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 .
One whose land abuts on a lake or pond, on which the lands of others also abut, has the same rights as to the use of the water as has a riparian proprietor on a watercourse, that is, he may make a reasonable use of the water having regard to the right of other owners to make a like use.4 He cannot, ordinarily at least, appropriate it for use upon non riparian land.4a
2. Gould v. Eaton, 117 Cal. 539, 542, 38 L. R. A. 181, 49 Pac. 577; Crawford v. Hathaway, 67 Neb. 325, 60 L. R. A. 889, 108 Am. St. Rep. 647, 93 N. W. 981; Snow v. Abalos, 18 N. Mex. 631, 140 Pac. 1044; Saint v. Guerrerio, 17 Colo. 448, 31 Am. St. Rep. 320, 30 Pac. 335; Boise etc. Co. v. Stewart, 10 Idaho, 38, 77 Pac. 28; Salt Lake City v. Salt Lake etc. Co., 24 Utah 249, 61 L. R. A. 648, 67 Pac. 672.
3. Lower Kings River W. D. Co. v. Kings River & F. C. Co., 60 Cal. 419; Dorris v. Sullivan, 90 Cal. 286, 27 Pac. 216; South Tule etc. Co. v. King, 144 Cal. 454, 77 Pac. 1032; Grizeza v. Terwilliger, 144 Cal. 456, 77 Pac.
1034; Travellers Insur. Co. v. Childs, 25 Colo. 360, 54 Pac. 1020; Hall v. Blackman, 8 Idaho, 272, 68 Pac. 19.
4. Turner v. James Canal Co., 155 Cal. 82, 22 L. R. A. (N. S.) 401, 132 Am. St. Rep. 59, 17 Ann. Cas. 823, 99 Pac. 520; Valparaiso City Water Co. v. Dickover, 17 Ind. App. 233, 46 N. E. 591; Fin-ley v. Hershey, 41 Iowa, 393; Dol-beer v. Suncook Water Works Co., 72 N. H. 562, 58 Atl. 501; Schaefer v. Marthaler, 34 Minn. 487, 57 Am. Rep. 73, 26 N. W. 726; Lamprey v. State, 52 Minn. 181, 38 Am. St. Rep. 541, 53 N. W. 1139.
4a. Battle Creek v. Goguac Resort Ass'n., 181 Mich. 241, 148 N. W. 441; Lakeside Irrig. Co. v.
An owner of land abutting on a lake or pond, the water of which passes out by a natural watercourse, owes to riparian owners on the watercourse the same duties which an upper riparian owner on a watercourse owes to lower riparian owners, that is, to allow the water to continue to flow as it was accustomed to flow.5 And a riparian owner on such outlet owes a reciprocal duty to owners upon the lake or pond not to diminish, to an unreasonable extent, the water in the lake or pond, by deepening or widening the outlet.6 And also not to flood their lands by diminishing such outlet.6a
In the case of a pond which serves to supply water for a natural watercourse, even though all the land beneath and adjoining the water belongs to a single individual, the water in the pond is no more the subject of private ownership than is the water in the watercourse itself. In the case of a pond, however, the water of which, so far as appears, does not pass out in a stream having the characteristics of a natural water course, the water may, it would seem, be regarded as
Kirby, - Tex. Civ. App. -, 166 S. W. 715.
5. Lynnfield v. Peabody, 219 Mass. 322, 106 N. E. 977; Hyatt v. Albro, 121 Mich. 638, 80 N. W. 641; Stock v. Hillsdale, 155 Mich. 375, 119 N. W. 435; Smith v. Rochester, 92 N. Y. 463; Howe v. Norman, 13 R. I. 488; Mott v. Consumers Water Co., 188 Pa. 521, 41 Atl. 611. See 3 Harv. Law Rev. at p. 1 et seq.
