in Indiana, the plaintiff was a non-riparian proprietor whose land and mills were near to but not upon the Little Elkhart River. The mills were propelled by water taken from that river by means of a dam across it higher up the stream, and conducted through a race from his dam to the mills, and thence by a tail-race back into the river a short distance above its confluence with the St. Joseph River. The defendants' dam, which was across the latter river below the junction of the two streams, backed the water in the plaintiff's tail-race to the obstruction of his mill-wheels. The plaintiff had an easement in the land occupied by his dam, head-race, and tail-race, granted for the purpose of authorizing the diversion and flow of the water, but it did not clearly appear whether he had acquired the right to divert the water from all the riparian owners between his dam and the mouth of his tail-race. The defendants were held liable to the plaintiff. A non-riparian owner's right to running water enables him to restrain an upper proprietor from interfering with such right by using1 or granting the water for purposes which are not riparian.

2

§ 225. Artificial watercourses. The right to the water of a river flowing in a natural channel, and the right to water

of the water of the stream to his neighbor below. And the law favors the exercise of such a right; it is at once beneficial to the owner and to the commonwealth. And if this be so, why may not the owners of two adjoining closes agree together for their mutual benefit to take the water through a goit from the close of the one into the close of the other, returning the water to the stream in the close of the latter, and thereby doing no injury to any one. In point of fact very many goits pass through the land of different land-owners between the place where the water is taken from the stream and the mill where it works the machinery." He was of opinion that although the right to the flow of water in a goit was an easement which could bind the grantor only when created by deed, yet the plaintiff's possession of

the goit gave him a right of action against a wrongdoer. Pollock, C. B., and Channell, B., held that the diversion of the stream by means of the goit was lawful, and amounted to a division of the stream into two channels; and that the plaintiff, as a riparian owner on the goit, had all the rights which a riparian owner would have had on a natural stream. In cases of diversion of water, it is not necessary to show actual damages where there is a clear violation of a right and threatened continuance thereof. Brown v. Ashley, 16 Nev. 311; ante, § 214.

1 Williams v. Wadsworth, 51 Conn. 277. See Modoc Land Co. v. Booth, 102 Cal. 151; Martley v. Carson, 20 Can. Sup'r Ct. 634.

2 Heilbron v. Fowler Switch Canal Co., 75 Cal. 426.

flowing through different estates in an artificial channel, such as a canal, aqueduct, or ditch, do not rest on the same principle. In the former case each successive riparian owner is prima facie entitled to the unimpeded flow of the water in its natural course and to its reasonable enjoyment as it passes through his land, as a natural incident to his ownership thereof; in the latter, any right to the flow of the water usually depends upon some grant or arrangement, either proved or presumed, from or with the owners of the lands from which the water is brought, or upon some other legal origin.1 A watercourse, though artificial, may have originated under such circumstances as to give rise to all the rights that riparian proprietors have in a natural and permanent stream, or have been so long used as to become a natural watercourse prescriptively. When the owners of different parcels of land conduct water across such parcels in an artificial channel, and do not define their respective interests in the water, they have the same right to its use on their respective lots, as between themselves, as would exist if the artificial watercourse were a natural one. In such case, there is an implied obligation upon each proprietor to repair the structure within his premises, unless that method of repairing is impracticable or unreasonable. A person who diverts a stream through an artificial

1 Rămeshur Pershad Narain Singh v. Koonj Behari Pattuk, 4 App. Cas. 121; Wood v. Waud, 3 Exch. 777; Greatrex v. Hayward, 8 Exch. 293; Magor v. Chadwick, 11 Ad. & El. 571; Nield v. London Ry. Co., L. R. 10 Ex. 4. See supra, § 161; Fox River Flour Co. v. Kelley, 70 Wis. 287: McAllister v. Henderson, 134 Ind. 453; 141 Ind. 436; Johnson v. Cunningham, 56 Ill. App. 593; Vought v. Columbus, etc. R. Co., 58 Ohio St. 123; Gould v. Eaton, 117 Cal. 539.

2 Sutcliffe v. Booth, 32 L. J. Q. B. 136; Ivimey v. Stacker, L. R. 1 Ch. 396, 409; Nuttall v. Bracewell, L. R. 2 Ex. 1; Miner v. Gilmour, 12 Moo. P. C. 131; Van Breda v. Silberbauer, L. R. 3 P. C. 84; French Hoek Com'rs v. Hugo, 10 App. Cas. 336; Hamelin v. Bannerman, [1895] A. C. 237; Simpson v. Godmanchester Corp., [1897]

A. C. 696; [1896] 1 Ch. 214; Hanna v. Pollock, [1898] 2 Ir. 532; M'Evoy v. Gt. Northern Ry. Co., [1900] 2 I. R. 325; Chamberlain v. Hemingway, 63 Conn. 1; Green v. Carotta, 72 Cal. 267; Freeman v. Weeks, 45 Mich. 335; Murchie v. Gates, 78 Maine, 300; Seibert v. Levan, 8 Penn. St. 383; Reading v. Althouse, 93 id. 400; Roberts v. Richards, 44 L. T. N. S. 271; 50 L. J. Ch. 297; 51 id. 944; Adams v. Manning, 48 Conn. 477; 51 Conn. 5; Peter v. Caswell, 38 Ohio St. 518; McBroom v. Thompson, 25 Oregon, 559; Mo. Pac. Ry. Co. v. Keys, 55 Kansas, 205; Meir v. Kroft (Iowa), 80 N. W. Rep. 521; Weatherby v. Meiklejohn, 56 Wis. 73; Powell v. Butler, 5 Ir. C. L. 309 (C. P.). 3 Townsend v. McDonald, 12 N. Y. 381; 14 Barb. 460.

