although it may be extinguished by the long-continued, adverse enjoyment of others.1 It is not affected by the use to which the water has been or may be applied.2 Nor is it impaired by unity of possession and title in such land with the land above or below it. It is a natural right which arises immediately with every new division or severance of the ownership. "If," says Shaw, C. J.,5" the owner of a large tract, through which a watercourse passes, should sell parcels above and below his own land retained, each grantee would take his parcel with a full right, without special words, to the use of the water flowing on his own land, as parcel, and subject to the right of all other riparian proprietors to have the water flow to and from such parcel. There is no occasion, therefore, for the grantor, in such case, to convey the right of water to the grantee, or reserve the right of water to himself, in express words; because, being inseparable from the land, and parcel of the estate, such right passes with that which is conveyed, and remains with that which is retained."

§ 205. Each riparian proprietor has a right to the ordinary use of the water flowing past his land, for the purpose of supplying his natural wants, including the use of the water for his domestic purposes and for his stock. For these purposes, by the weight of authority, he may, if necessary, con

1 Ibid.; post, c. 11.

2 Van Sickle v. Haynes, 7 Nev. 249. 3 Ibid.; Hazard v. Robinson, 3 Mason, 272.

4 Cary v. Daniels, 8 Met. 466, 481; Stockport Water Works Co. v. Potter, 3 H. & C. 326; Hickok v. Parmelee, 21 Conn. 99.

5 Cary v. Daniels, 8 Met. 466, 480. 6 Miner v. Gilmour, 12 Moo. P. C. 131, 156; Norbury v. Kitchin, 3 F. & F. 292; 9 Jur. N. s. 132; Wood v. Waud, 3 Exch. 748; 13 Jur. 472; Nuttall v. Bracewell, L. R. 2 Exch. 1; Swindon Water Co. v. Wilts Canal Co., L. R. 7 H. L. 697; L. R. 9 Ch. 451; Union Mill Co. v. Ferris, 2

Sawyer, 176; Union Mill Co. v. Dangberg, Id. 450; Slack v. Marsh, 23 Pitts. L. J. 29; Stein v. Burden, 29 Ala. 127; 24 Ala. 130; Springfield v. Harris, 4 Allen, 494; Anthony v. Lapham, 5 Pick. 175, 177; Philadelphia v. Collins, 68 Penn. St. 106; Baltimore v. Appold, 42 Md. 456; Evans v. Merreweather, 3 Scam. 492; Wadsworth v. Tillotson, 15 Conn. 366; Arnold v. Foot, 12 Wend. 330; Crooker v. Bragg, 10 Wend. 260; Gilm. 544; Ferrea v. Knipe, 28 Cal. 343; Hazeltine . Case, 46 Wis. 391; Rhodes v. Whitehead, 27 Texas, 304; Tolle v. Carreth, 31 Texas, 362; Fleming v. Davis, 31 Texas, 173.

sume all the water of the stream.1 He has also the right to use it for any other purpose, as for irrigation or manufactures;2 but this right to the extraordinary use of the water is inferior to the right to its ordinary use; and if the water of the stream is barely sufficient to answer the natural wants of the different proprietors, none of them can use the water for such extraordinary purposes as irrigation or manufactures.3 It was formerly held that the diversion of the water for the purpose of irrigating the land of a riparian proprietor is a natural want, and that an action could not be maintained by a lower proprietor, who is thereby injured for want of irrigation; but, according to more recent decisions, a diversion of water for this purpose is an extraordinary and not an ordinary use, and can only be exercised reasonably and with a proper regard to the right of the other proprietors to apply the water to the same or other purposes. The term "domestic purposes" extends to culinary and household purposes, and to the cleansing and washing, feeding and supplying the ordinary quantity of cattle. It would appear to extend also to brewing, and the washing of carriages. But railway companies, as riparian owners, are not entitled to take water for their engines so as to affect injuriously the navigation of the stream or the rights of other riparian owners, such use not being domestic; and the fact that they do not require the water for domestic use does not entitle them to it for other purposes of a different character.

