be admitted that the right to the new track, not being created by grant, nor acquired by user of twenty years, was held at the will of the plaintiff, he ought not to be permitted to put an end to that will, without opening the old route or consenting that the defendants might use it. . . . If he chose to put an end to the defendants' right of passing by the new way, he should have opened the way to which the defendants had a lawful title. By denying the defendants' right of way altogether, the plaintiff showed his intention of putting the controversy between himself and the defendants, on the ground that the defendants had no right at all; and on that point the cause was tried."1 The case, therefore, obviously turns upon the peculiar circumstances under which the way was used, and does not, in terms or by implication, affirm that the owner of the way had become entitled to the new one, by the way of substitution or exchange, as a permanent easement. It is more like the case where the owner of the land over which another has a right of way should put an obstruction in it at some point, and the owner of the way, having occasion to pass over it, should avoid such obstruction by going upon the adjacent land of the servient tenement, which some authorities, as has been before. stated, maintain he might do. And though not directly in point, the language of Patteson, J., in Payne v. Shedden, in applying the doctrine of the statute of 2 & 3 Wm. IV. c. 71, has a bearing upon the question examined above. "So if, instead of the direct path from A to B, another track over the plaintiff's land from A to C, and thence to [* 204] B, had been substituted by parol * agreement of the parties for an indefinite time, yet the user of this substituted line may be considered as substantially an exercise of the old right, and evidence of the continued enjoyment of it." This was prefaced by the remark, that "the agreement to suspend the enjoyment of the right does not extinguish, nor is it inconsistent with the right." 2 And in Carr v. Foster, in speaking of the above case, he says: "I thought there, that if I have a right over another's land, and he for a time gives me a consideration for ceasing to exercise it, I enjoy the right while receiving the compensation.” 3 Hamilton v. White, 1 Seld. 9. See s. c. 4 Barb. 60. 3 Carr v. Foster, 3 Q. B. 581. * CHAPTER III. OF EASEMENTS AND SERVITUDES OF WATER. SECT. 1. Of Property in Streams and Watercourses. Of the Use of Water for Mills. SECT. 3. SECT. 5. SECT. 6. Of Rights in Artificial Watercourses. [* 205] SECT. 12. Of Servitudes of Water by the Civil Law, &c. SECTION I. OF PROPERTY IN STREAMS AND WATERCOURSES. 1. Easements and servitudes in water classed by the Civil Law. 2. Easements and servitudes imply two estates. 3, 4. Of water and its use as the subject of property. 5. Classification of the subject in respect to easements. 6. Watercourses, &c., defined. 7. Waters of springs, wells, and surface drains. 8. Streams as part of the freehold. 9. The use of water neither public nor exclusive. 10. Of the right to the flow of water as a natural easement. 11. Of riparian rights to the flow and use of water. 11 a. Whether and how far water rights may be separated from the land. 11 b. Riparian rights upon navigable waters. 12. Action lies for an unreasonable use of water. 13. Of the various uses of water, and when it may be diverted. 14. Of the ownership of a stream by opposite riparian proprietors. 15. What use of water takes precedence of other uses as a right. 16. Of the right to have water flow from one's premises. *17. Who to keep the channel of a watercourse clear. 18. Of the right to have water in a pure and natural state. 19. How far a right to receive and discharge water, an easement to land. [* 206] 1. ANOTHER class of the prædial servitudes, known to the civil law as rural or rustic, in distinction from those called urban, relate to "the conducting and using of water." It embraces a variety of forms, bearing different specific names. And, besides these, there were urban servitudes connected with the conducting of water, such as that of eaves' drip, called Stillicidium, and that of a sewer of an adjacent owner's estate.1 It is proposed to treat of both these classes under one head, under the name of easements and servitudes, and to apply to them the rules of the common law. 2. It will be borne in mind, that, as by a servitude or easement is meant a right which is granted for the advantage of one piece of land in or over another, it always presupposes two parcels, and these belonging to different proprietors, one of which is burdened with the servitude called the servient, and one for the advantage of which the servitude is conferred, called the dominant estate.2 3. As water, from its nature, is ordinarily passing from a higher to a lower level, till it reaches the point where it is lost by absorption, evaporation, or discharge into the ocean; and inasmuch as its use may not only be available when wholly enjoyed upon the estate of a land-owner, but its benefit may often be derived, more or less immediately, from its being managed or controlled by such land-owner, in its passage through the estate of another, it becomes important to define what a land-owner's rights and duties are in respect to water found within his premises. This [*207] becomes the more important, in order to discriminate between what rights one may claim as naturally incident to the ownership of his estate, and those to which he is entitled, or is subject, in respect to such ownership, in its connection with other estates, and constituting, in respect to his own, a servitude or easement. 