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 .
& N. 675. A contrary view is Indicated in Stockport Water Works v. Potter, 3 Hurl. & C. 300; Dore-mus v. Patterson, 65 N. J. Eq. 711, 55 Atl. 304.
93. Editorial notes, 16 Harv. Law Rev. 145; 4 Columbia Law Rev. 431; Wiel, Water Rights (2nd Ed.) 446.
Sec. 339 take water from the stream be sufficient to transfer to the licensee the right to complain of the use made of the water by an upper proprietor? Moreover, it would hardly be contended that the riparian proprietor in such a case divests himself of his own riparian right to complain of an unreasonable use of the water, and there might be some difficulty in recognizing such a right in him after he has disposed of the right to another.
Discarding the theory of a transfer of riparian rights, the decisions referred to might perhaps be supported on the theory that any person who has the right to use the water of a stream has a right to complain of the unreasonable pollution or appropriation of the water by another. But this theory is also attended with difficulties, by reason of its indefiniteness and possible scope. It would make an upper riparian proprietor responsible for his use of the water not only to the lower riparian proprietors, but also to all persons who, by the action of any of such proprietors, may acquire the right to make use of the water. Carrying the doctrine to its logical conclusion, any inhabitant of a city which acquires its water supply from a stream would have a possible right of action against the upper proprietor on the stream, by reason of the pollution of the water. It could hardly be contended, however, that an upper riparian proprietor's use of the water should be restricted in favor of persons not riparian proprietors to any greater extent than in favor of riparian proprietors. The upper proprietor has a right to use the water in a reasonable way having regard to the rights of the lower proprietors to use it in the same way, and his rights in this regard cannot properly be diminished by the action of a lower proprietor, or of all the lower proprietors, in giving to other persons the right to use the water. A different view "would go well night to destroy his rights altogether, for that can scarcely be called a right which is subject to an indefinite
In the opinion from which the quotation in the previous paragraph was taken, the view was asserted that the water of the stream having been made available for the production of power by means of a sluice or cut, the water in this sluice or cut was to be regarded as if it were in a natural watercourse, so as to give to the proprietors thereon the rights of riparian proprietors as regard a lower proprietor upon the stream. But the difficulty would seem still to remain, that if the upper proprietor may extend the restrictions upon the lower proprietor to an indefinite extent, by giving others the right to use water from the stream, whether this is effected by a sluice or cut, or otherwise, the lower proprietor's right of reasonable user might be reduced to an indefinite extent.
- (h) Restoration of former conditions. In ease the channel of a watercourse becomes changed, the owner of the land upon which the new channel is formed may ordinarily take measures to cause the return of the stream to its old channel,93b but there are a considerable number of decisions to the effect that, after the channel of a natural stream has been changed, states97 any person, without reference to whether he is a riparian owner, who first appropriates water from a watercourse by means of a ditch, flume, pipe, or the like, in order to apply it to some beneficial use,98 and does so apply it, acquires the right to a continuance of such appropriation as against all the world, including the riparian proprietors. In others of these states99 such prior appropriation is effective as against the riparian proprietors and others, provided the appropriation was made before the land bordering the stream passed out of the government, but it is nugatory as against riparian proprietors who were such at the time of the appropriation. In other words, in these latter states, riparian rights exist as at common law except as against an appropriation made before such rights became vested in particular individuals, as distinct from the government, while in the former states the common law doctrine of riparian rights is absolutely non existent.
93a. Nuttall v. Bracewell, L. R. 2 Exch. 1, per Pollock, C. B., and Channell, B.
93b. York County v. Rolls, 27 Ont. App .72; Yazoo & Miss.
Valley R. Co. v. Brown, 99 Miss. 88, 33 L. R. A. (N. S.) 804, 54 So. 804; Pierce v. Kinney, 59 Barb. (N. Y.) 56; Tuthill v. Scott 43 Vt. 525, 5 Am. Rep. 301.
R. P.-73 either by the hand of man,93c or by natural causes,93d if the stream is allowed to flow in the new channel for a considerable number of years, and other persons act upon the supposition that it is to be allowed to flow permanently in the new channel, it cannot, as against them, be restored to its old channel. And a like view has been expressed as to one's duty, after the flow of water has been increased by the removal of obstructions in the channel or otherwise, not again to restrict the flow to the amount thereof as it originally existed before any change was made, the increased flow having been allowed to continue for a number of years.93e The duty to allow the stream to continue in its changed condition, as asserted in these cases, is usually based on estoppel, or a theory analogous thereto, while it is sometimes referred, it seems, to the doctrine of prescription, which does not however appear to be properly applicable to such a case.93f The only proper effect of the continuance of the change of channel or of flow through a consider93c. Delaney v. Boston, 2 Harr. (Del.) 487; Burke v. Sim-onson, 104 Ind. 173, 54 Am. Rep. 304, 2 N. E. 309, 3 N. E. 826; Meir v. Kroft (Iowa) 80 N. W. 521; Shepardson v. Perkins, 58 N. H. 354; Taggart v. Jaffrey, 75 N. H. 473, 28 L. R. A. N. S. 1050, 139 Am. St. Rep. 729, 76 Atl. 123; Middleton v. Gregorie, 2 Rich. L. (S. Car.) 6S1; Hallett v. Davis, 54 Wash. 326, 103 Pac. 423; Mattheson v. Ward, 24 Wash. 407, 85 Am. St. Rep. 955, 64 Pac. 520; Ford v. Whitlock, 27 Vt. 265; Cook v. Seaboard Air Line Ry., 107 Va. 32, 10 L. R. A. N. S. 966, 122 Am. St. Rep. 825, 57 S. E. 564. Compare Shields v. Arndt, 4 N. J. Eq. 234; Peter v. Caswell, 38 Ohio St. 518.