Partition fences are in many respects like party walls. They are usually erected one-half on the land of each, and the obligation to repair is the same as in the case of party walls.131 The duty to maintain such fences may exist by reason of a statute,132 or it may arise from agreement or prescription.133 Such fences are usually divided into halves, each owner being required to maintain his half.
232. The owner of land fronting on a natural water course has the right to have it maintained in its natural condition; that is, the water must not be prevented from coming to him or from flowing away, or be polluted.
Water, as a subject of ownership, was discussed somewhat in our first chapter. Rights in water depend largely on whether the water is naturally on the land or has been brought there by artificial means.134 Rights in water in its natural state consist almost entirely in a right to use it as contrasted with ownership of it. When there is a defined water course, one who owns the land over which it flows, or who owns land on one bank of the stream, has a right to have the flow continue without unreasonable interference by the riparian owners, either above or below him.135 In order that there may be such a water course, a continuous flow is not necessary. It is sufficient if water flows in the channels at certain seasons of the year.136 A riparian owner137 has a right to use the water in a reasonable way, but he must not divert it from its course,* or detain it more than a reasonable time.138 So he has no right to corrupt the water which flows over his land, unless such right is acquired by prescription or otherwise.139 Furthermore, he must not dam up the water, and cause it to flow back on the lands of the owners above,140 though, of course, an easement of this kind may
129 Sherred v. Cisco, 4 Sandf. (N. Y.) 480; Partridge v. Gilbert, 15 N. Y. 601.
130 Dowling v. Hemings, 20 Md. 179; Brodbee v. Mayor, etc., of London, 4 Man. & G. 714.
131 l Stim. Am. St Law, § 2185. One may be bound to repair the whole by prescription, Binney v. Proprietors, 5 Pick. (Mass.) 503; Anon., Y. B. 19 Hen. VL p. 33, pi. G8; Star v. Rookesby, 1 Salk. 335; Lawrence v. Jenkins, L. R. 8 Q. B. 274; or by contract, Bronson v. Coffin, 108 Mass. 175, reversed aa to measure of damages, IIS Mass. 156.
132 I stim. Am. St. Law, art, 218.
133 Cowlea v. Balzer, 47 Barb. (N. Y.) 562.
134 See ante, p. 4; Earl v. De Hart, 12 N. J. Eq. 280.
135 Darlington v. Painter, 7 Pa. St. 473; Prescott v. White, 21 Pick. (Mass.) 841; Omelvany v. Jaggers, 2 Hill (S. C.) 634; Tyler v. Wilkinson, 4 Mason, 897, Fed. Cas. No. 14,312; Embrey v. Owen, 6 Exch. 353; Williams v. Mor-land, 2 Barn. & C. 910; Miner v. Gilmour, 12 Moore, P. O. 131; Wood v. Waud, 3 Exch. 748; Earl of Sandwich v. Railway Co., 10 Ch. Div. 707; Sampson v. Hoddinott, 1 C. B. (N. S.) 590.
136 Shields v. Arndt, 4 N. J. Eq. 234; Eulrich v. Richter, 41 Wis. 318; New York, C. & St. L. R. Co. v. Speelman, 12 Ind. App. 372, 40 N. E. 541; Rigney v. Water Co., 9 Wash. 576, 38 Pac. 147.
137 As to easements in persons not riparian owners, see Stockport Waterworks Co. v. Potter, 3 Hurl. & C. 300, Ormerod v. Mill Co., 11 Q. B. Div. 155; Nuttall v. Braccwell, L. R. 2 Exch. 1; Bristol Hydraulic Co. v. Boyer, 67 Ind. 230.
* Hogg v. Water Co., 168 Pa. St. 456, 31 Atl. 1010; Green Bay & M. Canal Co. v. Kaukauna Water Power Co., 90 Wis. 370, 61 N. W. 1121, and 03 N. W. 1019; Southern Marble Co. v. Darnell, 94 Ga. 231, 21 S. E. 531; Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762. But a stream may be diverted if it Is returned to the established channels before passing off the land of the one diverting it. Missouri Pac. Ry. Co. v. Keys, 55 Kan. 205, 40 Pac. 275.
