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But, in the second place, we may go further than this, and lay down the rule that no one has a right to use the waters of a stream for irrigation to an extent materially impairing the right of another riparian proprietor to the reasonable use of the same for the purpose of supplying his natural wants and domestic necessities unless he has gained this right in some mode known to the law, as by grant or prescription. In other words, irrigation is subordinate to the natural wants. "The right to irrigate, when not indispensable, but used simply to increase the products of the soil, would be subordinate to the right of a co-proprietor to supply his natural wants, and those of his family, tenants, and stock; as to quench thirst, and to the right to use the water for necessary domestic purposes. Hence, whether the use of the water for purposes of irrigation is reasonable and lawful as against another would depend upon the facts of the particular case. If the stream should be sufficiently large to admit of necessary irrigation without unreasonably impairing the rights of other proprietors, then it would be reasonable and lawful; otherwise it would not." Hence, when the stream is small, and does not furnish water more than is sufficient to supply the natural wants of the different proprietors living on it, none of the proprietors can use the water for irrigation. It is

1 Baker v. Brown, 55 Tex. 377. In Rhodes v. Whitehead, 27 Tex. 304, it was said: "It may be admitted that the purpose of irrigation is one of the natural uses, such as thirst of people and cattle, and household purposes, which must absolutely be supplied. The appropriation of the water for this purpose would therefore afford no ground of complaint by the lower proprietors if it were entirely consumed." But this decision was practically overruled by Baker v. Brown, supra. In Fleming v. Davis, 37 Tex. 173, it was said that

the irrigation of land, however beneficial in some portions of the state. is not one of the natural wants which will justify the own er of a head-spring in exhausting the water which flows from it, to the injury of proprietors lower down on the natural channel of the stream. The maxim, sic utere tuo ut alienum non ladas, applies. The case of Tolle v. Correth, 31 Tex. 362. is not understood to have decided a contrary doctrine. 2 Evans v. Merriweather, 3 Scam. 492.

in this light that we must understand the language of the supreme court of Pennsylvania, where it is shid: "Whenever so much of the volume of water is obstructed as to be plainly perceptible in its practical uses below,-whenever the channels, which before were filled, exhibit the loss of the accustomed fluid,—an injury is committed for which an action may be sustained, though it may not have been actually used by the lower proprietor."]

§ 154. Summary of principles.

[It has thus been made to appear that there is no right to use the water for the irrigation of non-riparian lands; that a prior appropriation can give no exclusive right to the use of the waters for irrigation, and no superior right as to the quantity of water that may be consumed in that manner; that the equitable principle of relative equality must be preserved between all the riparian owners; that it is a part of the general riparian right to use the water for irrigation, if the size of the stream is such that no injury is thereby done to any other proprietor; that irrigation is not one of the natural wants, for which the whole stream may be consumed if necessary, but is subordinate to these uses. We have now to inquire whether, aside from the foregoing specific principles, there is any general rule of law, applicable to all cases alike, governing the riparian right of irrigation. As a result of all the authorities, it may be stated that the only rule which admits of general application is this: The use of water for irrigation must in all cases be reasonable, regard being had to the rights and needs of all the other proprietors on the same stream; and reasonableness is a question of fact, to be determined upon all the circumstances of the particular case. In order that this may appear more clearly, it

1Miller v. Miller, 9 Pa. St. 74.

will be necessary to review the decisions on this subject at some length.]

§ 155. Irrigation-The English authorities.

