1 See pp. 126 and 130 in particular. - ED.

The effect and proper construction of the act of 1869 (Laws of 1869, chap. 237), or its amendment (Laws of 1877, chap. 224), conferring upon railroad corporations certain powers to take water, are not before us, for the plaintiff is not shown to have acquired any right thereunder. As the case now stands, no reason is shown why the judgment appealed from should not be affirmed, and that, I think, must be the result of this appeal.

Judgment appealed from affirmed, with costs.

Shepley, J., in

Heath V. Williams

25 Maine, 209. - 1845.

The report [of the referee] further states "that defendant has a clothing mill on the stream above plaintiff's dam. It is fed by a dam which, with its predecessor on the same site, has stood for more than twenty years prior to the alleged trespass. That the plaintiff's dam and mill were built between the years 1829 and 1833. That the defendant next contended " that as his mill and dam were the oldest, he had a right of priority to the water and might lawfully break the flume, as he did." Referee was of this opinion, unless the legal principle was controlled or rendered inapplicable by other considerations belonging to the case.

The cases cited in the arguments of counsel decide, that priority of appropriation of the water of a stream confers no exclusive right to the use of it. A riparian proprietor who owns both banks of a stream has a right to have the water flow in its natural current without any obstruction injurious to him, over the whole extent of his land, unless his rights have been impaired by grant, license, or an adverse appropriation for more than twenty years. The defendant appears to be the undisputed owner of the land on both banks of the stream below his mill nearly or quite to the plaintiff's dam, unless that title shall prove to be defective in the manner hereafter stated. While it is contended that the plaintiff's " dam and mill were erected with such knowledge and concurrence of the defendant's grantors as amounted to a license," it is not contended that he has acquired any right by grant or by an appropriation for more than twenty years to cause the water to be flowed back upon the defendant's mill. It is not necessary to decide whether the defendant had acquired a right to have the water of the stream so used as to prevent its being thereby flowed back upon his mill by an appropriation of it without such an occurrence for more than twenty years, as decided in the case of Saunders v. Newman, 1 B. & Ald. 258. Although he could not derive any right from the statute, c. 126, sec. 2, or from priority of appropriation, yet the common law would afford him sufficient protection against the flow of water back upon his own land to the injury of his mill by the acts of another. Failing to obtain relief from the continuance of such an injury without it, he might lawfully enter upon the land of the plaintiff and remove, so far as necessary, the obstruction which occasioned it.1

1 This doctrine as to priority of appropriation is modified in some of the States by the "Mill acts" so called. See note to Heath v. Williams in 43 Am. Dec. 265 at p. 276. In some of the western States and territories it is modified also to meet the necessities of irrigation and of mining. Id. at p. 279. - Ed.

Corning V. Troy Iron And Nail Factory

40 New York, 191. - 1869.

This action was brought to restrain defendant from diverting the waters of Wynant's Kill from along the line of plaintiff's land and to compel it to restore to their bed a part of the waters of said Kill already diverted by it.

At the place in question the Kill makes a bend to the north leaving a one acre-parcel in the bend on the south of the creek. A seven-acre parcel is on the northerly side of the creek and surrounds the one-acre parcel on the east, north and west. The defendant owns the one-acre parcel and for many years held the seven-acre parcel under a lease which expired three or four years before this action was commenced. While leaseholder of the seven-acre lot defendant diverted the stream from its channel between the two lots and caused it to flow across the one-acre lot. The seven-acre parcel now belongs to plaintiff.

The last judgment below was for plaintiff and the defendant appeals therefrom to this court,

