This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
- Grants of water power. Though a riparian owner on a natural water course has, by the weight of authority, no power to confer upon another the privilege of appropriating water from the stream, to be consumed elsewhere than upon riparian land,45 he may confer upon one who is not a riparian owner the privilege of using the water merely for temporary purposes, the water so used being returned to the stream in such a condition, and with such a degree of promptitude, as not to affect the lower proprietors.46 This is frequently done for the purpose of furnishing power to a mill or other industrial enterprise away from the stream, the riparian owner causing or allowing sufficient water to supply the power to pass to the desired locality through a flume or other conduit. Such an arrangement is usually referred to as involving the grant of a water right or privilege, or of water power. What is, legally speaking, the specific subject of the grant in such a case is a matter as to which the courts give us no information, and that being the case, the writer ventures to express the opinion that when the riparian owner thus gives to a non riparian owner the privilege of using the water of the stream for the furnishing of power, he grants no right in the water itself, but merely grants a right to conduct, or to have the water flow, over or through his riparian land, in order that it may reach the land where it is sought to be utilized for the creation of power. So far as concerns the utilization of the water in such a way, which does not involve any substantial diminution of the amount of water passing to the lower proprietors, or cause it to pass to them in a deteriorated condition, such lower proprietors cannot object, whether the utilization is by an upper riparian proprietor himself, or by another person. Since then such other person has, as against the lower proprietors, the privilege of so utilizing the water, it is necessary, in order that he actually do so, only that he get access to the water, and this he acquires from the upper riparian proprietor by means of a grant from the latter of the easement of conducting the water, or of having it flow to a named amount, over such upper proprietor's land. Frequently the water is conducted across the riparian land by the riparian proprietor himself, who consequently in effect furnishes the water to the other person at the boundary of the latter's land, but even in such a case, it is conceived, the latter has merely the privilege of an unobstructed flow of the water over or through the riparian land, an easement in the land and not a right in the water. Indeed the riparian owner has himself no proprietary right in the water, but merely a right to have it flow past his land as it has been accustomed to flow,47 and having no proprietary right in the water, he cannot create such a right in another. It may, and no doubt frequently does, occur that the riparian owner merely contracts to furnish water power to a certain extent, or to furnish a certain amount of water for the creation of power, and in such a case there appears to be no transfer whatsoever of a proprietary right, no "grant" in any sense of the term, but merely a personal obligation upon such owner to see that the water is available for use by his neighbor, at the proper height, and to the agreed extent, for the creation of power.
40. Post, Sec. 532.
41. Ante, Sec. 339(h).
42. Arkwright v. Cell, 5 Mees. & W. 203; Wood v. Waud, 3 Exch. 748; Burrows v. Lang (1901) 2 Ch. 502; Whitmores (Edenbridge),
Ltd. v. Stanford (1909) 1 Ch. 427.
43. See cases in next preceding note.
44. Ante, this section, note 37.
45. Ante,Sec. 339(b), note 54.
46. Ante, Sec. 339(c).
The employment of the expression "water power" in this connection is in itself calculated to produce some confusion of ideas.48 The expression properly means the energy to be produced, or capable of production, by the fall of water, and such potential energy would hardly appear to be a proper subject of grant. A riparian owner does not, strictly speaking, own water power, but he owns the privilege of controlling the water at that particular point, so that lie can allow it to fall in
47. Ante, Sec. 339(a), note 34.
48. The expression appears to have occasioned some perplexity in connection with questions of taxation. The more satisfactory view in this regard is that the water power is not a distinct subject for assessment, but that the possibility of utilizing the water for the development of power is to be considered in determining the taxable value of the riparian land, as is the possibility of obtaining the whole or a part of the power so developed to be considered in determining the taxable value of non riparian land. See Blackstone Mfg. Co. v. Inhabitants of Black-stone, 200 Mass. 82, 18 L. R. A (N. S.) 755, 85 N. E3. 880; Union Water Co. v. Auburn, 90 Me. 60, 37 L. R. A. 651, 60 Am. St. Rep. 40, 37 Atl. 331; Saco Water Power Co. v. Buxton, 98 Me. 295, 56 Atl. 914; Penobscot Chemical Fibre Co. v. Bradley, 99 Me. 263, 59 Atl. 83; Cocheco Co. v. Strafford, 51 N. H. 455; Amoskeag Mfg. Co. v. Consuch a manner, and in connection with such appliances, that it will produce power capable of industrial application, and, as above indicated, in making it possible for another person to control the water for the same purposes, by means of a grant of the privilege of having the water flow over his land or otherwise, he effects what is ordinarily referred to as a grant of water power.
In case, as frequently occurs, the riparian owner who grants the use of the water to a non riparian owner, owns a dam upon the stream which serves to keep the water at the desired level, the grant of the use of the water would involve the grant not only of an easement to have the water pass over the riparian land, but also, presumably, of an easement to utilize the dam for the purpose of making the water available for his use.49