be observed between the right to divert or change the course of the stream itself so as to turn it away from a lower proprietor, and the right to take water from the stream. The first is wholly unlawful; the second may be exercised to a reasonable extent. There must not be such an abstraction of the water as will materially interfere with the rights of any other proprietor, and it is no answer to such a violation of right by one party that the other has increased the usefulness of the stream by means of a reservoir higher up, since the private right of one man cannot be taken by another upon the substitution of an equivalent benefit. Where a lower proprietor, with the consent of proprietors higher up the stream, diverted the water above the plaintiff's land lying upon one side of the stream into a channel which conducted a considerable portion of the water around the plaintiff's land to his own mill below, it was held that this was not such an incidental obstruction or loss of the water as was necessarily consequent upon the lawful use of the stream by one proprietor, giving no ground for an action, and that the license of the upper proprietors afforded the defendant no protection as against the plaintiff. The question whether the injury is caused by the defendant's diversion or artificial diminution or by a gradual drying up of the stream is properly a question of fact for the jury. Where the defendant, being one of two Gilman, 544. As to counter-claim, N. Y. 213; Sparks Manuf. Co. v. Newsee Grange v. Gilbert, 44 Hun, 9.

1 Elliott v. Fitchburg R. Co., 10 Cush. 191; Auburn v. Union W. P. Co., 90 Maine, 576; Dumont v. Kellogg, 29 Mich. 420; Wadsworth v. Til lotson, 15 Conn. 366; Hartzall v. Sill, 12 Penn. St. 248; Fulmer v. Williams, 122 id. 191; Coalter v. Hunter, 4 Rand. 58; Loud Gold Mining Co. v. Blake, 24 Fed. Rep. 249; Learned v. Castle, 78 Cal. 454; Tucker v. Salem Flouring Mills Co., 15 Oregon, 581; New York Rubber Co. v. Rothery, 10 N. Y. S. 872; 23 id. 247; 132 N. Y. 293; Vernum v. Wheeler, 35 Hun, 53. See Mills v. Chicago & N. W. Ry. Co., 103 Wis. 192.

2 Webb v. Portland Manuf. Co., 3 Sumner, 189; Neal v. Rochester, 156

ton, 57 N. J. Eq. 367; 41 Atl. Rep. 385; 45 id. 596; Montague v. Jefferson County Com'rs (Kan. App.), 53 Pac. Rep. 145; Weiss v. Oregon Iron Co., 13 Oregon, 496. Upon the landlord's liability for his tenant's diversion of water for other purposes than those authorized by his agreement, see Clement v. Gould, 61 Vt. 573.

3 Wadsworth v. Tillotson, 15 Conn. 266; Harding v. Stamford Water Co., 41 Conn. 87.

4 Parker v. Griswold, 17 Conn. 288; Armstrong v. Potts, 22 N. J. Eq. 92; Larsh v. Test, 48 Ind. 130; 76 Ind. 452; 98 Ind. 301; Kimberly Co. v. Hewitt, 79 Wis. 334; 75 Wis. 371.

5 Marsh v. Delaware R. Co., 12 N. Y. S. 376; White v. East Lake Land Co.,

tenants in common of a mill upon one side of a stream, and of the water privilege connected therewith, agreed with the plaintiff, his co-tenant, that each should use the mill alternately for several days at a time, and afterwards diverted a portion of the water from the mill-pond by means of a channel, dug upon his own land opposite, for the purpose of driving machinery on that land, an injunction was granted to restrain the diversion during the plaintiff's turn, but relief was refused against the use of the channel, which was not shown to be injurious to the common property, or against the diversion of the water through it during the defendant's turn. If water is added to a natural stream by artificial means, it becomes a part of the stream and subject to the same natural rights as the rest of the water. A riparian proprietor cannot lawfully dig in the bed of a stream, on his own side of the thread, in such manner as to change materially the natural flow of the water; and if A diverts more than the natural flow of the water towards the land of B, thereby causing it to flow thereon, B may remedy it by the erection of any dams or banks on his own land. A lower riparian proprietor is not entitled to maintain an action against an owner above for a diversion of the water, if he is not entitled to the use of the water so diverted by reason of the rights of an intervening proprietor. The ownership of land abutting on a canal which is a public highway, although it carries title to the centre of the canal, does not give to the land-owner the right to draw off the water through his lot for the purpose of creating a water-power. prietor is liable in damages at law, or may, in

rable injury, be restrained by injunction,' if he

An upper pro

case of irrepaso diverts the

96 Ga. 445; Harper v. Mountain W. North Fork W. Co. v. Edwards, 121

Co. (N. J. L.), 43 Atl. Rep. 984.

1 Bliss v. Rice, 17 Pick. 23. See Alhambra A. W. Co. v. Mayberry, 88 Cal. 68.

2 Wood v. Waud, 3 Exch. 748, 779; Davis v. Gale, 32 Cal. 26; Druley v. Adam, 102 Ill. 177; Adams v. Slater, 8 Brad. (Ill.) 72.

