant becomes nonsuit or discontinues, the respondent shall be enti- tled to his costs, to be taxed as in civil actions. Sect. 11. If the owner or occupant of the mill or dam, after due notice, is defaulted, or offers no legal objection, or an issue is decided in favor of the complainant, the Court shall issue a warrant for a jury to hear and de- termine the matter of the complaint. Sect. 12. Either party may appeal, as in other civil actions; but if the judgment of the Supreme Judicial Court is in favor of the complainant, the cause shall be remitted, and the Court shall proceed therein in like manner as if the judgment had been rendered in that Court. Sect. 13. The warrant shall be directed and served, and the jurors shall be drawn, summoned, and returned, in the manner provided in chapter forty-three with respect to a jury returned on the complaint of a person aggrieved by the laying out of a highway, and the jurors shall be required to attend, under a like penalty. Sect. 14. All the proceedings for supplying a deficiency of jurors, and ACT OF MASSACHUSETTS. 741 all other proceedings in the case shall be substantially the same as are pro- vided in said chapter forty-three. Sect. 15. If the parties so agree by writing filed in the case, the trial may be in the Court before a jury as in other civil actions, and in such case, if either party requires it, the jury shall view the premises alleged to be injured, subject to such regulations and terms as the Court may prescribe. Sect. 16. The jury, in estimating the damage to the land of the com- plainant, shall take into consideration any damage occasioned to his otlier land by the dam, as well as the damage occasioned to the land overflowed ; and they shall also allow, by way of set-off, any benefit occasioned by such dam to the complainant, in relation to his lands. Sect. 17. If the jury find by their verdict that the complainant is not entitled to recover any damages, and it is allowed and recorded, judgment shall be rendered for the respondent. Secx. 18. If they find that the complainant is entitled to recover dam- ages, they shall assess the amount of damages sustained within three years next preceding the institution of the complaint, and to the time of render- ing the verdict ; and if the verdict is allowed and recorded, the complainant shall have judgment and execution. Sect. 19. If it is alleged in the complaint, that the dam is raised to an unreasonable height, or that it ought not to be kept up and closed during the whole year, the jury shall decide how much, if any, the dam shall be lowered, and also whether it shall be left open any part of the year, and if any, what part, and shall state such decision as a part of their verdict. Sect. 20. They shall also ascertain and determine, by their verdict, what sum, if any, to be paid annually to the complainant, would be a just and reasonable comp^salion for ihe damages that may be thereafter occa- sioned by (he dam, so long as it is used in conformity with the verdict; and also what sura in gross would be a just and reasonable compensation for all damages thereafter occasioned by such use* of the dam, and for the right of maintaining and using the same for ever in manner aforesaid. Sect. 21. The complainant in such case, at any time within three mouths after the verdict is allowed and recorded, may elect to lake the sum so awarded in gross for the right to maintain and use the dam for ever, in- stead of receiving the annual compensation therefor ; and if he makes such election, he shall within said three months cause the same to be entered on the record of the case in the clerk's office. Sect. 22. The owner or occupant of the mill or dam shall within three months after such election is thus entered, pay to the complainant, or secure to his satisfaction, said sum with interest from the time of the verdict. After the expiration of said three months, such owner or occupant shall lose all benefit of the provisions contained in this chapter, until pay- ment of said damages and interest. 742 APPENDIX. Sect. 23. If the complainant does not, within said three months, cause such entry of his election to be made on the record, he and all persons claiming under him shall be entitled to demand and receive, from whoever shall be the owner or occupant of the mill, the annual compensation so established by the jury, so long as the dam is kept up and maintained ; un- less the sum is increased or diminished upon a new complaint as herein- after provided. Sect. 24. The person entitled to receive said annual compensation or gross damages shall have a lien therefor, from the time of the institu- tion of the original complaint, on the mill and mill-dam with their appur- tenances, and the land under and adjoining the same and used therewith ; provided, that such lien shall not extend to any sum due more than three years before the commencement of an action therefor. Sect. 25. Such person may maintain an action of contract therefor in the Superior Court, against the person who owns or occupies the mill when the action is brought ; and shall therein recover the whole sum .due and unpaid for the three years then last past, whoever has owned or occupied the mill during that time ; and he shall be entitled to full costs, although the sum recovered does not amount to twenty dollars. Sect, 26. The execution issued on such judgment may, at any time within thirty days after judgment, be levied on the premises so subject to the lien ; and the officer may thereupon proceed to sell the same, or so much thereof as is necessary to satisfy the execution and all charges of levying it ; and he shall proceed in making such sale in like manner, in all respects, as is provided with regard to the sale on execution of a right to redeem real estate mortgaged. Sect. 27. Such sale shall be valid and effectual against all persons claiming the premises by any title that has accrued \)|ithin the time covered by the lien. Sect. 28. Any person entitled to the premises so sold, may redeem the same at any time within one year after the sale, upon paying to the pur- chaser or the person holding under him, the sum paid therefor, with inter- est at the rate of twelve per cent a year. Sect. 29. The provisions of this chapter shall not affect the right to keep up, maintain, and use any water-mill and mill-dam now lawfully exist- ing, except as is herein expressly provided ; but when the owner or occu- pant of a mill or dam makes any material change by raising the dam, or altering the machinery, or the manner of using the water, so as to cause additional damage to the land of another, it shall be considered as a new mill or dam, in respect to such additional damage, and the remedy and proceedings to recover compensation therefor shall be substantially such as are provided in this chapter respecting a new dam. Sect. 30. The Court to which a verdict is returned, may set it aside ACT OF MASSACHUSETTS. 743 for any sufficient cause, and grant a new trial to be had upon a new war- rant or otherwise as the case may require. Sect. 31. No action shall be sustained at Common Law, for the recov- ery of damages for the erecting, maintaining, or using any mill or mill-dam, except as is provided in this chapter. Sect. 32. The party prevailing in any suit under this chapter shall be entitled to his full costs, unless where it is otherwise expressly provided. Sect. 33. The Court shall award a reasonable compensation to the per- son who presides at the trial, and to the officer who executes the warrant ; which with the pay of the jurors and other like charges shall be advanced by the complainant, and taxed and allowed in the bill of costs. Sect. 34. When either party is dissatisfied with the annual compensa- tion established by a jury, either under the provisions of this chapter or of the laws heretofore in force, a new complaint may be brought for the increase or diminution thereof or for ascertaining the gross amount of the damages ; and all the proceedings shall be conducted substantially in the manner before provided in the case of an original complaint; provided, that, when a complainant has declined to accept gross damages awarded him, no jury shall again determine the amount of gross damages until the expiration of ten years thereafter. Sect. 35. Such new complaint may be maintained by and against either of the parties to the original suit, or by and against any person lawfully holding under either of them. Sect. 36. No such new complaint shall be brought until the expiration of one month after the payment of the then last year has fallen due ; and either party may within the said month make an offer or tender to the other as hereinafter provided. Sect. 37. The owner of the mill or dam may within said month oifer in writing to the owner of the land any increase of said annual compensa- tion ; and if the owner of the land does not agree to accept the same, but brings a new complaint, to obtain an increase thereof, he shall pay the costs unless he obtains a verdict for a greater annual compensation than was so offered to him. Sect. 38. The owner of the land may within said month offer in writ- ing to the owner of the mill or dam, to accept any smaller sum than that established as said annual compensation ; and if the owner of the mill or dam does not agree to pay such reduced compensation, but brings a new complaint to obtain a diminution thereof, he shall pay the costs, unless the annual compensation is reduced by the vei'dict to a sum less than that so offered to him'. Sect. 39. Such offer may be made by or to the respective tenants or occupants of the land, and of the mill or dam, in like manner and with like effect as if made by or to the respective owners, except that no agree- 744 APPENDIX. ment founded thereon shall bind said owners unless made with their consent. Sect. 40. If the offer so made by either party is agreed to and accepted by the other, it shall establish the annual compensation to be thereafter paid, in like manner as if it had been established by a verdict and judg- ment upon a new complaint ; provided, that a memorandum of such offer and acceptance, and of the agreement, is made and signed by the respec- tive parties, or by persons duly authorized by them, and filed and recorded in the clerk's office of the Court in which the former judgment was ren- dered, with a note of reference on the record of the former judgment to the book where the agreement is recorded. Sect. 41. If, upon a complaint by the owner of the land, the jury de- cide that he is not entitled to any annual compensation, the judgment thereon shall be no bar to a new complaint for damages, alleged to have arisen after the former verdict, and for compensation for damages there- after sustained. Sect. 42. In every original complaint brought by the owner of land alleged to be