[In regard to the right of a riparian proprietor to use the water of the stream for irrigation, the rule in England appears to be that he may do so, provided he restores the water to its channel in a volume substantially undiminished.' The most important of the cases dealing with this topic is that of Embrey v. Owen, in which Parke, B., observed: "On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, should irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose. On the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream in order to water his garden, or allow his family or his cattle to drink it. It is entirely a question of degree, and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application; but there is often no difficulty in deciding whether a particular case falls within the permitted limits or not."2

The supreme court of California, however, has said that "a priori it would be expected that the decisions in Great Britain and Ireland would not much assist the inquiry, since, owing to the humidity of the climate of those islands, it must rarely hap

1 Embrey v. Owen, 6 Exch. 352; Swindon Water-Works v. Wilts Canal Co., L. R. 7 H. L. 697; Earl of Sandwich v. Great Northern Ry., L. R. 10 Ch. 707, 711; Samp

son v. Hoddinott, 1 C. B. (N. S.) 590; Miner v. Gilmour, 12 Moore, P. C. 156; Norbury v. Kitchin, 9 Jur. (N. S.) 132; 1 Add. Torts. § 89. 2 Embrey v. Owen, 6 Exch. 352.

pen that any use for irrigation can be reasonable; and for any purpose the use must be reasonable.""]

§ 156. French law.

2

[It may here be remarked, by way of illustration, that, by the laws of France, every proprietor of land bordering on a running stream may use it for the purpose of irrigating his land, and, when his estate is intersected by such water, he may divert it for purposes of irrigation, on condition that he restore it at the boundary of his property to its ordinary channel. And, in all disputes respecting the right to take water from running streams, the courts are enjoined to reconcile as much as possible the interests of agriculture with the respect due to property and the rights of individuals. But the court of last resort in France has decided that the upper riparian proprietor on a stream of running water has no right to consume the entire stream, to the prejudice of the lower proprietor, even in cases where the entire voluine of water would not be sufficient for the needs of his estate, i. e., for the complete irrigation of his own property. And it is said that the judges must regulate the use of the water, as between the two riparian owners, and that they cannot escape from the obligation of so doing, on the pretext that the physical division of the water would destroy the rights of both.3]

$157. Review of the American authorities.

[On examining the decisions in the eastern states, and the opinions of the text writers, we shall find, notwithstanding some diversity of language, the same thread of principle running through them all, viz., that the use must be reasonable, due re

Lux v. Haggin, 69 Cal. 255, 10 Pac. Rep. 757.

2 Code Napoleon, liv. 2, Nos. 640-645. See 1 Add. Torts, $ 89.
Bulletin de la Cour de Cassation, vol. 63, (1861,) p. 266.

In

gard being had to the equal rights of all the riparian owners. This will sufficiently appear from the following extracts. an early Massachusetts case it is said: "A man owning a close on an ancient brook may lawfully use the water thereof for the purposes of husbandry, as watering his cattle, or irrigating the close; and he may do this either by dipping water from the brook, and pouring it upon his land, or by making small sluices for the same purpose; and, if the owner of a close below is damaged thereby, it is damnum absque injuria." And in an early

case in Connecticut it was said: "The defendant had right to use so much of said water, passing through his land, as to answer all necessary purposes, to supply his kitchen, and for watering his cattle, etc.; also he had right to use it for beneficial purposes, such as watering and enriching his land. But this right hath restrictions, and must be so exercised as not to injure the plaintiff, who lies next below, and who hath right to have the surplus flow into his land in the natural channel."2

Chancellor Kent is sometimes quoted as proving that water cannot be employed for irrigation, sometimes as proving that it may be. His language is as follows: "Streams of water are intended for the use and comfort of man, and it would be unreasonable, and contrary to the general sense of mankind, to debar any riparian proprietor from the application of water for domestic, agricultural, or manufacturing purposes, provided the use of water be made under the limitation that he do no material injury to his neighbor below him, who has an equal right to the subsequent use of the same water."3 On this passage the supreme court of California makes the following pertinent observations: "It seerns to us that the foregoing (although a very distinct statement of the general proposition) ought not to be taken literally, unless the words 'material injury' be impressed with 1 Weston v. Alden, 8 Mass. 136. 2 Perkins v. Dow, 1 Root, 535. 33 Kent, Comm. 429.

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