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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 ownership of the soil, and, when a title by use is set up against another proprietor, there must be an enjoyment for such length of time as will be evidence of a grant, and thus constitute a title under the proprietor of the land.
The use to which one is entitled is not that which he happens to get before another, but it is that which, by reason of his ownership of land on the stream, he can enjoy on his land, and as an appurtenant to it.”
$ 6. Inland lakes and navigable streams.
The same doctrine concerning the particular uses and appropriation of water by riparian owners is extended to inland iakes and streams which are navigable. This subject was recently considered by the New York court of appeals in the case of Smith v. City of Rochester, 92 N. Y. 463. In a very elaborate and learned opinion, that court decided (in June, 1883) that “riparian owners of land, adjoining fresh-water non-navigable streams, as an incident of their ownership acquire the right to the usufructuary enjoyment of the undiminished and undisturbed flow of said stream. This is also true of the fresh-water navigable streams and small lakes within the state where the tide does not ebb and flow; save that the public has an easement in such waters for the purpose of travel, as on a public highway, which easement, as it pertains to the sovereignty of
1 See also the elaborate editorial note to Heath v. Williams, 43 Amer. Dec. 269-279, in which numerous cases, English and Ameri. can, are collected, and the special rules established by them are formulated.
2 [The subject of riparian rights on navigable streams will be fully
discussed in a subsequent chapter. It has been held that while a general grant of land on a non-navig. able river or stream extends the line of the grantee to the middle or thread of the current, a grant on a natural lake or pond extends only to the water's edge. State v. Milk, 11 Fed. Rep. 389.]
the state, is inalienable, and gives to the state the right to use, regulate, and control the waters for the purposes of navigation. This public easement gives the state no right to convert the waters, or to authorize their conversion, to any other uses than those for which the easement exists; that is, for the purposes of navigation. The right to divert the water for other uses, although public in their nature, can only be acquired under and by virtue of the sovereign right of eminent domain, and upon making just compensation. This doctrine concerning the rights of riparian owners does not, however, apply to the vast freshwater lakes or inland seas between the United States and Canada, nor to streams forming the boundary lines of states. The rights of riparian owners on the Hudson and Mohawk rivers, in New York, are derived from the rules of the civil law as it prevailed in the Netherlands during the colonial period.” The facts of this case well illustrate the workings of the common-law rules.
Hemlock lake is a small lake in the interior of New York, about seven miles long and one and a half wide. It is to a certain extent navigable, and has been navigated with small craft by the residents on its borders. The decision, it will be seen, treats it as navigable. Its surplus waters form a stream which is unnavigable. On this stream, near the outlet of the lake, the plaintiff has a mill, and the water of the stream was sufficient to keep the mill in operation throughout the entire year. In 1873, under authority conferred by the legislature of the state, the city of Rochester constructed a conduit or aqueduct from this lake to the city, for the purpose of furnishing a supply of water to its inhabitants. By this aqueduct over 4,000,
. 000 gallons daily were drawn from the lake, and the flow of surplus water through the natural outlet was so diminished that the operations of the plaintiff's mill were seriously interfered with, and in some parts of the year entirely stopped. No compensation was paid or offered by the city to the plaintiff. On these facts the court held, in pursuance of the doctrines above quoted, that the plaintiff was entitled to relief against the city.
§ 7. Specific rules stated.
From this general doctrine, the following more specific rules necessarily follow. A riparian proprietor need not have actually appropriated the water of a stream, in order that he may be entitled to complain of a diversion by another proprietor; actual damages are not necessary, for damage is conclusively presumed from any such diversion.' A riparian proprietor cannot consume the entire stream for any purpose.
He may appropriate the water for his own necessary uses, but this right must be reasonably exercised, and there must be no substantial diminution or waste. The editorial note cited below, sums up the common-law doctrine, as the result of the American and English cases, as follows: "The general principle is that every owner of land through which a natural stream of water flows (or abutting on a natural inland lake) has a usufruct in the stream as it passes along, and has an equal right with those above and below him to the natural flow of the water in its accustomed channel, without unreasonable detention or substantial diminution in quantity or quality, and none can make any use of it prejudicial to the other owners, unless he has acquired a right to do so by license, grant, or prescription.”
1 Adams v. Barney, 25 Vt. 225. Nor is it any defense to an action for diverting water from a riparian proprietor to show that no injury would have accrued to him if he had not changed the manner or extent of his use, because, independent of any particular use of or for it, he bas the right to the flow of the water on his own land without
diminution or alteration. Buddington v. Bradley, 10 Conn. 213.
