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The memorandum, indorsed on the deed of Gideon Jenks to Eleazer Jenks in 1781 cannot be admitted as proof of the anterior pre-eminent right contended for by the plaintiffs. In the first place, however operative between the parties, it could not bind the rights of the other trench owners, who were not parties to it. In the next place, it is not in its terms a recognition of any antecedent existing right, but a reservation of a future right. Its effect, in this view, is equivocal; for the reservation of a pre-eminent right may have been a part of the bargain between these particular parties. But what is still more material, the reservation is not to the plaintiffs, or to the owners of the lower dam generally, or to the riparian proprietors, but simply a reservation in favor of the forge mill then existing on the west side of the river. Its bearing, therefore, on the present case must be very slight, if in truth it ought to have any bearing at all. The acts of particular owners respecting their own rights cannot be permitted to bind the rights of others unless they are adopted and acquiesced in, with full knowledge by the other parties in interest. The agreement of 1796 repels any such inference. The fact of the actual flow and use of the water, for a considerable length of time, is proof of a general right; and no limitations are to be presumed, unless such limitations have constantly accompanied the use, and been acquiesced in by those whose interests were adverse. For a period of forty or fifty years the water did flow into the trench without any known limitation upon it by grant or usage. The acts of interruption since that time were either such as referred to the removal of temporary dams, intended to increase the supply, or were under circumstances so questionable as to leave behind them no clear traces of any admission of right, or uniform acquiescence in them as just exercises of superior adverse interests.

I pass over any particular examination of the testimony of witnesses on this point, because it is extremely difficult to reconcile it throughout; and it is in many respects so loose and uncertain that the judgment cannot repose upon it with entire confidence. It fails of establishing any solid ground on which to rest a decree in favor of the plaintiffs of a pre-eminent right to the use of the

water.

The conclusion to which my mind has arrived on this point is that the owners on Sergeant's Trench have a right to the flow of the quantity of water which was accustomed to flow therein antecedent to 1796; that this right is general, and not qualified by any pre-eminent right in the plaintiffs or the other owners of the lower dam, either as riparian proprietors or otherwise, to the use of the water in case of a deficiency; that, if there be a deficiency, it must be borne by all parties as a common loss, wherever it may fall, according to existing rights; that the trench proprietors have no right to appropriate more water than belonged to them in 1796, and ought to be restrained from any further appropriation; and that the plaintiffs to this extent are entitled to have their general right established and an injunction granted.

It is impracticable for the court to do more in this posture of the case than to refer it to a master to ascertain, as near as may be, and in conformity with the suggestions in the opinion of the court, the quantity to which the trench owners are entitled, and to report a suitable mode and arrangement perma nently to regulate and adjust the flow of the water so as to preserve the rights of all parties.

In respect to the question of damages for any excess of the use of the water by the trench owners beyond their right, within six years next before the filing

of the bill, I have not thought it my duty to go into a consideration of the evidence. It is a fit subject either for reference to a master or for an issue of quantum damnificatus, if either party shall desire it.

The decree of the court is to be drawn up accordingly; and all further directions are reserved to the further hearing upon the master's report, etc.

§ 105. Rights on navigable and non-navigable rivers.- Where a stream which is clearly not navigable forms the boundaries of proprietors on each side of it, each may claim to the middle of the stream; but, it seems, on navigable streams the riparian right cannot extend generally beyond high-water mark. For certain purposes, however, such as the erection of wharves and other structures for the convenience of commerce, and which do not obstruct the navigation of the river, it may be exercised beyond this limit. Bowman v. Wathen, 2 McL., 376.

§ 106. A riparian owner has no right, without license or authority of any kind, to build a pier in a navigable river as a part of a boom for receiving and retaining the logs necessary for use in his saw-mill. Such a structure cannot be sustained on the same principle as wharves, piers, etc., constructed to facilitate navigation; and the owner of such structure thus unlawfully constructed is liable for the sinking of a barge which ran upon it in the night. Atlee v. Packet Company, 21 Wall., 389.