1 Ibid. According to some cases the use of the water for culinary purposes and for cattle must not deprive the other proprietors of an equal enjoyment of the same right. Chatfield v. Wilson, 31 Vt. 358; 28 Vt. 49; Blanchard . Baker, 8 Maine, 253, 266; McElroy v. Goble, 6 Ohio St. 187; Hough v. Doylestown, 4 Brews. (Pa.) 342.

2 Post, § 206.

3 Union Mill Co. v. Ferris, 2 Sawyer, 176; Crandall v. Woods, 8 Cal. 136, 141; Ellis v. Tone, 58 Cal. 289.

4 Weston v. Alden, 8 Mass. 136; Bent v. Wheeler, cited in Sullivan's

Even when the water is

Land Titles, 273; Perkins v. Dow, 1 Root, 535; Hayward r. Mason, Id. 537; Blanchard v. Baker, 8 Maine, 266.

5 Post, § 217; Baker v. Brown, 55 Texas, 377.

6 Attorney General v. Great Eastern Railway, 23 L. T. N. s. 344; Union Mill Co. v. Ferris, 2 Sawyer, 176.

7 Wilts Canal e. Swindon Water Co., L. 9 Ch. 457; Coulson & Forbes on Waters, 116.

to be used for strictly domestic purposes, it is not lawful for one proprietor, wishing so to use it, to so erect dams across the stream that the water, being spread out, is in great measure lost by absorption and evaporation, to the injury of a lower proprietor.1 In Roberts v. Richards,2 a small stream flowed from a spring on A's land to his house, by an artificial channel of immemorial antiquity, through land of B. A had had an almost exclusive use of the water for seventy years, when B intercepted and appropriated nearly. all the water of the stream. It was held that B was a riparian proprietor, and as such was entitled to thus take the water for ordinary, but not for extraordinary, purposes.

§ 206. The right to such extraordinary use of flowing water is common to all the riparian proprietors.3 It is not an absolute and exclusive right to all the water flowing past their lands, but it is a right to the flow and enjoyment of the stream, subject to a similar right in all the proprietors, their privileges being in all respects equal. If the reasonable use by one man of this common property does no actual and perceptible damage to the right of the other proprietors to use it, no action lies; but an unreasonable use of it, whereby others are deprived in whole or in part of the common benefit, is an actionable injury,5 even though there is

ern Railway Co., 23 L. T. N. s. 344; Sandwich v. Great Northern Railway, 10 Ch. D. 707; Elliott v. Fitchburg Railroad Co., 10 Cush. 195; Garwood v. New York Central Railroad Co., 83 N. Y. 400.

1 Ferrea v. Knipe, 28 Cal. 340. 250 L. J. Ch. 297; 44 L. T. 271. 8 Elliott v. Fitchburg Railroad Co., 10 Cush. 191, 196; Merrifield v. Lombard, 13 Allen, 16; Middleton v. Flat River Booming Co., 27 Mich. 533; Van Sickle v. Haynes, 7 Nev. 249; Coffman v. Robbins, 8 Oregon, 278; Miner v. Gilmour, 12 Moo. P. C. 131; Chasemore v. Richards, 7 H. L. Cas. 349; 5 H. & N. 982; 2 H. & N. 189; Embrey v. Owen, 6 Exch. 353; Tyler

v. Wilkinson, 4 Mason, 400; ante, § 204.

4 Ibid.; Gould v. Boston Duck Co., 13 Gray, 442, 450; Haskins v. Haskins, 9 Gray, 390; Merrifield v. Worcester, 110 Mass. 219; Prentice v. Geiger, 74 N. Y. 341; Holden v. Lake Co., 53 N. H. 552; Union Mill Co. v. Dangberg, 2 Sawyer, 450; Dumont v. Kellogg, 29 Mich. 420; Patten v. Marden, 14 Wis. 473; Rudd v. Williams, 43 Ill. 385; Rhodes v. Whitehead, 27 Texas, 304; Batavia Manuf. Co. v. Newton Wagon Co., 91 Ill. 230, 245; Hendricks v. Johnson, 6 Porter, 472.

