"The supply of man's artificial wants is not essential to his existence; it is not indispensable; he could five if water was not employed in irrigating lands, or in propelling his machinery. In countries differently situated from ours, with a hot and arid climate, water, doubtless, is absolutely indispensable to the cultivation of the soil, and in them, water for irrigation would be a natural want. Here it might increase the products of the soil, but it is by no means essential, and cannot therefore be considered a natural want of man. So of manufactures, they promote the prosperity and comfort of mankind; but cannot be considered absolutely necessary to his existence; nor need the machinery which he employs be set in motion by steam.

"From these premises would result this conclusion: that an individual owning a spring on his land, from which water flows in a current through his neighbor's land, would have the right to use the whole of it if necessary to satisfy his natural wants. He may consume all the water for his domestic purposes, including water for his stock. If he desires to use it for irrigation or manufactures, and there be a lower proprietor to whom its use is essential to supply his natural wants, or for his stock, he must use the water so as to leave enough for such lower proprietor. Where the stream is small, and does not supply water more than sufficient to answer the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufactures. So far then as natural wants are concerned, there is no difficulty in furnishing a rule by which the riparian proprietors may use flowing water to supply such natural wants. Each proprietor in his turn may, if necessary, consume all the water for these purposes. But where the water is not wanted to supply natural wants, and there is not sufficient for each proprietor living on the stream, to carry on his manufacturing purposes, how shall the water be divided? We have seen that without a contract or grant, either has a right to use all the water; all have a right to participate in its benefits. When all have a right to participate in a common benefit, and none can have an exclusive enjoyment, no rule, from the very nature of the case, can be laid down, as to how much each may use without infringement upon the rights of others. In such cases, the question must be left to the judgment of the jury, whether the party complained of has used, under all the circumstances, more than his just proportion."

The principles of law above stated only apply to water flowing on the surface in a clearly defined course. Subsurface water, whether flowing in a stream or merely percolating through the soil, may be intercepted and diverted by any owner of land.55 This is true even if the effect of such diversion is to injure or even render worthless the well of another landowner.56

The name of "surface waters", is given to those waters on the surface of the ground which are of a casual or vagrant character and follow no definite course.57 The right of any owner of land to appropriate surface water to his exclusive use is absolute and unlimited.58

The right of land owners to repel surface water or to drain it off on their neighbor's. land is a question of greater difficulty. The civil law and the common law rules on this question are very contradictory, and each rule is followed in a number of the States. Under the civil law rule, the right to drain surface waters is governed by the natural drainage of the land, and as between the owners of adjacent lands, the lower proprietor is bound to receive the surface waters which naturally flow from the land above, and is not permitted to take any action to throw such water back on the land above.59 A watercourse constitutes part of the soil through which it extends, and when used for any beneficial purpose in connection with proprietary rights, it cannot be filled up or obstructed by any proprietor to the injury of another. If, therefore, the surface water falling upon the plaintiff's land "when allowed to pursue its natural course,' flows into and through a natural watercourse, from the plaintiff's land upon the land of the defendant, the latter has no right to fill up the watercourse, or to build in it an embankment, or other barrier, on his own land, to obstruct the natural flow of the surface water, or of the water of the stream, and force it back upon the plaintiff's land. When coterminous tracts of land are in that position, the lower tract owes a servitude to receive the surface water from the upper tract, especially if the water turns into a watercourse extending through both tracts, or onto the lower tract, and the right of the owner of the dominant tract to have the water reach the watercourse, either on his own land or upon the land of the servient owner, cannot be interfered with. The water cannot be forced back upon the dominant tract by any act of the servient owner. The owner of the dominent tract has a right to its natural flow into the watercourse.60 The common law rule regards surface water as a common enemy, and allows every owner of land to take necessary steps to protect himself therefrom, even if the effect of such action is to throw the water back upon the land of his neighbor.61 Under this rule a proprietor of land may erect structures upon it as solid and high as he pleases without regard to their effect upon surface water, which would otherwise come from the adjoining lands upon his soil.62 The owner of land bounded by a stream or watercourse has the right to all the advantages of drainage which the stream reasonably used may give him, and consequently he may drain his land into the stream.63 In the clearing, improvement, and preparation of land for cultivation the owner thereof may, in the exercise of good husbandry, drain the soil although the consequence is that the surface water flows from his land with greater rapidity, and the quantity of water flowing upon the lower land is considerably increased.64 But it has been held that, a landowner cannot concentrate and discharge into a stream the surface water of his lands in quantities beyond the natural capacity of the watercourse to the damage of the lower riparian owners.65

55 Reg. vs. Metropolitan Board of Works, 3 B.& S 710,114 E. C. L., 710; Alexander vs. United States, 25 Ct. Claus, 87; Hanagn vs. Milwaukee Dtc. R. Co., 35 Iowa, 558, 14 Am. St. Rep., 502; Chase vs. Silvester, 62 Me. 175, 16 Am. St. Rep., 419; Masieres vs. Caldwell, 7 Nev., 363; Ellis vs. Duncan, 21 Barb. (N. Y.), 230.

56 Roath vs. Driscoll, 20 Conn., 533, 52 Am. St., 352; Clarke County vs. Mississippi Lumber Co., 80 Miss., 535. "Water which is the result of natural and ordinary percolation through the soil is part of the land itself and belongs absolutely to the owner of the land and, in the absence of any grant, he may intercept or impede such underground percolations, though the result be to interfere with the source of supply of springs or wells on adjoining, premises." Edwards vs. Haeger, 180 111., 99, 106.