138 Pitts v. Lancaster Mills. 13 Mete. (Mass.) 156; Elliot v. Railway Co., 10 Cush. (Mass.) 191; Garwood v. Railroad Co., 83 N. Y. 400; Snow v. Parsons, 28 Vt. 459; Canfield v. Andrew, 54 Vt. 1; Gillis v. Chase (N. H.) 31 Atl. Is; Blodgett v. Stone, 60 N. H. 167; Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762. Cf. Wheatley v. Chrisman: 24 Pa. St 298. As to custom to show reasonable use, see Canfield v. Andrew, 54 Vt L
139 Jackman v. Arlington Mills, 137 Mass. 277; Smith v. Cranford, 84 Hun, 818, 32 N. Y. Supp. 375; Lewis v. Stein, 16 Ala. 214; Hayes v. Waldron. 44 N. H. 580; People v. Elk River Mill & Lumber Co., 107 Cal. 214, 40 Pac. 486.
140 Mccoy v. Danley, 20 Pa. St. 85; Sprague v. Worcester, 13 Gray (Mass.) 193; Railroad Co. v. Carr, 38 Ohio St. 448.
Real Prop.-24 be acquired,141 and in some states a mill owner may exercise the power of eminent domain in order to acquire such right,142 Rights to change the natural uses of water are easements, and must be acquired in the same ways as other conventional easements.143 In some states, the one first appropriating a stream of water especially for use in irrigation obtains the first right to the water144 to the extent of his appropriation.145 The rights of owners whose lands border on navigable streams are the same, so far as the law of easements is concerned, as the rights of other riparian owners; but they must not obstruct navigation.146 Where rivers are used by boom companies for the transportation of logs, the rule is that the first in has the first right to the use of the current; but they must not cause unnecessary obstruction.147
141 But long user will not give a right to prevent the erection of a mill above. Thurber v. Martin, 2 Gray (Mass.) 394.
142 Washb. Easem. (4th Ed.) 445.
143 Russell v. Scott, 9 Cow. (N. Y.) 279; Postlethwalte v. Payne, 8 Ind. 104; Smith v. Russ, 17 Wis. 234. Cf. Shury v. Piggot, 3 Bulst. 339.
144 Smith v. O'hara, 43 Cal. 371; Schilling v. Rommger, 4 Colo. 100; Barnes v. Sabron, 10 Nev. 217; Wimer v. Simmons (Or.) 39 Pac. 6. Such appropriation on public lands is authorized by congress. Rev. St. U. S. §§ 2339, 2340. The right may be lost by abandonment. Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762; Beaver Brook Reservoir & Canal Co. v. St. Vrain Reservoir & Fish Co. (Colo. App.) 40 Pac. 1066. See, also, Sampson v. Hoddinott, 1 C. B. (N. S.) 590; Embrey v. Owen, 6 Exch. 353.
145 Creek v. Waterworks Co., 15 Mont. 121, 38 Pac. 459.
146 Ensmlnger v. People, 47 111. 384; Gifford v. Mcarthur, 55 Mich. 535, 22 N. W. 28; Bainbridge v. Sherlock, 29 Ind. 364; Fulmer v. Williams, 122 Pa. St. 191, 15 Atl. 726; Field v. Driving Co., 67 Wis. 569, 31 N. W. 17. And see Original Hartlepool Collieries Co. v. Gibb, 5 Ch. Div. 713. The public are not entitled to a tow path along a navigable river. Ball v. Herbert, 8 Term
R. 253. Contra, Reg. v. Inhabitants of Cluworth, 6 Mod. 163; Young v. --------,
1 Ld. Raym. 725.
147 Butterfield v. Gilchrist, 53 Mich. 22, 18 N:. W. 542; Sullivan v. Jernlgan, 21 Fla. 264. Cf. Brown v. Chadbourne, 31 Me. 9; Gwaltney v. Land Co., 115 X. C. 579, 20 S. E. 465. As to what streams are "floatable," see Commissioners of Burke Co. v. Catawba Lumber Co., 116 N. C. 731, 21 S. E. 941.