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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. The Schools v. Risley,* 10 Wall., 91.
$ 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.
$ 133. 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.
S 136. In dietermining 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 thereco unless the description in his deed is such as to include them. •Jones v. Johnston, 18 How., 150.
8 137. A deed containing the following description: “ beginning at a stake on the west bank of Pevobscot 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.
8 138. 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.
8 140. 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 caunot 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 wbarves 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 Sump., 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. Buggs, 1 Bald., 60.
$ 150. A mere intruder on land is limited to his actual possession, ard 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. SS 151, 152.– Water on public lands, SS 153–155.- Adverse
possession, $ 156. — Mining and irrigating, g 157.
$ 151. A dam which set back the water at an upper dam was lowered and so remained thirty-eight years. Helil, 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.
$ 132. 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 coudition of the country and the necessities of the people. Basey v. Gallagher, SS 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, SS 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 us of water does not become adverse until it becomes injurious to a riparian owner and becomes an actionable invasion of his rights. Ibid.
8 157. 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 in jury to others. Ibid.
[NOTES. - See ss 172-192.)
HAZARD V. ROBINSON.
(Circuit Court for Rhode Island: 3 Mason, 272-280. 1923.)
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 streaın (called Sauhatucket river), and thereby stopping the operation of the plaintiff's mill. Plea not guilty.
At the trial the facts appeared to be in substance as follows: The mill in question, which for the sake of distinction may be called the upper or Niles mill, was owned by one Ebenezer Niles in 1735, and sold by bim in that year to Daniel M'Loone. In 1744 M'Loone devised the same mill to Thomas Hazard in fee; and, afterwards, in 1746, being the owner of lands lying on the same stream and mill privileges nearly through its whole course, by a codicil to his will, he gave to Daniel Williams a piece of land on the same stream, and "free liberty of erecting a mill or mills on any part of said river to the westward of said land; and free and full liberty of raising a pond by erecting a dam across said river, which may be sufficient and suitable for carrying of said mills when erected.” After the death of the testator his will and codicil were duly prored, and about the year 1749, the devisee, Daniel Williams, erected the lower mill with a suitable dam across the stream in pursuance of the authority in the will. The other devisee, Thomas Hazard, immediately brought an action for an alleged obstruction to his mill by building a dam so high for the new or lower mill, and thereby flowing back the water. In this suit the defendant Stedman, who claimed under Williams, had judgment in his favor.
Rowland Ilazard became the owner of the upper or Niles mill before the year 1780; and in the year 1807 he purchased of Daniel Williams and others, the then owners under the original devisee, the lower or Williams mill, thus becoming the owner of both mills. In October, 1818, Rowland Hazard conveyed a certain parcel of land, including the lower or Williams mill, “ with all the privileges and appurtenances thereunto belonging ” (alleging the prem: ises to be part of the land and mills he purchased of Daniel Williams and others, to Christopher Congdon in fee, under whom the defendants claimed by a deed dated in March, 1820. The plaintiff derived title to the upper or Niles mill by deed from Rowland Hazard in May, 1821. The defendants after this period raised the height of the dam on the lower or Williams mill about two feet, whereby the obstruction to the plaintiffs' mill complained of was occasioned. From the year 1780 to the time of the grievance complained of, the dam of the lower mill had always been of the height it was before the two feet were added to it by the defendant in 1821. It was asserted, however, that antecedently to 1780 the dam was of the same height that it was after the defendant's addition. This last fact, however, was in controversy between the parties.
Opinion by Story, J.
Upon the facts in this case two points arise: 1. Whether, assuming that originally the dam of the lower mill was rightfully erected as high as it now is, the subsequent lowering of it two feet in 1780, and keeping it in the same state for thirty-eight years, is not an extinction of the privilege to raise it higher. 2. Whether at all events the unity of possession of both mills in Rowland Hazard by his purchase in 1807 did not extinguish any privilege appurtenant to one mill which was injurious to and disused in respect to the other.
I will consider both points, because they involve considerations of great practical importance, and have been thought susceptible of no small difficulty. As to the first point: The raising of the dam of the lower mill is proved to have been a great injury and obstruction to the beneficial use and operations of the upper mill. This was the origin of the lawsuit stated in the evidence;
. and its termination in favor of the defendant, if it establishes a right in the
original devisee, also establishes the fact that it was a material diminution of privileges valuable to the upper mill. For thirty-eight years, that is, erer since the year 1780, the dam has remained two feet lower than it now is, and during all this period the upper mill has enjoyed the privilege of the water without any obstruction whatsoever. No adverse right has been claimed, no adverse use or privilege has been exerted. Now upon this posture of the case, upon the general principle of law, a fair, I might almost say an irresistible, presumption arises of a grant of this privilege from the owner of the lower mill to the owner of the upper mill.
$ 158. Twenty years' possession of an easement raises a conclusive presumption of right, if unexplained.