injured by a mill-dam, the respondent may bring into Court and there tender any sum that he deems proper to be paid to the complain- ant for the damages incurred up to the time of such tender, and may also offer to pay any certain annual compensation for the damage that may be thereafter occasioned by the dam in question ; and if the complainant does not accept the same, with his costs up to that time, but proceeds in the suit to recover greater damages or compensation, he shall, unless he recovers greater damages or greater annual compensation than was so offered, be entitled to his costs up to the time of the tender, and the respondent shall be entitled to recover his costs afterwards. Sect. 43. If the complainant in the case mentioned in the preceding section, consents to accept the amount so offered for the past damage and future annual compensation, he shall have judgment accordingly, and also for his costs up to that time, and the judgment shall have the same effect as if it had been rendered upon the verdict of a jury ; or the complainant may accept either the sum tendered for past damages, or the offer for future annual compensation, and proceed to trial on the residue of the complaint under the same liability for costs. Sect. 44. Two or more persons suffering damage from a mill-dam, whether jointly or separately interested in the lands injured, may join in a complaint under this chapter ; and their cases may be heard before the same jury, which may assess joint or several damages, as the interest and title of the complainants may require; and judgment and execution for costs and damages shall be had in conformity thereto. Sect. 45. The provisions of chapter one hundred and twenty-nine in respect to pleas in abatement, shall be applicable to complaints under this ACT OP MASSACHUSETTS. 745 chapter ; and when new defendants are summoned in pursuance of said provisions, the plaintiff may have a verdict against such of the defendants as he proves to be liable, although he fails as to the rest. Sect. 46. No complaint for flowing shall be abated by reason of the death of any party, but the same may be prosecuted or defended by the surviving complainants or respondents, or the executors or administrators of the deceased ; and if any such complaint is abated or otherwise defeated for any matter of form, or if after verdict for the complainant the judg- ment is reversed for error, upon a certiorari or otherwise, the complainant, or any person claiming from, by, or under him, may bring a new complaint, for the same cause, at any time witHiu one year after the abatement or other determination of the original complaint, or after the reversal of the judgment, and may, upon the new complaint, recover all damages sustained during the three years before the institution of the first complaint, or at any time afterwards. [ There are further provisions in the same chapter respecting the " Reg- ulation of dams," " Repairing and rebuilding mills," and " Duties and com- pensation of millers," which there is no occasion to insert here. J AN ACT IN ADDITION TO THE ACTS FOR THE ERECTION AND REGULA- TION OP MILLS. (Act of Mass. 1873, c. 144, as amended by Act 1876, c. 117.) Sect. 1. Whenever any person owning, erecting, or maintaining a water- mill, or a dam to raise water for working such mill, up<5n or across any stream not navigable, under chapter one hundred and forty-nine of the General Statutes, desires to raise, erect, or maintain a dam, at such a height, or in such a manner as to overflow or otherwise to injure an existing public way, he may apply by petition to the county commissioners of the county in which such way is located, setting forth the height at which it is desired to maintain such dam, and the ways which it is expected may be injured thereby, and asking for the alteration, change of grade, or specific repairs of such ways. Said commissioners, after a hearing upon any such petition, may order such alteration, repairs, or change of grade of such ways, as will, in their judgment, enable the petitioner to raise, erect, and maintain such dam without overflowing or otherwise injuring such ways. and they may give, written direction and authority to such petitioner to make, at his own expense, such alterations, changes of grade, and repairs, within a reasonable time. They shall record all such orders, and cause ' certified copies of the same to be filed and' recorded in the oSice of the town clerk of each town in which such alterations, changes of grade, or repairs are oi dered. 746 APPENDIX. Sbct. 2, after providing for notice to parties interested, proceeds : " The conamissioners shall assess and order to be paid by the petitioner all damages sustained by any person or corporation [or town or city] by rea- son of the alterations, changes of grade, or repairs ordered by them, and any person or corporation [ or town or city J aggrieved by such assessment, may, on application within one year from the entry of such order, have the damages assessed by a jury, in the manner provided by law for the assessment of damages occasioned by the laying out or discontinuance of highways.'' ACT OF MAINE. 747 ACT OF MAINE. KELATING TO MILLS AND MILL-DAMS. (Rev. Stat. 1867, c. 92.) Section 1. Any man may erect and maintain a water-mill and dams to raise water for working it, on his own laud upon and across any stream, not navigable ; or for the purpose of propelling mills or machinery, may cut a canal and erect walls and embankments upon his own land, not ex- ceeding one mile in length, and thereby divert from its natural channel the water of any stream not navigable, upon the terms and conditions, and sub- ject to the regulations, hereinafter expressed. Sect. 2. No such dam shall be erected, or canal constructed, to the in- jury of any mill or canal lawfully existing on the same stream ; nor to the injury of any mill-site on which a mill or mill-dam has been lawfully erected and used, unless the right to maintain a mill thereon has been lost or defeated. Sect. .3. The height to which the water may be raised, and the length of time during which it may be kept up in each year, and quantity of water that may be diverted by such canal, shall be liable to be restricted and reg- ulated, by the verdict of a jury, oi* report of commissioners, as hereinafter is provided. Sect. 4. Any person whose lands are damaged by being flowed by a mill-dam, or by the diversion of the water by such canal, may obtain com- pensation for the injury, by complaint to the Supreme Judicial Court, in the county where the lands or any part thereof are ; but no compensation shall be awarded for damages sustained more than three years before the institution of the complaint. Sect. 5. The complaint shall contain such a description of the land flowed or injured, and such a statement of the damage, that the record of the case shall show the matter heard and determined in the suit. Sect. 6. The complaint may be presented to the Court in term time, or be filed in the clerk's office in vacation ; and a copy shall be served by the proper officer, fourteen days before the term day, on the respondent, by being, left at his dwelling-house, if he has any in the State, otherwise it shall be left at the mill in question, or with its occupant. Sect. 7. The owner or occupant of such mill or canal may plead in bar that the complainant has no right, title, or estate in the lands alleged 748 APPENDIX. to be injured ; or that he has a right to maintain such dam, and flow the lands, or divert the water for an agreed price, or without any compensa- tion ; or any other matter which may show that the complainant cannot maintain the suit; but he shall not plead in bar of the complaint, that the land described therein is not injured by such dam or canal. Sect. 8. When any such plea is filed, and an issue in fact or in law is joined, it shall be decided as similar issues are decided in cases at Com- mon Law ; and if judgment is for tlie respondent, he shall recover his costs. Sect. 9. If the issue is decided in favor of the complainant, or if the respondent is defaulted, or does not plead or show any legal objection to proceeding, the Court shall appoint three or more disinterested commis- sioners of the same county, who shall go upon and examine the premises, and mai^e a true and faithful appraisement, under oath, of the yearly dam- ages, if any, done to the complainant by the flowing of his lands or the diversion of the water described in the complaint, and determine how far the same is necessary, and ascertain and make report what portion of the year such, lands ought not to be flowed, or water diverted, or what quantity of water shall be diverted. Sect. 10. If either party requests that a jury may be impanelled to try the cause at the bar of the Court, the report of the commissioners shall, under the direction of the Court be given in evidence to the jury ; but evidence shall not be admitted to contradict it, unless misconduct, partiality, or unfaithfulness on the part of some commissioner is shown. Sect. 11. If neither party requests a trial by jury, the report of the commissioners may be accepted by the Court and judgment rendered thereon. Sect. 12. The verdict of the jury, or the report of the commissioners so accepted, shall be a bar to any action brought for such damages ; and the owner, or occupant shall not flow the lands nor divert the water during any portion of the period when prohibited, nor divert the water beyond the quantity allowed by the commissioners or jury. Sect. 1;1 Such verdict or accepted report of the commissioners, and judgment thereon, shall be the measure of the yearly damages, until the owner or occupant of the lands or the owner or occupant of the mill or canal, on a new complaint to the Court, and by proceedings as in the former case, obtains an increase or decrease of such damages. Sect. 1 4. When any person, whose lands are so flowed or from whose lands the water is so diverted, files his complaint for ascertaining or in- creasing his ^. 19, § 1, edit. 1808, c. 127, § 1 ; 2 Compiled of 1785, u. 82, § 2 ; 1792, and amended at the late revisal. ACT OP VIRGINIA. 755 at the time when such right shall accrue), shall make such entry, and com- plete such rebuilding or repair, within three years from the time of such failure of the tenant for life or years ; or (if non compos mentis, an infant, feme covert, or imprisoned, or if out of the Commonwealth, in the service thereof, or of the United States) shall make such entry and complete such rebuildings or repairs within three years after the disability removed.-' Sect. 8. When any owner of a mill, machine, or engine heretofore or hereafter established by law, may think it necessary to raise his dam, the Court of the county wherein the pond lieth, upon application to them, shall grant a second writ of ad quod damnum, to value the additional dam- age done thereby, under the same rules and regulations as are hereinbefore directed.