current by substituting an artificial channel therefor is that of a change in such current by an extraordinary natural cause, like that of a freshet, for instance. In one case a stream had flowed first through the defendant's and then through the plaintiff's land, until 1830. In that year the course of the current was so changed by the effect of a freshet, that from that time it ran wholly within the land of the defendant, avoiding that of the plaintiff. In 1840, the defendant changed the then course of the stream back to its original line, so as again to run across the plaintiff's land, for doing which the present action was brought. The court, in giving an opinion, waive the question how far the defendant might have restored the current back to its original course before any act of acquiescence on his part. But they held that, after so long an acquiescence, he was not at liberty to do it. They refer to Hale's De Jure Maris1 for the doctrine, "that if a river leaves its course, and sensibly makes its [*319] channel, entirely in the lands of A, the whole river belongs to A. Aqua cedit solo." And they likened the case under consideration to that of a quantity of earth suddenly carried away by a flood, or the like, from one man's estate, and lodged upon that of another. If the former suffers it to remain until "it cements and coalesces with the soil, the property is changed, and there is no right to reclaim the soil." 2 In the last-cited case the court held that, if a river not navigable change its course so as to cut off a point of land, leaving it an island in the stream, it would belong to the original owner. If the bed of the stream gradually fill up by deposit, and the stream take a new channel, the new land so formed belongs to the original proprietors of the stream respectively, to its original thread. If land forms above such island within the stream, not by accretions to such island, and becomes an island in the stream, it would belong to the riparian proprietors according as it was divided by the filum aquæ, which is the medium line between the banks or natural water-lines on the shores, at the time the new land was formed, irrespective of the relative depth of the water in the 1 Hargrave's Tracts, pp. 5, 6. 2 Woodbury v. Short, 17 Vt. 387. See 2 Washb. Real Prop. 453, note; Trustees, &c. v. Dickenson, 9 Cush. 454; 1 Fournel, Traité, &c. 157, § 38; Code Nap., art. 559. different parts of the stream. Soil gained by the gradual and imperceptible accretion upon land bounding upon a river or the sea, becomes the property of the land-owner, and this extends to sea-weed accumulating thereon.2 27. In another case, a stream ran across a highway through a bridge, but by a freshet it was diverted from its course and ran along the bed of the highway till it came near the plaintiff's land, when it left the bed of the road and flowed on to the plaintiff's land. The plaintiff then stopped the new channel, and turned the stream into its former one. The surveyor of highways, without any authority, stopped the culvert across the road, and turned the stream back into the channel made by the freshet, and, near the plaintiff's land, made a new culvert across the road which he had made by the side of the old one, causing the stream to flow on to the defendant's land, which, in time of high water, did him much damage. The defendant then, without authority from any competent source, filled up the new culvert and turned the water again into the freshet channel, and so on to the plaintiff's land. It was held that the plaintiff had a right to protect his land as he did by turning back the stream into its natural channel after the diversion caused by the freshet, that the surveyor had no right to turn it out of this channel on to the defendant's land, that he had a right to protect his land by stopping the new channel, if he could do so without throwing the water upon the plaintiff's land; but 1 See Pratt v. Lamson, 2 Allen, 275; Carson v. Blazer, 2 Bin. 485; Spigener v. Cooner, 8 Rich. (Law) 305; St. Louis Schools v. Risley, 40 Mo. 371; Jones v. Soulard, 24 How. 41; Warren v. Chambers, 25 Ark. 120. The rules laid down in the Digest upon the subjects above treated of are in these words: "Quod si vis fluminis partem aliquam ex tuo prædio detraxerit, et meo prædio attulerit, palam est eam tuam permanere. Plane si longiore tempore fundo meo hæserit, arboresque quas secum traxerit, in meum fundum radices egerint, ex eo tempore videtur meo fundo adquisita esse.” D. 41, 1, 7, 2. See also Inst. 2, 1, 21. 66 ‘Insula quæ in mari nascitur (quod raro accidit) occupantis sit; nullius enim esse creditur. In flumine nata (quod frequenter accidit) si quidem mediam partem fluminis tenet, communis est eorum qui ab utraque parte fluminis prope ripam prædia possident, pro modo latitudinis cujusque prædii, quæ latitudo prope ripam sit. Quod si alteri parti proximior sit, eorum est tantum qui ab ea parte prope ripam prædia possident." D. 41, 1, 7, 3. See also Inst. 2, 1, 22. 2 Emans v. Turnbull, 2 Johns. 313; Hargrave's Tracts, p. 28; Ford v. Lacy, 7 Hurlst. & N. 156. that he had no right to turn the water off from his land upon another's by any other than the usual and natural course of the stream, and that he was liable to the plaintiff for so doing.1 So where a stream separated the lands of two owners, and the soil of the one was gradually washed away and deposited on the opposite side, it was held the dividing line shifted with this gradual change in the entire line of the stream; but the one whose land was washed might protect it by rubbling the bank, or doing anything upon it which did not raise the level of the stream upon the opposite bank. He could not construct a dam extending in any degree into the stream so as to obstruct the channel and raise the water on the other owner's land.2 *SECTION V. [* 320] SPECIAL LAWS AS TO MILLS. 1. Grounds upon which these statutes are based. 