§ 107. Although the lines of riparian owners can be extended into non-navigable streams at right angles without confusion or injustice to any one, the same rule cannot be applied to give riparian owners ownership of the beds of natural non-navigable lakes and ponds regardless of their size. If applicable at all to lakes, it is by reason of the small size of the lake and other circumstances. Each case depends largely on its own facts. State of Indiana v. Milk, 11 Fed. R., 389.

§ 108. By the laws of Pennsylvania riparian owners on large rivers take no rights in the bed of the stream. Rundle v. Delaware & Raritan Canal,* 1 Wall. Jr., 275.

§ 109. The joint act of 1771 of Pennsylvania and New Jersey, appointing commissioners for the improvement of the Delaware, which provided that certain dams should not be interfered with, operated not as a grant, but as a license, revocable at pleasure. Ibid.

§ 110. A riparian owner whose lot is bounded by a navigable stream has the right of access to the channel from his land, and for that purpose may erect a wharf subject to such rules as the legislature may prescribe. And a city cannot, by merely fixing a wharf line, without making the river navigable to that point, deprive such owner of the right to extend his wharf to the navigable channel. Yates v. Milwaukee,* 10 Wall., 497.

§ 111. Where a riparian owner on one side of a river seeks by dikes or otherwise to secure an improvement of his property he must do so without obstructing the navigability of the river or destroying the property of a riparian owner on the opposite shore. Kutz v. City of St. Louis,* 3 McC., 261; 10 Fed. R., 338.

§ 112. Where land bordering a non-navigable lake is platted as extending to the water, a purchaser from the government takes to the water though there may be land between the meander lines as surveyed and the water's edge. Forsyth v. Smale,* 7 Biss., 201.

§ 113. Under the act of the legislature of New York of April 10, 1850, providing for the granting of water lots to riparian owners upon navigable waters, the grant must be confined to a ime starting at the intersection with the shore and extending at a right angle to the thread of the stream, or at a right angle into the lake, without any regard to the course or direction of the line upon the land. United States v. Ruggles,* 5 Blatch., 35.

§ 114. The erection of a dock on a water lot properly granted to a riparian owner of a lot adjacent to the Brooklyn navy yard under the act of New York of April 10, 1850, will be restrained until it appears that such erection will not seriously interfere with the rights of the government as proprietors of such navy yard. Ibid.

§ 115. Use of water. It seems that a riparian proprietor is only entitled to take the water from the stream on his own land, and must return the surplus to the stream before it leaves his land. At all events, the fact that a proprietor took the waters at some distance above, and returned the surplus at some distance below, his land, would have an important bearing upon the question of reasonable use. The Union Mill and Mining Co. v. Ferris, 16 Int. Rev. Rec., 114. See § 164-171.

§ 116. Water for irrigation is not a natural want in the same sense that water for quenching thirst is, which a riparian proprietor may satisfy without regard to the rights and needs of proprietors below. Ibid.

$117. Every proprietor of land by or through which a stream of water naturally flows may make a reasonable use of the water for any useful purpose. What is a reasonable use depends upon the circumstances of each case. Ibid.

§ 118. The use of water by a riparian proprietor does not become adverse until it amounts to an actionable invasion of another's rights. Ibid.

§ 119. A riparian proprietor may lawfully divert the water of a stream for the purpose of irrigating his land to a reasonable extent. But in no case may he do this so as to destroy or render useless, or materially affect, the application of the water by other proprietors. Ibid. § 120. If a proprietor below on a stream has by reason of an adverse use by a proprietor above presumptively granted to the upper proprietor a right to use the water of the stream in a particular manner, such grant affects only the property owned by the proprietor below at the time the presumptive grant must have had its origin, and he may afterwards purchase other lands on the stream, and will hold the latter unaffected by such presumed grant. Ibid. § 121. A stream of running water is part and parcel of the land through which it flows, inseparably annexed to the soil, and the use of it as an incident to the soil passes to the patentee of the land. Ibid.