^ Sect. 9. No inquest taken by virtue of this act, and no opinion or judg- ment of the Court thereupon, shall bar any public prosecution or private action, which could have been had or maintained if this act had never been made, other than prosecutions and actions for such injuries as were actually foreseen and estimated upon such inquest.' 1 From 1807, c. 19, § 1, 2; edit. 1808, 3 Altered from 1785, c. 82, § 3 ; 1792, c. 127, §§ 1, 2. edit. 1794, 1803, and 1814, c. 105, § 7. 2 1792, edit. 1794, 1803, and 1814, c. 105, § 8. 756 APPENDIX. ACT OF RHODE ISLAND, OF WATER-MILLS. (Eev. Stat. 1857, c. 88, p. 215.) Section 1. Where any person has set up, or shall set up, any water-mill upon his land, or upon the land of another with his consent, the owner of such mill may continue and improve the pond and keep up the dam thereof on his land for his advantage, without molestation. Sect. 2. Any person aggrieved or injured by the flowing of the pond raised by such dam, or by the stopping or raising of the water either above or below said dam, or by the backing of water under his land, or by the flowing out of any fall of water in his land by means of such dam, may commence an action on the case before the Court of Common Pleas in the county in which such dam is, against the owner of the dam, or any pre- cedent owner thereof; a copy of which writ shall be left by the ofBcer serv- ing the same in the oflice of the town clerk of the town in which such dam is ; and the mill and mill-dam complained of, together with all their appur- tenances and the land under and adjoining the same, shall thenceforth be pledged and liable for the damages which may be recovered in sucli action. Sect. 3. "Whenever it shall be adjudged by said Court that the plaiutifi^ in any such action is entitled to damages, the defendant shall have the right to appeal from said judgment to the Supreme Court, upon the same terms and conditions as appeals are allowed in other cases ; and in like manner the plaintiff may appeal whenever said Court shall adjudge that he is not entitled to damages ; provided, that such appeal be claimed within five days after the rendition of such judgment, or during the same term of said Court, if said term shall not continue five days, by filing an appeal bond as in other cases. Sect. 4. Whenever any plaintiff in any such action shall recover a final judgment for damages against the defendant whether in the Court of Com- mon Pleas or in the Supreme Court, the Court rendering the same, or any Justice of the Supreme Court in the vacation of such Court rendering said judgment, shall cause to be issued by the clerk of said Court a writ of venire to the sheriff of said county or his deputy, to return twelve good and lawful men of the same county, to meet at a time and place appointed in such venire in order to ascertain the amount of such damages. ACT OF RHODE ISLAND. 757 Sect. 5. At the time and place appointed by such writ, some one Justice of the Court issuing the same, not interested in the cause, shall attend said jurors; shall engage them to a faithful and impartial discharge of their duty ; shall swear all witnesses produced by either party before them ; shall decide all questions of law that may arise incidentally in the trial, and may charge the jury upon the law, after the parties have submitted their evidence and arguments to them. If all the persons summoned as jurors do not ap- pear, or are excused, such Judge may issue a venire to fill up the panel. Sect. 6. Such jury shall appraise the damages which the plaintiff shall have sustained by the matters of complaint set forth in his writ and dec- laration, from the time of his ownership of the premises injured up to the date of the writ, if the defendant has been so long owner of the mill-dam or pond ; if not, then from the time the ownership of the defendant com- menced up to the date of the plaintiff's writ, or until the defendant ceased to be owner. Sect. 7. The jury shall also appraise the damages that the plaintiff ought yearly to receive and recover of the defendant, his heirs and assigns, owners of said dam, from the date of the plaintiff's writ until five years after the dam shall be removed by the defendant, his heirs or assigns. Sect. 8. The jury shall also appraise what sum would be a just and reasonable compensation to said plaintiff, for all damages done to him by the matters of complaint set forth in his writ, from the date of his writ. Sect. 9. Said Justice shall return to the Court issuing the venire, as- soon as may be, the verdict rendered and signed by the jury. Sect. 10. Upon the return and filing of any Such verdict, the Court to which it is returned shall continue the cause until the next term, before ren- dering any judgment accepting the same ; and the plaintiff shall, on or before the second day of said term, in writing, make his election between the yearly damages and the damages in gross found by the jury. Sect. 11. The election of the plaintiff shall be entered on the records of the Court in said Case, and shall be for ever binding on the plaintiff and defendant, and all claiming under them ; and the judgment of the Court shall follow the election of the plaintiff. Sect. 12. If the plaintiff shall neglect to make any election within the time and in the manner hereinbefore prescribed, the Court shall enter up judgment in his favor for the yearly damages found by said jury ; and the judgment so rendered shall bar all actions for the injuries complained of by the plaintiff, excepting only an action of debt on the judgment or scire facias to enforce the same. Sect. 13. Any execution that may issue on any judgment for damages rendered as aforesaid, whether for yearly damages or damages in gross, shall run not only against the goods and chattels and body of the defendant and his real estate, as executions on other judgments, but if the defendant 758 APPENDIX. was owner of said mill at the date of the writ, also against the mill and mill-dam which were the occasion of said suit, with all the appurtenances therecrf ; and the form of the execution shall be varied accordingly by the Court issuing the same ; and such execution may be levied thereon, and the same proceedings may be had as on executions in other cases levied on real estate. Sect. 14. Any sale of said mill or mill-dam, and appurtenances thereof, made on such execution, shall be valid and effectual against the defendant, and against all persons whose title shall accrue after the service of the writ in said action ; but any person entitled to the premises sold, may redeem the same at any time within one year after the sale, upon paying to the purchaser or person holding under him, the sum paid therefor, with interest thereon at the rate of twelve per cent per annum. Sect. 15. Whenever the plaintiff shall elect to receive the yearly dam- ages awarded him as aforesaid, and the mill-owner shall afterward remove the matter complained of in the writ, for which said damages were awarded, the plaintiff or his assigns shall recover said damages for five years after said matter shall be removed, and no Jonger. Sect. 16. The Justice of the Court of Common Pleas or of the Supreme Court, who shall attend said Jury in assessing damages, shall be entitled to compensation for his services and expenses, to be allowed by the Court and taxed in the bill of costs. Sect. 17. If the plaintiff in any such action shall die pending the same his death shall not abate said action, but his executor or administrator, as in suits which survive, shall come in and prosecute the same ; but the jury assessing damages shall assess damages only up to the date of the plaintiff's writ, which damages shall be assets in the hands of such administrator or executor, and not yearly damages or damages in gross, unless the heirs at law or devisees of such deceased shall, in writing or in person, in open Court, consent to such appearance of the administrator or executor. Sect. 18. No marriage of any party plaintiff in any such action shall abate the same, if the new party in interest, upon the marriage being sug- gested by the defendant on the record, will at the same term, in writing or in person, in open Court, anjend the process and enter himself as one of the plaintiffs in said action ; but the costs in said action shall not be in- creased by said marriage. Sect. 19. If several joint tenants, tenants in common, or coparceners, be plaintiffs in such a suit, and pending the same, one or more of them shall sell his interest in the premises alleged to be injured, to one or more of his co-tenants, such action shall not thereby be abated, but the cause shall pro- ceed to judgment with the same effect as if such conveyance had not been made. Sect. 20. If there be several defendants in such a suit, and one or more ACT OP EHODE ISLAND. 759 of them die pending the game, the suit shall not thereby abate, but the cause shall proceed to judgment with the same effect as if such death had not occurred ; and if there be but one defendant, and he die pending the same, his death shall not abate said action, if the devisees or heirs at law will come into Court at the term next following the decease, and substitute their names as defendants, instead of the deceased. Sect. 21. No person owning any dam, on any river or stream of water, shall detain the natural stream thereof at any one time, more than twelve hours out of twenty-four hours, except on Sundays, when he shall be re- quested by the owner of any dam, within one mile below on the same stream, to suffer said natural run of said river or stream to pass his said dam. 760 APPENDIX. FORMS OF DECLARATIONS. 1. Declaration for an Injury to the Plaintiff's Natural Right to the Flow of a Stream of Water hy diverting the Water. That the plaintiff was possessed of certain land, and was entitled to the flow of a stream or watercourse to and through the said land, and the defendant obstructed and diverted the water of the said stream or water- course from the said land of the plaintiff. Like Counts: Northam v. Hurley, 1 El. & Bl. 665; Insole v. James, 1 H. & N. 243 ; Hall v. Swift, 4 Bing. N.C. 381 ; Attorney-General v. Bristol Waterworks Co., 10 Ex. 884; Wood v. Waud, 3 Ex. 48; Dudden V. Glutton Union, 1 H. & N. 627 ; Beeston v. Weate, 5 El. & Bl. 986. 