It is also

appropriator is recognized as the superior right. modified by those statutes which in some States allow a riparian proprietor to flow the lands of those above him, for manufacturing purposes, on making compensation. "The priority of first possession necessarily arises from the nature of the appropriation; where two or more have an equal right to appropriate, and where the actual appropriation by one necessarily excludes all others, the first in time is the first in right."*

Questions may arise as between the adjacent proprietors on the opposite sides of the water course, or between the upper and lower proprietors. No one of them has a right to the water itself, but each of them has a right to the use of the water as it passes by his estate. And where the water course divides two estates, each proprietor has the right to the use, not of one-half merely, but of the whole bulk of the stream; that is, he is enti tled to such advantage as it can be to him to have the whole stream flow past his estate; and neither can carry off or divert any part of it without the consent of the other. The advantage might be very great where the stream is used for moving machinery, though it is obvious that, in order to obtain power by means of dams, the consent of the two proprietors would also be essential, since neither could go upon the land of the other for the purpose without permission.

'Atchison v. Peterson, 20 Wall. 507; Kelly. Natoma Water Co., 6 Cal. 105; Butte Canal, &c., Co. v. Vaughn, 11 Cal. 143; Nevada Water Co. v. Powell, 34 Cal. 109; Lobdell v. Simpson, 2 Nev. 274; Ophir S. M. Co. v. Carpenter, 4 Nev. 534; Barnes v. Sabron, 10 Nev. 217; Strait v. Brown, 16 Nev. 317. See an elaborate discussion of appropriation in Lux v. Haggin, 69 Cal. 255. The prior appropriator may remove an obstruction upon an upper proprietor's land to the usual flow. Ware v. Walker, 70 Cal. 591; but he does not own the water before it reaches him and may not sue for its diversion as for goods sold. Parks, &c., Co. v. Hoyt, 57 Cal. 44. The appropriator has no right to a surplus in flood time not used by him.

Edgar v. Stevenson, 70 Cal. 286; nor to more than necessary for his purposes at any time. Clough v. Wing, 17 Pac. Rep. 453 (Ariz).

2 Gould v. Boston Duck Co., 13 Gray, 442, 451; Fuller v. Chicopee Manuf. Co., 16 Gray, 43; Lincoln v. Chadbourne, 56 Me. 197.

8 Blanchard v. Baker, 8 Me. 253; Vandenburgh . Van Bergen, 13 Johns. 212; Pratt v. Lamson, 2 Allen, 275; Canal Trustees v. Haven, 11 Ill. 554; Harding v. Water Co. 41 Conn. 87. Where there is a public landing at the mouth the owner on one side of a brook may not sell one half the water as merchandise. Moulton v. Newburyport Water Co., 137 Mass.

163.

The general principle is that every proprietor of land on a water course is entitled to the enjoyment and use of the stream substantially according to its natural flow, subject only to such interruption as is necessary and unavoidable in its reasonable and proper use by other proprietors. The proprietors above have no right to divert, or unreasonably to retard the [*583] natural *flow of the water to the proprietors below, and

the proprietors below have no right to retard it or turn it back upon the proprietors above to their prejudice.' The use may be for mills, for irrigation or other agricultural purposes; in short for any purpose whatsoever, within the limits of what is reasonable.

Diversion. The upper proprietor is at liberty to divert the water from its natural channel on his own estate at will, provided he returns it again before it leaves his land, and allows it to pass as it naturally would to those entitled to its use below him.' But he has no right to divert it without thus returning it; and to turn any portion of it into a new channel would be an actionable injury. He may not divert the water even for the purposes of repair of machinery; though a mere detention of

3

1 Wright o. Howard, 1 Sim. & Stu. 190; Webb . Portland Manuf. Co., Sum. 189; Blanchard v. Baker, 8 Me. 253; Thurber v. Martin, 2 Gray, 394; Chandler v. Howland, 7 Gray, 348; Gould v. Boston Duck Co., 13 Gray, 442; Miller v. Miller, 9 Penn. St. 74; Pool v. Lewis, 41 Geo. 162; S. C. 5 Am. Rep. 526; Arnold v. Foot, 12 Wend. 330.

2 Tolle v.. Correth, 31 Tex. 362; Gould. Boston Duck Co., 13 Gray, 442; Dilling v. Murray, 6 Ind. 324; Van Hoesen v. Coventry, 10 Barb. 518; Sackrider v. Beers, 10 Johns. 241; Merritt v. Brinkerhoff, 17 Johns. 306; Oregon Iron Co. v. Trullinger, 3 Ore. 1; Porter v. Durham, 74 N. C. 767; Blanchard v. Baker, 8 Me. 253. So as to one not a riparian owner, but the licensee of such an owner, who

takes and returns the water by pipes. Kensit v. Grt. East. Ry. Co., L. R. 27 Ch. D. 122.

Webb v. Portland Manuf. Co., 3 Sum. 189; Parker Griswold, 17

Conn. 287; Harding v. Stamford Wa ter Co., 41 Conn. 87; Newhall . Ireson, 8 Cush. 595; Pratt v. Lamson, 2 Allen, 275; Anthony . Lapham, 5 Pick. 175; Blanchard v. Baker, 8 Me. 253; Vandenburgh . Van Bergen, 13 Johns. 212; Shively. Hume, 10 Oreg. 76; Weiss . Oreg., &c., Co., 13 Oreg 496. So if for more than twenty years an upper proprietor has caused water to run in an artificial channel, upon which a lower owner has erect ed a mill, he may not divert it from the channel. Shepardson . Perkins, 58 N. H. 354,

the water for that purpose would be lawful, if not under the circumstances unreasonable.1

A town or city cannot by purchase of an upper proprietor, or even by legislation, acquire the right to appropriate a water course for municipal purposes, without the consent of the proprietors below, or without first appropriating their interests under the eminent domain."

