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 may, for the purpose of procuring water from a stream or other source of supply, have the privilege of having water flow to his land over intervening land belonging to another, in an aqueduct or other artificial channel, and such a privilege constitutes an easement in the intervening land.31 Likewise one may have an easement consisting (primarily) of the privilege of discharging surface or waste water, or sewage, through or on another's land.32
In case the privilege of having water thus pass to or from one's own land over or through another's land
30a. See e. g. Bissell v. Grant, 35 Conn. 288; Rollins v. Blackden, 112 Me. 459, 92 Atl. 521; Goodrich v. Burbank, 12 Allen (Mass.) 459; Johnson v. Knapp, 146 Mass. 70, 15 N. E. 134; Howard v. Brit-ton, 67 N. H. 484, 41 Atl. 269; Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182; Paine v. Chandler, 134 N. Y. 385, 19 L. R. A. 99, 32 N. E. 18; Woodring v. Hol-lenbach, 202 Pa. St. 65, 51 Atl. 318; Chase v. Cram, 39 R. I. 83, 97 Atl. 481; Vermont Central R. Co., v. Hills, 23 Vt. 681; Corevo v. Hol-man, 82 Vt. 34, 71 Atl. 718; Wheelock v. Jacobs, 70 Vt. 162, 67 Am. St. Rep. 659, 43 L. R. A. 105, 40 Atl. 41; Diffendal v. Virginia M. Ry. Co., 86 Va. 459. 10 S. E. 536; Warren v. Syme, 7 W.
30b. Post, Sec. 381.
31. Taylor v. Corporation of St. Helens, 6 Ch. Div. 264; Prescott v. White, 21 Pick. (Mass.) 341; Legg v. Horn, 45 Conn. 409; Cole v. Bradbury, 86 Me. 380, 29 Atl. 1097; Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156; Cannon v. Atlantic Coast Line R. Co., 97 S. C. 233, 81 S. E. 476.
32. Wood v. Saunders, 10 Ch. App. 582; Humphries v. Cousins, 2 C. P. Div. 239; Brown v. Honey-field, 139 Iowa, 414, 116 N. W. 731; White v. Chapin, 12 Allen (Mass.) 516; Larsen v. Peterson. 53 N. J. Eq. 88, 30 Atl. 1094; Treadwell v. Inslee, 120 N. Y. 458, 24 N. E. 651; Sanderlin v. Baxter, 76 Va. 299, 44 Am. Rep. 165.
Any rights or privileges as to the use of the water of an artificial watercourse in favor of the owners of land thereon or thereunder, even though bearing a superficial resemblance to the "natural rights" of riparian land owners, are in the nature of easements,35 and there have been a number of decisions in connection with the question of the existence of such easements. As before stated, in some cases owners of land abutting on an artificial watercourse have been regarded as acquiring, by reason of the passage of time, on the theory, it seems, of acquiescence or estoppel, rights as to the water of the watercourse similar to the natural rights of riparian owners on a natural watercourse.36 In other cases the existence of such easements similar to natural rights has been based on a presumption of grants to that effect, as stated in the next following paragraph.
33. Ante, Sec. 339, note 33a.
34. Ante, Sec. 339, note 33c.
35. Wood v. Waud,3exch.748; Rameshur Pershad Narain Singh v. Koonj Behari Pattuk, 4 App. Cas. 121; Baily & Co. v. Clark. Son & Morland (1902) 1 Ch. 649. 36. Ante, Sec. 339, note 33c.
When a watercourse is constructed over the lands of several persons, for utilization by all of them, it may properly be presumed, it has been held, in the absence of evidence to the contrary, that the intention was that they should enjoy the same rights among themselves as if they were riparian owners on a natural stream,37 that, in other words, there were mutual grants by them of easements to that extent. And there are English cases in which such a presumption has been applied in connection with a watercourse flowing in an ancient channel, of unknown date, but evidently of artificial creation, and apparently intended for the benefit of the various owners of the land through which it passes.38
In the case of an artificial watercourse or drain over the land of one person, which had its inception exclusively in the needs of another person, as when one person acquires by grant a privilege to have water flow in a stream either to or away from his land over the land of another, or causes such flow over another's land without any privilege of so doing, the person whose land is thus burdened would have, in the first place, no right to insist on a continuance of the burden; that is, he would have no easement to have the flow of water so continued for his benefit, nor would he, not .having the right to have it continued, have any right as to the water itself.39 In other words, he would not have the rights, as to the water, of a riparian proprietor on a natural stream. Whether, after the flow has continued for the prescriptive period, he could claim an easement by prescription as to the flow of water, would seem largely to depend on the acceptance of the doctrine of reciprocal easements by prescription elsewhere referred to.40 A somewhat analogous question has arisen, in connection with natural watercourses, whether after the channel has been changed and has so remained for a number of years, the stream can be restored to its former channel as against persons who have improved and utilized their land upon the assumption that the change would be permanent.41
37. Burrows v. Lang (1901) 2 Ch. 502; Whitmores (Edenbridge), Ltd. v. Stanford (1909) 1 Ch. 427; Townsend v. Mcdonald, 12 N. Y. 381; Cottel v. Berry, 42 Ore. 593, 72 Pac. 584; Harrington v. De-maris, 46 Ore. Ill, 1 L. R. A. N. S. 756, 77 Pac. 603, 82 Pac. 14; Cloyes v. Middlebury Elec. Co., 80
Vt. 109. 11 L. R. A. N. S. 693, 66 Atl. 1039.
38. Roberts v. Richards, 50 L. J. Ch. 297. Baily & Co. v. Clark, Son & Morland (1902) 1 Ch. 649.
39. Burrows v. Lang (1901) 2 Ch. 502; Whitmores (Edenbridg?), Ltd. v. Stanford (1909) 1 Ch. 427.
In England it is stated that if a watercourse is created for a merely temporary purpose, there is no room for the presumption of a grant, in favor of a person whose land abuts thereon, of a right as to the use of the water,42 but "temporary purpose" appears to include every purpose for which an individual would be likely to create or divert a watercourse,43 and the result of the English cases seems to be, at least approximately, that if a watercourse is created by one for his own purposes, a grant by him of a right as to the water will not be presumed, while if created by several persons for their mutual benefit, across their own lands, mutual grants of rights as to the use of the water will be presumed.44