2. Count for Penning hack the Water of a Stream on to Plaintiff's Land. That the plaintiff was possessed of certain meadow land adjoining the river and was entitled to have the said river flow by and away from the said land ; and the defendant in divers days and times penned back the water of the said river, and obstructed the same, so that it could not flow by and away from the said land ; whereby the water of the said river over- flowed and flooded the said land, and remained there for a long time, and spoilt the herbage thereof, and the plaintiff was deprived of the use of the said land, and incurred expense in removing the water therefrom, and the said land was diminished in value. Counts for causing a Watercourse to Flow with Unusual Violence: Williams v. Morland, 2 B. & C. 910. For Diminishing the Force of the Stream : Blagrave v. Bristol Water- works Co., 1 H. & N. 369; 26 L.J. Ex. 57. Against a Waterworks Company for taking more Water than they were Authorized to take: Penarth Harbor Co. v. Cardiff Waterworks Co., 7 C.B. NS. 816; 29 L.J. C.P. 230. Por Throwing Materials into the Stream which lodged on the Bed of the Stream in the Plaintiff's Lands : Murgatroyd v. Robinson, 7 El. & Bl. 391; 26 L.J. Q.B. 293; Carlyon v. Levering, 1 H. & N. 784; 26 L.J. Ex. 251. FORMS OP DECLARATIONS. 761 3. Oount for Fouling the Water of a Stream running through the Plain- tiff's Land. That the plaintiff was possessed of certain pasture land, and was entitled to have the use of the water of a stream which flowed through the same for his cattle to drink and for other purposes, without the same being polluted and disturbed as hereinafter mentioned ; and the defendant wrongfully polluted and disturbed the water of the said stream by throwing, and causing to flow, into the same, noxious substances and fluids, so that it became foul, noxious, and unfit for the plaintiff's cattle to drink ; whereby divers of the plaintiff's cattle became sick and disordered, and the plaintiff incurred expense in curing them, and he was compelled to drive his cattle to a distance for water, and lost the use of the water of the said stream, and his said land was injured and lessened in value. A like Oount: Moore v. Webb, 1 C.B. n.s. 673. Count for Fouling the Water of Plaintiff's Mill: Hall v. Lund, 1 H. & C. 676; 82 L.J. Ex. 113; Hodgkinson v. Ennor, 4 B. & S. 229; 32 L.J. Q.B. 231. Count for Fouling the Water of a Stream, which the Plaintiffs used to Supply a Town: Stockport Waterworks Co. v. Potter, 7 H. & N. 160 ; 31 L.J. Ex. 9. 4. For a Nuisance hy Polluting the Water under the Plaintiffs Land. That the plaintiff was possessed of certain land and of a well therein and of water in the said well, and was entitled to the use and benefit of the said well and of the said water therein, and to have certain springs and streams of water, which flowed and ran into the said well to supply the same, to flow and run without being fouled or polluted ; and the defendant wrongfully fouled and polluted the said well and the said water therein, and the said springs and streams of water which flowed into the said well ; whereby the said water in the said well became impure and unfit for domes- tic and other necessary purposes, and the plaintiff and his family were and are deprived of the use and benefit of the said well and water. A like Oount: Hipkins v. Birmingham Gas Co., 5 H. & N. 74; 6 H. & N. 250; 29 L.J. Ex. 160; 30 L.J. Ex. 60. Count hy a Reversioner for Discharging into the Stream Water impreg- nated with Noxious Mineral Matter : Wright v. Williams, 1 M. & W. 77. Count for Polluting an Artificial Watercourse : Whaley v. Laing, 2 H. & N. 476; 3 H, & N. 675. JQ2 APPENDIX. 5. For Spoiling the Water of a Stream which flowed to the Plaintiff's Bleaching Ground. That the plaintiff was possessed of certain bleaching works, and there carried on the trade and business of a bleacher, and was entitled to the flow of water of a certain stream of good quality, and used by the plaintiff in his said trade and business [and also to water his cattle], and the defend- ant fouled the said stream, whereby the stream became unfit for the use of the plaintiff in his said trade and business, and he lost great profits thereby [and has also been prevented from watering his cattle in so commodious a manner as he would otherwise have done], and has been obliged to procure water elsewhere for the purposes aforesaid at a great expense, and his said premises have been and are much deteriorated in value. 6. Against Commissioners of a Level for Stopping up a Drain which drained Plaintiff's Land. That plaintiff was possessed of land, and entitled' to have the waters from time to time collecting and being in and upon the said land drained and carried away from the same through a certain drain, and from thence through other drains into the [sea] ; yet the defendant wrongfully placed large quantities of earth, stones, and rubbish in the said drain, and wrong- fully stopped and obsti-ucted the said drain, and kept and continued the same so stopped up and obstructed, whereby large quantities of the waters which from time to time during that time collected, and were in and upon the said land of the plaintiff, were obstructed and prevented from running away from the same through the said drain, as they otherwise would have done, and were penned and driven back upon the said land of the plaintiff, and accumulated thereon, and by reason thereof the said land of the plain- tiff is rendered wet and swampy, and unproductive ; and thereby also cattle and sheep of the plaintiff, depasturing upon the same land, became diseased, and were injured and destroyed ; and also by reason of the premises, divers crops of corn, grain, and hay of the plaintiff, growing upon his said land, were spoiled, damaged, and destroyed ; and also by reason of the premises the plaintiff has incurred expenses in endeavoring to cultivate his said lands, and to restore the same to their former good state and condition, and the plaintiff has been and is otherwise much injured. Count for suffering a Ditch to he choked (which it was Defendant's Duty to cleanse as Occupier of an Adjoining Close), whereby the Water overflowed Plaintiff's Close: Bell v. Twentyman, 1 Q.B. 766. FORMS OJ? DECLARATIONS. 763 7. For Diverting the Water from a Mill. That the plaintiiF was possessed of a mill, and, by reason- thereof, ' was entitled to the flow of a stream for working, the same, and the defendant, by cutting the bank of the said stream, diverted the water thereof away from the said mill. Like Count: Dudden v. Glutton Union, 1 H. & N. 627; 26 L.J. Ex. 146. Count for Penning hack the Water below so as to impede the Plaintiff's Mill: Saunders v. Newman, 1 B. & Aid. 258. For diverting Water from Plaintiff's Mill S^c, by making Cuts from the Stream and not keeping the Banks in Repair ^c. : Vooght v. Winch, 2 B. & Aid. 662; Williams v. Morland, 2 B. & C. 910. For lowering Banks and making a Weir, and thereby causing Water to flov} irregidarly to Plaintiff's Mill : Liggins v. Inge, 7 Bing. 682. General Count, not showing Mode of Diversion of Water from Mill: Frankum v. Earl of Falmouth, 2 Ad. & El. 452. 8. For Disturbing the Plaintiffs ■ Right to use the Water for Irrigation. That the plaintiff was possessed of certain meadows, and was entitled to take and use a portion of the water of a certain stream for watering the said meadows, and the defendant prevented the plaintiff from taking and using the said portion of the said water, by obstructing and diverting the said stream. A like Count: Beeston «. Weate, 5 El. & Bl. 986; 25 L.J. Q.B. 115. A like Count by a Reversioner : Sampson v. Hoddinott, 1 C.B. N.S. 590. Count for disturbing the Plaintiff in the use of a Well: Tylers. Bennett, 5 Ad. & El. 377; in the use of a Pond: Manning v. Wasdale, 5 Ad. & El. 758. For disturbing the Plaintiff's exclusive Use of a covered Sewer through the Defendant's Land: Lee v. Stevenson, El. Bl. & El. 512 ; 27 L.J. Q.B. 268; Cooper v. Pegg, 16 C.B. 264. For obstructing a Drain through which Refuse Water and Drainage were discharged from the Plaintiff's House: Fitzsimons d. Inglis, 5 Taunt. 534; Bell V. Twentyman, 1 Q.B. 766; Thomas v. Thomas, 2 C. M. & R. 34; Cawkwell v. Eussell, 26 L.J. Ex. 35 ; Blagrave v. Bristol Waterworks 1 The right alleged in this count is an water irrespective of an acquired right acquired right, it being claimed in respect for the use of the mill. Frankum v. Earl of the mill ; it would not be supported by Falmouth, 2 Ad. & El. 452. evidence, of the mere natural flow of the 764 APPENDIX. Co., 1 H. & N. 369; Pyer v. Carter, 1 H. & N. 916; 26 L.J. Ex. 258; and see Chadwick v. Marsden, L.R. 2 Ex. 285 ; 36 L.J. Ex. 177. For keeping a hadly constructed Drain on the Defendants Land, where- by an Overflow of the Contents was discharged on to the Plaintiff's Prem- ises: Alston V. Grant, 3 El. & Bl. 128. For obstructing a Watercourse used by Plaintiff by Leave of the Owner of the Land: Eoberts v. Rose, 3 H. & C. 162; 33 L.J. Ex. 1, 241. For making Public Works so carelessly that water flowed over Plain- tiffs Land; Allen v. Hayward, 7 Q. B. 960 ; 15 L.J. Q.B. 99. 9. Count for Obstructing the Plaintiff's Right to discharge the Rain- water from the Eaves of a Building on to the adjacent I^and. That the plaintiff was possessed of a dwelling-house, and was entitled to have the rain-water that did and might from time to time naturally fall on a certain roof, part of the said dwelling-house, drop from the eaves of the said roof upon the land adjoining the said dwelling-house, and to have the said eaves project over the said land; and the defendant wrongfully removed the said eaves, and, by building on the said land close to and higher than the said roof, prevented the said roof from having such eaves as aforesaid projecting over the said land, and prevented such rain-water as aforesaid from dropping from the said eaves upon the said land, and penned back the same upon the said roof; whereby the plaintiff's said dwelling- house was rendered wet and unhealthy, and was permanently injured and lessened in value. Like Count by a Reversioner: Battishill v. Reed, 18 C.B. 696, 698; 25 L.J. C.P. 290. 10. Cormt against the Occupier of the adjoining Land for wrongfully discharging Rain-wOter from his Eaves on to the Plaintiff's Land. . That the defendant wrongfully erected and kept erected near to and abutting upon land of the plaintiff a certain building, with the eaves thereof projecting over the said land of the plaintiff, so as to cause and thereby caused the rain-water from time to time falling on the said buildino- to run therefrom and drop on the said land ; whereby the same was ren- dered wet and useless to the plaintiff. Like Count : Fay v. Prentice, 1 C.B. 828. Like Count by a Reversioner: Battishill v. Reed, 18 C.B. 696, 698; 15 L.J. CP. 290; Tucker v. Newman, 11 Ad. & p:i. 40. For slopping a Gutter in Defendant's Yard through which the Refuse- Water and Eavesdroppings from Plaintiff's House were carried away : Thomas v. Thomas, 2 Cr. M. & R. 35. / FORMS OP DECLARATIONS. 