We come to the decisive question: Is the owner of an easement to flow another's land entitled to the ice which forms on the water covering the land? There is some diversity of opinion upon this question, but our decisions declare that the ice belongs to the owner of the servient estate. In State v. Pottmyer, 33 Ind. 402, 5 Am. R. 224, the question was examined thoroughly, and it was held that the landowner might cut the ice, provided no injury was done to the rights of the owner of the dominant estate; and this was the decision in Edgerton v. Huff, 26 Ind. 35. This last case has, it is true, been overruled upon one point, but not upon the point to which it is here cited. Again, in Julien v. Woodsmall, 82 Ind. 568, this question came before the court, and it was held that the right to overflow the land of another for mill purposes did not confer the right to cut the ice formed on the pond. The doctrine of these cases is consistent with long-established principles, and is supported by analogous cases. The owner of a servient estate has a right to all the profits which may arise from the soil, and may make such a use of the soil as is not inconsistent with the easement. In the old case of Goodtitle v. Alker, 1 Burr. 133, it is said that " The owner of the soil has a right to all above and under ground, except only the right of passage, for the king and his people." This general doctrine applies to a private way. Gates may be erected across it, wells may be dug on it, waterways may be constructed under it, seaweed may be gathered off of it, and herbage may be cropped from it. Bean v. Coleman, 44 N. H. 539; O'Linda v. Lothrop, 21 Pick. 292; Baker v. Frick, 45 Md. 337, 24 Am. R. 506; Emans v. Turnbull, 3 Am. Dec. 427, n. An admirable statement of the rule is that of the court in Maxwell v. McAtee, 9 B. Mon. 20. There, in speaking of the grant of an easement, it was said: " Notwithstanding such a grant, there remains with the grantor the right of full dominion and use of the land, except so far as a limitation of his right is essential to the fair enjoyment of the right of way which he has granted. It is not necessary that the grantor should expressly reserve any right which he may exercise consistently with a fair enjoyment of the grant. Such rights remain with him because they are not granted. And for the same reason the exercise of any of them cannot be complained of by the grantee, who can claim no other limitation upon the rights of the grantor, but such as are expressed in the grant, or necessarily implied in the right of reasonable enjoyment." The right of a mill-owner to pond water on another's land, the right of one owner to use another's land for a sluice-way, the right of one owner to use another's land for drainage purposes, are all easements, and nothing more. Baer v. Martin, 8 Blackf. 317; Snowden v. Wilas, 19 Ind. 10. Easements do not take from the owner of the fee the right to make any profitable use he can of his property not inconsistent with the enjoyment of the dominant estate. It is immaterial whether the easement is to flow water over the land or to pond it on the land; in either case, as said in Mason v. Hill, 5 B. & Ad. 1, the owner of the fee may use it for " profitable purposes." Such a right is said to be "a privilege without profit." Earl v. De Hart, 1 Beasley, 280. The right to back or pond water on the land of another, whether acquired under the statute or by prescription, gives no right to the land itself, nor to the profits which a use of it, not injurious to the easement, will produce. Williams v. Nelson, 23 Pick. 141; Paine v. Woods, 108 Mass. 160; Storm v. Manchaug Co., 13 Allen, 10. The close analogy between the class of cases to which we have referred and those of State v. Pottmeyer, supra, and Edgerton v. Huff, supra, is very readily perceived, and is strong proof that the latter cases are founded on solid principle, for no one doubts that the former are well grounded in principle.
There are well considered cases directly sustaining the view adopted by our decisions. In Dodge v. Berry, 26 Hun, 246, it was held that a mill-owner who has the right to flow the lands of another, does not own the ice which forms over the lands of such person, and that the latter may take the ice unless he perceptibly injures the owner of the mill. The same conclusion was reached in Marshall v. Peters, 12 How. Pr. 218. The court, in Washington Ice Co. v. Shortall, 101 111. 46, 40 Am. R. 196, held that ice belonged to the owner of the fee, and, in the course of the opinion, said: "The views we hold are in accordance with the holding in The State v. Pottmeyer, 33 Ind. 402, that when the water of a flowing stream running in its natural channel is congealed, the ice attached to the soil constitutes a part of the land, and belongs to the owner of the bed of the stream, and he has the right to prevent its removal." This doctrine is again held in Village of Brooklyn v. Smith, 104 Ill. 429, 44 Am. R. 90.
In Paine v. Woods, 108 Mass. 160, the courts thus stated the law upon this subject: " The owner of the land thereby flowed must not, indeed, draw off by canals, aqueducts or ditches, the water which has been raised by the dam. Cook v. Hull, 3 Pick. 269; Sturm v. Manchaug Co., 13 Allen, 10. But he may use it for watering his cattle, or irrigating his crops and gardens, or any other reasonable purpose which does not practically and in a perceptible and substantial degree impair the right to run the mill; and so he may take and carry away the water when formed into ice, for use or sale, provided he does not thereby appreciably diminish the head of water at the dam of the mill-owner. Cummings v. Barrett, 10 Cush. 186. And his land may be of peculiar value by reason of its situation affording opportunities to do this. Ham v. Salem, 100 Mass. 350." These cases lend strong support to the doctrine which prevails in this court, and, with the exception of the case of Mill River, etc. Co. v. Smith, 34 Conn, 462, and Myer v. Whitaker, 5 Abbott, N. C. 172, we have found none asserting a contrary doctrine. Of the latter case we need only say it is confessedly against the weight of authority, is condemned by the courts of the same State, is the decision of a single judge, and is not well reasoned. The decision in the first of these cases is that of a divided court, and the reasoning upon which it is founded is unsatisfactory. It proceeds thus: " Many of the mill ponds of the State, used in the grinding of grain and sawing of timber, are small and shallow, and often in the winter season, when rain falls infrequently and the fountains are frozen, water is scarce, and anything which further lessens it is a material injury." This seems to us a narrow view and one not in harmony with authority or consistent with sound principle. It may possibly be that if the evidence in a particular case should show a diminution of the supply of water, the landowner might then be prevented from taking ice; this, however, affords no ground for a broad general rule; the court has as little ground for presuming that taking the ice would diminish the supply of water, as for presuming that allowing a dozen, or a half dozen horses to drink from the pond would appreciably injure the owner of the easement. It is difficult, if not impossible, to reconcile the ruling in that case with the decision in the subsequent case of Seeley v. Brush, 35 Conn. 419; but, however this may be, we are clear that it is not a case which should be regarded as authority. It is a mistake to suppose that the case of Higgins v. Kusterer, 41 Mich. 318; s. c, 32 Am. R. 160, is against the views of this court, for nothing more is there decided than that parties may, by express contract, treat ice as personal property. It is said in that case that " there can be no doubt that the original title to the ice must be in the possessor of the water where it is formed; " and this is in harmony with our cases. In a later case in the same court, it was held that a riparian proprietor had a right to gather ice on a navigable river, and that the owners of a boat which carelessly destroyed it were liable. People's Ice Co. v. Steamer "Excelsior," 44 Mich. 229; s. c, 38 Am. R. 246. The right of the riparian proprietor was likened to that of the owner of land adjoining a public road or street, and upon this basis was grounded his right to recover. This is the real foundation of our own cases, and they are, therefore, supported, indirectly, at least, by the one just cited. The case of Wood v. Fowler, 26 Kan. 682; s. c, 40 Am. R. 330, decides that where the stream is a navigable one, and the adjoining proprietor owns only to the bank, he has no superior claim to the ice; but the court refers with approval to the cases which hold that where the riparian proprietor owns the land he also owns the ice.