The question, what is a reasonable use? depends upon a number of circumstances; upon the subject-matter of the use itself, the size of the stream, the velocity of the current, the nature of the banks, the character of the soil, and a variety of other facts.1 "What constitutes reasonable use," says the court in Wisconsin, "depends upon the circumstances of each particular case; and no positive rule of law can be laid down to define and regulate such use with entire precision, is the language of all the authorities upon the subject. In determining this question, regard must be had to the subject-matter of the use, the occasion and manner of its application, its object, extent, and the necessity for it, to the previous usage, and to the nature and condition of the improvements upon the stream; and so, also, the size of the stream, the fall of water, its volume, velocity, and prospective rise and fall, are important elements to be considered." And the question of the reasonableness of the use of a stream, when it is not settled by custom and is in its nature doubtful, should always be regarded as one of fact, to be determined by the tribunal trying the facts. We may add that the mode and extent to which a riparian owner may use and apply the waters of a stream, as between him and another riparian proprietor, is not measured by what would be reasonably requisite for his particular business, but what is reasonable, having reference to the rights of the other proprietors in the stream, without, by such use, materially diminishing its quantity or deteriorating its quality. And even where a party has a right to the use of a watercourse according to his convenience and judgment, and all the 3 1 Union Mills Co. v. Ferris, 2 Sawy. 176; Dilling v. Murray, 6 Ind. 324; Mayor of Baltimore v. Appold, 42 Md. 442; Elliot v. Fitchburg R. R., 10 Cush. 191; Thurber v. Martin, 2 Gray, 394; Timm v. Bear, 29 Wis. 254. 2 Timm v. Bear, 29 Wis. 254. 3 Snow v. Parsons, 28 Vt. 459. 4 Batavia Manuf'g Co. v. Newton Wagon Co., 91 Ill. 246; Union Mill & M. Co. v. Ferris, 2 Sawy. 196; Wheatley v. Chrisman, 24 Pa. St. 298; Pennsylvania R. R. v. Miller, 112 Pa. St. 34, s. c. 3 Atl. Rep. 780. § 126 right which prescription can confer, still he can exercise that right only in a reasonable manner; and therefore if he uses the water not for his own benefit and convenience, but maliciously or wantonly, to the prejudice of another, he is liable in damages.1 Finally, it is only between riparian proprietors that the question as to the reasonable use of the water can ever arise."] § 126. Reasonable use for manufactures. [In regard to the use of the water for mechanical or manufacturing purposes, the rule is thus stated: "Each proprietor of land through which a natural water-course flows has a right, as owner of such land, and as inseparably connected with and incident to it, to the natural flow of the stream, for any hydraulic purpose to which he may think fit to apply it; and it is a necessary consequence from this principle that such proprietor cannot be held responsible for any injurious consequences which result to others, if the water is used in a reasonable manner, and the quantity used is limited by, and does not exceed, what is reasonably and necessarily required for the operation and propulsion of works of such character and magnitude as are adapted and appropriate to the size and capacity of the stream, and the quantity of water usually flowing therein." But as a riparian owner cannot, by prior appropriation, acquire the right to divert the water-course as against a lower proprietor, so he cannot by such priority acquire a right to consume the entire stream 'Twiss v. Baldwin, 9 Conn. 291. 2 Lux v. Haggin, (Cal.) 4 Pac. Rep. 925. 3 Springfield v. Harris, 4 Allen, 494, Merrick, J. And see Davis v. Getchell, 50 Me. 602. But the diversion of a water-course, or a part of it, by an upper riparian propriPOM.RIP.-15 etor, for manufacturing purposes, without restoring to the channel the excess of water not actually consumed, is an unreasonable exercise of the right to use the water of the stream. Weiss v. Oregon Iron & Steel Co., 13 Or. 496, s. c. 11 Pac. Rep. 255. (225) for mechanical purposes, as by converting it into steam.' The question whether the use of a stream to carry off manufacturer's waste is reasonable or not, is one of fact for the jury, depending upon the circumstances of the case, such as the size and character of the stream, the purpose of its use, the benefit to the manufacturer, and the injury to the other riparian owners.2] § 127. Manner of use must be reasonable. [The maxim, sic utere tuo ut alienum non lædas, emphatically applies to riparian proprietors. For example, a riparian proprietor, in using the water of