765 11. Form for diverting a Watercourse from Plaintiff's Mills. Oliver's American Precedents, 802. For that whereas the plaintiffs, on &c., and ever since have been, and still are seised in their demesne as of fee, of two corn-mills in &c., with their appurtenances, and the plaintiffs and those whose estate they have had in said mills, have, in time out of mind, had the free course of the water at Ipswich River, to and from the said mills, for the use thereof, and the sole privilege of serving the inhabitants of Ipswich aforesaid, in grinding their corn for the accustomed and lawful toll, while they may be duly served by the said mills, till the plaintiffs were disturbed and hindered therein by the said D. ; and the plaintiffs ought accordingly to hold said mills with the privileges aforesaid, freely and undisturbed ; yet the said D., in no wise ignorant of the premises, but maliciously contriving to disturb the plaintiffs in the enjoyment of their said mills, with the privileges and ap- purtenances thereof aforesaid, and deprive them of the profits thereof, on or about, &c., erected a certain corn-mill in Ipswich aforesaid, on Ipswich River aforesaid, at the falls a little below the plaintiffs' mills aforesaid, with a dam to the same, and have continued and improved the same ever since. and still do so ; whereby they are continually drawing a great deal of the plaintiffs' water, and grind much of the corn of the said inhabitants of Ipswich, while they might be duly served by the plaintiffs' mills aforesaid, and cause a backwater that hinders a free course of the stream of Ipswich River aforesaid, fiom the plaintiffs' said mills, to the great nuisance of the plaintiffs' mills aforesaid, the destruction of the privileges thereof aforesaid, and to the damage &c. 12. Declaration for erecting a Dam above Plaintiff's Dam. Oliver's American Precedents, 302. For that the plaintiff, ever since the day of &c. has been seised in his demesne, as of fee, and has been in actual possession of an ancient grist-mill or water-mill to grind corn^ situate on a rivulet or stream in &c., called &c., together with an ancient dam, to raise a head of water so high as should be necessary for said mill, and of having the whole water of said stream, without obstruction or impediment, flow into said pond, for the benefit of said mill, as ancient rights and privileges appurtenant to said mill; yet the said D. hath since, to wit, on &c., unjustly erected a new dam across the said stream, above the plaintiff's dam aforesaid, within the limits of the plaintiff's pond and ground, that he had a right to flow, and thereby cut off part of his said pond, ponded the water above, and stopped 766 APPENDIX. the natural course of the water with which it anciently used to run into the plaintiff's pond ; and still continues his new-erected dam and obstruc- tion aforesaid, thereby frequently stopping the water from coming to the plaintiff's said mill, and obliging the same to stand still for want of water, and at other times, letting out the water through said new dam, so suddenly, and in such large quantities, as to waste and tear away a great part of the plaintiff's said dam ; whereby the plaintiff's mill aforesaid, of the yearly value of &c., is rendered useless; all of which is to the damage &c. 13. Declaration for making Backwater. Oliver's American Precedents, 303. For that the plaintiffs (husband and wife) were, on &o., and unto this day are, seised in right of said E. in their demesne, as of fee, of a certain close of about four acres of land, and of a certain water-mill thereon stand- ing, with the appurtenances, all situate in said S. And the plaintiffs, and all whose estate, they, in right of said E., have in said close and mill, from time whereof the memory of man runneth not to the contrary, have had, until obstructed by said D., the fi-ee course and use of a stream of water, running &c. ; and the plaintiffs still ought to have and hold the same, free and undisturbed ; whereof the said D. was well knowing, and contriving to deprive the plaintiffs of their profits of their said mill and close, there- on &o., did erect a dam across said stream, in the aforesaid close of said D., and threw a great number of stones into said stream, on the easterly side of said mill, and the same continued until the day of &c., and thereby raised the stream twelve inches above its usual and. due height, and caused a backwater, hindering the free course of said stream from the said mill, to the great nuisance thereof; and thereby obstructed and pre- vented the plaintiffs in the use of their said mill, and deprived them of the profits thereof, for divers days and times between said &c. ; all of which are &c. 14. Declaration for overflowing Meadow hy erecting a Dam. Oliver's American Precedents, 305. For that the plaintiff, ever since the day of &c., has been lawfully seised and possessed of a tract of meadow laud, in &c., containing &c., bounded &c.; 'all of which the said D. was well knowing ; but the said D. minding and contriving to injure the plaintiff, and deprive him of the benefit of his meadow land, hath ever since the said day of &c., maintained and FORMS OP DECLARATIONS. 767 kept up, and continued a mill-dam, in &e., aforesaid, across a brook, there commonly called Stony Brook ; and by means thereof caused the water of the brook aforesaid to overflow and drown the plaintiff's meadow land aforesaid, ever since the said day of &c., whereby the plaintiff's grass growing in his meadow aforesaid, within the time aforesaid, and of the value of dollars, has been made worse, damnified, and destroyed; and his meadow land aforesaid is become spongy, rotten, and impassable ; and the plaintiff has also, during the time aforesaid, thereby been [)revciitc.d clearing his said meadows. 15. Declaration for the same and special Damage Oliver's American Precedents, 305. For that whereas the plaintiff, on &c., at &c., was and ever since hath been seised in fee of three acres of meadow land, situate &c., lying on each side of the brook, commonly called Steep Brook, and bounded &c., and the said D. by means of a mill-dam, by him, on &c., erected on his own land and across said brook, in &c., aforesaid, and by him ever since the said day of &c., continued there across the brook aforesaid, hath obstructed and stopped the natural course of the water of the brook aforesaid, and thereby caused it to overflow and drown the plaintiff's meadow aforesaid, ever since the said day of &c. ; whereby the plaintiff's grass, growing on the same meadow, in that time, of the value of &c., hath been greatly damnified, his meadow aforesaid made spongy, rotten, and good for noth- ing, and forty lengths of the plaintiff's four-rail fence, of the value of dollars, on the said meadow at the time aforesaid standing, has been taken up and carried away. 16. Declaration for cutting a Water-pipe which conveyed Water to Plaintiff's House, whereby the Plaintiff was deprived of Water, and put to great Trouble and Expense in Procuring Water for his nec- essary Use. 8 Wentw. 567. For that whereas the said plaintiff heretofore, to wit, on &c., was, and from thence hitherto hath been, and still is, lawfully possessed of, and in a cer- tain messuage or dwelling-house and yard thereto adjoining, with the appurtenances, situate and being at &c., in which said messuage or dwell- ing-house the said plaintiff and his family, during all the time aforesaid, inhabited and dwelt: And whereas, long before and at the time of the committing of the grievance hereinafter next mentioned, there was a cer- 768 APPENDIX. tain wooden pipe, lying and being under ground near to the said messuage of him the said plaintiff, by and through the means of which said pipe, and of a certain leaden pipe fastened in and affixed to the same, and extend- ing and coming from the aforesaid wooden pipe unto and into the aforesaid yard of the said plaintiff, and the said plaintiff, and all others of the occu- piers and possessors of the said messuage &c., were, during all the time aforesaid, used and accustomed to be, and were supplied, and still ought to be supplied with water, to be used, spent, and employed by the occupiers and possessors of the said messuage &c., with the appurtenances respec- tively ; yet the said defendant, well knowing the premises aforesaid, but contriving and maliciously intending wrongfully and unjustly to hurt, injure, and prejudice the said plaintiff, and to deprive him of water for the neces- sary use of the said plaintiff and his family residing in the said messuage, &c., whilst the said plaintiff was so possessed of the said messuage &c., to wit, on &c., at &c., wrongfully and unjustly, injuriously and maliciously, cut into and through the aforesaid wooden pipe, and separated and di- vided the same, and caused and procured the said wooden pipe to be cut into and through, and separated and divided, and wrongfully and injuriously kept and continued the said pipe so cut into and through and separated and divided, for a long space of time, to wit, for the space of twelve months then next following ; whereby he the said plaintiff was for a long space of time, to wit, for and during all the time aforesaid, wholly deprived of water to be used, spent, and employed by him the said plaintiff and his family in the said messuage &c., of him the said plaintiff, and was thereby, during all the time, put to great trouble and inconvenience, and was forced and obliged to, and did laj out and expend divei;s sums of money, to wit, in the whole amounting to a large sum of money, to wit, the sum of twenty pounds, in, and about the furnishing and supplying of water for the necessary use and purposes of him the said plaintiff and his family in his said messuage, or &c. ; and he the said plaintiff was, hath been, and is, on occasion of tlie committingof the grievance aforesaid, otherwise greatly injured and damni- fied, to wit, at &c., aforesaid. [See form for cutting off water-pipe, in Houston v. Laffee, 46 N. H. 505.] FORMS OP PROCEEDINGS. 769 FOEMS OF PROCEEDINGS FOE THE EECOVERY OF DAMAGES FOR FLOWING UNDER THE MIL5L ACTS OF MASSACHUSETTS. 