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by the owners of the shops and mills on said trench, and used by them to shut the water out of said trench while they were repairing the same or the works thereon.” It is very difficult to ascertain from the evidence whether any positive limitation of right can be dcemed to have been originally intended by it. It was hoisted and lowered by the trench owners, as well as by others, occasionaily, while it existed, and its removal for a number of years affords some presumption that it was not deemed a fixed regulator of right. Its height varied at different times according to circumstances; and it is not easy to infer that to be a positive gauge of quantity agreed on by the parties which was not immovable in its position.
There was an agreement entered into in the year 1796 between the owners of the upper dam of the trench, and of the mills on the west side of the river (which is set out in the bill, and admitted by the owners), which has been relied upon by both parties as explanatory of the rights of all concerned. The plaintiffs, and those under whom they claim, were not parties to it; but as matter of evidence they have themselves relied on it, and complain of it, not account of its incorrect statement of the matter of right, but of the intentional omission fairly to carry it into effect. It begins as follows: “Whereas the ancient privilege of Sergeant's Trench or the shops thereon has not been precisely ascertained, and whereas the owners thereof, the owners of the new upper dam, and the owners of the ancient mills at the falls, are all interested therein, and in order to make each party right, and make the same as conveniently managed as may be, we, the subscribers, covenant and agree as follows: The owners of the upper dam hereby convey to the owners of the shops below a full and free liberty of passing and repassing on their land to the gate when they think proper, for the regulating the water according to their right in the same.
And the owners of the works below the falls have the same liberty to shut or hoist said gate for the same purpose in as full manner as ever heretofore, by custom, usage or contracts. And to prevent any difficulty about ascertaining the proportion of water fully due and belonging to said trench works, it is mutually agreed that Benjamin Cozzens, Jr., and Stephen Jenks, Jr., be and are hereby chosen to regulate and ascertain the same; and that the owners of the upper dam keep a suitable gate on their flume, suitable for conveying and regulating the said water at their own expense. And that it is further agreed that in case the said B. C. and S. J. do not agree they have power to appoint a third person, two of whom, agreeing, to settle the
And that the ancient usage or quantity of water, which has been accustomed to pass the said trench, be the rule for them to aim at as near as they can, and the mode of settlement, and the quantity they agree upon, be hereafter the mode and quantity forever. And that the said persons, within one year from the date, ascertain the same; and that they inform the parties, who now agree to make such other writings as may then appear more descriptive of the mode and quantity, and the same be then recorded, and that the regulating gate be made at the expense of the privilege.” Now, the gravamen of the bill is that this agreement was never carried into effect by any award whatsoever, though the plaintiffs have requested it; but that it was entered into to defraud the plaintiffs, by deluding them into the belief that the parties intended to secure the ancient privilege of the trench owners and no more; whereas, under pretense of it, the trench owners have within twenty years last past used much more water. We are then at liberty, as I think, to consider that the agreement of 1796 in
its terms and statements is adopted by tue plaintiffs. In this view it has a most important bearing on the whole case, not only as a document of considerable antiquity, but as one intended to settle rights between parties, all having different interests. Unfortunately, no award was ever made by the arbitrators, they differing in opinion, the one being an owner on the trench and the other an owner on the lower dam, as to the height which the gate ought to be raised in a dry time. The difference seems to have been between one inch and three-quarters and two inches and a half in the height.
The agreement itself, however, deserves great consideration. In the first place, it states the right of the trench owners in a very strong manner. It admits, and indeed requires, the arbitrators to allow them “the quantity of water which has been accustomed to pass to the trench; ” and of course it fixes the right by the quantity flowing in the trench, and not by the quantity which the mills then existing actually required. In the next place, it contains no qualification or limitation of this right, by the slightest allusion to any preeminent right or priority of the lower-dam mills, in case of a deficency of water or otherwise. Yet such an omission, if such a qualification or limitation as is now contended for by the plaintiffs existed, would be almost incredible. The presumption against its existence, connected with the subsequent lapse of time during which it has not been admitted or acquiesced in, is of itself abundantly cogent and pressing. In the next place, it goes strongly to repel any inference that the gate, erected in 1794 at the gate-hole of the swift flume, was understood by the parties as an absolute measure of the quantity, or had a fixed position to limit the right of the trench proprietors. If it was a fixed gauge there could have been no reason for an arbitration to ascertain it in 1796, much less would it bave been recited in the agreement that it had “not been precisely ascertained.” The most that can be properly said is that the parties placed it there for their convenience, but not as a positive limitation of right, which neither party was at liberty to alter, if it affected his acknowledged rights injuriously. In the next place, the agreement ascertains that the right of the trench owners was not, if I may so say, an expanding right, increasing with the uses to which they might choose to appropriate the water of the river; and that, therefore, they had no right to extend their prior appropriation of the water. Their use of the water since that period ought to be referred back to their rights as recognized in 1796, and if any additional quantity has been appropriated in the intervening time (which they deny) that excess is to be deemed, not a matter of adverse claim, but of mere indulgence. In the next place, it is a fair inference from the agreement that the water which thus flowed into the trench of right was ordinarily adequate to the use of all the mills then erected on it. At least, the existing state of things at that period may be taken to be rightful and adequate to the wants of the parties, or some exception would naturally have found its way into the agreement. And this inference is fortified by the deposition of Benjamin Cozzens, Jr., one of the arbitrators, as well as by the subsequent user by the trench owners. The agreement of 1797, between the owners of the upper dam and the owners of the mills on the west side of the lower dam, for regulating the flumes of the upper dam, so as to secure a proper quantity of water to the lower dam, does not in the slightest degree impugn these conclusions. The trench owners were not parties to it; but it has an implied reference to the agreement of 1796, and manifestly contemplated a ratification of its stipulations.
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 rigbt 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 bearing upon the master's report, etc.
$ 106. 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 caim 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 wlarves and other structures for the convenience of commerce, and which do not obstruct the navigation of the river, it may be exercised beyond this liunit. 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.
8 109. 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 tbe 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 iniprovement of his property he must do so without obstructiog the navigability of the river or destroying the property of a riparian owner on the opposite shore. Ruiz 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 tbe 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 me starting at the iniersection with the shore and extending at a riglt 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 $ 161-171.
$ 116. Water for irrigation is not a natural want in the same sense that water for quench. ing 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 use or materially affect, the application of the water by other proprietors. lbid.
$ 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 goveroment, 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 & Obio 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 rensedy 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 ineandered line was represented by the United States survey, accretions subsequently fornued 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 tbe state, as well as the bed of the river. This is also true 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