a stream for domestic purposes and watering cattle, has no right to so dam it up as to spread it over a large surface, whereby it becomes lost by evaporation and absorption to an extent to prevent the stream from flowing through the land of the next proprietor, as it would do but for such dam. But a riparian owner may dan the stream in order to make a pond for ice, and he may drain such pond, and hold back the water until he shall have cleaned out the pond in order that the ice may be pure. Those below cannot complain of such use."] 1 Bliss v. Kennedy, 43 Ill. 67. In Garwood v. Railroad, 83 N. Y. 400, plaintiff was the owner of a mill operated by water-power furnished by a creek. Defendant, (a railroad corporation,) who was a riparian owner above, under a claim of right, diverted the waters of the creek, conveying them by pipes to reservoirs, whence its locomotives were supplied with water. The jury found, on sufficient evidence, that the water so diverted from the creek was sufficient (226) "to perceptibly reduce the volume of water therein," and to "materially reduce or diminish the grinding power of plaintiff's mill," and that in consequence he had sustained damage to a substantial amount. Held, that plaintiff might recover the damages sustained, and have the diversion enjoined. 2 Hayes v. Waldron, 44 N. H. 580. 3 Burwell v. Hobson, 12 Grat. 322. Ferrea v. Knipe, 28 Cal. 340. "De Baun v. Bean, 29 Hun, 236. CHAPTER VIII. USE OF WATERS FOR IRRIGATION. § 128. Irrigation of riparian lands-Ellis v. Tone. 133. Prior appropriation gives no exclusive right. 135. Size of stream. 136. Reasonable use for irrigation. 137. Easements and adverse user. 138. Relation of irrigation to the natural wants. 139. Summary of principles. 140. Irrigation-The English authorities. 141. French law. 142. Review of the American authorities. 143. Review of authorities continued-The Pacific cases. 144. Surplus water must be restored. § 128. Irrigation of riparian lands-Ellis v. Tone. We are now brought to the question, how far do the riparian rights of a private riparian proprietor, under the law of California and of Nevada, include the right to use the water of the stream for the purpose of irrigating his land? The only recent decision which deals directly with this question to any extent, or in any manner, is found in the case of Ellis v. Tone,' decided in 1881. Unfortunately this case is so reported that it does not throw much light upon the general question. The action was tried before a jury, but the report does not give the entire charge of the court, so that it may be seen upon what general theory of the law, or upon what admitted doctrine, the cause was tried and the recovery had. Certain detached clauses of the charge were 158 Cal. 289. excepted to, and certain special instructions were refused, and these alone have been given by the reporter. The opinion of the court is also confined to an examination of the specific exceptions, and does not enter into any discussion of the general doctrines upon which the case, as a whole, must have rested. The case, however, is the most recent published decision which deals with the right to use water for purposes of irrigation, and we shall state it in substance, by way of introduction to the discussion of this most important question. The action was brought to recover from defendants damages for diverting water from Mormon slough, a natural water-course, by which plaintiffs were prevented from irrigating their growing crops in 1877. A verdict was rendered in favor of the plaintiffs. Defendants moved for a new trial, which was denied, and they appealed. The facts, as stated in the report, were as follows: Mormon slough or channel heads from and runs out of the Calaveras river east of Stockton, and about four miles northeasterly from plaintiffs' land, and flows thence in a south-westerly direction to the Stockton channel, a distance of about twenty miles. The slough runs through the land of the plaintiffs in two channels. The defendants own land on the Calaveras river, below the point where the Mormon slough runs out of that river. The slough is a natural water-course, having a well-defined channel and banks. In 1850, before the channel of the Calaveras river was filled in by mining débris, it (the lower channel of said river) was from four to six feet lower than the bed of the slough, so that the waters of the river did not flow into the slough until the waters of the river had risen from four to six feet. But the channel of the river has since been so filled up by débris that, when the water is low, most or nearly all of it runs and has run into and through the slough. That has been the case since 1862, unless prevented by artificial means, so that in dry seasons, or |