2. How far the acts of Massachusetts constitutional. 2 a. Remedies under mill acts supersede actions at law. 3. The constitutionality of the Virginia system. 4. How far private property may be taken for private use. 6. Apply only to injuries to land by mill-dams. 7. Extend to injuries below as well as above mills. 8. Do not extend to stoppage of water by an upper mill. 9. Laws of Maine apply only where actual damage done. 10. Of fixing by the jury of the height the mill-owner may flow. 12. The law authorizes construction of reservoirs. 13. Extends only to cases where mill-owner owns both banks. 15. Does not extend to tide-mills. 16. What is considered an occupation of a privilege. 17. The first occupant has the prior right to a privilege. 19. What constitutes a prior occupation. 20. An occupation requires both intent and act done. 22. Unless height of flowing is fixed by grant. 28. Statute only protects actually existing mills. 25. What would be such abandonment. 26. Statute right to flow lands operates a license. 27. Statute confers no estate in the lands flowed. 1 Tuthill v. Scott, 43 Vt. 525. 2 Gerrish v. Clough, 48 N. H. 9. 28. Power to flow subject to public right of passage. 31. Of remedy for flowing before actual damage done. 34. How far the United States affected by State mill acts. 36. Mill acts of Wisconsin. 37. Law of flowing in Rhode Island. 38. Virginia system of mill acts. 39. Laws as to mills in Missouri. 40. Of priority of rights under the Virginia system. 41. Laws as to mills of Arkansas and Kentucky. 42. Laws of Mississippi as to mills. 43. Laws of North Carolina as to mills. 44. Laws of Indiana, Illinois, and Florida. 45. All these laws strictly construed. 46. Statutes of Alabama and Maryland abrogated or repealed. [* 321] * 1. THE stringency with which the common law limited the rights of riparian proprietors upon streams of water to such uses as it might be applied to, within and upon the land of each proprietor, and the importance of mills to the comfort of a community, must necessarily have been attended with great inconvenience to new settlers in a country, like the colonists of America, where, from the nature of the case, nothing like prescriptive rights could have been acquired for many years after their settlement. In a colony, moreover, where the loss of a few acres of land bore but a slight proportion to the value and importance of grist and saw mills, it could hardly have been otherwise than that some policy should be adopted better suited to meet the condition of such a people than the rules of the common law, which had their origin and application in a country so different in its physical as well as its social capacities and wants. It is, accordingly, historically true, that, from an early period in Massachusetts, the common law as to the rights and liabilities of mill-owners has been essentially modified by statute. Partly by these statutes, and partly by the construction of courts in applying existing laws to the growing exigencies which they were designed to meet, a system of Mill Laws, as they are called, quite complete in itself, has grown up in Massachusetts, and forms substantially also the law of Maine and of Wisconsin upon the same subject. Other and distinct systems in respect to taking and appropriating lands for mill purposes have been adopted in other States. So that to treat of this subject with any considerable degree of completeness requires that an outline, at least, of those systems should be presented to the reader. In one sense, so far as the mode and extent of making use of the land of one proprietor by another for his own benefit as a millowner is concerned, when tried by the rules of the common law, it is a system of easements and servitudes. But they are servitudes and easements * created by law instead of being [* 322] acquired by grant or prescription. This remark applies with more propriety to a system like that of Massachusetts, where the mill-owner is only authorized to occupy, by flowing the same, the land of another for the purpose of operating a mill, which, as well as the dam belonging to the same, are erected on his own land; but the law does not confer upon him any estate in or title to the land thus occupied. Whereas, under what may be called the Virginia system, the mill-owner acquires a title to so much land as shall be taken under process of law for the purposes of a mill, including, it may be, the land upon which a portion of the dam is placed, as well as such parts thereof as may be flowed thereby. 2. This authority by a general law, under which one man is empowered to take and occupy the land of another for his own profit and advantage, has been questioned on constitutional grounds. The question has been, incidentally, discussed in various forms by the courts of Massachusetts, in which it has, sometimes, been treated as a mere statute remedy for a wrong, assuming that the act of occupancy was a common-law wrong. But in whatever form it is viewed, it is not to be disguised, that the statute does authorize one man not only to recover damages in a particular manner for the act of flowing his land by another, but it authorizes the latter to continue and maintain the nuisance against the will of the owner, in the same manner as if he were the true owner of an easement in the estate. And every pretence upon which this can be deemed to come within the principles of the Constitution must fail unless it can fairly be brought within the broad doctrine that private property may be taken for the public good, upon a compensation being had therefor. A recurrence to a few of the cases where the matter has been discussed may be sufficient for the present. In Boston and Roxbury Mill-Dam Corporation v. Newman, the court held the act creating the [* 323] company, and authorizing them to flow the land of others, so far a public enterprise as to be within the intent of the Consti |