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a natural pond has been for a long time enlarged by artificial means or diminished by the deepening of its outlet, grants of land bounded by the pond extend to the margin of the water as it stands at the time of the conveyance.1 If the margin varies at different seasons of the year, the grant includes the land which is uncovered at low-water;2 and if the pond is artificially raised only in winter, and retains its natural level in summer, the low-water mark in summer is the boundary, though the deed may have been executed in the winter.3 If land is described as bounded "along the high-water mark of the pond," the boundary is fixed and does not follow the changes in the high-water mark.4 A change in the water of a lake or pond from fresh to salt, caused by cutting a channel between it and an arm of the sea, and making it subject to the daily rise and fall of the tide, does not affect the boundaries of the riparian owners, who continue to hold to the former low-water mark, notwithstanding the rule which makes the high-water mark the boundary of lands upon tide waters.6 It should also be
tended too far by carrying its effect to the natural barrier; third, that decision was equally sustained, whether the parol evidence was admitted, or the terms of the grant by their own force extended so far; fourth, the admission of the parol evidence was based upon the theory that the boundary on the pond, as applied to the subject matter, was governed by no settled rule of legal construction, but created a latent ambiguity; and the rules for the construction of similar grants were not then as fully established in this Commonwealth as they have since been by the later decisions already referred to. For instance, in Tyler v. Hammond, 11 Pick. 193, in the previous year, the court had held that a boundary by a highway generally extended only to the margin of the way — a doctrine wholly repudiated by the modern decisions. Newhall v. Ireson, 8 Cash. 505; Phillips v.
Bowers, 7 Gray, 21; Boston v. Richardson, 13 Allen, 146; Stark v. Coffin, 105 Mass. 328."
i Bradley v. Rice, 13 Maine, 198; Wood v. Kelly, 30 Maine, 47, 55; Robinson v. White, 42 Maine, 209; Nelson v. Butterfield, 21 Maine, 220, 229. See the last case upon the question when an arm of a pond is enclosed within the lines of land conveyed, so as to be included in the grant. A lease for 500 years of a factory lot and dam lot," together with all the land which may be flowed by raising said dam" to a certain height, conveys all the land under the pond, and passes the pond of water and the fish therein, as incidents of the principal grant. Smith v. Miller, 5 Mason, 191.
2 Wood v. Kelley, 30 Maine, 47.
3 Paine v. Woods, 108 Mass. 160.
4 Cook v. McClure, 58 N. Y. 437.
s Wheeler v. Spinola, 54 N. Y. 377. observed in this connection that no title is acquired to the bed of a public or a private lake, by the existence of an easement of maintaining a dam for twenty years at its outlet, and flooding back the water over the bed of the lake and the adjacent lands.1 Such overflowing does not constitute an ouster.2 for any purpose to which it can be applied beneficially and without material injury to others' rights,1 or for which the fall of the stream may make it available as a motive power.2 They may insist that their right to thus use the water shall be regarded and protected as property.3 The right to the use of the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself.4 It does not depend upon user, or presumed grant from long acquiescence in the part of other riparian proprietors above and below, but exists jure naturae as parcel of the land.5 It is not suspended or destroyed by mere non-user,6
i Perrine v Bergen, 2 Green (N. J.) a lake or pond for twenty years, and
355; Cocheco Co. v. Strafford, 51 N. thereby held back the water, is not
H. 455, 461; Green v. Harman, 4 Dev. liable to be taxed for the bed oi the
(N. C.) 158; Everett v. Dockery, 7 lake, or for the lands so flowed on its
Jones (N. C.) 390. The person who borders. 51 N. H. 455. has maintained a dam at the outlet of 2 Ibid.
EIGHTS OF RIPARIAN PROPRIETORS IN THE NATURAL PLOW AND CONDITION OF THE STREAM.
204. Rights of different proprietors upon a fresh-water stream to the flow of the water.
206. Right to the ordinary and extraordinary use of the water. 206-209. The right of each proprietor limited by a like right in the other proprietors to use the stream.
210. Evidence and effect of judgments. 211-2116. Measure of damages for flowage.
211 c. Flowing caused by combination of natural and artificial causes.
212. Flowing when a public nuisance. 213-215. Diversion.
216. Diversion caused by alterations in the surface of one's own land.
217. Diversion for irrigation.
218. Obstruction of the natural current 219-222. Pollution.
223. Remedies for pollution.
234. Rights of non-riparian proprietors.
225. Right of adjoining land-owners in artificial watercourses.
§ 204. Riparian proprietors upon both navigable and unnavigable streams are entitled, in the absence of grant, license, or prescription limiting their rights, to have the stream which washes their lands flow as it is wont by nature, without material diminution or alteration.1 Each proprietor may, therefore, insist that the stream shall flow to his land in the usual quantity, at its natural place and height, and that it shall flow off his land to his neighbor below in its accustomed place and at its usual level.2 The proprietors have no property in the flowing water, which is indivisible and not the subject of riparian ownership,8 but may use it
Brown p. Bush, 45 Penn. St. 61; Beissell v. Seholl, 4 Dallas, 211. Water-power, though an incident to property in the land, is itself the subject of property. Tillotson v. Smith, 32 N. H. 94; Brown p. Bush, 45 Penn. St. 61; Eddy p. Simpson, 3 Cal. 249; Kidd v. Laird, 15 Cal. 161.
4 Dickinson p. Grand Junction Canal Co., 7 Exch. 299; Wright p. Howard, 1 Sim. & Stu. 190; Wood Waud, 3 Exch. 748; Stokoe p. Singers, 8 El. & Bk. 36; Johnson p. Jordan. 2 Met. 239; Crittenden v. Alger, 11 Met. 281; Wadsworth p. Tillotson, 15 Conn. 360, 373; Marlborough Manuf. Co. v. Smith, 2 Conn. 590; Parker p. Griswold, 17 Conn. 299; Harding v. Stamford Water Co., 41 Conn. 87, 92; Gardner p. Newburgh, 2 Johns. Ch. 106; Hol8inan v. Boiling Spring Co., 1 McCart. 343; Wheatley v. Baugh, 25 Penn. St. 528; Evans v. Merrewenther, 3 Scam. 492; Union Mill Co. p. Ferris, 2 Sawyer, 176; Shanileffer r. Peerless Mill Co., 18 Kansas, 24 ; Williamson v. Lock's Creek Canal Co., 78 N. C. 166; 76 N. C. 478 ; Pugh p. Wheeler, 2 Dev. & Bat. 60; Hill r. Newman, 5 Cal. 445.
6 Sampson v. Hoddinott, 1 C. B. N. a. 590; Johnson p. Jordan, 2 Met. 239; Pillsbury v. Moore, 44 Maine, 154; Townsend v. McDonald, 12 N. Y. 381, 391; 14 Barb. 460.