The decisions in Massachusetts and Maine that the state can authorize the taking of water from a "great pond" for a municipal water supply without providing for compensation to the owners of property on the outlet injured thereby. (Watuppa Reservoir Co. v. Fall River, 147
Mass. 548, 1 L. R. A. 466, 18 N. E. 465; Auburn, City of, v. Union Water Power Co., 90 Me. 576, 37 Atl. 335; American Woolen Co. v. Kennebec Water District, 102 Me. 153, 66 Atl. 316) are based on the construction of an early ordinance as reserving to the state the right to devote the waters of such ponds to any public use.
6. Fernald v. Knox Woolen Co., 82 Me. 48, 7 L. R. A. 459, 19 Atl. 93; Potter v. Howe, 141 Mass. 357, 6 N. E. 233; Hass v. McManus, 161 Mich. 372, 126 N. W. 462. And see Runyard v. Oetting Bros. Ice Co., 142 Wis. 471, 125 N. W. 931.
6a. Bacon v. Walden, 186 Mich. 139, 152 N. W. 1061; Wadman v. Trout Lake Lumber Co., 130 Minn. 80, 153 N. W. 269.
In the case of a spring which serves to supply water for a natural watercourse, the owner of the land on which the spring exists is in the position of any upper riparian owner, in that he must utilize the water with due regard to the necessities of a lower proprietor on the watercourse.10 And such water can evidently not be regarded as his property.11 But, as above indicated, a different view might well be taken when there is no outlet for the escape of the water, in the nature of a natural watercourse.12
7. See Vanderwort v. Hughes, 15 N. Mex. 439, 110 Pac. 567; King v. Chamberlin, 20 Idaho, 504; Metcalf v. Nelson, 8 S. D. 87, 59 Am. St. Rep. 746, 65 N. W. 911; Bloodgood v. Ayers, 108 N. Y. 400, 2 Am. St. Rep. 443, 15 N. E. 433.
8. Ante, Sec. 339(a), note 36.
9. Manning v. Wasdale, 5 Ad. & El. 758; Race v. Ward, 4 El. & Bl. 702.
10. Dudden v. Clutton Union Guardians, 1 Hurlst. & N. 627; Mostyn v. Atherton (1899) 2 Ch. 360; Bunting v. Hicks, 70 Law as would the question whether a rivulet by which water passes from such pond along a swale or gully is surface water or a watercourse. The question of the permanence of the pond in the one ease, and of the permanence of the source of supply in the other, is necessarily one of degree. And so the question whether, in a particular case, the water is spread over the surface of the land or is flowing in a defined channel may be one of difficulty, as for instance when the water is flowing in a shallow depression in the ground of a very considerable width.
Times 455; Arnold v. Foot, 12 Wend. 330; Lord v. Meadville Water Co., 135 Pa. 122, 8 L. R. A. 202, 20 Am. St. Rep. 864, 19 Atl. 1007; Howe v. Norman, 13 R. I. 488; Fraser v. Nerney, 89 Vt. 257, 95 Atl. 501; Hollett v. Davis, 54 Wash. 326, 103 Pac. 423; Roberts v. Martin, 72 W. Va. 92, 77 S. E. 535.
11. See citations in next preceding note.
12. Ante, this section, note 7. So it was held that when a new spring broke out, the owner of the land could appropriate the
11G0 Real Property. [Sec. 341
As in the case of a condition in a watercourse artificially created, persons who act upon the existence of such condition may, especially after its continuance for a number of years, be entitled to demand that it shall not be changed to their detriment,12a so it has occasionally been held that the proprietor of land on which a lake or pond exists is precluded to change a condition as regards such lake or pond, as against one who has purchased or improved neighboring land on the assumption that the condition is permanent.12b land even though the effect is to increase the flow in the accustomed channel or channels upon the lower land,20 provided, it has been said, such drainage involves a reasonable use of his land,21 that he inflicts the least possible injury on the lower land,22 that he does the work in a reasonable and careful manner,23 or that the flow is not materially and unduly increased.24 Sometimes it is said, in a general way, that the right of a landowner to rid himself of surface water must be exercised so as not unreasonably or unnecessarily to