§ 122. The government, as proprietor of the land through which a stream flows, has the same property and right in the stream that any other proprietor would have. Ibid.

§ 123. The lots in the city of Washington lying on Rock creek are entitled to the water privilege in front of them although separated from them by a public street; and the owner of the lots is entitled to the condemnation money awarded for water privilege in front of them condemned for the use of the Chesapeake & Ohio Canal Company. Chesapeake & Ohio Canal Co. v. Union Bank of Georgetown, 5 Cr. C. C., 509.

$124. Each riparian owner has a right within his own territory to the use of the water as it flows, returning it to the channel of the river for the use of others below. Mason v. Cotton,* 2 McC., 82; 4 Fed. R., 792; 27 Int. Rev. Rec., 53.

§ 125. By the laws of Pennsylvania the river Delaware is a public, navigable river, held by its joint sovereigns in trust for the public. Riparian owners have no title to the river or any right to divert its waters unless by license from the state. Acts of Pennsylvania and New Jersey, which restrained the commissioners for the improvement of that river from interfering with a dam erected therein, only secured the owner against the penalties of a prosecution for maintaining a nuisance, and his rights to the use of the water were in subjection' to the superior right of the state to divert the water of the river for public improvements. Rundel v. Delaware & Raritan Canal Co.,* 14 How.. 80.

§ 126. Alluvion becomes the property of the owner of the land upon which it forms. Where the land is dedicated to public use the alluvion is subject to the same use. New Or. leans v. United States, 10 Pet., 662.

§ 127. The question is well settled at common law that the person whose land is bounded by a stream of water which changes its course gradually by alluvial formations shall still hold the same boundary, including the accumulated soil. Every proprietor whose land is thus bounded is subject to loss by the same means which may add to his territory; and as he is also without remedy for his loss in this way, he cannot be held accountable for his gain. This rule is no less just when applied to public, than to private, rights. Ibid.

§ 128. The boundary to lands bordering on rivers and lakes is the meandered line made by the government survey. And if, at the time of entry of government land, the bank of the river or shore of the lake, at an ordinary stage of water, were where this meandered line was represented by the United States survey, accretions subsequently formed belong to the party making the entry or his grantees. But if, when the entry was made, there was at that time, between the meandered line and the bank of the river or lake, a body of swamp or waste land, or flats, on which timber or grass grew, and horses and cattle could feed, and hay be cut, then neither the party making the entry nor his grantees can claim beyond said meandered line. Granger v. Swart, 1 Woolw., 88.

§ 129. The owner of a lot in the city of Keokuk fronting on Water street owned the fee in the street to the river, subject to the public easement. Held, that the additional ground made by filling in Water street by the city outside of the original water line partook of the same character as the original street, and that the fee of the newly-made ground in front of said owner's lot was in such owner, subject to the same public uses as the original street. Barney v. Keokuk, 4 Dill., 593.

§ 130. In Iowa the title of riparian owners on the Mississippi exterds only to ordinary high-water mark, and the shore between high and low-water mark belongs to the state, as well as the bed of the river. This is also true in the "Half-Breed Sac and Fox reservations." Under this rule the city of Keokuk had authority under its charter to devote land adjoining the end of a street and retained from the river below high-water mark to the erection of docks and wharves, and might suffer it to be occupied by railway tracks without making compensation to adjacent proprietors. Barney v. Keokuk,* 4 Otto, 324.

§ 131. Accretions to lands bordering the Mississippi in the former province of Louisiana belong, under the act of June 13, 1812, to the persons who inhabited, cultivated and possessed

the same at the date of the cession. But if the land only extends to a public way or path extending along the stream, then the owner of the land has no title to such accretion. Schools v. Risley,* 10 Wall., 91.

