prietors below, or without first appropriating their interests under the eminent domain.11

The right of the lower proprietor to have the stream flow to him in undiminished volume is qualified to this extent, that the upper proprietor may lawfully withdraw from it whatever may be necessary to supply the wants of his family and of his domestic animals, and also for irrigation, manufacturing and other useful purposes, provided what he withdraws does not essentially diminish the volume to the prejudice of those below him.12

§ 303. Detention of the water. The general rule is that each riparian proprietor is entitled to the steady flow of the stream, according to its natural course. But to apply this rule strictly would be to preclude the best use of flowing waters in most cases; and where power is desired, the rule must yield to the necessity of gathering the water into reservoirs. It is lawful to do this where it is done in good faith,13 for a useful purpose, and with as little interference with the rights of other proprietors as is reasonably practicable under the circumstances.14 It is an unreasonable detention of the water to

11 Wilts, etc., Canal Co. v. Swindon Water Works Co., L. R. 9 Ch. App. 451; S. C. L. R. 7 H. L. 697; Gardner v. Newburgh, 2 Johns. Ch. 162, 7 Am. Dec. 526; Emporia v. Soden, 25 Kan. 588, 37 Am. Rep. 265; 1 Lewis, Em. Dom, § 62; Osborn v. Norwalk, 77 Conn. 663; Smith v Rochester, 92 N. Y. 463, 44 Am. Dec. 391.

12 Evans v. Merriweather, 4 Ill. 492, 38 Am. Dec. 106; Bliss v. Kennedy, 43 Ill. 68; Fleming v. Davis, 37 Tex. 173; Blanchard v. Baker, 8 Me. 253, 23 Am. Dec. 504; Lapham v. Anthony, 5 Pick. 175; Lakin v. Ames, 10 Cush. 198; Colburn v. Richards, 13 Mass. 420, 7 Am. Dec. 160; Arnold v. Foot, 12 Wend. 330; Randall v. Silverthorn, 4 Pa. St. 173; Wadsworth v. Tillotson, 15 Conn. 366, 39 Am.

Dec. 391; Gillett v. Johnson, 30 Conn. 180; Embrey v. Owen, 6 Exch. 353; Sampson v. Hoddinott, 1 C. B. (N. S.) 590; Wood v. Waud, 3 Exch. 748, 780; Chase more v. Richards, 2 H. & N. 168; Messinger's Appeal, 109 Pa. St. 285; Baker v. Brown, 55 Tex. 377; Shook v. Colohan, 12 Ore. 239. Water for locomotives may not be taken if flow is sensibly diminished. Garwood v. New York, etc., R. R. Co., 83 N. Y. 400, 38 Am. Rep. 452; Penn. R. R. Co v. Miller, 112 Pa. St. 34; Anderson v. Cincinnati, etc., R. R. Co., 86 Ky. 44, 5 S. W. 49. See 1 Lewis, Em. Dom. § 62.

13 Hoy v. Sterrett, 2 Watts, 327, 27 Am. Dec. 313.

14 Pitts v. Lancaster Mills, 13 Met. 156; Gould v. Boston Duck

gather it into reservoirs for future use in a dry season, or for the purpose of obtaining a greater supply than the stream affords by its natural flow in ordinary stages, 15 or in order that, by letting it off occasionally a flood may be obtained for the purpose of floating logs; 16 but it is not unreasonable, and therefore not unlawful to detain the surplus water not used in a wet season and discharge it in proper quantities for use in a dry season. It has been held not to be an unreasonable use of a stream for the defendant to detain the flow for two days and a night for the purpose of filling a reservoir for a supply of ice.18

§ 304. Flooding lands by damming or obstructing stream. At the common law, the owner of land has no right, by dams or otherwise, to cause the water of a stream passing through his lands to set back upon the lands of a proprietor above. He must allow the water to enter upon his premises in the accustomed way, and the upper proprietor, if necessary, may cross his line to keep the channel open. 19 Any act of his which raises the water in the stream above his estate is presumptively damaging and therefore actionable.20 It is actionable, also, because, if persisted in, without objection, it might, in the lapse of time, establish permanent rights by prescription." Any showing of actual damage is therefore unnecessary to the maintenance of the action.22 It has been already stated, that in aid of manufactures, this common law has been so far changed by statute in some states as to allow parties to flow the lands of others for the purpose of obtaining power on making compensation.23

All the foregoing principles are as much applicable to muni

19 Prescott v. Williams, 5 Met. 429.

20 Bell v. McClintock, 9 Watts, 119, 34 Am. Dec. 107; Martin v. Riddle, 26 Pa. St. 415; Brown v. Bowen, 30 N. Y. 519, 86 Am. Dec. 406; Bellinger v. N. Y. Cent. R. R. Co., 23 N. Y. 42; Pixley v. Clark, 35 N. Y. 520, 91 Am. Dec. 72; Williams v. Nelson 23 Pick 141, 34 Am. Dec. 45; Staple v. Spring, 10 Mass. 72; Smith V. Agawam Canal, 2 Allen, 355; Pillsbury v. Moore, 44 Me. 154, 69 Am. Dec. 91; Strout v. Milbridge Co., 45 Me. 76; Merritt v. Parker, 1 N. J. L. 460; Phinzy v. Augusta, 47 Ga. 260; Whitcomb v. Vt. Cent. R. R. Co., 25 Vt. 49; Davis v. Fuller, 12 Vt. 178, 36 Am. Dec. 334; Cowles v. Kidder, 24 N. H. 364, 57 Am. Dec. 287; Amoskeag Mfg. Co. v. Goodale, 46 N. H. 53; Miss. Cent. R. R. Co. v.

