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major, and caused the embankments to be carried away and the accumulated waters to rush down the stream and injure the plaintiff's property, was held to be the sole proximate cause of the escape of the water and not to give the plaintiff a cause of action.1 So, where the defendants' reservoir, constructed with sluices, connected with a main drain or watercourse, from which the reservoir was supplied, and with sluices by which the surplus water was returned into the drain at a lower level, and the combined effect of the emptying of a reservoir belonging to a third person above the defendants' premises, and of an obstruction in the drain below them, was to force water through the sluices into the defendants' reservoir and cause an overflow thence upon the plaintiff's land, the defendants were held not liable, it appearing that they had no control over the main drain, or the other reservoir, or knowledge of the cause of the injury, and that the sluices prevented overflow under ordinary circumstances.2

§ 298. A person may lawfully collect water by means of a dam, or in ditches, canals, or pipes, and is not liable in such a case for injuries caused by the escape of the water, in the absence of negligence on his own part,3 or when the work is

1 Nichols v. Marsland, 2 Exch. Div. 1; L. R. 10 Exch. 255; Fletcher v. Smith, 2 App. Cas. 781; L. R. 9 Ex. 64; L. R. 7 Ex. 305; River Wear Commissioners, 26 W. R. 217. Mellish, L. J., here said: " If, indeed, the making of the reservoir was a wrongful act in itself, it might be right to hold the defendant liable for the consequences of his own wrongful act, even although occasioned by the act of God, just as he would be liable in the case of an absolute contract. But the making of a reservoir is not itself a wrongful act, unless as in Fletcher v. Rylands, it is on land the peculiar character of which allows the water to escape and do damage." See Mahoney v. Libbey, 123 Mass.20; Gorham v. Goss, 125 Mass. 232.

2 Box v. Judd, 4 Exch. D. 76.

3 Livingston v. Adams, 8 Cowen, 175; Shrewsbury v. Smith, 12 Cush. 177; Blyth v. Birmingham Water Co., 11 Exch. 781; Noyes v. Shepherd, 30 Maine, 173; China v. Southwick, 12 Maine, 238; Lehigh Bridge Co. v. Lehigh Coal Co., 9 Rawle, 9; Bell v. McClintock, 9 Watts, 120; Pollet v. Long, 56 N. Y. 200; New York v. Bailey, 3 Denio, 433; Lapham v. Curtis, 5 Vt. 371; Hoffman v. Tuolumne Water Co., 10 Cal. 413; Campbell v. Bear River Mining Co., 35 Cal. 683; Tenney r. Miners' Ditch Co., 7 Cal. 335; Wolf v. St. Louis Water Co., 10 Cal. 541; Everett v. Hydraulic Flume Tunnel Co., 23 Cal. 225; Frye v. Moore, 53 Maine, 583; Fraler v. Sears Water Co., 12 Cal. 555;

done by competent and independent contractors. There is, therefore, no liability where a dam, which is properly constructed and kept in repair, breaks and causes injury to lands below because of an extraordinary flood or other act of God, or when, in consequence of great and exceptional floods, it injures a land-owner above. The owner of the dam is held responsible only for that degree of care, skill, and diligence in its construction and maintenance which men of ordinary prudence are accustomed, in similar cases, to employ. But if the injury is caused by hazardous experiments, by the imperfect construction of a dam or canal embankment or negligence in maintaining it, the owner is liable. And if a stream is subject to extraordinary freshets once in several years, although at no regular intervals, a person who builds a dam across the stream is bound to so construct it as to resist such freshets."

Wright . Holbrook, 52 N. H. 120;
Washburn v. Gilman, 64 Maine, 163,
168; McArthur v. Green Bay Canal
Co., 34 Wis. 139.

1 Boswell v. Laird, 8 Cal. 469.
2 Ibid.

3 Ibid.; Young v. Leedom, 67 Penn. St. 351; McCoy v. Danley, 20 Penn. St. 89; Monongahela Navigation Co. v. Coon, 6 Barr, 379; Smith v. Agawam Canal Co., 2 Allen, 358.

97.

4 Ibid. ;

Todd v. Cochell, 17 Cal.

5 Cahill v. Eastman, 18 Minn. 324; Knapheide v. Eastman, 20 Minn. 478; St. Anthony Falls Water Power Co. Eastman, 20 Minn. 277; Porter v. Pequonnoc Manuf. Co., 17 Conn. 249; Tuolumne Water Co. v. Columbia Water Co., 10 Cal. 193.

6 Gray v. Harris, 107 Mass. 492; New York v. Bailey, 2 Denio, 133.

CHAPTER X.

CONTRACTS AND COVENANTS.

SECTION.

299. Easements in general.

300. Creatable by deed only.

301. Easements in gross and appurtenant.

302. Covenants personal and real.

303. Easements as encumbrances against warranty.

304. Water easements as to quantity and power.

304a. Under what words and phrases not only the water privilege but the

soil itself passes.

305. Appurtenances.

306-309. Secondary easements.

310. Reservations and exceptions.

311. Construction of, must be certain.

312. Must be inclusive and unambiguous.

313. Extinguished by unity of possession.

314. Not so of necessary or continuous easements. 315. Partition.

316. Easements follow parted estates.

317. Pipes and aqueducts.

318. Construction of water easements.

-

- Mining ditches indivisible.