In respect, however, to incorporeal hereditaments and easements, such as ways and water privileges, the rule of law is well established that an uninterrupted possession and use for twenty years is prima facie and, if unexplained, conclusive evidence of a right; and under circumstances courts of law will entertain the presumption of a grant, even from a shorter period of enjoyment. The cases are so numerous, so well known and so direct on this head that it is unnecessary to refer particularly to them. See cases in Angell on Water
. courses, 44; Saunders v. Newman, 1 Barn. & Ald., 258; Balston v. Bensted, 1 Camp., 463; Bealy v. Shaw, 6 East, 208; 12 Ves., 266; Gray v. Bond, 2 Brod. & Bing., 667; 2 Saund., 175, Williams' note (2); Hawke v. Bacon, 2 Taunt., 155; Gayetty v. Bethune, 14 Mass., 49; Hoffman v. Savage, 15 Mass., 132; Strout v. Berry, 7 Mass., 385; Phillips' Evid., ch. 7, § 2, p. 120, etc.; Wright v. Howard, 1 Sim. & Stu., 190, 203. A right thus acquired by user may, in like manner, be lost by disuser; in other words, the discontinuance of the use for a long period affords a presumption of the extinguishment of the right. Lawrence v. Obee, 3 Campb., 514. See White v. Crawford, 10 Mass., 183. In the present case there is nothing to repel the presumption arising from length of time. It was an open, public, uninterrupted use of the water after the lowering of the dam; it was an important privilege; and if a right could not, under such circumstances, be acquired by thirty-eight years' enjoyment, it is difficult to conceive to what cases the rule of presumption ought to be applied. My judgment is that in this case it afforded a conclusive presumption of right.
As to the second point. From the year 1807 to 1818, the time of the conveyance to Congdon, Rowland Hazard was the owner of both mills, and, of course, of all the rights and privileges appurtenant thereto. In general it is true that unity of possession of the estate to wbich an easement is attached, and of the estate wbich the easement incumbers, in effect is an extinguishment of the easement. 1 Saund., 323, Williams' note (6); 1 Roll. Abr., 635, c. pl. 8; Buller's N. P., 74; Popbam, 166; 4 Co. Rep., 36; Clements v. Lambert, 1 Taunt., 206. But this doctrine has some exceptions; as, for instance, in case of a way of necessity, it is often said that unity of possession does not extinguish it. The true principle that governs in that case is this: A way of necessity, being ex vi termini indispensable for the beneficial use of the estate granted, is considered as included in the grant of the estate; for in such case the law gives, by implication, everything which is necessary for the enjoyment of the estate. It would perhaps be more correct to say that in such case the original right of way is suspended or extinguished by the unity of possession, and revived or regranted by necessary implication upon the grant severing the possession. 1 Saund., 323, Williams' note (6).
Be this as it may, it has been laid down in Buller's Nisi Prius (p. 74), “ that a right of water-course does not seem to be extinguished by unity of possession in any case.” For this he cites the case of Surrey v. Pigott, in Latch, 153, and Popbam, 166. The case in substance was this: A. was possessed of a rectory, of which a curtilage was parcel. From time immemorial a watering-place for cattle, etc., existed in said curtilage, and a stream had flowed from Milford stream through a piece of land called the hop-yard to fill the pond at the watering-place. A. afterwards purchased the hop-yard, and thus became possessed of the rectory and hop-yard at the same time. He then sold the hop-yard to B., under whose title the defendants entered and obstructed the water-course by erecting a stone dam across it within the limits of the hop-yard. The court were unanimously of opinion that the right to the water-course was not extinguished by the unity of possession, and that the plaintiff was entitled to recover for the obstruction. The case is most fully reported in Popham. Whitlocke, J., said: “That a way or common shall be extinguished, because they are a part of the profits of the land; and the same law is of fishings also; but in our case the water-course doth not begin by consent of parties, nor by prescription, but ex jure naturæ, and therefore shall not be extinguished by unity of possession." He took the distinction that where a thing hath its being by prescription, unity will extinguish it; but where the thing bath its being ex jure naturce it shall not be extinguished. Jones, J., was of the same opinion for the same reason. Doddridge, J., went into a larger examination of the subject, and held that the unity of possession did not extinguish the right to the water-course, for two reasons: (1) for the necessity of the thing; (2) for the nature of the thing, being a water-course, which is a thing running. He put the case: “A man owns a miil, and afterwards purchases the land upon which the stream goes which runs the mill, and afterwards aliens the mill, the water-course remains.” Crew, C. J., concurred in opinion. The same case is reported in Noy, 84; Palmer, 41+; William Jones, 145, and 3 Bulst., 339, but without any essential difference. Upon this case it does not appear to me that there is any difficulty in admitting its entire correctness. It proceeds upon this plain principle, that a privilege which was annexed to, and in actual use with, the rectory during the unity of possession, and was not parcel of the other land or a profit a prendre out of that land, was to be considered as still existing as an appartenance or privilege annexed to the rectory, notwithstanding the unity of possession. The running water over the hop-yard was not 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 water-course and thus destroyed the privilege, the case would have been oberwise. A subsequent grant of the rectory would then have conveyed only the privileges actually in existence and use at the time of the conveyance. This doctrine was adinitted by the court, in Surrey v. Pigot, to be correct, and was adjudged in a case in 11 Hen. 7, 25, 6, which was on that occasion cited and approved. The case in 11 Hen. 7, 25, was as follows: A. was the owner of a tenement, to which there was an ancient gutter running through an adjoining tenement, and afterwards he bought the adjoining tenement; and then sold the first tenement to the plaintiff. It was held that the ancient gutter was not extinguished by the unity of possession; but that it would have been otherwise if A., during the unity of possession, had destroyed the gutter or cut it off. The reason is that it was a necessary and subsisting