1. Form of Complaint for Damages. To the Honorable the Justices of the next to be holden at within and for the county of Essex on the A.D. 1827. J. C, of Ipswich &c., Esquire, complains to said court and represents that on the first day of January a.d. 1829, he was, ever since has been, and now is, seised in his demesne as of fee, and actually possessed of a parcel of mowing and tillage land, situate upon Ipswich River in said Ipswich, of about four acres, and thus bounded, to wit: {description). And he farther represents that, heretofore, to wit, on the said first day of January a.d. 1829, at said Ipswich, The Ipswich Manufacturing Company, a corpora- tion legally established in and by said Commonwealth of Massachusetts, for the purpose of manufacturing cotton and woollen goods, did erect a water-mill on their land upon said river, and to the working of said mill it was necessary to raise a suitable head of water, and did then and there, for the purpose of raising it, erect, continue, and maintain a mill-dam across said river, [which is not navigable,] below the said land of the complainant, of great height, to wit, of the height of twenty feet, and thence ever since have continued and maintained said dam at said height, and do now continue and maintain it at said height ; and thereby have during all the time aforesaid raised a head of water, and do now raise a head of water, and have flowed and do now flow the said land of the complainant, and thereby have destroyed, during all the time aforesaid, all the grass and herbage growing on said land, and rendered it wholly incapable of producing and ripening grass or other herbage, and incapable of being tilled or otherwise improved or cultivated, and destroyed divers, to wit, twenty apple-trees, thereon growing of great value, to wit, of the value each of fifty dollars, and divers, to wit, twenty ash-trees, thereon growing, of great value, to wit, of the value of fifty dollars each, and prevented the complainant from having access to said river, and from improving and enjoying his said land, and have otherwise injured and damaged said land and the complainant to the annual damage of the complainant now and during all the time aforesaid, as he says, the sum of one hundred dollars, and to the gross damage of the complainant, as he says, the sum of two thousand dollars. 49 770 APPENDIX. ft "Wherefore he prays the said court to issue a warrant to the sheriiF of said county to summon and impanel a jury to make a true and faithful appraisement of the yearly damages done to him, the complainant, by so flowing his lands ; and how far the same may be necessary ; and also to estimate such a sum of money in gross as shall be a just and reasonable compensation for all the damages done or to be done to the said complai- nant by raising and keeping up such head of water, and for the right of keeping up the same at such a height, and for such part of the year as the jury shall determine to be necessary, to the end that said complainant may elect between such gross sum and such annual damages, and as in duty bound will ever pray. By R. Choate, his Atty. 2. Form of Verdict rendered hy the Sheriff's Jury in the above Case. Essex ss. October 6th, A. D. 1832. Ipswich. J. 0. V. Ipswich Manufacturing Company. We whose names are undersigned and seals affixed, having been impan- elled and sworn upon said complaint, have viewed the mill-dam and the estates and premises therein mentioned, and heard the allegations, proofs, and arguments of the parties thereto, and do find as follows, viz. We find that public convenience and the circumstances of the case re- quire, that said dam should be kept up, and maintained at the height at which it now stands, with the flash-boards of the same height with those now on it at all times of the year, and we determine accordingly. And we find that the yearly damages done to said J. C. by means of the alterations of said dam of respondents and the flowing thereby occasioned are dollars ; and we appraise the same accordingly, at the rate of dollars by the year as aforesaid, commencing on the day of And we further find and estimate and fix the sum of dollars as a just and reasonable compensation for all the damages done, or to be done to said J. C. by raising and keeping up such head of water, and for such time as we have before determined to be necessary. In witness whereof we have hereunto set our hands and seals this 6th day of October a.d. 1832. [This is signed and sealed by each of the twelve jurors ; but the formality of sealing is doubtless unnecessary. J FORMS OF PROCEEDINGS. 77l 3. Another Form of Complaint. Gommonwealth of Massachusetts. Essex ss. To the Honorable the Justices of the Superior Court next to be holden at within and for said County of Essex on the . Eespectfully represents B. F. P. of L. in said county, that A. B. of N. H., in the State of C, has during the past seven months, to wit, from the first day of last January to the day of the date hereof, maintained certain water-mills and two certain dams to raise water for working said mills upon and across a certain stream of water, not navigable, called Saugus River in said L., and that by means of the maintenance of said water-mills and dams by said A. B. the following described tract of land of the complainant situate in said town of L., and bounded and described as follows; viz. {description), has been overflowed and saturated with water, rendered soft and miry, and the grass, herbage, cranberry-vines, and trees, growing thereon, have been destroyed, during the said seven months last past, to the damage of the complainant as he says the sum of five hundred dollars.^ Wherefore the said B. F. P. prays that a warrant may be issued for a jury to hear and determine the matter of this complaint, and that such proceedings may be had as law. and justice may require. Dated &c. B. F. P. hy his Atfy, S. A. B. 4. The Answer to the above Gomplaint was. B. F. P. ) Essex ss. Respondent's Answer. V. A. B. And now the said A. B. comes, and, for answer to the complainant's complaint, denies that said complainant has any estate or interest in the land alleged in said complaint to be flowed or injured ; and he further denies that the premises described in the complainant's complaint were overflowed, as alleged in said complaint, by means of the maintenance by said respondent of the water-mills and dams mentioned in said com- plaint. And the respondent further says that he has a right to maintain his dams, mentioned in said complaint, without any compensation for the flow- ing alleged in the complaint. By H. & D., his Att'ys. 772 APPENDIX. 5. Form of Verdict in proceedings under Genl. Sts. Mass. c. 149. C. B. V. M. T. Verdict of the Jury in the above entitled Case. The jurors impanelled by H. G. H., sheriff of the county of E., on the . day of A.D. 18 — , for the purposes mentioned in the complaint, in this case, of said C. B. against the said M. T., having been first duly sworn, and having chosen O. P. K. foreman by ballot, after carefully view- ing the premises and fully hearing the parties, estimate and assess the amount of damages sustained by said C. B., by reason of the dam men- tioned in the said complaint, within three years next preceding the insti- tution of this complaint, and down to the time of rendering this verdict, at y-^Q dollars. And the jurors also ascertain and determine that the sum of - 100 dollars, to be paid annually to said C. B., would be a just and reasonable compensation for the damages that shall be thereafter occasioned by the dam, so long as it shall be used in conformity with this verdict. And also that the sum of y-jg dollars in gross would be a just and reasonable compensation to said C. B. for all damages to be thereafter occasioned by such use of said dam, and for the right of maintaining and using the same for ever in manner aforesaid. And the said jurors do farther find that it is necessary, for the convenient and advantageous operation and working of the water-mill named in the complaint in this case, that the said M. T., the respondent, should have and exercise the right and privilege of keeping up and maintaining the said dam of him, the said respondent, so that the water raised by said dam shall flow back and stand as high as a bolt in a rock -on the east side of the pond at any time. And the said M. T. shall not be permitted to maintain said dam to flow higher than the said bolt. And the said M. T. shall have the right to flow the pond as high as the aforementioned bolt during the entire year. [This verdict is signed by each one of the twelve jurymen.] INDEX. THE KEFEKBNCES AKE TO THE SEOTIOKS. ABANDONMENT. (See Extinguishment.) of a right to the use of water, 206 note, 246. exercising one right to water in a new spot is not an, 229. distinction between an executed license to obstruct and an abandon- ment of an easement, 251. of easement, whether mere non-user is, 252. some adverse use or act seems to be required, 246, 248, 250, 252 a. difference as to abandonment, between easements created by deed and those acquired by presumption of grant or prescription, 252, 252 a. what would be of an aqueduct, 252 a. mere suspension of the exercise of a right to foul a stream, is not an, 252 6. circumstances to be considered on the question of, in connection with non-user for less than twenty years, 136 note. of a right to flow land, whether gained by deed or prescription, 385. how a mill once used becomes abandoned, 496-499. not by a temporary removal of the mill or dam, 496. time must be allowed mill-owner to repair dam and replace mill with- out losing his privilege, 496. what acts will be deemed an, 497-499. declaration of intent to abandon, accompanied by acts, 497.. cessation of use an unreasonable time, 498. suffering mill or dam to go to decay, and highway made across the land, 499. ABATEMENT, by act of party, 350, 389 et seq. where party can sustain an action for a nuisance, he may enter and abate it, 389. care to be used in abating a nuisance, 287 note, 390. in case of unlawful flowage, 390 a. party occasioning the nuisance must submit to any damage accruing from acts done in a reasonable abatement, 390 a, 391. 774 INDEX, ABATEMENT, —continued. thing must have become a nuisance before it is liable to be abated, 392. and must be a nuisance at the time of, 140. whether party who abates may also have an action, 393. if public nuisances, in rivers which are public highways, 563. remedy by, concurrent with that by indictment, and neither lost by lapse of time, 563. (See Public River.) ABUSE, of an easement does not create a forfeiture of it, 383 a, 384. ACCESS, right of bathing gives no access to the sea over private lands, 66. right of parties who can obtain, to great ponds, 538 note. ACCESSORIAL, rights recognized, 141. how such rights are to be measured, 141. ACCRETION, by slow and gradual increase, to whom belongs, 53 and note. imperceptible, 64. either party may secure himself from injury by change of channel from, 53 note. otherwise he must bear the consequences, 53 note. ACQUIESCENCE, in case of adverse possession, 201, 211 note, 215, 218, 239 a. in the legality of the mill acts, 487 note, in acts afterwards complained of, 140 b. ACTION AT LAW. (See Action on the case — Assumpsit — Cove- nant.) none lies to recover possession of a watercourse, eo nomine, 8. lies for the invasion or infringement of a right, although no actual damage has accrued, 135, 219 d. remedy for injuries done to or by a watercourse, 394. provisions of the mill acts are substitute for, 484-487. ACTION ON THE CASE, nature of this remedy, 894-397. the proper remedy for consequential injuries to and by means of a watercourse, 395-398. by whom to be brought, 398-402. tenants, alienee, mortgagee, or devisee, 398-399 a. joint tenants, tenants in common, 400. one tenant in common against his co-tenant, 400. against whom to be brought, 402-405. author of nuisance for erection and continuance, even after sale or lease, 402. person in possession of premises, 402. notice to purchaser and request to remove, when necessary, 403 and note, against grantee of dam without notice or request, when he has, after purchase, substituted a permanent structure for flash-boards which were a nuisance, 403 note. INDEX. 