Caruth, 51 Miss. 77; Arimond v. Green Bay, etc., Co., 31 Wis. 316; Lull v. Davis, 1 Mich. 77; Eaton V. Railroad Co., 51 N. H. 504; Sullens v. Chicago, etc., Ry. Co., 74 Ia. 659, 38 N. W. 545; Athens Mfg. Co. v. Rucker, 80 Ga. 291, 4 S. E. 885; Southern Ry. Co. v. Cook, 117 Ga. 286, 43 S. E. 697; Kankakee, etc., R. R. Co. v. Horan, 131 Ill. 288, 23 N. E. 621; Ohio, etc., Ry. Co. v. Ramey, 139 Ill. 9, 28 N. E. 1087, 32 Am. St. Rep. 176; Centralia v. Wright, 156 Ill. 561, 41 N. E. 217; Mississippi, etc., R. R. Co. v. Archibald, 67 Miss. 38, 7 So. 212; Goodrich V. Dorset Marble Co., 60 Vt. 280, 13 Atl. 636; 1 Lewis, Em. Dom. § 67.

21 Mississippi Cent. R. R. Co v. Mason, 51 Miss. 234. 22 Ante, § 12.

23 See 1 Lewis, Em. Dom. §§ 178 -182.

cipal corporations in their dealings with water courses as to individuals. Thus, if a town shall so erect a bridge as that the natural and probable consequences shall be to raise the water on the lands above, by the partial obstruction interposed to its flow, the town will be liable, as an individual would for a like obstruction.24

§ 305. Pollution of stream. In the leading case of Wood v. Waud, the ground of complaint was that the defendant fouled the water of a stream, to the prejudice of lower riparian proprietors, by pouring into it soapsuds, wool comber's suds, etc. In defense, it was urged that the act of defendant did no actual damage to the plaintiffs because the stream was already so polluted by similar acts of mill owners above the defendant's mills, etc., that the wrongful act complained of made no practical difference. It was held, notwithstanding, that the plaintiffs had received damage in point of law: "they had a right to the natural stream flowing through the land in its natural state, as an incident to the right to the land on which the water course flowed." 25 The general rule is that every riparian owner has a right to have the stream come to him in its natural state and purity. This right is subject to the right

26

24 Haynes v. Burlington, 38 Vt. 350; Lawrence v. Fairhaven, 5 Gray, 110; Parker v. Lowell, 11 Gray, 353; Sprague v. Worcester, 13 Gray, 193; Helena v. Thompson, 29 Ark. 559; I Lewis, Em. Dom. § 67.

V.

35 Wood v. Waud, 3 Exch. 748, 772. See Stonehewer v. Farrar, 6 Q. B. 730. An injunction will lie against one of several who pollute a stream, through his act causes but an inconsiderable part of the damage. Woodyear Schaefer, 57 Md. 1; Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 79 Am. St. Rep. 643, 51 L. R. A. 687. It is no defense that the plaintiff has himself to some extent polluted the stream. Jackman v. Arlington Mills, 137

Mass. 277; West Arlington Imp.
Co. v. Mount Hope Retreat, 97
Md. 191, 54 Atl. 982.

26 Merrifield v. Lombard, 13 Allen, 16; Gladfelter v. Walker, 40 Md. 1; Clifton Iron Co. v. Dye, 87 Ala. 468, 6 So. 192; Drake v. Lady Ensley Coal, etc., Co., 102 Ala. 501, 14 So. 749; Kewanee v. Otley, 204 Ill. 402, 68 N. E. 388; Ferguson v. Formenich Mfg. Co., 77 Ia. 576, 42 N. W. 448; Jessup & M. Paper Co. v. Ford, 6 Del. Ch. 52; Richmond Mfg. Co. v. Atlantic DeLaine Co., 10 R. I. 106; Silver Spring, etc., Co. v. Wanskuck Co., 13 R. I. 611; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335; Randolph v. Penn. S. V. R. R. Co., 186 Pa. St. 541; Van Egmond v. Seaforth, 6 Ontario,

of the upper proprietors to make a reasonable use of the stream and of their land upon the stream.3 27 But if the stream is corrupted otherwise than by such reasonable use an action lies." Polluting a stream with the sewage of a city is a nuisance for which an action lies.29 So it is a nuisance if a riparian proprietor shall cast into the stream earth, sand, the refuse of his business, or other things, which by the flowing water are carried and deposited upon the land of a proprietor below.30

§ 306. Reasonable use of stream. The reasonableness of the use depends upon the nature and size of the stream, the busi