4 Winslow v. Fuhrman, 25 Ohio St. 639; Stone v. State, 138 N. Y. 124.

watercourse, for his own benefit, must construct it in such a manner that it will carry off, as efficiently as did the stream, the water that may flow into it from such floods and rains as happen in the locality. If one properly opens on his own land a covered drain, which it is his duty to close again in order to prevent the water from setting back and overflowing the adjoining land, he is not liable for any damage to his neighbor's land caused by the sudden overflow of the drain, if he uses ordinary care in closing it. If a land-owner employs an independent contractor to construct a drain, he is not liable for the negligence of the latter occurring in his own work in the performance of the contract; but if the thing contracted to be done from its nature creates a nuisance, or if, being improperly done, it creates a nuisance and causes mischief to a third person, the employer is liable. When a riparian owner has diverted the water into an artificial channel, and continued such change for more than twenty years, he cannot restore it to its natural channel to the injury of other proprietors along such channel who have erected works or cultivated their lands with reference to the changed condition of the stream, or to the injury of those upon the artificial watercourse who have acquired by long user the right to enjoy the water there flowing. Where an artificial watercourse is made solely to get rid of a nuisance to mines, and to enable their proprietors to get the ores lying within the mineral field drained by it, the flow of the water through that channel is, from the nature of the case, of a temporary character, having its continuance only while the convenience of the mine-owner requires it, and a user of the water by others for twenty years, or a longer period, affords no presumption of a grant of any right to the water in perpetuity. But while no right can thus be acquired by prescription against the originator of an artificial stream of a

6

1 Fletcher v. Smith, 2 App. Cas. 781; Railroad Co. v. Carr, 38 Ohio St. 448; Rock Island & P. Ry. Co. v. Krapp, 173 Ill. 219; 74 Ill. App. 158.

2 Rockwood v. Wilson, 11 Cush. 221; Pacific Bridge Co. v. Kirkham, 64 Cal. 519.

4 Belknap v. Trimble, 3 Paige, 577; Delaney v. Boston, 2 Harr. (Del.) 489; Middleton v. Gregorie, 2 Rich. (S. C.) 638; post, § 340.

5 Shepardson v. Perkins, 58 N. H. 354.

6 Arkwright v. Gell, 5 M. & W. 203;

3 Sturges v. Theol. Ed. Society, 130 Gaved v. Martyn, 19 C. B. N. s. 732. Mass. 414.

temporary character, yet, so long as he continues to transmit the water, a prescriptive right to the continuance of the flow may be acquired against those through whose land the water has been accustomed to flow. Water flowing in the canal of a canal company, which by statute is charged with certain duties and made trustee of the canal for the public, stand upon a different footing from waters flowing naturally and from artificial waters of an ordinary character, with respect to the capacity of other persons to acquire a right in them, and if the company cannot make a grant of the water, none can be presumed against them. For obstructing water wrongfully drained from a State canal the owner of the drain cannot recover, if the defendant's obstruction is not on the former's land.3

1Ibid.; Greatrex v. Hayward, 8 ham Canal Co., 11 Jur. N. S. 71. A Exch. 291.

2 Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Manchester Ship Canal Co. v. Rochdale Canal Co., 81 L. T. 472; Staffordshire Canal Co. v. Birming

river does not become a "canal" when its navigation is improved by artificial means. People v. Kankakee River Impr. Co., 103 Ill. 491.

Beekman v. Jones, 59 N. J. L. 138.

CHAPTER VII.

APPROPRIATION AND RIGHTS ACQUIRED BY PRIORITY.

SECTION.

226. Effect of prior occupation.

227. This right under the mill acts of certain States.

228. Appropriations of water rights valid in the Pacific States.

229. The extent of the right acquired by priority.

230. Such right not dependent upon title to the soil.

231. It is fixed by the original appropriation.

232. Duty to so keep ditch in repair.

233. Purpose of the appropriation.

234. Sales of water rights.

235, 236. What constitutes an appropriation.

237. Change of use.

238, 239. Prior right how lost.

240. The Act of Congress of July 26, 1866 - Mining customs.

§ 226. Prior occupation-Effect. At common law, the right of every riparian proprietor to the use of the stream is an incident to the ownership of the land bordering upon the stream, and arises ex jure naturæ. The right exists whether it is exercised or not, and the riparian proprietor may begin to exercise it when he will. It does not depend upon occupancy, and is not limited by the prior occupation of others not amounting to an adverse enjoyment by prescription; 3 but, the rights of the different proprietors being equal, and each being entitled to the reasonable use of the stream for any lawful purpose, irrespective of the extent of his watershed, it is wholly immaterial who is first in time. The amount of damages to which one proprietor is entitled for a wrongful interference with his riparian rights may, indeed, vary, according to the use to which he has applied the water, and the expenditure which he has made to render it available. If he has lawfully appropriated the water to a beneficial use, he may sue for an injury done to him in respect to such use; and if he has

1 Ante, §§ 204–209.

2 Ibid.

3 Ibid.

4 Standen v. New Rochelle W. Co., 86 N. Y. S. 92.