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 .
The mutual rights of adjoining or neighboring owners in regard to water have been previously considered.26a These rights may, however, be suspended or modified in favor of the owner of one piece of land as against another by the creation of an easement. So, the owner of land upon a natural stream may acquire from the owner of land lower down on the same stream, by grant or prescription, the privilege of polluting the stream, or of appropriating what would otherwise be an unreasonable amount of water,27 or he may acquire the privilege of obstructing the flow of the stream so as to flood the land of an
App. Cas. 155; Pollock, Torts (6th Ed.) 399, note.
25. See ante, Sec. 338.
26. Goddard, Easements, 265; 2 Wood, Nuisances, Sec. 704 et seq. Sturges v. Bridgman, 11 Ch. Div. 852; Dana v. Valentine, 5 Mete. (Mass.) 8; Matthews v. Stillwater Gas etc. Co., 63 Minn. 493, 65 N.
26a. Ante, Sec. 339.
27. Stockport Waterworks Co. v. Potter, 3 Hurl. & C. 300; Wood v. Waud, 3 Exch. 748; Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14312; Village of Dwight v. Hayes, 150 111. 273, 41 Am. St. Rep. 367, 37 N. E. 218; Crosby v. Bessey, 49 Me. 539. 77 Am. Dec. 271; Warner v. Cushman, 82 Me. 168, 19 Atl. 159; Washburn & Moen Mfg. Co. v. Salisbury, 152 Mass. 346, 25 N. E. 724; Smith v. City of Sedalia, 152 Mo. 283, 48 L. R. A. 711, 53 S. W. 907; Lov-erin v. Walker, 44 N. H. 489; Holsman v. Boiling Spring Bleaching Co., 14 N. J. Eq. 335, 346; Provost v. Calder, 2 Wend. (N. Y.) 517; Winchester v. Osborne, 61 N. Y. 555; Geer v. Durham Water Co., 127 N. C. 349, 37 S. E. 474; Talbot v Joseph, 78 Ore. 308, 155 Pac. 184; Mccallum v. German-town Water Co., 54 Pa. St. 40; Messinger's Appeal, 109 Pa. St.
Upper proprietor.28 So, land may be subject to an easement precluding the owner thereof from cutting off percolating water, to the detriment of a neighboring owner, though otherwise he has the privilege of doing so;29 or an easement may exist modifying the rights of adjoining owners as to the discharge or flow of surface waters.30
- Right to take water from spring. Not infrequently the owner of land on which there is a spring or well grants to a neighboring land owner the privilege of taking water therefrom, usually by means of a pipe or conduit.30a In such a case, if the water can be regarded as belonging to the owner of the land, the grantor, there is, it appears, the grant of a profit a prendre,30b while if the water is publici juris, that is, belongs to no one, the grant is merely of the privilege of taking it across the grantor's land, of an easement merely.
Exists in connection with a supply of water of a temporary character merely, the watercourse thus formed must necessarily be regarded as artificial rather than natural. When however the source of supply is permanent in character the question as to whether the water course is to be regarded as natural or artificial is by no means a simple one. As before remarked,33 if water flows from a permanent source of supply it might well be regarded as a natural watercourse through the entire extent of its flow, although it flows in part through an artificial channel, provided such channel is of a permanent character. For instance, when the water of a natural watercourse is permanently diverted in part by the construction of a mill race or "cut off," the flow of water in this new channel might well be regarded as part of a natural watercourse. The cases however tend to regard such flow as constituting, originally at least, an artificial, rather than a natural watercourse.34
285, 4 Atl. 162; Olney v. Fenner, 2 R. I. 211, 57 Am. Dec. 711; Rood v. Johnson, 26 Vt. 64.
A privilege in a riparian owner to divert or pollute the water of the stream is not strictly an easement in the land of the owner who suffers by such diversion or pollution, it has been said, since it involves no use of the latter's land, or restriction of its use. Cockburn, C. J., in Mason v. Shrewsbury & H. Ry Co., L. R. 6 Q. B. 578; Geer v. Durham Water Co., 127 N. C. 349; 37 S. E. 474. It does, however, involve the privilege of doing an act to the detriment of such land, that is, of depleting the water flowing thereby, and the statement referred to would seen unduly to narrow the definition of an easement. See article by Professor Wesley N. Hohfield, 27 Yale Law Journ. 66.
28. Wright v. Howard, 1 Sim. & S. 190; Central Georgia Power Co. v. Cornwell, 141 Ga. 843, 82 S. E. 243; Ballard v. Struckman, 123 111. 636, 14 N. E. 682; Brook-ville & M. Hydraulic Co. v. Butler, 91 Ind. 134; Williams v. Nelson, 23 Pick. (Mass.) 141, 34 Am. Dec. 45; Tourtellot v. Phelps, 4 Gray
(Mass.) 370: Turner v. Hart, 71 Mich. 128, 15 Am. St. Rep. 243, 38 N. W. 890; Cornwell Mfg Co. v. Swift, 89 Mich. 503, 50 N. W. 1001; Swan v. Munch, 65 Minn. 500, 35 L. R. A. 743, 60 Am. St. Rep. 491, 67 N. W. 1022; Winnipiseo-gee Lake Co. v. Young, 40 N. H. 420; Tabor v. Bradley, 18 N. Y. 113, 72 Am. Dec. 498; State v. Suttle, 115 N. C. 784, 20 S. E. 725; Bobo v. Wolf, 18 Ohio St. 463; Campbell v. Mccoy, 31 Pa. St. 263; Weed v. Keenan, 60 Vt. 74, 6 Am. St. Rep. 93, 13 Atl. 804.
29. Chasemore v. Richards, 7 H. L. Cas. 349, 2 Gray's Cas. 12; Whitehead v. Parks, 2 Hurl. & N. 870; Johnstown Cheese Mfg. Co. v. Veghte, 69 N. Y. 16, 25 Am. Rep. 125; Davis v. Spaulding, 157 Mass. 431, 19 L. R. A. 102, 32 N. E. 650.
30. Wright v. Willams, 1 Mees. & W. 77; Gregory v. Bush, 64 Mich. 37, 8 Am. St. Rep. 797, 31 N. W. 90; Phinizy v. City Council of Augusta, 47 Ga. 260; Ross v. Mackeney, 46 N. J. Eq. 140, 18 Atl. 685; Louisville & N. Ry. Co. v. Mossman, 90 Tenn. 157, 25 Am. St. Rep.. 670, 16 S. W. 64.