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 question has occasionally arisen whether, when one has acquired by prescription an easement in another's land or in diminution of another's natural rights, such other has a right to insist upon the continued exercise of the easement. The question has arisen ordinarily, if not exclusively, in connection with water rights. There are a number of decisions adverse to any such "reciprocal easement" in the owner of the servient tenement,86 it having been decided, for instance, that a riparian owner has no right to insist that an upper owner, who has acquired a prescriptive right to maintain a dam in a certain way, shall continue to maintain it in the same way,87 and likewise that one whose land has been utilized for the prescriptive period for the the prescriptive right to take water from a watercourse, that it must appear that a definite amount of water was taken during the prescriptive period. Custer Consol. Mines Co. v. City of Helena, 52 Mont. 35, 156 Pac. 1090; Hayes v. Silver Creek, etc. Co. 136 Cal. 238, 68 Pac. 704; Logan Guichard, 159 Cal. 592, 114 Pac. 989.
84. Shrewsbury v. Brown, 25 Vt. 197; Darlington v. Painter, 7 Pa. 473; Osten v. Jerome, 93 Mich. 196, 53 N. W. 7.
85. Allen v. San Jose Land & Water Co., 92 Cal. 138, 15 L. R. R. 93, 28 Pac. 215.
86. See in addition to the cases cited in the following notes, Mason v. Shrewsbury & H. R.
Co. L. R., 6 Q. B. 678; Ark-wright v. Gell, 5 Mees & W. 203; Gale, Easements (8th Ed.) 296. Editorial note 11 Columbia Law Rev. at p. 770. The cases bearing on the subject are stated and discussed at length in 3 Farnham, Waters, Sec.Sec. 819, 827b, 828; and in 50 L. R. A. at p. 841, note to Pewaukee v. Savoy. 87. Weare v. Chase, 93 Me. 264, 44 Atl. 900; Brace v. Yale, 99 Mass. 488 (semble); Sparks Mfg. Co. v. Town of Newton, 57 N. J. Eq. 367, 41 Atl. 385; Fel-ton v. Simpson, 11 Ired L. (33 N. C.) 84; Vliet v. Sherwood, 35 Wis. 229; Contra, Belknap v. Trimble, 3 Paige, Ch. (N. Y.) 577, 605; Middleton v. Gregorie, 2 Rich. L. (S. C.) 638.
Discharge of water has no right to demand that the water shall continue to be discharged on or over his land.88
So far as the doctrine of prescription is concerned, the decisions above referred to would appear to be absolutely unexceptionable. In order that one may acquire a prescriptive right in another's land his user of such land during the prescriptive period must be actionable,88 and the doctrine of reciprocal rights based on prescription would seem to be tenable only on the assumption that, because A has a right of action during the prescriptive period against B by reason of B's infringement of A's rights, B has a right of action during such period against A, an assumption which is evidently unwarranted. It may no doubt occur that coincidently with A's adverse user of B's land, on account of which B has a right of action against A, B makes an adverse user of A's land, on account of which A has a right of action against B, but such a conjunction of circumstances is necessarily of but infrequent occurrence. And as has been judicially remarked, "the enjoyment of the easement is of itself no evidence that the party enjoying it has become subject to the servitude of being bound to exercise the easement for the benefit of the neighbor. A right of way is no evidence that the party entitled thereto is under a duty to walk; nor a right to eavesdropping on the neighbor's land, that the party is bound to send on his rainwater to that land."89 In spite, however, of the valid theoretical objections to such a doctrine of reciprocal rights by prescription, there are a number of judicial expressions in its favor and the tendency of the cases in this country appears to be in that direction. so far as concerns rights as to water. It has, for instance, been