4. As forming the subject of property, in connection with the realty, water may be viewed in two lights,-one, as constituting one of the elements of which an estate is composed, and giving, by its qualities and susceptibilities of use, a value to such estate; the other, as being valuable alone for its use, to be enjoyed in connection with the occupation of the soil. Kauff. Mackeldey, 342-345; Wood, Inst. Civ. Law, 91-93; 1 Brown, Civ. Law, 182. 2 Kauff. Mackeldey, 335; 1 Brown, Civ. Law, 182. In the latter sense, it constitutes an incorporeal hereditament, to which the term easement is applied. But in neither light is it the water itself of which property is predicated. And it is of its use alone as an element, and the right to enjoy it in connection with some portion of the soil, that it is proposed to treat in the present chapter.1 Therefore, where one had by grant a right to erect a dam and construct a canal upon a stream for the creation of a water-power, and while he was constructing these, and before he was in a situation to use the power, other persons diverted it, it was held he had no ground of complaint for such diversion. His rights would not thereby be affected, and, as soon as he was ready to use the water, these would relate back to the state of the stream when his grant was made.2 5. In considering, then, what are the rights of a land-owner in respect to the use of water which naturally belongs to his freehold, in order to see what will make his a dominant or servient estate in respect to acquiring new rights or losing those originally belonging to it, resulting from the use of the water by himself or others, it will be necessary to treat the subject under different heads. And it is proposed, for purposes of general classification, to consider, 1st. The rights of the land-owner as such, or as the owner of works to be operated by the same, to running streams or watercourses generally; 2d. The rights and * duties of [* 208] persons interested in surface or natural drainage; 3d. Their rights in respect to underground or percolating waters. 6. The term Watercourse, in this classification, is intended to include all running streams of water, though writers often describe these by different distinctive terms, such as Rivers, Brooks, and the like. Woolrych, borrowing from Callis, defines a river, "A running stream, pent in on either side with walls and banks, and it bears 1 Gould v. Boston Duck Co., 13 Gray, 443; Cary v. Daniels, 8 Metc. 466, 480; Campbell v. Smith, 3 Halst. 140, 145; Gardner v. Trustees of Village of Newburgh, 2 Johns. Ch. 162; Hendrick v. Cook, 4 Ga. 241, 255; Plumleigh v. Dawson, 1 Gilm. 544; Woolr. Waters, 117; Stein v. Burden, 29 Ala. 127; s. c. 24 Ala. 130; Burden v. Stein, 27 Ala. 104; Crittenden v. Alger, 11 Metc. 281; 5 Duranton, Cours de Droit Français, 200; Davis v. Getchell, 50 Maine, 604; Magnolia v. Marshall, 39 Miss. 124. Nevada Co. Canal v. Kidd, 37 Cal. 284, 310, 311, 319; Kidd v. Laird, 15 Cal. 179. that name as well where the waters flow and reflow, as where they have their current one way.' Callis defines a sewer, "A fresh-water trench, compassed in on both sides with a bank, and is a small current, or little river." "A gutter is of less size, and of a narrower passage and current, than a sewer is." "A sewer is a common public stream, a gutter, a straight private running water." "A ditch is a kind of current of waters in infimo gradu." But the law only recognizes ditches as such, "which have a kind of current, and which in some sort partake with rivers."2 The term "watercourse," when used in a grant, may mean the channel through which water flows, or the stream that flows through it, and whether it be the one or the other depends upon the context. If used in the first sense, it is a corporeal hereditament; if in the second, it is an incorporeal one. And it was held that a grant of "a river as it winds and turns, including the same," passed no land, recognizing the doctrine, as stated by Coke, that, "if a man grant aquam suam, the soil shall not pass, but the piscary within the water passeth therewith." 4 A stream may acquire the name of a river, in the chan[* 209] nel * of which, at some seasons of extreme drought, no water flows.5 And, as a general proposition, wherever there is a steady, uniform current of water, it constitutes a river, though this does not include a lake through which there is a current from its head to its outlet. And where a river is divided by an island or intervening parcel of land, each branch becomes a watercourse with all its incidents, and this though the island be formed in the stream, and there would be a filum aquæ to each of the streams or watercourses.7 To maintain the right to a watercourse or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel with banks or sides; mere surface drainage 'Woolr. Waters, 31; Callis, Sewers, 54. 2 Callis, Sewers, 57, 58, 59. 3 Doe v. Williams, 11 Q. B. 688, 700; Woolr. Waters, 117. 4 Jackson v. Halstead, 5 Cow. 219; Co. Litt. 4 b. Reynolds v. M'Arthur, 2 Pet. 417, 438; Ashley v. Wolcott, 11 Cush. 195; Bangor v. Lansil, 51 Maine, 525. State v. Gilmanton, 14 N. H. 467, 476; s. c. 9 N. H. 461. 7 Luttrel's Case, 4 Co. 88; Trustees, &c. v. Dickinson, 9 Cush. 549. |