3 Van Hoesen v. Coventry, 10 Barb. 518. See Mizell v. McGowan, 120 N. C. 134.

4 Merritt v. Parker, Coxe (N. J.), 460;

Cal. 662.

5 Olney v. Fenner, 2 R. I. 211.

6 Lawson v. Mowry, 52 Wis. 219; Medway Co. v. Romney, 9 C. B. N. s. 575. A disuser of a State canal, and a conveyance thereof to trustees for the benefit of State creditors, do not revest title in the original owners. Mason v. Lake Erie Ry. Co., 9 Biss. 239; 1 Fed. Rep. 712. See Collett v. Vanderburgh Co., 119 Ind. 27.

7 Marble v. Adams, 46 Vt. 496;

2

stream as to cause the water to be discharged upon the land or into the ditches or mines of a neighbor;1 if he so extends a ditch into a marsh upon the border of a lake as to lessen the water-power of a river into which the lake empties, and upon which the plaintiff's mills are situated; or if he exhausts a spring or marsh which is the source of a watercourse, and thereby stops the stream.3 In an action for preventing, by diversion, the waters of a stream from coming to the plaintiff's mill, the return of a certain percentage of the water to the stream may be considered as an element of damages. And one who has diverted water, but has returned it undiminished in quantity, is not a necessary party to the suit, or liable therefor.5

✓

§ 214. Same-Actual damage. Although the decisions are not in entire harmony, yet, by the weight of authority, neither an upper or lower proprietor can maintain an action for the diversion, the raising or detention of the water by a neighbor upon the stream, which, being reasonable in mode and de

Chesapeake R. Co. v. Bobbett, 5 W. Va. 138; Churchill v. Baumann, 95 Cal. 541. Standing by, and permitting another without objection to divert a small stream at great expense, will prevent the obtaining a mandatory injunction. Slocumb v. C., B. & Q. R. Co., 57 Iowa, 675; Muncey v. Joest, 74 Ind. 409.

1 Musgrave v. Smith, 2 App. Cas. 781; Shaw v. Cummiskey, 7 Pick. 76; Porter v. Dunham, 74 N. C. 767; Chapman v. Copeland, 55 Miss. 476; Thompson v. Crocker, 9 Pick. 59; Boynton v. Reese, id. 528.

2 Bennett v. Murtaugh, 20 Minn. 151; Curtiss v. Ayrault, 3 Hun, 487; 47 N. Y. 73; 5 Thomp. & C. 611; Bas. sett v. Salisbury Manuf. Co., 43 N. H. 578. See Bearse v. Perry, 117 Mass. 211.

3 Post, 263; Howe v. Norman, 13 R. I. 488; Van Wycklen v. Brooklyn, 118 N. Y. 424; Smith v. Brooklyn, 160 N. Y. 357: 52 N. Y. S. 983; Arnold v. Foot, 12 Wend. 330; Colrick v. Swinburne, 105 N. Y. 503; Fleming u

Davis, 37 Texas, 173; Wadsworth v. Tillotson, 15 Conn. 366; Eulrich v. Richter, 41 Wis. 318; 37 Wis. 226; Williamson v. Lock's Creek Canal Co., 76 N. C. 478; 78 N. C. 156; Gillett v. Johnson, 30 Conn. 180; Galveston, etc. Ry. Co. v. Haas (Tex. Civ. App.), 37 S. W. Rep. 167; 17 Tex. Civ. App. 309. Flood or freshet water, overflowing a stream's banks, is surface water, and may be appropriated and diverted. Lehigh Coal Co. v. Scranton Gas Co., 6 Penn. Dist. Ct. 291; Mo. Pac. Ry. Co. v. Keys, 55 Kansas, 205; New York, etc. R. Co. v. Speelman, 12 Ind. App. 372; Jean v. Penn. Co., 9 id. 56. See Cairo, etc. Ry. Co. v. Brevoort, 62 Fed. Rep. 129; Gray v. McWilliams, 98 Cal. 157; Gring v. Sinking Spring W. Co., 7 Penn. Supr. Ct. 63.