Grover, J. - * * * The defendant entered into possession and occupied under this lease for the entire term. These facts show that the defendant was bound to restore the land with the water running in its natural channel, at the expiration of the lease, unless relieved from such obligation by some immediate act of the lessors, or of those holding their title. While in possession under this lease, in 1839, the defendant constructed an artificial channel for the stream, by which it was wholly diverted from the seven acres, and conducted across the excepted acre, and used upon, a large overshot wheel, constructed to operate the extensive machinery of the defendant. At this time the plaintiffs were the owners of six acres upon the stream, below the premises in question, upon which was extensive machinery, operated by them, by means of the water power of the creek, but having no interest in the seven acres. The plaintiffs drew down their pond at this time, to enable the defendant to excavate a tail race from its wheel to the bed of the stream. It is insisted by the defendant that this precludes the claim of the plaintiffs to have the stream restored to its natural channel, thereby causing a great loss to the defendant in respect to the operation of its machinery. The answer to this is, that the plaintiffs base their claim to such restoration upon their title to the seven acres, which they obtained, in part, in 1852, and the residue in 1856, and that it was known to the defendant at the time that the plaintiffs then had no interest therein. It was, therefore, not then in their power to affect any right appurtenant to the reversion in the seven acres, as against the then owners or those subsequently acquiring the title. It is further insisted by the defendant that Defreest, one of the defendant's lessors, was precluded from requiring the restoration of the stream, by his assent to its diversion at the time it was made in 1839, and that if his right was thus cut off, no grantee from him could assert, under his grant, any better right thereto than he had. The conclusion is doubtless correct under the facts of this case, as the water was in fact diverted at the time Defreest conveyed to the plaintiffs. This was sufficient to put the plaintiffs upon inquiry as to any right, legal or equitable, of the defendant to make the diversion. Such inquiry would have led to information of the acts of Defreest, and the plaintiffs are, therefore, chargeable with notice of such acts. They are not, therefore, to be regarded as bona fide purchasers in this respect, but take the land subject to any legal or equitable right of diversion the defendant had as against Defreest. It must, therefore, be determined what such right, if any, was as against the latter. The case shows that Defreest lived at the time in the immediate vicinity, was frequently at the place while the work was in progress, conversed several times with the managing agent of the defendant, expressed to such agent his opinion that the change would improve the water power, and would benefit his property in the vicinity. That he knew that the contemplated change and improvements would cause the expenditure of a large sum of money, and that while these large expenditures were being incurred, made no objection to the diversion of the water. It is claimed that he must have known, from the amount of the expenditure and the character of the improvement, that the diversion was designed to be permanent. The latter fact is strongly controverted by the plaintiff; but, in considering this question, I shall assume its truth. It is insisted by the defendant that these facts constitute an estoppel upon Defreest from asserting any claim to a restoration of the water to the prejudice of the defendant. The answer to this position is, that the defendant at the time had not only the possession of the seven acres, and the full control of the water belonging thereto, but, also, the right of possession and control for the unexpired term of the lease, a period of thirteen years, and that during that time Defreest had no right to object to any use of the stream by the defendant, except such as worked an injury to the reversion, which the diversion of the stream, during that period, clearly would not. That the defendant, at the time, knew that upon the expiration of the lease its right to divert the water would cease under it, just as well as Defreest did, and there was no pretense of any other claim by the defendant to any other right to divert the stream from the seven acres. The defendant was not, therefore, in any sense, misled or deceived as to its right by anything done or omitted by Defreest. The case does not, therefore, come within the principle of the class of cases cited by defendant's counsel, holding that when one, in the belief that he has title, makes improvements with the knowledge and encouragement of the owner, such owner shall be estopped from asserting his title to the prejudice of the party having made such improvements. The estoppel is based upon the fraudulent conduct of the owner. There is no such reason applicable to Defreest. He was not estopped, and it follows that the plaintiffs, as his grantees, are not. There is no pretense of an estoppel upon the co-tenants of Defreest, who are also grantees of the plaintiffs. It is insisted by the defendant that the plaintiffs acquired no right to a restoration of the stream, under their deed, although such right existed in their grantors, for the reason that the diversion was prior to the grant, and that the defendant was holding the stream adversely at the time. The land was at the time in the possession of the grantors. There is no question but the title to that passed by the grant to the plaintiffs, with everything incident or pertaining thereto. The right to the flow of the stream in its natural channel was an incident to the land. 3 Kent's Com. 439, 1st R. S. sec. 147, p. 739, declares that grants of land shall be void when such lands shall, at the time, be in the actual possession of another, claiming under a title adverse to that of the grantor. This applies to an adverse holding of land, and not to such holding of some right appurtenant thereto, which passes with the land. The purchaser of the land is entitled to such appurtenant rights. Mason v. Hill, 4 Barn. & Adolphus. It follows that the plaintiffs had the right to have the stream flow in its natural channel along the seven acres purchased by them. For a violation of this right by the defendant they had a right of recovery, without proof of actual damage, irrespective of any use of the water power by them. Tyler v. Wilkison, 4 Mason, 400; 3 Kent, 539; Adams v. Burney, 25 Vermont, 225; Embury v. Owen, 6 Exch. 368; Townsend v. McDonald, 2 Kernan, 381. It follows that the plaintiffs