57 Case vs. Hoffman, 100 Wis., 314; Hawley vs. Sheldon, 64 Vt., 491; Buffin vs. Harris, 5 R. I., 253; Swett vs. Cutts, 50 N. H., 446, 9 Am. T. Rep., 276.

58 Briscoe vs. Broigert, 11 I. C. L., 250; Green vs. Carotta, 72 Cal., 267; Emporia vs. Soden, 25 Kan., 608, 37 Am. Rep., 265: Barkley vs. Wilcox, 86 N. Y., 140, 40 Am. Rep., 73; Case vs. Hoffman, 100 Wis., 314.

59 Among the States which follow the Civil Law rule are the following: Alabama, Nininger vs. Norwood, 72 Ala., 277, 47 Am. Rep., 412; California, Gray vs. Williams, 98 Cal., 157, 35 Am. St. Rep., 163; Illinois, Peck vs. Herrington, 109 111., 611; Louisiana, Bowman vs. New Orleans, 27 La. Am., 501; Maryland, Philadelphia, etc. R. Co. vs. Davis, 68 Md., 281, 6 Am. St. Rep., 440; Michigan, Boyd vs. Conklin, 54 Mich., 583; Nevada, Boynton vs. Langley, 19 Nev., 69; North Carolina, Overton vs. Sawyer, 1 Jones, L. (46 N. C), 308; Ohio, Crawford vs. Rodgers, 159 Pa. St., 58; Tennessee, Garland vs. Aurin, 103 Tenn., 553, 76 Am. St. Rep., 699.

60 West vs. Girard, 4 Pac, 565.

61 The Common Law rule is followed in the following States, among others: Connecticut, Grant vs. Allen, 41 Conn., 156; Indiana, Shelbyville, etc. Turnpike Co. vs. Green, 99 Ind., 205; Kansas, Missouri Pac. R. Co. vs. Keys, 55 Kans, 205, 49 Am. St. Rep., 249; Maine, Murphy vs. Kelley, 68 Me., 521; Massachusetts, Ashley vs. Wolcott, 11 Cush., 192; Minnesota, O'Brien vs. St. Paul, 25 Minn., 336; 33 Am. Rep., 470; Mississippi, Sivai vs. Louisville, etc. R. Co., 71 Miss., 547; Missouri, Shane vs. Kansas City, etc. R. Co., 71 Mo., 237, 36 Am. Rap., 480; Nebraska, Town vs. Missouri Pac. R. Co., 50 Neb., 748; New Hampshire, Swett vs. Cutts, 50 N. H., 439, 9 Am.

Rep., 276; New Jersey, Roes vs. Mackeney, 46 N. J. Eq. 140; New York, Gould vr. Booth, 66 N. Y., 64; South Carolina, Brandenberg vs. Zeig-ler, 62 S. Car., 19, 89 Am. St. Rep., 887; Vermont, Harwood vs. Benton, 32 Vt., 724; Virginia, Norfolk, etc., R. Co. vs. Carter, 91 Va., 587; Washington, Cass vs. Dicks, 14 Wash., 75, 53 Am. St. Rep., 859; Wisconsin, Pettigrew vs. Evans-ville, 25 Wis., 223.

62 Bates vs. Smith, 100 Mass., 181. In this case it was also held that the fact that the adjoining land was a burial ground did not abridge this right.

63 Treat vs. Bates, 27 Mich., 390; Kenkins vs. Wilmington and W. R. Co., 110 N. C., 438.

The last form of nuisances affecting water rights, to be considered, is that of pollution of water. Every riparian owner is entitled to have the water which flows by his land do so in an unpolluted condition, and has a right of action for damages against any upper riparian owner who pollutes such water.66 Some of the most important causes of the pollution thus prohibited are the discharge of refuse from mills and factories,67 tanneries,68 slaughter houses, 69 or of sewage.70 A person sued for the pollution of a watercourse cannot escape liability by proving that others contributed to the pollution.71 The right of riparian owners to have the waters unpolluted is subject to the right of other riparian owners to make a reasonable use of such waters.72 An upper riparian owner may also, by prescription, acquire the right to pollute the waters of a stream.73

64 Hughes vs. Anderson, 68 Ala., 280, 44 Am. Rep., 147; Hicks vs. Silliman, 93 111., 255.

65 Norman vs. Albany, 79 N. Y., 470, 35 Am. Rep., 540; McCor-mich vs. Horan, 81 N. Y., 86, 37, Am. Rep., 479.

66 Atty. Gen. vs. Hackney Local Board, L. R., 20 Eq., 626, 44 L. J. Ch., 545; McGenness vs. Adriatic Mills, 116 Mass., 177; State vs. Frieberg, 49 Ohio Eg., 558; Richmond Mfg. Co. vs. Atlantic De Laine Co., 10 R. I., 106, 16 Am. Rep., 658.

67 Baltimore vs. Warren Mfg. Co., 59 Md., 965; Middlestadt vs.

Lombard, 13 Allen (Mass.), 16. 68 Seeley vs. Alden, 61 Pa. St., 302. 69 Durango vs. Chapman, 27 Colo.,

169. 70 Kellogg vs. New Britzin, 69

Conn., 232; Smith vs. Arlanta,

75 Ga., 110. 71 Weston Paper Co. vs. Pope, 155

Ind., 394; Beach vs. Sterling

Iron, etc. Co., 54 N. J. Eq., 65. 72 Helfrich vs. Catonville Water

Co., 74 Md., 269, 28 Am. St.

Rep., 245; Wheeler vs. Fisher Oil Co., 9 Ohio Dec, 294. 73 Baxendale vs. McMurray, L. R.

2 Cj., 790; Nolan vs. New Britain, 69 Conn., 668.