The

§ 132. Riparian owners are entitled to all accretions occasioned by alluvial deposits or by the gradual recession of the water from the usual water-mark. Ibid.

§ 133. All grants of land bounded by fresh-water rivers convey the right of proprietorship to the middle thread of the river, and include accretions. So the city of St. Louis is bounded on the east by the middle of the Mississippi river, though the calls in the survey are “the bank of the Mississippi, and from thence by the Mississippi to the place first mentioned." Jones v. Soulard,* 24 How., 41.

§ 134. An accretion to the side of a street belongs to the former proprietor of the soil, and not to the grantee of the land adjoining, who takes only to the center of the street as platted, though the street is less than half the usual width. Banks v. Ogden,* 2 Wall., 57.

§ 135. The riparian owner along whose land an accretion has formed is entitled thereto, rather than the owner of the tract from which his land was separated when sold. Saulet v. Shepherd, 4 Wall., 502.

§ 136. In determining right to accretion the claimant's boundaries are to be taken as of the date of acquiring title; and where accretions are made on land with a water front after a plan of the lot is platted, a purchaser from the proprietor gets no title thereto unless the description in his deed is such as to include them. Jones v. Johnston, 18 How., 150.

§ 137. A deed containing the following description: “beginning at a stake on the west bank of Penobscot river, near a thornbush, marked, etc., etc.; thence south nine rods to a stake and stones on the same bank of the same river; thence running on the western bank of said river to high water mark, sixteen rods in the first-mentioned bounds," does not include the flats below high-water mark on the river bank, and, under such deed, the owner takes subject to alluvion or decretion. Dunlap v. Stetson, 4 Mason, 349.

§ 138. Islands.- Although by the common law fresh-water rivers do not come within the category of navigable rivers, and the riparian owners have a right to all the islands in the river "ad medium filum aquæ," such has never been the law in Pennsylvania, and islands in the great rivers of Pennsylvania have never been subjects of appropriation, either by office right or settlement. Fisher v. Haldeman, 20 How.. 186.

§ 139. The water-power, which consists in the fall in a stream when in its natural state, where it passes through the land of a riparian owner, or the difference of level between the surface where the stream first touches his land and the surface where it leaves it, is as much the subject of property as is the land of which it is the accident. But it must be used and enjoyed so as not to encroach upon the rights of the adjoining or proximate owner. The owner below cannot subtract from the proprietor above by swelling or backing the water upon him, and thus lessening his power. Good v. Dodge, * 3 Pittsb. (Pa.), 557.

§ 140. Diversion of water. Although a riparian owner has diverted the water of a stream for his own use without returning it to its natural channel, equity may withhold its hand and refuse to aid a riparian owner lower down on the stream, who, out of mere captiousness, refuses to use the water after it has been thus diverted, if he may so use it with substantially the same results as if obtained by continuous flow from the stream through his own race. The remedy, if any there be in such case, is at law. Mason v. Cotton,* 2 McC., 82; 4 Fed. R., 792; 27 Int. Rev. Rec.. 58.

§ 141. Riparian rights are property which when once vested cannot be divested without due compensation. Yates v. Milwaukee,* 10 Wall., 497.

§ 142. Action for damages. In an action brought by a citizen of Illinois against a Missouri corporation to recover damages for the washing away of the plaintiff's land in consequence of the erection of a dyke on the Missouri side by the defendant corporation, the law of Missouri under which the dyke was erected cannot be pleaded as a defense. Rutz v. City of St. Louis,* 2 McC., 344.

§ 143. The soil under the tide-waters of California belongs absolutely to the state, and it may remove at pleasure all erections thereon. Weber v. Harbor Commissioners,* 18 Wall., 57.

§ 144. Under the acts of the legislature of California providing for the establishment of a water-front for the city of San Francisco, and for the erection of wharves at the ends of streets, the owner of land abutting such water-front had no right to erect a wharf extending beyond such line. Ibid.

