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tain natural uses which are paramount to all others, and these include the use of water for household and domestic purposes, washing, drinking, cooking, etc., and its uses for watering stock. It may be doubted whether these "natural uses" embrace anything more than these two purposes. From these paramount natural uses originates the only advantage which the common law gives to one riparian proprietor over another or others on account of his relatively superior position. A proprietor higher up on the stream may use as much of the water as is reasonably necessary for his own domestic and household purposes, and for the watering of his own stock, even though the amount left flowing down the stream is thereby so much diminished that there is not enough left to supply the needs of the lower proprietor or proprietors for the same purposes. But the use for these purposes by a proprietor higher up the stream must be reasonable in amount, and reasonable in its methods and instrumentalities.i

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In addition to these natural and paramount uses, which necessarily consume the portion of water used, each riparian proprietor, by virtue of his usufruct, may use the water of the stream, as it passes along by or through his land, for any other lawful purpose, provided he returns all of the water, undiminished in amount and undeteriorated in quality, into the natural channel of the stream before it leaves his own land and enters upon that of the adjacent proprietor below him, and provided, also, he does not thereby interfere with the similar and equal right of the proprietor upon the immediately opposite bank of the stream, where his own land abuts upon only one bank,—that is,

11d. And see Slack v. Marsh, 11 Phila. 543; Stein v. Burden, 29 Ala.

127; Shook v. Colohan, 12 Or. 239, s. c. 6 Pac. Rep. 503.

when the stream does not flow through his own land. In this manner any riparian owner may use the water of a stream for propelling machinery on his own land, provided he returns all the water into the natural channel before it leaves his own land, and does not impair its quality; and to this end he may construct a dam in the stream upon his own land, provided he does not interfere with the land of proprietors above him by the backwater, and does not invade the rights of a proprietor immediately opposite to himself on the other bank of the stream. These rights are conferred by the common law upon all of the proprietors owning lands upon the same stream. Any proprietor may, of course, obtain more extensive rights by grant from others, or by prescription. How far the right of the riparian proprietor includes the right to use and consume the water for purposes of irrigation, remains to be considered.

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[The rule that every riparian proprietor has an equal right to the use of the water as it is accustomed to flow, without diminution or alteration, is subject to a well-recognized limitation, viz., that each owner may make a reasonable use of the water for domestic, agricultural, and manufacturing purposes.1 But here

1 Embrey v. Owen, 6 Exch. 352; Nuttall v. Bracewell, L. R. 2 Exch. 1; Miner v. Gilmour, 12 Moore, P. C. 131, 156; Tyler v. Wilkinson, 4 Mason, 397; Union Mill Co. v. Ferris, 2 Sawy. 176; Gerrish v. New Market Manuf'g Co., 30 N. H. 478; Tillotson v. Smith, 32 N. H. 90; Norway Plains Co. v. Bradley, 52 N. H. 86; Holden v. Lake Co., 53 N. H. 552; Snow v. Parsons, 28 Vt. 459; Barrett v. Parsons, 10 Cush. 367: Elliot v. Fitchburg R. R., Id. 191; Cary v. Daniels, 8 Metc. 466; Pitts v. Lancaster Mills, 13

Metc. 156; Thurber v. Martin, 2 Gray, 394; Tourtellot v. Phelps, 4 Gray, 370; Chandler v. Howland, 7 Gray, 348; Wood v. Edes, 2 Allen, 578; Twiss v. Baldwin, 9 Conn. 291; Wadsworth v. Tillotson, 15 Conn. 366; Agawam Canal Co. v. Edwards, 36 Conn. 476; Merritt v. Brinkerhoff, 17 Johns. 306; Clinton v. Myers. 46 N. Y. 511; Ac quackanonk Water Co. v. Watson, 29 N. J. Eq. 366; Farrell v. Richards, 30 N. J. Eq. 511; Williamson v. Canal Co., 78 N. C. 156: McElroy v. Goble, 6 Ohio St. 187; State v.

it is necessary to note an important distinction between primary and secondary, or natural and artificial, wants; for, to supply his natural wants, as for household purposes, for quenching thirst, and for his cattle, a riparian proprietor may consume the entire stream if necessary; but for artificial wants, as for irrigating his land or propelling his machinery, he is only entitled to a reasonable use.1 In the case of Hayden v. Long,2 the trial court instructed the jury that "every person through whose premises water naturally flows has a lawful right to the flowing of the water in its natural channel, and no person has a right to divert the stream or any part of it from its natural channel, unless he causes it to return again before it leaves his premises, so that it will not injure those below,

Pottmeyer, 33 Ind. 402; Evans v. Merriweather, 3 Scam. 492; Plumleigh v. Dawson, 1 Gilman, 544; Batavia Manuf'g Co. v. Newton Wagon Co., 91 Ill. 230; Dumont v. Kellogg, 29 Mich. 420; Hazeltine v. Case, 46 Wis. 391, s. c. 1 N. W. Rep. 66; Swift v. Goodrich, 70 Cal. 103, 11 Pac. Rep. 561; 3 Kent, Comm. *440; Ang. Water-Courses,

95; Washb. Easem. *216; Gould, Waters. § 205.

