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 .
93d. Smith v. Musgrave, 32 Mo. App. 241; Johnk v. Union Pac. R. Co., 99 Neb. 763, 157 N. W. 918; Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344; Pacific Live Stock Co. v. Davis, 60 Ore. 258, 119 Pac. 147 (after prescriptive period).
93e. Belknap v. Trimble, 3 Paige (N. Y.) 577; Murchie v. Gates, 78 Me. 300, 4 Atl. 698; Cloyes v. Middlebury Elec. Co., 80 Vt. 109, 11 L. R. A. N. S. 693, 66 Atl. 1039. See Harrington v. De Maris, 46 Ore. Ill, 1 L. R. A. N. S. 756, 77 Pac. 603, 82 Pac. 14; Compare Mason v. Whitney, 193 Mass. 152, 7 L. R. A. N. S. 289, 78 N. E. 881.
93f. Post, Sec. 532.
- (i) Prior appropriation. The common law rule, as ordinarily recognized, is that a riparian owner, and a fortiori one not a riparian owner, cannot acquire any rights as to the use of the water, in excess of his ordinary riparian rights, as against other riparian owners, by reason of the fact that he has first established a permanent means of appropriation such as a mill. dam, or ditch, unless he continues the appropriation of the water for such a time and under such circumstances as to acquire rights by prescription.94 In Maine and Massachusetts, however, this rule is to some extent abrogated by a statutory provision that no dam shall be erected to the injury of a mill previously existing,95 and in Kentucky and West Virginia it appears to have been departed from to this extent without reference to any statute.96
In the Western and Southwestern states, the common law rule that no rights as to the use of the water can be acquired by prior appropriation has been entirely or to a great extent repudiated. In some of these l157 of the particular state, one has, by constructing a ditch or flume, acquired, under the doctrine of prior appropriation, the right to divert water from the stream for his own purposes, does not make him the owner, in any sense, of the water in the stream.2 What he acquires is the right to appropriate water from the stream to an extent 'measured by his original appropriation, and this right is entirely independent of his ownership of land. It answers to the incorporeal hereditament of the common law. This right of appropriation has been frequently declared to be "real estate" or "real property."3
94. Mason v. Hill, 5 Barn. & Adol. 1; Wood v. Waud, 3 Exch. 748; Chasemore v. Richards, 7 H. L. Cas. 387; Buddington v. Bradley, 10 Conn. 213, 26 Am. Dec. 386; Stout v. McAdams, 3 111. 67, 33 Am. Dec. 441; Clark v. Alla-man, 71 Kan. 206, 70 L. R. A. 971, 80 Pac. 571; Heath v. Williams, 25 Me. 209, 43 Am. Dec. 265; Thurber v. Martin, 2 Gray (Mass.) 394, 61 Am. Dec. 468; Dumont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 321; Gilman v. Tilton, 5 N. H. 231; Platt v. Johnson, 15 Johns. (N. Y.) 213, 8 Am. Dee.
233; Pugh v. Wheeler, 19 N. C. 5G; Hoy v. Sterrett, 2 Watts (Pa.) 327, 27 Am. Dec. 313.
95. National Fibre Board Co. v. Lewiston & A. Electric Light Co., 95 Me. 318, 49 Atl. 1095; Gould v. Boston Duck Co., 13 Gray (Mass.) 442; Otis Co. v. Ludlow Mfg. Co., 186 Mass. 89, 104 Am. St. Rep. 563, 70 N. E. 1009.
96. Tye v. Catching, 78 Ky. 463; Mumpower v. City of Bristol, 90 Va. 151, 44 Am. St. Rep. 902, 17 S. E. 853.
This doctrine of prior appropriation has in some of the states referred to been limited by the adoption by the courts of the view that, in case of the occurrence of a deficiency in the supply of water, the prior appro-priators are not to have all the water to the exclusion of the later appropriators, but the supply is to be apportioned among the various users, without reference to, or with only a limited regard to, the order of appropriation.1
As before stated, water flowing in a stream belongs to nobody, and the fact that, in accordance with the law
97. These states, as enumerated by Mr. Samuel C. Wiel, in his excellent work on "Water Rights in the Western States," are Arizona, Colorado, Idaho, New Mexico, Nevada, Utah, Wyoming.
98. As to what is a beneficial use, see Kinney, Irrigation and water Rights, ch. 49; Editorial note, 24 Harv. Law Rev. 329.
£•9. These states are California, Kansas. Montana (probably), Nebraska, North Dakota, Oklahoma (possibly), Oregon, South Dakota, Texas, Washington. Also possibly the Territory of Alaska.
1. See 27 Harv. Law Rev. at p. 530, article by Samuel C. Wiel, Esq.
Sec. 340] belonging to one who is the exclusive owner of the land on which the pond exists.7 In such a case the water is in the exclusive possession and control of the owner of the land to the same extent as if he had abstracted it from a stream and placed it in a cistern or artificial reservoir on the land.8 The distinction above indicated however, as regards the ownership of water, between that in a pond which supplies the water in a watercourse, and that in a pond which has no such outlet, has not been judicially asserted with any degree of distinctness, and is perhaps opposed to English decisions, in general terms, that a right to take water from a pond or spring constitutes an easement and not a profit a prendre.