775 ACTION ON THE CAS^, — continued. no particular form of notice required, when necessary to be given in such cases, 403 a. may be brought for every continuance of a nuisance, 402. (See Pleading.) plaintiff may sue any of several, who have done the wrong, without joining others, when and when not, 404. Declaration, (See Pleading.) ADJUTAGE, flow of water enlarged by, 148 .^ AD QUOD DAMNUM, inquest taken upon a writ of, 87, 493. ADVERSE USER OR ENJOYMENT. (See Prescription — Presump- tion or A GRANT.) none exists when one riparian proprietor by structures on his own land controls the whole water, as against the opposite proprietor, until the latter uses or has occasion to use the water, 135 a. easements of every sort may be acquired by, 208. must be continuous and exclusive, 208, 209, 214, 214 a. must be peaceable, 210. acquiescence, 201, 211 note, 215, 218, 239 a. during time required by law, 210 and note, uninterrupted, 211, 214, 214 a, 239 a. what interruptions do not affect the, 211. interruptions explained by the nature, object, and value of the use, 212. open and notorious, 210, 215 and notes, 215 a. as a right, 210, 216 and note, 220. with intent to claim, 221. enjoj'ment presumed to be adverse, unless, &c., 210 note, 221 and note, under permission, 213, 216 and note, permission asked after rights gained by lapse of time, 213 and note, 216 and note, 218. attempt to purchase, 216. of adding several periods of adverse use, 214 a. of adding time of enjoyment by grantor to that of grantee, that by de- visor to that of devisee &c., 214 note, effect of denial of the right during the period, 215 note, 376, 377. enjoyment must have been of a character to invade or infringe the rights of party against whom claim is made 215 a. of water for twenty years, conclusive presumption of a grant, 217, 218, 219 d. question of adverse use should be left to the jury, 221 note, doctrine of adverse use does not apply against the public, 254. where possession of premises in question has been held against tenant for life or years, or person under disability, 231-240, 386. i effect of disabilities. (See Disability.) ALLUVION, what it is, 63 and note. 776 INDEX. ALLUVION, — continued. stages of formation, 54 note. formed by natural or artificial means, 53 note, 54 a. how divided between opposing claimants, 65 and notes, 56 a, 57. formed by the recession of the waters of a navigable lake, 59. right to future, vested, 53 note, right to, a natural one, 53 note. principle of, applies alike to streams that do, and those that do not overflow their banks, 53. ALVEU8, 95 a. ANCIENT MILLS, grant of one of two, on same stream,' implied right in stream, 153, 164 a. ANCIENT WATERCOURSE, one that has existed from time immemorial, 4 note, 108 h. whether it be such does not depend upon the quantity of water, 4 note, may be dry a portion of the year, 4 and note. when a stream is, though supplied by fall of rain and melted snow, 4 note. APPARENT, and continuous, easements, 166 6, and note, 166 c. APPROPRIATION. (See Occupancy.) prior, confers no right, 130-135, 350, 352. for saw-mill, gives party right to use same amount for grist-mill, 227 note. APPURTENANCES. (See Lex Loci — Mill— Mill-Site.) what passes by term, 153 and note, this term not necessary to pass easement or water-right &c., when, 153 a, 158, 167, 358. all easements pass as, which are necessary to the beneficial enjoyment of the grant, 358. pipe necessary to supply water for a house conveyed, 153 note. AQUA CUREIT 93, 108 e. AQUMtlAUSTUS, 143 and note. AQUEDUCT, right to, an easement, 143. may be gained by prescription, and repairs made on it are riot in the nature of rent, and so as to show the use permissive, 222. neither does the fact that the owner of the water takes part of it from the aqueduct, show the use by the one making repairs to be per- missive, 222. right to, may exist independent of the ownership of any particular estate, 143. right to take water by, to lay and repair the pipes &c., is an interest in the realty, 143. INDEX. 777 aqueduct:, — continued. grantee of right to lay pipes ih land of another, may enter and dig for repair, 158. under a grant of a right to lay and construct an, its line and position are fixed by actual location by mutual consent of parties, 363. water taken by, from a spring for domestic and culinary purposes, and for watering cattle, surplus not returned to stream flowing from spring to land of another, 127. ARBITRAMENT AND AWARD, right to the use of a watercourse, as determined by, 279-285. effect of decision of arbitrators both on law and fact, 279. extent of the authority of the arbitrators, 280, 280 a. award bad for uncertainty, 281. awarding against a lessee and in favor of a third party, an act that would be waste on the estate of lessor, 282. award must be performed by party, as far as it lawfully may be, 283, 284. award which does not decide the matters submitted, 346. ARRANGEMENTS, made by owner of two estates, or of the different parts of an entire estate, as to watercourses, drains, gutters &c., and a subsequent sale of the different estates or parts to different persons, 166 6, et seq. ARTIFICIAL EASEMENT, meaning of, and how derived, 141. ARTIFICIAL POND, raised by a dam, in reference to boundary, 41, 41 a, 41 6, and note. ARTIFICIAL PURPOSES, use of water for, 121, et seq. ARTIFICIAL, wants, what are, 128. ARTIFICIAL WATERCOURSE, rights of parties in, 141 note. where a stream is conducted across lands in an artificial channel, the proprietors and the public have the same rights to use of the water, as if the artificial were the natural channel, 90 note, 106 e, et seq., 303 note, 640. right of the riparian proprietor on an artificial stream incorporeal, 90. right to, acquired by prescription as much protected as that to a natu- ral watercourse, 108 h. one land-owner has no right to collect surface water into an artifi- cial channel and thus discharge it upon another owner, 108^, 108 A. water turned from its natural, into an artificial, channel, 166 e. how far treated as if it had continued in its natural course, 166 e- 166 g, 166 i. held not distinguishable from natural, 206. no right of party receiving water drained from a mine, to compel con- tinuance of the discharge, 206. he has a right to the water only while it continues to run, 206. mine-owner would have no right to foul the water, 206 note. 778 INDEX. ARTIFICIAL WATERCOURSE,— continued. length of time would afford no presumption of a grant of a right to such water in perpetuity, 206, 206 a. diversion of water flowing from a colliery through an artificial into a natural stream, by a party through whose land the artificial stream flows, 206 note, right of a party to compel another to hold back water by a dam which the latter had maintained for over thirty years, 206 note, flow of water from an agricultural drain for twenty years may be cut off, as against the adjacent proprietor below, 206 a and note, the lower land may be subject to the flow of an artificial cut or drain, and yet have no right to the continued discharge for its own benefit, 206 a. right to, as against the party creating it, depends on the temporary or permanent character of the watercourse &c., 206 a note, flow of water for twenty years from the eaves of a house, gives no right to require its continuance, 114 t, 206 a note, for draining mines, discontinued for twenty years, use cannot be resumed, so as to render water foul, 136. ASSIGNEE, of land, on which is nuisance, 402, et seq. of a right to take water from a spring or well, 143. ASSIZE OF NUISANCE, nature of this remedy, 394. how lately recognized in Pennsylvania, 394 note. ASSUMPSIT, when action of, lies for the use and occupation of a watercourse, 274, 443. ATMOSPHERE, corruption of, by riparian proprietor's use of the stream, 137. AVULSION, what it is, 60. property in soil remains in former owner, 60. BACKWATER. (See Flowing Land.) BANK, as a boundary, 24, 25. definition of, 4 note, 24 and note. and water correlative, 26. BANKS OF RIVERS, what they are, and how divided from the bed, 4 note. public right to, 539, 551, 553. remedy of riparian proprietor for damage done to, by log-owners and river-drivers, 561 note. BATHING, right of, in the sea, gives no access over private lands, 66. BATTUliE, at New Orleans, 54 note. BAY, what is, 4/ and note. not less river because called a, 4 f. not necessarily part of a river, though connected with one, if. INDEX. 779 BED OF A RIVER OR WATERCOURSE, what it is and how distinguished from the banks, 4 note, line of division between, and banks, how found, 4 note, is a natural object, 4 note, may be convejed without upland, 5. BONUM VAGANS, flowing water is publici juris, not in the sense of, 129 note, 132. BOOM, 641 a note. See Obstktiction. BOUNDARY. (See Riparian Propribtoks — Watercourse.) watercourse is a natural boundary, 11. prima facie the owners of land on each side of a stream own the soil itsque ad filum &c., 11 note, 41 h note, of riparian proprietors, how affected where the limits of the State their lands lie upon extend beyond the middle of the stream to the op- posite bank, 12 note. • to exclude the stream, the deed must show a manifest intent, 23 and note, 29 note, where stream is divided by an island, 16, 44 note, 48 a, 49. between tenants in common, when partition assigns land on one side to one, and that on other side to the other, 15. what words in grant will exclude the stream, 18, 23 and note, evidence to apply description to boundary, 19, 20, 22, 32, 33. on main stream rather than on branch of it, when stream is mentioned, 21. influence of plan to control, 21, 23 note, natural and permanent objects govern, 22, 36. " up the river," " down the river," " margin " ofthe river, 23, 24, 30, 31, 38. " bank" as a boundary, 24 and notes, 25. difference between " along the river," or " by the river" and along the bank of the river, 24 and note, 26. " fronting to," and " fronting upon " a river, 26 a. " mill lot" running along the shore of the river, 27. to a river, then " up the same," or " down the same," or " with the river," 28 and note, monument on bank of river, by the river, to another monument on same bank, 29 and note, stake or tree by pond or river to another stake or tree by said pond or river, 29 and note, 37. map or