2 See Adams v. Barney, 25 Vt. 225; Townsend v. McDonald, 12 N. Y. 381; Pillsbury v. Moore, 44 Me. 154; Bliss v. Kennedy, 43 III. 67; and other cases cited in the editorial note in 43 Amer. Dec. 274, 275.
§ 8. Riparian owner's right to natural flow of
stream. [It is a familiar and uniform rule of the common law-recognized and enforced by the courts both in this country and in England—that every riparian proprietor, as an incident to his estate, is entitled to the natural flow of the water of running streams through his land, in their accustomed channels, undiminished in quantity and unimpaired in quality; that no one can lawfully divert the water from his premises; and that none of the riparian owners can use the water to the material injury of those above or below him, although all have a right to the reasonable use of it for the ordinary purposes of life. In this connection, the following language of Chancellor Kent is frequently cited, as embodying a terse' and accurate statement of the rule: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in
1 Embrey v. Owen, 6 Exch. 352; Wood v Waud, 3 Excb. 748; Bea. ley v. Shaw, 6 East, 208; Mason v. Hill, 3 Barn. & Adol. 304; Wright v. Howard, 1 Sim. & S. 190; Orr Ewing v. Colquhoun, L. R. 2 App. Cas. 839; Chasemore v. Richards, 7 H. L. Cas. 349; Tyler v. Wilkinson, 4 Mason, 397; Pillsbury v. Moore, 44 Me. 154; Cowles v. Kidder, 24 N. H. 364; Tillotson v. Smith, 32 N. H.90; Martin v. Bigelow, 2 Aiken, 184; Merrifield v. Lombard, 13 Allen, 16; Pratt v. Lamson, 2 Allen, 275; Springfield v. Harris, 4 Allen, 494; King v. Tiffany, 9 Conn. 162; Buddington v. Bradley, 10 Conn. 213; Wadsworth v. Tillotson, 15 Conn. 366; Clinton v. Myers, 46 N. Y. 511; Arnold v. Foot, 12 Wend. 330; Hoy v. Sterrett, 2 Watts, 327; Holsman v. Boiling Springs Co., 14 N. J. Eq. 335; Ten Eyck v. Delaware Canal
Co., 18 N. J. Law, 200; Mayor of Baltimore v. Appold, 42 Md. 442; Omelvany v. Jaggers, 2 Hill, (S. C.) 634; Hendrick v. Cook, 4 Ga. 241; Hendricks v. Johnson, 6 Port. (Ala.)472; Potier v. Burden, 38 Ala. 651; Rhodes v. Whitehead, 27 Tex. 304; Shamleffer v. Council Grove Mill Co., 18 Kan. 24; Cooper v. Williams, 4 Ohio, 253; Case v. Weber, 2 Ind. 108; Dilling v. Mur. ray, 6 Ind. 324; Mitchell v. Parks, 26 Ind. 354; Evans v. Merriweather, 3 Scam. 492; Plumleigh v. Dawson, 1 Gilman, 544; Rudd v. Williams, 43 Ill. 385; Druley v. Adam, 102 Ill. 177; Davis v. Getchell, 50 Me. 604; Vliet v. Sherwood, 35 Wis. 229; Lux v. Haggin 69 Cal. 255. 10 Pac. Rep. 753; Taylor v. Welch, 6 Or. 198; Coffman v. Robbins, 8 Or. 278; 3 Kent, Comm. *439; Ang. Water Courses, $ 95; Gould, Waters, Š 204.
the stream adjacent to his lands as it was wont to run, (currere solebat,) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors, above or below him, unless he has a prior right to divert, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along Aqua currit et debet currere, is the language of the law. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate.”I
$ 9. This right is parcel of the realty.
Although, as above stated, the riparian owner has no property in the water itself, but only a usufructuary enjoyment of it as it passes through or along his lands, yet it is not to be inferred that his right to have the stream flow in its natural channel, without diminution or alteration, is merely appurtenant to the estate, or conditioned upon his actual application of it to some beneficial use. “By the common law,” say the court in California, “the right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it. Use does not create the right, and disuse cannot destroy or suspend it. The right in each extends to the natural and usual flow of all the water, unless where the quantity has been diminished as a consequence of the reasonable application of it by other riparian owners for purposes hereaster to be mentioned."
A right to the flow of water, then, is a corporeal right or hereditament which passes by grant of the land over which it runs.
13 Kent, Comm. *439.
2 Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 753; citing Ang. Water.
Courses, $ 93; Shury v. Piggot,