4 Mannville Co. v. Worcester, 138 Mass. 89.

5 Smith v. Logan, 18 Nev. 149; Austin v. Chandler (Ariz.), 42 Pac. Rep. 483.

gree, is not the cause of actual perceptible damage.1 Under this rule, as no right of action accrues until injury is inflicted, no prescription begins to run until that time.2 In Sandwich v. Great Northern Ry. Co.,3 it was held to be within the rights of a railway company, as a riparian owner, to take water from the neighboring stream for the purpose of supplying its engines and station, and that the quantity taken, which did not affect the depth of the stream more than one-fifth of an inch, was reasonable. Actual present damage need not be shown in order to support an action for any extraordinary and unreasonable use of the water by a riparian owner, when the act complained of, if continued, would bar the plaintiff's right, and nominal damages may be recovered in order to

prevent the acquisition of an adverse title by prescription.1 A riparian proprietor may maintain an action for the diversion of a stream without proof that he has an ancient mill thereon or that he has appropriated the water to any special use, and is entitled to have the water run through his land undiminished by any persons who are not themselves riparian owners and do not act under the license of such owners. As against a wrong-doer, the mere possession of rights, corporeal or incorporeal, is sufficient to maintain an action for their disturbance.1

9 Pick. 58; Bolivar Manuf. Co. v. Neponset Manuf.Co., 16 Pick. 241; Newhall v. Ireson, 8 Cush. 595; Stowell v. Lincoln, 11 Gray, 434; Lund v. New Bedford, 121 Mass. 286; Ware v. Allen, 140 Mass. 513; Cook v. Hull, 3 Pick. 269; Bliss v. Rice, 17 Pick. 23; Union Co. v. Dangberg, 2 Sawyer, 450; Whip ple v. Cumberland Manuf. Co., 2 Story, 664; Webb v. Portland Manuf. Co., 3 Sumner, 189; Bullard v. Saratoga Manuf. Co., 77 N. Y. 525; Crooker v. Bragg, 10 Wend. 260; Baldwin v. Calkins, id. 167; Palmer v. Mulligan, 3 Caines, 307; Platt v. Johnson, 15 Johns. 213; Van Hoesen v. Coventry, 10 Barb. 518; Thomas v. Brackney, 17 id. 654; Wadsworth v. Tillotson, 15 Conn. 366; Chapman v. Thames Manuf. Co., 13 Conn. 269;, Parker v. Griswold, 17 Conn. 288; Branch v. Doane, 18 Conn. 233; 17 Conn. 402; Seeley v. Brush, 35 Conn. 424; Hulme 2. Shreve, 3 Green (N. J.), 116; Gladfelter v. Walker, 40 Md. 1; Pastorious v. Fisher, 1 Rawle, 27; Alexander v. Kerr, 2 id. 83; Howell v. McCoy, 3 id. 256; Ripka v. Sergeant, 7 Watts & S. 9, 11; Beiswell v. Sholl, 4 Dallas, 211; Hartzall v. Sill, 12 Penn. St. 248; Graver v. Sholl, 42 id. 58; Dumont v. Kellogg, 29 Mich. 422; Plumleigh v. Dawson, 1 Gilman, 544; Hill v. Ward, 2 id. 285; Ulbricht v. Eufaula Water Co., 86 Ala. 587; Stein v. Burden, 24 Ala. 130; 29 Ala. 127; Stein v. Ashby, 24 Ala. 521; Close v. Samm, 27 Iowa,

503; Watson v. Van Meter, 43 id. 76; Cory v. Silcox, 6 Ind. 39; Little v. Stanback, 63 N. C. 285; Pugh v. Wheeler, 3 Dev. & Baţ. 50; Chapman v. Copeland, 55 Miss. 476; Hendrick v. Cook, 4 Ga. 24; Ellington v. Bennett, 59 Ga. 286; Green v. Weaver, 63 Ga. 802; Attwood v. Fricot, 17 Cal. 37; Creighton v. Evans, 53 Cal. 55; Welton v. Martin, 7 Mo. 307; Smith v. McConathy, 11 Mo. 517; Haas v. Choussard, 17 Texas, 588. And see post, ch. 12.

1 Ibid.; Wilts Canal Co. v. Swindon Water Works Co., L. R. 9 Ch. 451; L. R. 7 H. L. 697; Plumb v. McGannon, 32 Q. B. (Can.), 8, 12; Mueller v. Fruen, 36 Minn. 273; Dodge, 8 Wash. 337; Smith, 22 L. R. Ir. 559.

Shot well v.
McGlone v.

2 Rutland v. Bowler, 3 Exch. 290, 774; Sands v. Trefuses, Cro. Car. 575; Cox v. Matthews, 1 Vent. 237; Wright v. Howard, 1 Sim. & Stu. 190; Mason v. Hill, 5 B. & Ad. 1; 3 B. & Ad. 304; Adams v. Barney, 25 Vt. 225; Van Sickle v. Haynes, 7 Nev. 249; Wright v. Syracuse R. Co., 49 Hun, 445; Lefurgy v. N. Y. R. Co., 50 Hun, 606; 3 N. Y. S. 302.

3 Hayden v. Long, 8 Oregon, 244; Nuttall v. Bracewell, L. R. 2 Ex. 1, 7, 11; Covington v. Becker, 5 Nev. 281; Petrie v. Hamilton College, 40 N. Y. S. 781.

4 Pullan v. Roughfort Bleaching Co., 21 L. R. Ir. 73; Boyington v.