plans showing land to be bounded on watercourse, 32, 33, 35. grant of land extending to a certain distance on each side of a river, 39, 40. difference between watercourse and a lake or pond, as a boundary, 41, 41 b note, 42 and note, between a natural and an artificial pond, 41. on natural and on artificial pond, 41 and note, on natural pond enlarged by artificial means, 41-41 h and notes, on natural pond extends to low-water mark, 41 note, central line in the bed of the stream-, parallel to and equally distant from each shore is, 101 a. 780 INDEX. BOUNDARY, —continued. monuments erected by mutual consent corresponding to those named in conveyance, 363. limits of a dam fixed, wlien constructed by mutual consent of parties, 363. so as to the course and position of an aqueduct, 363. of a township " on " a " river," 23 note. of a patent, by a line beginning at a point on the river, then outward and returning to a point on the same, and thence by the river to the place of beginning, 23 note, river as, between States and nations, 50 note. BRIDGE, care in constructing, over a watercourse, 465 b. or over a public river, by those having authority to construct roads &c., 465 6-465 e. how far building of, over navigable rivers, must yield to the rights of • navigation, 555 note. effect of ordinance of 1787 in this respect, 555 note. BROOK, meaningof, 11 note. CANAL, run of, through the land of another for time of prescription, evidence of antecedent grant, 206 a. CASE. (See Action on the Case.) CHANCERY. (See Equity.) CHANGE, in the mode of using water during the period of prescription, its effect upon the acquisition of an easement, 224-226 and notes, 683 6. its effect where the right has been actually acquired by prescription, or by grant or reservation, 146-149 b, 227, 228. in place, where a party has a right to the use of a certain quantity of water for propelling machinery, 228, 229 and notes, from a use for one purpose to a use for another, 149 a, 149 6, 226-231, 383. by substituting a new pond for an old one, 229. by building a new mill in place of an old one, 383 a. in the kind of material, by a party having a right to corrupt a stream with one kind, 136 note, 230 b. in the course of a stream, 166 e, 166 j. by an adjutage, which enlarges the flow of water, 148. by enlarging a flume, 149. in the height of water, by repair of dam, 380. by erecting a new dam higher than an old one, 380 note, 381. of the Common Law by the mill acts, 483 a. in the remedy by mill acts, 484. by enlarging the use of corrupting a stream acquired by prescription, 136 note, by turning a public stream into a new channel, public may use it in new channel, 540. INDEX. 781 CHANGE, — continued. new channel obstructed, publiomay return to former, 540. by making a new watercourse on one's own land, 540. CHANNEL, f what riparian owner may do, to confine stream within, 53 notes. CIVIL LAW, servitudes by, 114 s, 142, 143 and notes. CLAM, relating to adverse enjoyment, 210, 215 and note. CLAMS. (See Shell Fish.) CLANDESTINE USER. 215. (See Advbrse User.) CLEANING, right of, as to obstructions in a raceway or artificial canal, 163. right of cleansing a natural watercourse, not an incumbrance, 163 and note. care to be observed in, 163. covenant for cleansing a watercourse, in a grant of the land, 262.. by mill-owner, to remove obstructions to free discharge of water from mill, 390. COMMON-LAW REMEDIES, provisions of mill act substituted for, to what extent, 484^487 and notes. COMMON, TENANTS IN. (See Partition, Division.) stream boundary between, on partition &c., 15. liability of one to his cotenant respecting the use of water, 401 note. COMMON FISHERY, same as free fishery, 77. COMPLAINT, for flowage under mill acts of Massachusetts, 609-625. of Maine, 626-534 a. (See Mill Acts.) mortgagor may maintain, after foreclosure, for damage done to land while he was in possession, 509 note. a trustee may maintain, 609 note. a life-tenant, 609 note. lis pendens, 509 note. COMPENSATION. (See Eminent Domain.) CONDITION, on which parol license is granted, effect of its not being fulfilled, 292 b. CONDUIT AND PIPES, pass with grant of the house, 191 note, otherwise if severed, 191. when granted or reserved by implication, 163 and note, 164,' 168. of implied right to enter and repair, 168. CONNECTICUT RIVER, riparian proprietorship on, 69 a, note. CONSTITUTIONALITY, of mill acts, 466 a, 487, 487 a. CONSTRUCTION, according to intention, 148. 782 INDEX. CONSTRUCTION, — continued. the best judicial, 148. or particular grants or reservations, 144 et seq., 144 notes, 144 J note, 146 note, 148 note, 149 b note, 149 / note, 149 g note, 149 h note, 153 note, 361 note, of a grant of a water-power, which restricts grantee to the specific use of water when grant was made, not favored, 149 h and note, of a grant of right to build dam and to flow land of grantor, 361 note, 370 note, of particular contracts, 273-279. CONTERMINOUS, proprietors, rights of, as to surface water and drainage, 108 a-108 h, 108 n, 108 r, 108 s. CONTINUANCE, whatever breaks the continuance of the enjoyment of an easement de- stroys effect of previous user, 214 a. of a nuisance, what is and who liable for, 402. whether purchaser liable for continuance of nuisance created by his grantor, without notice and request to remove, 403 and note, purchaser of estate injured by nuisance may sue original wrong-doer, who created and still maintains the nuisance, without notice or request, 399 a. no notice or request necessary to give action for, against purchaser who continues a nuisance, by making a permanent structure in the place of flash-boards, 403 note, no particular form of notice necessary, when any required in such cases , 403 a. CONTINUOUS, easement, 166 b and note, 195 and note, definition of, 195 note. right of drawing water from mill is not, 211. way is not, 211. use, 210. CONTRACT, special, uses of water subject to and limited by, 255. personal, in relation to the use of a watercourse, and the construc- tion of particular contracts, 273-279. (See Arbitrament and Award.) in construction of, relating to water, what law regards, 276. CONVENIENCE, difference in effect between what is convenient and what is necessary in implication of a grant, 166, 166 t, 195. CONVEYANCE, of land bounded on watercourses extends to the middle of the stream, 11. same rule holds whether grant is by State or individual, 12, 13. of one-half of a dam is a grant of a right to use one-half of the water, 105. importing right to erect a dam may be the grant of a water-power, 146. of one of two ancient mills, what right in stream it carries, 153. INDEX. 783 CORRUPTING. (See Fouling.) water in a well by percolations through the soil of noxious matter placed on the land of another, 114; note, water percolating from the land of one to that of another, 114j. injury by rendering water corrupt and unwholesome, 186-140 d. action lies for, 136 and note. by ingredients used in manufacturing, 136 note, 140 b, 140 c. by throwing refuse matter into stream, 136. effect of discontinuing a right of, 136. suspension of prescriptive right of, 136. the atmosphere, 137. indictment for, 139. to authorize abatement of dam for it, 140. returning water pure, 140 a. injunction against, 140 a, 140 6, 140 c. some degree of, not always unlawful, 140 d. extent to which refuse matter may be lawfully thrown into a stream, 140 d. whether use made of stream for this purpose reasonable or not, circum- * stances to be considered, 140 d and note, user may establish right of, 136 and note, right of, acquired by prescription, not affected by change of material, 230 6. COVENANT, what amounts to, 255. real and personal, 255. collateral, 255, 258. real, runs with land, 255. real, bears strong resemblance to an easement, 256. all implied covenants run with land, 256. real in respect to a watercourse, 256-273. to make covenant run with the land, there must be a privity of con- tract or estate, 257 et seq. contract to build a mill or dam on land of third person is personal, to build a mill or dam on land demised, runs with the land, 258. to make covenant run with land the performance or non-performance must affect the nature, quality, or value, or the mode of enjoying the estate, 258. assignee of grantee may sustain an action on a covenant of warranty, 260. does not follow, because covenant runs with land to assignee, that in no event can the assignor maintain an action, after he has assigned it, 260. doctrine applied to the conveyance of a mill, with covenant to keep it in repair, 260. to supply premises demised with water, 261. to cleanse a watercourse in a grant of the land, 262. not to let or establish any other site on the same stream, 262, 277. in an apportionment of water among several mill-owners, 262. to run with land must be for future acts, 263. 784 INDEX. COVENANT, — continued. as to what now exists, does not run with land, 263, 264. to permit one to make a drain, 265. collateral covenant does not run with the land, 266. that the seller was seised in fee, does not extend to a covenant that the purchaser might draw water from a well, 267. other cases where covenant does not extend to subject-matter in dis- pute, 268, 269. assignee of a covenant chargeable, although the word " assigns" is not mentioned in it, 270, 271. heir, when bound by ancestor's covenant, though not mentioned, 272. action of, when may be brought for an injury to, or by means of, a watercourse, 440-443. CRANBERRIES, flowing land for cultivation of, 119 note, 491 a note. CUJUS EST SOLUM, EJUS EST USQUE AD GCELUM, what it inculcates, 6. a general rule applicable to the use of real property, 108 a, 114 e, 114 0, 314. CULINARY PURPOSES, use of water for, 93 a, 122, 127, 144 h. water rendered unwholesome for, by erection of tannery, 136. DAM. (See Flowing Land — Mills.) what it is, 219 a, in note, several owners of, each bound to make his proportion of repairs, 105 note, 106. riparian owner on one side cannot extend, beyond the thread of the stream, 108. detention of water by, and its evaporation &c., 116-120. not reasonably adapted to the size and character of the stream ; capac- ity too small for the extent of meadow undertaken to be flowed ; unreasonable detention by mismanagement of gates, 119 note, may be at great distance from mill and yet pass by a grant of it, as incident, 153 a. grant of right to build, exhausted by completion of it, cannot afterwards be raised higher under same grant, 157 c. grant of right to build, carries right to enter and repair, and cleanse pond, 158. what it may include, in a grant of land, 159. care to be observed in constructing, to protect land below from being suddenly inundated, 335 a, 336, 347-349 a. liability for negligence in constructing, 349 note, 402 note, limits of a right to build, fixed by the dam as built by mutual consent of parties, 137