Reasonable Use. The reasonableness of the use depends upon the nature and size of the stream, the business or purposes to which it is made subservient, and on the evervarying *circumstances of each particular case. Each case [*584] must therefore stand upon its own facts, and can be a guide in other cases only as it may illustrate the application of general principles. It has been well said that in determining upon the reasonableness of the use, it is necessary to take into account not only the general customs of the country, but also any local customs along the stream; and that such general rule should be laid down as appears best calculated to secure the entire water of the stream to useful purposes.'

Detention of the Water. The general rule is that each riparian proprietor is entitled to the steady flow of the stream,

' Davis v. Getchell, 50 Me. 602; Van Hoesen v. Coventry, 10 Barb. 518. See Angell on Water Courses, § 99 a. Peter o. Caswell, 38 Ohio St. 518, where water long diverted was turned into original channel causing harm. 2 Wilts, &c., Canal Co. v. Swindon Water Works Co., L. R. 9 Ch. App. 451; S. C. L. R. 7 H. L. 697; Garder o. Newburgh, 2 Johns. Ch. 162; mporia v. Soden, 25 Kan. 588. The ate may not authorize the drawing water from a lake which feeds a stream whereby the power is desed, unless compensation is made he riparian owners. Smith v. ester, 92 N. Y. 463. But a coron for the improvement of nava may divert navigable water riparian owner. Black River,

&c., Co. v. LaCrosse, &c., Co., 54 Wis. 659.

3 Hetrich . Deachler, 6 Penn. St. 32; Davis v. Winslow, 51 Me. 264; Tyler. Wilkinson, 4 Mason, 397; Davis . Getchell, 50 Me. 602; Hayes v. Waldron, 44 N. H. 580; Holden v. Lake Co., 53 N. H. 552; Parker v. Hotchkiss, 25 Conn. 321; Pool v. Lewis, 41 Geo. 162; S. C. 5 Am. Rep. 526; Honsee v. Hammond, 39 Barb. 89; Dilling v. Murray, 6 Ind. 324; Gould v. Boston Duck Co., 13 Gray, 442; Timm v. Bear, 29 Wis. 254; Snow v. Parsons, 28 Vt. 459; Dumont v. Kellogg, 29 Mich. 420; Embrey v. Owen, 6 Exch. 352; Chasemore v. Richards, 2 H. & N. 168.

Keeney, &c., Manuf. Co. v. Union Manuf. Co., 39 Conn. 576.

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,' for a useful purpose, and with as little interference with the rights of other proprietors as is reasonably practicable under the circumstances.' It is an unreasonable detention of the water to 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,' or in order that, by letting it off occa[*585] sionally a *flood may be obtained for the purpose of floating logs; 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."

'Hoy v. Sterrett, 2 Watts, 327.

2 Pitts . Lancaster Mills, 13 Met. 156; Gould v. Boston Duck Co., 13 Gray, 442; Wood v. Edes, 2 Allen, 578; City of Springfield v. Harris, 4 Allen, 494; Hetrich . Deachler, 6 Penn. St. 32; Hartzall v. Sill, 12 Penn. St. 248; Hoy v. Sterrett, 2 Watts, 327; Platt v. Johnson, 15 Johns. 213; Van Hoesen v. Coventry, 10 Barb. 518; Clinton . Myers, 46 N. Y. 511; S. C. 7 Am. Rep. 373; Mabie v. Matteson, 17 Wis. 1; Davis v. Getchell, 50 Me. 602; Parker v. Hotchkiss, 25 Conn. 321; Pool v. Lewis, 41 Geo. 162; S. C. 5 Am. Rep. 526; Oregon Iron Co. v. Trullinger, 3 Ore. 1.

3 Clinton . Myers, 46 N. Y. 511; S. C. 7 Am. Rep. 373; Brace v. Yale, 10 Allen, 441; Timm v. Bear, 29 Wis. 254.

Thunder Bay, &c., Co. v. Speechly, 31 Mich. 336; S. C. 18 Am. Rep.

184.

Oregon Iron Co. v. Trullinger, 3 Ore. 1, 7. The discharge, however, must not be made in such unusual and unnatural quantities as to preclude the lower proprietors from

making use of it as it flows past them. Pollitt v. Long, 58 Barb. 20; Merritt v. Brinkerhoff, 17 Johns. 306; Thunder Bay Co. v. Speechly, 31 Mich. 336; Thurber v. Martin, 2 Gray, 394; Oregon Iron Co. v. Trullinger, 3 Ore. 1. See also Mason v. Hoyt, 14 Atl. Rep. 786 (Conn.), as to unressonable use of reservoir.

In Drake v. Hamilton Woolen Co., 99 Mass. 574, it was held that the owner of a reservoir and mill may discharge from his reservoir in a dry sea son what is reasonably necessary for the use of his mill if it does not increase the volume beyond its usual limits, though it exceeds the amount which would naturally flow during such season and renders the interme diate land wet and less valuable for cultivation.

Whatever injury is incidental to s reasonable use of the water of a run ning stream is of course damnum absque injuria, Tyler o. Wilkinson, 4 Mason, 397, 401; Chandler . How land, 7 Gray, 348; Pitts v. Lancaster Mills, 13 Met. 156; Hetrich . Deachler, 6 Penn. St. 32; Hartzall v. Sill, 12

Diminution of the Water. to have the stream flow to him in undiminished volume is qualified to this extent, that the 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.1

The right of the lower proprietor

Flooding Lands by Water. 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 [*586] proprietor, if necessary, may cross his line to keep the channel open. Any act of his which raises the water in the stream above his estate is presumptively damaging and therefore actionable. It is actionable also, because, if persisted in, with