were entitled to recover damages of the defendant for the wrongful diversion of the stream. It may now be assumed as settled that the plaintiffs could, in the same action, obtain all the relief to which the facts entitled them, arising out of the diversion of the water, whether such relief was legal or equitable, or both. Code, sec. 167. They were clearly entitled to recover damages, and the judge, therefore, erred in dismissing the complaint, and the General Term were right in reversing the judgment and ordering a new trial. This leads to an affirmance of the order appealed from, and to final judgment against the defendant; but whether such judgment shall be for damages only, or in addition thereto shall award a mandatory injunction for the restoration of the water to its natural channel, remains to be considered. It is urged by the defendant that the latter ought not to be included for-various reasons, the principal of which are, that it would be productive of great injury to the defendant, and be of little benefit to the plaintiffs. The former fact is established by the evidence. The latter rests upon the hypothesis that, inasmuch as the plaintiffs have not heretofore used the power and have made no preparations to use it, they do not desire it for use. The facts show that its restoration would give a power sufficient for a grist-mill grinding fifteen bushels per hour, or a cotton factory with forty looms. The question then comes to this, whether the defendant, who has wrongfully diverted from the plaintiffs a stream affording such a water power, shall be permitted to continue such wrongful diversion, and thus to deprive the plaintiffs of what is clearly theirs without their assent, upon the ground simply that its restoration would be a great damage to it. In other words, that by its continuance wrongfully to appropriate to its own use the property of the plaintiffs, it derives a much greater benefit than the plaintiffs could by being restored to their own. The bare statement of the question would seem to suggest the only proper answer. The very idea of justice is to give to each one his due. The use of the natural flow of the stream is the due of the plaintiffs, and to justify withholding it from them requires some better reason than loss to the wrongdoer consequent upon its restoration. It is insisted that the equitable right of restoration has been lost by delay. The statute of limitation, either at law or in equity, has not attached so as to bar the right. The case has, therefore, no analogy to that class of cases where equity has refused relief upon the ground that the legal remedy was barred by the statute. The defendant has expended no money upon improvements since the expiration of the lease, consequently the principle of the cases holding that where, during the delay of a party in asserting his right, expenditures have been made in improvements, equity will not interfere, do not apply. Lewis v. Chapman, 3 Beavan, is one of this class. The plaintiff sought to restrain, by injunction, the publication of a work of which he was the owner of a copyright. It appeared that he had lain still for six years and upwards and seen the defendant expending his money in printing the work, etc., etc.; upon this ground, equity refused to relieve the plaintiff. There are numerous cases of this description found in the books, but they all rest upon the same principle. All there is of the delay in this case is, that the plaintiffs finding the defendant using their water power have permitted it to continue such use for about four years Clearly this indulgence furnishes no reason for the refusal of equity to aid the plaintiffs in the recovery of their legal rights. It is insisted by the defendant that equity ought not to interpose in behalf of the plaintiffs, for the reason that they do not want the water power afforded by the stream for use. This is a mere assumption. It is true, they have not heretofore used the power, perhaps, for the very good reason that they have not had the ability to use it on account of the defendants witholding it from them. It is said that the plaintiffs have erected no machinery for that purpose. This is true. The plaintiffs have not constructed machinery to rot while litigating with the defendant for the recovery of the stream. But if the facts claimed were clearly established, it would not protect the defendant in wrongfully withholding the stream. No man is justified in withholding property from the owner when required to surrender it, on the ground that he does not need its use. The plaintiffs, may do what they will with their own. Upon established principles this is a proper case of equity jurisdiction. First, upon the ground that the remedy at law is inadequate. The plaintiffs are entitled to the flow of the stream, in its natural channel. Legal remedies cannot restore it to them and secure them in the enjoyment of it. Hence the duty of a court of equity to interpose for the accomplishment of that result. A further ground requiring the interposition of equity is to avoid multiplicity of actions. If equity refuses its aid the only remedy of the plaintiffs, whose rights have been established, will be to commmence suits from day to day, and thus endeavor to make it for the interest of the defendant to do justice by restoring the stream to its channel. If the plaintiffs have no other means of recovering their rights, there is a great defect in jurisprudence. But there is no such defect. The right of the plaintiffs to the equitable relief sought is established by authority as well as principle. Webb v. The Portland Manufacturing Co., 3 Sumner, 190 and cases cited; Tyler v. Wilkison, 4 Mason, 400; Townsend v. McDonald, 2 Kernan, 381; 2 Story's Equity, sees. 901, 926-7; Angell on Water Courses, sees. 449-50. It is further insisted by the defendant that equity will not interpose until the right has been settled at law. That, formerly, was the universal rule, where there was any substantial doubt as to the legal right. Gardner v. The Trustees of Newburgh, 2 Johns. Chan. 162. But that rule no longer prevails in this State. We have before seen that all the relief to which a party is entitled, arising from the same transaction, may, under the Code, be obtained in one suit. Beside, there is no doubt as to the legal right in the present case. My conclusion is, that the plaintiffs are entitled to the aid of equity in restoring the stream to its natural channel, and this whether the loss to the defendant is more or less. The defendant was bound to restore the stream upon the expiration of the lease, equally with the land. The order appealed from should be affirmed, and final judgment given against the defendant for the damages sustained by plaintiffs, and that they restore the stream to its natural channel. * * *