5 Ibid.; Embrey v. Owen, 6 Exch. 353; Elliott v. Fitchburg Railroad Co., 10 Cush. 196; Davis v. Getchell, 50

.

no present actual damage,1 and without regard to the question whether the act which causes the injury is wilful or malicious, or whether notice was given that the rights of others are infringed. Their interest being common, different owners in severalty of premises along the stream may join as plaintiffs in a suit in equity to restrain such unauthorized use of the stream as affects them injuriously and in the same way; and the fact that the sole owner of one mill is also tenant in common of another does not authorize him to so use the water coming to his own mill as to injuriously affect the mill owned in common.5 In view of the varying rights of the different riparian owners on the same stream, injunctions should not be granted to regulate such rights, except in clear cases of intentional violation. A decree by which an upper proprietor is restrained from permitting the water to flow over his dam in greater quantities than is needed to run his machinery, and is required to allow it to flow into another mill-pond, according to the natural flow of the stream, discriminates in favor of the lower proprietor and is erroneous.6 Riparian owners upon navigable waters cannot lawfully use the water so as to impair the public rights of navigation and fishery; and, by the common law, the right to have fish pass up private rivers from the sea is a common right in all the proprietors upon the stream.7 In general, as between themselves, the privileges of riparian proprietors include: first, Rights relating to the flow of the water; second, Rights relating to the taking or diversion of the water; third, Rights relating to the purity of the water.

Maine, 602; Randall v. Silverthorn, 4 Penn. St. 173; authorities ante, § 204, note 1; Farrell v. Richards, 30 N. J. Eq. 511; Phinizy v. Augusta, 47 Ga. 260; Robertson v. Miller, 40 Conn. 40.

1 Elliott v. Fitchburg Railroad Co., 10 Cush. 196; Amoskeag Manuf. Co. v. Goodale, 46 N. H. 53; Adams v. Barney, 25 Vt. 225; post, § 214.

2 Honsee v. Hammond, 39 Barb. 89; Heywood v. Miner, 102 Mass. 466;

Twiss v. Baldwin, 9 Conn. 291; Lawson v. Price, 45 Md. 123; Timm v. Bear, 29 Wis. 254; post, § 290.

3 Rood v. Johnson, 26 Vt. 64.

Emery v. Erskine, 6 Barb. 9; Reid v. Gifford, Hopk. Ch. 416; Cadigan v. Brown, 120 Mass. 493; Ballou v. Hopkinson, 4 Gray, 324; ante, § 121. 5 May v. Parker, 12 Pick. 34.

6 Hoxsier. Hoxsie, 38 Mich. 77. 7 Ante, § 187.

§ 207. "It is apparent," says Merrick, J.,1" that the rights of riparian proprietors on opposite banks of the stream do not depend upon, and are not affected by, the locality of the channel or current through or along which the larger, or even the chief and principal, part of the water flows. Wherever this current may be, the central line in the bed of the stream, parallel to and equally distant from each shore, is the boundary of their lands. And as their respective rights to the use of the water do not result from this line of division, but arise by mere operation of law, as incident to their ownership of the bank, the formation of the bed of the stream, its varying depth, and the consequent course and direction of the current must be circumstances wholly immaterial." "The rule, which is a necessary inference from these principles, that parties so situated are each entitled to the use of an equal share and proportion of the running water, is not only simple, direct, and equitable, but seems to be essential as the only practical rule by which their respective rights can be accurately ascertained or effectively protected. For it must be obvious that the difficulties would often be very great, if not wholly insurmountable, to find the exact course and direction of the channel, or to determine on which side of the boundary line the larger portion of the whole volume of the stream actually flows." As each proprietor has simply the usufruct of the water as it passes along, no exclusive title is acquired to one-half or to any definite part, but each proprietor is entitled, per my et per tout, to the use of his proportion of the whole bulk and volume of the stream.2 It follows that, although an exclusive use of the water may be acquired by an actual adverse possession and enjoyment,3 yet the mere use by one proprietor of all the water, unaccompanied by any act of exclusion against the other proprietors, or by the assertion of any superior or exclusive claim, is not in its nature adverse and affords no cause of complaint.1

1 Pratt v. Lamson, 2 Allen, 275, 285; Tourtellot v. Phelps, 4 Gray, 376; Webb v. Portland Manuf. Co., 3 Sumner, 189; 3 Law Rep. 374.

2 Ibid.

3 Post, c. 11.

4 Pratt v. Lamson, 2 Allen, 288; 6 Allen, 457; Pitts v. Lancaster Mills,