§ 145. The act of the legislature of California in creating a board of harbor commissioners for the bay of San Francisco was an assertion of its right to maintain the harbor free from obstructions, and prevented the statute of limitations from running in favor of a person who had erected a wharf projecting into the bay. Ibid.

§ 146. The owner of the bed of a creek may convey it separate from the land that bounds it. Den v. Wright, Pet. C. C., 64.

§ 147. Flowing back.- No man by giving notice of an intention to obstruct a stream and thereby flow back the water upon the riparian proprietors can exempt himself from damages to the full extent of all the injury done, when the obstruction is completed. Farnum v. Blackstone Canal Corporation, 1 Sumn., 46.

$148. Where a canal company is authorized by the act of incorporation to construct a canal, and the manner pointed out in which they should locate it, held, that in order to entitle the company to raise a dam by which the water of the river should flow back, to the injury of riparian owners, the location of such dam and the intention to raise it must be made known and confirmed in the manner pointed out by the act of incorporation. Ibid.

§ 149. The original proprietors of New Jersey had no rights below low-water mark on the Delaware river. The right to the bed of the river was in the crown; therefore the compact entered into in 1676 between New Jersey and Pennsylvania, recognizing the right of fishery in riparian owners, did not give a common right of fishery therein. Bennett v. Boggs, 1 Bald., 60.

§ 150. A mere intruder on land is limited to his actual possession, and the rights of a riparian proprietor do not attach to him. Watkins v. Holman, 16 Pet., 25.

II. RIGHT TO USE OF WATER.

SUMMARY- Upper and lower dams. §§ 151, 152.-Water on public lands, §§ 153-155.- Adverse possession, § 156. — Mining and irrigating, § 157.

§ 151. A dam which set back the water at an upper dam was lowered and so remained thirty-eight years. Held, that the lower dam could not be raised to its original height, to the damage of the upper mill, though such right might have existed before the dam was lowered. Hazard v. Robinson, §§ 158, 159.

§ 152. An easement in the use of a stream at a certain mill to the injury of a lower mill is not lost by unity of possession of both mills in the same person. Ibid.

§ 153. The right to use the water of a running stream on public lands can be acquired by prior appropriation against persons having no title from the United States. The only limitation on the right seems to be that it must be exercised within reasonable limits, regard being had to the condition of the country and the necessities of the people. Basey v. Gallagher, S$ 160-163.

§ 154. A stream of running water is part and parcel of the land through which it flows, and the government has the same right to such a stream when it flows through public land as any other owner would have. Such right passes to the patentee of the soil unless conveyed by grant, or by the existence of facts from which it is the policy of the law to infer a grant. No adverse user of the water, while the land is still public land, confers any rights as against the government or its patentee. Union Mill & M. Co. v. Ferris, § 164–171. § 155. The act of congress of July 26, 1866 (14 Stat. U. S., 253), protecting rights to the use of water on public lands for mining and other purposes, did not operate retrospectively, or apply to lands patented before that date, but applies to all lands patented subsequently, as if the reservation was incorporated in the patent. Ibid.

§ 156. The use of water does not become adverse until it becomes injurious to a riparian owner and becomes an actionable invasion of his rights. Ibid.

§ 157. The right to the use of the water of a running stream for irrigating purposes is not such a natural right as the right to use and consume, if necessary to quench thirst. It is, however, a proper mode of using water by a riparian owner in Nevada, but the extent of lawful use depends upon the circumstances of each case, and must be so exercised as to do the least possible injury to others. Ibid.

[NOTES. See §§ 172-192.]

HAZARD v. ROBINSON.

(Circuit Court for Rhode Island: 3 Mason, 272-280. 1823.)

STATEMENT OF FACTS.- Case for obstruction to a mill and flowing back the water by means of a dam across the water-course lower down the stream (called Sauhatucket river), and thereby stopping the operation of the plaintiff's mill. Plea not guilty.

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