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 .
33a. Boone v. Wilson, 125 Ark.
364, 188 S. W. 1160; Schwartz v.
Nie, 29 Ind. App. 329, 64 N. E.
619; Holker v. Porritt, L. R. 8
Exch. 107; Baily & Co. v. Clark, Son & Morland (1902) 1 Ch. 649, per Vaughan Williams, L. J. 33b. See Goddard, Easements v. Board of Water Commissioners, 56 Minn. 485, 58 N. W. 33. See Williams v. Fulmer, 151 Pa. 405, 31 Am. St. Rep. 767, 25 Atl. 103.
(6th Ed.) 77.
33c. Falcon v. Boyer, 157 Iowa, 745, 142 N. W. 427; Stim-son v. Brookline, 197 Mass. 568, 16 L. R. A. N. S. 280, 125 Am. St. Rep. 382, 14 Ann. Cas. 907, 83 N. E. 893; Freeman v. Wicks, 45 Mich. 335, 7 N. W. 904; Tag-gart v. Jaffrey, 75 N. H. 473, 28 L. R. A. N. S. 1050, 139 Am. St. Rep. 729, 76 Atl. 123; Hough v. Porter, 51 Ore. 318, 95 Pac. 732, 98 Pac. 1083, 1099, 102 Pac. 728. Reading v. Althouse, 93 Pa. St. 400; Minnehan v. Murphy, 149 Wis. 14, 134 N. W. 1130; Nuttall v. Bracewell, 2 Exch. 1; Holker v. Porritt, L. R. 8 Exch. 107; Bailey & Co. v. Clark Son & Morland, (1902) 1 Ch. 649, per Vaughan Williams and Cozens Hardy, L. J. J.
33d. Post. Sec. 353.
34. 2 Bracton, f. 7, Sec. 5; 2
- Rights as to user of water. Though the water of a natural water course is not the subject of private ownership, each riparian owner has certain rights, and is subject to certain obligations, in regard to the use thereof, which may be summarized in general terms by the statement that, on the one hand, he is entitled to have the water flow as it has been accustomed to flow, and, on the other hand, since the other proprietors have the same right, he cannot himself interfere with such flow to any material extent.38 It is with
Blackst. Comm. 14, 18, 395; 3 Kent. Comm. 439; Tracey Development Co. v. People, 212 N. Y. 488, 106 N. E. 330. The authorities to this effect are collected in a learned article by Samuel C. Wiel, Esq., in 22 Harv. Law Rev. at p. 190 et seq. A contrary view appears to be indicated in Peck v. Clark, 142 Mass. 436, 8 N. E. 335.
35-36. Embrey v. Owen, 6 Exch. 353; Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762; Wallace v. Win-field, 98 Kan. 651, 159 Pac. 11; Syracuse v. Stacey, 169 N. Y. 231, 245, 62 N. E. 354; 2 Blackst. Comm. 14; 22 Harv. Law Rev. at p 202 et seq.
37. Fallon v. O'Brien, 11 Q. B. D. 21; Heyneman v. Blake, 19 Cal. 579; Parks Canal & Min. Co. v. Hoyt, 57 Cal. 44; Hagerman Irrigation Co. v. McMurray, 16 N. Mex. 172, 113 Pac. 823; Bear Lake etc., River Water Works & Irr. Co., v. Ogden, 8 Utah, 494, 33
Pac. 135. Contra, as to water in pipes for irrigation purposes, Stanislaus Water Co. v. Bach-man, 152 Cal. 716, 93 Pac. 858; Copeland v. Fairview Land & Water Co., 165 Cal. 148, 131 Pac. 119. See editorial notes 13 Columbia Law Rev. 251; 30 Harv. Law Rev. 297.
38. 3 Kent. Comm. 439 et seq; reference to this general rule that the specific rights of the riparian proprietors as among themselves have been formulated by judicial decisions.
- Effect of state ownership of bed. There are occasional decisions to the effect that in the case of a watercourse the bed of which is in the state,38a a riparian owner has, as such, no right, as against the state or one acting under authority from the state, to the flow of the stream in its natural condition.39 This view appears to be intimately related to the view, occasionally judicially asserted,40 that the state, owning the bed of the stream, can make, or authorize another to make, such a use of the bed of the stream as will deprive the riparian owner of access to the water, without providing for compensation to such owner. If the state has, in such case, power entirely to cut the riparian owner off from the use of the water, its right to diminish the benefit accruing to him from such access, as by authorizing the partial appropriation or the pollution of the water, is clearly apparent. The contrary view, that the state's ownership of the bed of the stream does not enable it to deprive the riparian owner of his rights as such is, it is conceived, the sound and reasonable one.41
- (b) Appropriation of water. The right of a riparian owner to appropriate water flowing past his land is, in general, limited to its use for such purposes, to such an extent, and in such a way as will not be inAngell, Watercourses, Sec. 95 et seq.; Gould. Waters, Sec. 204; God-dard, Easements, 84.
38a. Ante, Sec.Sec. 300, 301.
39. People v. Tibbetts, 19 N. Y, 523; People v. Canal Appraisers, 33 N. Y. 461; Simmons v. Patterson, 60 N. J. Eq. 385, 48 L. R. A. 717, 83 Am. St. Rep. 642, 45 Atl. 995; Minneapolis Mill Co.
40. Ante, Sec. 304, note 45a.
41. See 1 Lewis, Eminent Domain, Sec.Sec. 87, 94-105; 1 Farnham, Waters, Sec. 64; 14 Harv. Law Rev. at p. 158.
Consistent with a similar use by owners of other land lower down the stream, lower "riparian proprietors," as they are usually called.42 His right to appropriate the water for his domestic use, and also for the watering of his cattle, is not, however, according to the great weight of authority, limited by considerations of the necessities of lower proprietors, and he may use the water for these "ordinary" purposes, even though the effect be to exhaust the supply.43 On the other hand, his right to appropriate the water of the stream for what are considered "extraordinary': uses, such as manufacturing and irrigation, is restricted by the requirement that such appropriation must not so diminish the flow of water as materially to injure other proprietors lower down the stream,44 or, as the same idea is among the members of the community generally.51 Occasionally, however, the view has been asserted, expressly or by implication, that he may appropriate the water for use elsewhere as against a lower proprietor who does not suffer actual damage by reason of such appropriation,52 and there are occasional decisions to of fact for the jury, rather than a question of law.48 The right of action on account of the unreasonable appropriation of water by an upper riparian proprietor is independent of the question whether, owing to the plaintiff's failure to utilize the water in connection with his own land, or for some other reason, he suffers no actual damage by reason of such appropriation. He is entitled to at least nominal damages for the infringement of his right.49 Not infrequently the courts state