York Cent. & EC. R. Co., 88 N. Y. 351; Howard v. Buffalo, 211 N. Y. 241, 105 N. E. 426; Missouri, K. & T. Ry. Co. v. Johnson, 34 Okla. 582, 126 Pac. 567 (semblc); Berninger v. Sunbury etc. R. Co., 203 Pa. 516, 53 Atl. 361; Braine v. North Cent. R. Co., 218 Pa. 43, 66 Atl. 985; Wallace v. Columbia etc. R. Co., 34 S. C. 62, 12 S. E. 815; Touchberry v. Northwestern R. Co., 83 S. C. 315, 65 S. E. 341; Goddard v. Chicago B. & Q. R. Co., 143 Wis. 169, 126 N. W. 666. And see Broadway Mfg. Co. v. Leavenworth etc. Co., 81 Kan. 616, 106 Pac. 1034.

84. This view is presented at length in 3 Farnham, Waters, Sec. 904.

- Mill acts. In a number of states there are statutory provisions, known as "Mill Acts," allowing a riparian proprietor to erect a dam for the purpose of creating a water supply for his mill, though the result thereof be to cause land belonging to other persons above the dam to be submerged, the acts providing, however, for the assessment and payment by him of damages for injury so caused.86 There has been very considerable question as to whether such a statute is not unconstitutional as providing for the taking of private property for a purpose which is essentially private rather than public.87 In spite of the decisions of most respectable courts in favor of the constitutionality of such statutes the contrary view, also supported by

85. 1 Lewis, Eminent Domain (3rd Ed.) Sec. 80.

86. See, for a discussion of this legislation and a list of the "Mill Acts" then in force, the opinion by Gray J., in Head v.

Amoskeag Mfg. Co., 113 U. S. 9.

87. See 1 Lewis, Eminent Domain, Sec.Sec. 276-278; 3 Farnham, Waters, Sec. 697; 59 Univ. of Pa. law Rev. at p. 376, article by Professor Francis H. Bohlen.

- (f) Increase of flow. A riparian owner, or other person, has no right as against a lower owner to discharge into a stream water which does not naturally flow therein, as, for instance, water diverted from another stream.88 And the fact that such increase of flow does not cause actual damage to the lower owner, or even that it benefits him, appears to be entirely immaterial.89 One cannot be compelled to have his premr ises improved against his will, and any increase in the water of the stream necessarily involves an increase in the extent, either horizontally or vertically, of the land covered by water.

An upper reparian owner cannot, by straightening the channel of the stream, by opening a dam, or otherwise, substantially increase the flow of the water, to the injury of a lower proprietor.90

- (g) Non riparian owner's right of action. It has occasionally been decided that a non reparian owner90a who has, by agreement with a riparian owner, acquired the right to utilize water from the stream for the purpose of supplying power, or other like purposes,91 is entitled to complain of the action of a riparian restriction, unascertained and practically unascertain-able."93a The practical result then would be that while each person to whom a lower riparian proprietor grants a right to use the water of the stream can complain of an unreasonable user by an upper proprietor, the question whether a particular user is unreasonable must be determined by a consideration of the interest, not of the person complaining, but of the riparian proprietor by reason of whose interposition such person is enabled to utilize the water.

88. Baltimtore v. Appold, 42 Md. 422; McCormick v. Horan, 81 N. Y. 86; Jackman v. Arlington Mills, 137 Mass. 277; Plattsmouth Water Co. v. Smith, 57 Neb. 579, 78 N. W. 275; Cheeves v. Dan-ielly, 80 Ga. 114, 4 S. E. 902.

89. Tillotson v. Smith, 32 N. H. 90, 64 Am. Dec. 355; East Jersey Water Co. v. Bigelow, 60 N. J. L. 201, 38 Atl. 631.

90. Osborn v. Norwalk, 77 Conn. 663, 60 Atl. 645; Taylor v. Indiana & Mich. Elec. Co., 184 Mich. 578, L. R. A. 1915E, 294,

151 N. W. 739; Kay v. Kirk, 76 Md. 41, 35 Am. St. Rep. 408, 24 Atl. 326; Dubois v. Glaub, 52 Pa. 238; In Fewell v. Catawba Power Co., 102 S. C. 452, 86 S. E. 947, a lower proprietor was allowed to recover by reason of the im-passability of a ford caused by an increased flow. See editorial note, 14 Mich. Law Rev. 434.

90a. As to who is a non riparian owner, see ante, Sec. 339(b), note 56.

91. Ante, Sec. 339(c), note 63.

These decisions have been referred to as in effect that a riparian owner may grant to another his riparian rights,93 but such a view seems most questionable. That one who, by reason of the location of his land upon the stream, has rights in regard to the continuance of the natural condition of the stream, should be able, without disposing of that land, to vest those rights in another person, owning land in another location, is not readily comprehensible. Riparian rights, in their very nature, are based on the ownership of riparian land, and the conception of riparian rights vested in non riparian owners is an almost impossible one. Furthermore the view that a restrictive right as to the upper proprietor's use of the water is transferred by the lower proprietor to the person to whom he grants the right to the use of the water involves the assumption that he intended to transfer such a restrictive right, an assumption which, in the ordinary case, may be regarded as of questionable soundness. Furthermore, conceding that such riparian right restrictive of the lower proprietor's use of the water is capable of transfer, a question might arise as to the form of the transfer. Would a mere oral license to able number of years would seem to be that it is calculated to induce the belief that it is intended to be permanent.

92. Bristol Hydraulic Co. v. Boyer, 67 Ind. 236; Hall v. Ionia, 38 Mich. 493 (semble); St. Anthony Falls Water-Power Co. v. Minneapolis, 41 Minn. 270, 43 N. W. 56; Lawrie v. Silsby. 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106, 82 Vt. 505, 74 Atl. 94; Nut-tall v. Bracewell, L. R. 2 Exch. 1. See Laing v. Whaley, 3 Hurlst.