319. Should regard preliminaries, circumstances, and intention.

320. Does not restrict use, in grant of quantity.

321. Statute of Frauds.

322. License granted verbally.

323. When revocable.

324. Unexecuted license always revocable.

325. Misrepresentations as to water easements actionable.

326. Promissory representations non-actionable.

327. Damages.

328. Repairs.

§ 299. In addition to the rights which riparian proprietors possess ex jure naturae, other rights may be acquired in watercourses known as easements. An easement is a privilege without profit which the owner of one tenement has in an adjoining teuement, by which the servient owner is obliged to suffer or not to do something on his own land for the advantage of the dominant estate.1 Easements in watercourses are exclusively affirmative, that is, the exercise of the easement obliges the servient owner to suffer something on his own land, which would be a cause of action if the right did not exist. Such rights may be acquired by a contract, express or implied, or by prescription, which presupposes a contract or grant from the long-continued exercise of the right. The grantor of land through which a stream of water flows may reserve the water privilege, or he may convey the use of the water in whole or in part, leaving the fee of the land vested in the grantor.2 If a miller purchases the water privilege adjoining his mill, the right of soil remaining in the original proprietor, he gains an incorporeal hereditament; but if he buys the land itself over which the water flows, he has a corporeal tenement, and the right which he possesses in respect to the watercourse is real. In the former case the right acquired is an easement and not a profit a prendre, since running water, whether above or below the surface of the earth, is not a product of soil and does not remain in any one place. The right to enter upon another's close and there take water for domestic purposes from a natural fountain, as a pond or a running spring, is an easement only, sustainable by proof of custom by the inhabitants.5 So the privilege of laying pipes in

1 Termes de la Ley, tit. Easement; 181, 184; Smith v. Ford, 48 Wis. Monsey v. Ismay, 3 H. & C. 497. 166.

2 Rood v. Johnson, 26 Vt. 64; Miller v. Lapham, 44 Vt. 416; Soule v. Russell, 13 Met. 436.

3 Ibid.; Woolrych on Waters, 146; Sterling Hydraulic Co. v. Williams, 66 Ill. 393; Seymour v. Lewis, 13 N. J. Eq. 439; Morgan v. Mason, 20 Ohio, 401; Wall v. Cloud, 3 Humph.

4 Race v. Ward, 4 El. & Bl. 702; Mounsey v. Ismay, 3 H. & C. 486; Shuttleworth v. Le Feming, 19 C. B. N. s. 687; Manning v. Wasdale, 5 A. & E. 758; Owen v. Field, 102 Mass. 90; Hill v. Lord, 48 Maine, 83, 99; 3 Kent Com. 427.

5 Ibid.

another's land for the purpose of taking water, and of entering upon the land to lay, repair, or renew such pipes, is an interest in the realty which is assignable, descendible, and devisable.1 The right to water in wells or cisterns is an interest in land, although not a profit a prendre, and may be claimed by custom.2

3

§ 300. An easement in a watercourse can only be created by deed; and when so created, the grantor cannot derogate from the deed, and the nature and extent of the rights of the parties can only be determined thereby. A grantee of a water privilege whose deed contains no covenant as to the height of the dam or his rightful extent of flowage, is without remedy at law or in equity, if he is subjected to damages by reason of his maintenance of a dam at an improper height. The above rule applies equally whether the water flows in a natural or artificial channel, or is mere surface or percolating water; and whether all the interest in the soil beneath the water is conveyed, or only so much as is necessary for a due enjoyment of the water, yet the interest is of such a character that

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2 Ibid.; Hill v. Lord, 48 Maine, 100; Goodrich v. Burbank, 12 Allen, 459, 461.

3 Co. Litt. 9a.; Hewlins v. Shippam, 5 B. & C. 221, 229; Cocker v. Cowper, 1 C. M. & R. 418; Cook v. Stearns, 11 Mass. 533; Fuller v. Plymouth, 15 Pick. 81; Short v. Woodward, 13 Gray, 86; Stevens v. Stevens, 11 Met. 251; Banghart v. Flummerfelt, 43 N. J. L. 28; Carlton v. Redington, 21 N. H. 291; Stevens v. Dennett, 51 N. H. 324; Fuhr v. Dean, 29 Mo. 116; Miller v. Auburn & Syracuse Railroad Co., 6 Hill, 61; Brown v. Woodworth, 5 Barb. 550; Russell v.

Scott, 9 Cowen, 279; Wiseman v. Lucksinger, 84 N. Y. 31; ―v. Deberry 1 Hayw. (N. C.) 248; Watrous v. Watrous, 3 Conn. 373; Moore v. Sinks, 2 Ind. 257; Foot v. New Haven Co., 23 Conn. 214. Under the statutes of Ohio, an unsealed written license to enter upon and imbed water pipes in another's land, with privilege to enter and repair them, creates no incumbrance upon the land as against a subsequent purchaser. Wilkins v. Irvine, 33 Ohio St. 138.

4 Northam v. Hurley, 1 E. & B. 665; Whitehead v. Parks, 2 II. & N. 878; Sharp v. Waterhouse, 7 E. & B. 816; Tipping v. Eckersley, 2 K. & J. 273. 5 Hopper v. Lutkins, 3 Green Ch. 149.

Rawstron . Taylor, 11 Exch. 369; Whitehead v. Parks, 27 L. J. Exch. 169.

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