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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 must depend 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.i A watercourse, though artificial, may have originated under such circumstances as to give all the rights that riparian proprietors have in a natural stream, or have been so long used as to become a natural watercourse prescriptively.2 When the owners of different parcels df 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.3 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.4 A person who diverts a stream through an artificial watercourse, for his own benefit, must construct it in such a manner that it will carry off the watel that may flow into it from such floods and rains as happen in the locality.6 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

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the drain, if he uses ordinary care in closing it.i 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.2 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,3 or to the injury of those upon the artificial watercourse who have acquired by long user the right to enjoy the water there flowing.4 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.6 Waters 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.6

i Rockwood v. Wilson, 11 Cush. 6 Arkwright v. Gell, 5 M. & W. 203; 221. Gaved v. Martyn, 19 C. B. N. S. 732.

2 Sturges v. Theological Education c Rochdale Canal Co. v. Radeliffe, Society, 130 Mass. 414. 18 Q. B. 287; Staffordshire Canal Co.

;t Belknap v. Trimble, 3 Paige, 577; v. Birmingham Canal Co., 11 Juv. n.

Delaney v. Boston, 2 Harv. (Del.) 489; s. 71. A river does not become a

Middleton v. Gregorie, 2 Rich. (S. C.) "canal" when its navigation is im

638. proved by artificial means. People v.

* Shepardson v. Perkins, 58 N. H. Kankakee River Improvement Co.,

354. 103 1ll. 491.

CHAPTER VH.

APPROPRIATION AND RIGHTS ACQUIRED BY PRIORITY.

SICTIOn.

226. Effect of prior occupaney.

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

228. Appropriations of water rights valid in the far West.

229. The extent of the right acquired by priority.

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

231. As against subsequent locators it is fixed by the original appropri

ation.

232. Duty to so keep ditch in repair that adjoining lands are not over

flowed or injured thereby.

233. The right acquired by priority, how affected by the purpose for

which the appropriation is made.

234. Sales of water rights.

235, 236. What constitutes an appropriation.

237. Effect of change in the use of the appropriated watev. 238,239. Prior right how lost.

240. The Act of Congress of July 26, I866.

§ 226. 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 naturae.1 The right exists whether it is exercised or not, and the riparian proprietor may begin to exercise it when he will.2 It does not depend upon occupaney, 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

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purpose, 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 injur}" done to him in respect to such use; and if he has appropriated the stream to the use of a mill newly erected, he may recover from another proprietor upon the stream damages for the injury to his mill occasioned by the wrongful use of the stream, although before the mill was built the wrongdoer might have been liable to nominal damages only.1 This relates, however, to an unlawful interference with an existing right, and has no bearing upon the question whether the use of the stream complained of is or is not lawful.

§ 227. The equal right of all the proprietors to the use of the stream in common, being thus an incident to the ownership of the land, and existing jure naturae, cannot be affected by such priority of occupation as does not amount to an adverse prescriptive right.2 In Massachusetts and some other States there is an important limitation to the rule that no superior right to the stream is acquired by mere occupancy, and the owner of land who first erects a dam for the purpose

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Palmer v. Mulligan, 3 Caines, 397; Campbell v. Smith, 3 Hal. (X.J.) 140; Pillsbury v. Moore, 4 Maine, 164; Could v. Boston Duck Co., 13 Gray, 450; Pugh v. Wheeler, 2 Dev. & Bat. 50. The earlier authorities are to the contrary effect, upon the theory of the civil law, that flowing water belongs to no one, and that the right to use it depends upon possession. Williams v. Morland, 2 B. & C. 910; Bealy v. Shaw, 0 East, 208; Saunders v. Newman, 2 B. & Aid. 258; Cox v. Mathews, 1 Vent. 137; Liggins v. Inge, 7 Bin<r. 002; Frankum v. Falmouth, (j C. & 1". 620.

of operating a mill upon his own land, has the right to maintain it as against proprietors above and below,i although it may set the water back to such a distance and height as to prevent a proprietor above from having a sufficient fall to carry a mill upon his own land, or preclude any subsequent erection below him.2 "To the extent," says Bigelow, C. J.,8 "to which the descent or fall of water in a stream is taken up and occupied by the erection of dams for the purpose of carrying mills, the right of other owners on the same stream, who have not improved their sites for the creation of waterpower and the driving of mills, is abridged and taken away. In such case prior occupaney gives priority of title. Although the right to the use of water is inherent in or appurtenant to land, it is nevertheless in a certain sense a right publici juris, and subject to the rule of law, which regards the erection of a dam for the purpose of creating mill power a profitable, beneficial and reasonable use of the stream, of which riparian proprietors on the same stream, who have not appropriated the force and fall of the water on their own land, cannot complain. It is damnum absque injuria." This limitation appears to be peculiar to a few States only, and it is quite generally held in the other States that the right to use the stream for the creation of a water power is, as in other cases, merely the right to use it in a reasonable manner and to a reasonable extent without

i Hatch v. Dwight, 17 Mass. 290; Cary v. Daniels, 8 Met. 470 ; Whitney v. Eames, 11 Met. 519; Gould v. Boston Duck Co., 13 Gray, 451; Fuller Chicopee Manuf. Co., 10 Gray, 44; Pratt v. Lamson, 2 Allen, 288; Smith v. Agawam Canal Co., Id. 357; Hapgood v. Brown, 102 Mass. 451 ; Lowell v. Boston, 111 Mass. 405; Wood v. Edes, 2 Allen, 573. In Storm v. Manchaug Co., 13 Allen, 10,15, Hoar, J., says that the question when the right secured by prior occupaney begins, has always been determined by the express language of the mill acts. The same rule seems to prevail in Maine and Kentucky. Lincoln v.

Chadbourne, 50 Maine, 197; Heath v. Williams, 25 Maine, 44,209; Bailey v. Rust, 15 Maine, 440; Tinkham v. Arnold, 3 Maine, 120; Butmau v. Hussey, 12 Maine, 407; Tye v. Catching, 78 Ky. 403.

2 Cary v. Daniels, 8 Met. 400; Pratt v. Lamson, 2 Allen, 288; Wentworth v. Poor, 38 Maine, 243; Fuller v. Chicopee Manuf. Co., 10 Gray, 44; Lincoln v. Chadbourne, 56 Maine, 197; Gould v. Boston Duck Co., 13 Gray, 451.

8 Fuller v. Chicopee Manuf. Co., Gray, 43, 44.

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