In 2 Washb. Real Prop. (4th Ed.) 348, it is said: "There are sundry uses which each successive owner along the stream may exercise, though by so doing he impairs to some extent the enjoyment by others of the full flow of the water, provided it be done in a reasonable manner, and not so as thereby to destroy or materially diminish the supply of the water, or render useless its application by the other riparian proprietors, either by the quantity consumed or by corrupting its quality, by throwing it back upon the lands of others above, or

diverting and stopping its flow so as to affect such lands below his own premises. Each case must depend upon its own circumstances; but among the uses to which a riparian proprietor may be said to have a natural right to apply the waters of a stream, to the extent already indicated, are such agricultural and domestic purposes as irrigating his land, watering his cattle, and the like;" citing Mason v. Hill, 5 Barn. & Adol. 1; Wood v. Wand, 3 Exch. 748, 775; Embrey v. Owen, 6 Exch. 353; Webb v. Portland Co., 3 Sum. 189; Sampson v. Hoddinott, 1 C. B. (N. S.) 590.

1 Evans v. Merriweather, 3 Scam. 492; Stein v. Burden, 29 Ala. 127; Slack v. Marsh, 11 Phila. 543; Baker v. Brown, 55 Tex. 377; Rhodes v. Whitehead, 27 Tex. 314; Fleming v. Davis, 37 Tex. 173.

28 Oreg. 244. See, also, Van Bibber v. Hilton, 84 Cal. 585, 24 Pac. Rep. 308.

and be lessened or diminished only by such quantity as may be necessarily used for domestic purposes and watering stock, and in some cases for irrigation, and also by evaporation and natural and necessary wastage." It was held that this was a correct statement of the law applicable to the respective rights of riparian proprietors, though it was not applicable in the present case, as the diversion complained of was made by a person who was not a riparian owner.

The question, what is a reasonable use? depends upon a number of circumstances; upon the subject-matter of the use itself, the size of the stream, the velocity of the current, the nature of the banks, the character of the soil, and a variety of other facts.' "What constitutes reasonable use," says the court in Wisconsin, "depends upon the circumstances of each particular case; and no positive rule of law can be laid down to define and regulate such use with entire precision, is the language of all the authorities upon the subject. In determining this question, regard must be had to the subject-matter of the use, the occasion and manner of its application, its object, extent, and the necessity for it, to the previous usage, and to the nature and condition of the improvements upon the stream; and so, also, the size of the stream, the fall of water, its volume, velocity, and prospective rise and fall, are important elements to be considered." And the question of the reasonableness of the use of a stream, when it is not settled by custom and is in its nature doubtful, should always be regarded as one of fact, to be determined by the tribunal trying the facts. We may add that the mode and extent to which a riparian owner may use and apply the waters of a stream, as between him and another riparian proprietor, is not

1 Union Mills Co. v. Ferris, 2 Sawy. 176; Dilling v. Murray, 6 Ind. 324; Mayor of Baltimore v. Appold, 42 Md. 442; Elliot v. Fitchburg R. R., 10 Cush. 191; Thurber

v. Martin, 2 Gray, 394; Timm v. Bear, 29 Wis. 254.

2 Timm v. Bear, 29 Wis. 254. Snow v. Parsons, 28 Vt. 459.

1

measured by what would be reasonably requisite for his particular business, but what is reasonable, having reference to the rights of the other proprietors in the stream, without, by such use, materially diminishing its quantity or deteriorating its quality. And even where a party has a right to the use of a watercourse according to his convenience and judgment, and all the right which prescription can confer, still he can exercise that right only in a reasonable manner; and therefore if he uses the water not for his own benefit and convenience, but maliciously or wantonly, to the prejudice of another, he is liable in damages. Finally, it is only between riparian proprietors that the question as to the reasonable use of the water can ever arise.3]

§ 141.

Reasonable use for manufactures.

[In regard to the use of the water for mechanical or manufacturing purposes, the rule is thus stated: "Each proprietor of land through which a natural water-course flows has a right, as owner of such land, and as inseparably connected with and incident to it, to the natural flow of the stream, for any hydraulic purpose to which he may think fit to apply it; and it is a necessary consequence from this principle that such proprietor can- . not be held responsible for any injurious consequences which result to others, if the water is used in a reasonable manner, and the quantity used is limited by, and does not exceed, what is reasonably and necessarily required for the operation and propulsion of works of such character and magnitude as are adapted and appropriate to the size and capacity of the stream, and the quantity of water usually flowing therein. But as a riparian

1 Batavia Manuf'g Co. v. Newton Wagon Co., 91 Ill. 246; Union Mill & M. Co. v. Ferris, 2 Sawy. 196; Wheatley v. Chrisman, 24 Pa. St. 298; Pennsylvania R. R. v. Miller, 112 Pa. St. 34, s. c. 3 Atl. Rep. 780.

2 Twiss v. Baldwin, 9 Conn. 291. 3 Lux v. Haggin, 69 Cal. 255, 4 Pac. Rep. 925.

Springfield v. Harris, 4 Allen, 494, Merrick, J. And see Davis v. Getchell, 50 Me. 602. But the di

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