said that the rule as to the adverse enjoyment of water must be reciprocal, and one who has taken the water from the original channel, and has continued to divert and enjoy it for a period beyond the time fixed by the statute of limitations as to real actions, cannot afterwards be permitted to restore it to its original state when it will have the effect to destroy or materially injure those through or by which it formerly flowed.90 And there are a number of cases in which a like view has been asserted, with more or less distinctness, as regards the right of one who has changed the channel of a stream to restore it to its former channel as against one who has enjoyed it during the prescriptive period in its artificial channel.91 It has also been asserted that one who has acquired a prescriptive right of flowage on another's land cannot discontinue or lessen the flowage to the detriment of persons whose lands are subjected thereto as well as to others,92 and that an upper proprietor who has
88. Gaved v. Martyn, 19 C. B. N. S. 732; Oliver v. Lockie, 26 Ont. 28; Lambeye v. Garcia, 18 Ariz. 178, 157 Pac. 977; Burk-hart v. Meiberg, 37 Colo. 187, 6 L. R. A. N. S. 1104, 119 Am. St. Rep. 279, 86 Pac. 98; Mitchell v. Parks, 26 Ind. 363; Lake Drum-mond Canal & Water Co. v. Burn-ham, 147 N. C. 41, 17 L. R. A. (N. S.) 945, 125 Am. St. Rep. 527, 60 S. E. 650; Peter v. Caswell, 38 Ohio St. 518; Hill v. American Land & Live Stock Co., 82 Ore. 202, 161 Pac. 403; Garns v. Rollins, 41 Utah, 260, Ann. Cas. 1915C, 1159, 125 Pac. 867; Roberts v. Gribble, 43 Utah, 411, 134 Pac. 1014; Lyons v. Ingle, 91 Wash. 179, 157 Pac. 460.
88a. Ante, Sec. 524.
89. Per Erle, C. J., in Gaved v. Martyn, 19 C. B. N. S. 732.
90. Matthewson v. Hoffman, 77 Mich. 420, 6 L. R. A. 349, 43 N. W. 879; Broadwell Special Drainage District v. Lawrence, 231 111. 86, 83 N. E. 104; Kray v. Muggli, 84 Minn. 90, 54 L. R. A. 473, 87 Am. St. Rep. 332, 86 N. W. 882.
91. Delaney v. Boston, 2 Harr.. (Del.) 489; Murchie v. Gates, 78 Me. 300, 4 Atl. 698; Matthewson v. Hoffman, 77 Mich. 420, 43 N. W. 879, 6 L. R. A. 349; Smith v. Musgrove, 32 Mo. App. 241; Shepardson v. Perkins, 58 N. H. 354; Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344. See Taggart v. Jaflrey, 75 N. H. 473, 28 L. R. A. (N. S.) 1050, 139 Am. St. Rep. 729, 76 Atl. 123. Contra, Peter v. Caswell, 38 Ohio St. 518. In North Fork Water Co. v. Edwards, 121 Cal. 662, 54 Pac. 69, it was held that one who had a prescriptive right to conduct water through a ditch on another's land could not alter the ditch so as to allow storm water, which had previously passed away by the ditch, to run on the land.
92. Kray v. Muggli, 84 Minn. 90, 54 L. R. A. 473, 87 Am. St. Rep. 332, 86 N. W. 882; Fin &
Regarded as in the position of a riparian owner on a natural lake or pond, and as such entitled to object if the person who created the pond or lake takes active measures to lower its level. With this may be compared the English view, that where an artificial watercourse or an artificial diversion of a natural watercourse is not in its nature merely temporary, the owner of land by or through which the water flows may have, on the theory of prescription, a right to the uninterrupted flow of the water, or to make a particular use thereof, the question of whether a grant of such a right shall be presumed being determined with reference to the circumstances under which the artificial watercourse or diversion was presumably created, and the mode in which it has been in fact used and enjoyed.95
2 R. P. - 56 acquired by prescription the right to change the natural manner of flow of a stream cannot restore the natural manner of flow to the detriment of mills erected with reference to such changed manner of flow.93 In a considerable number of these cases, however, in which such reciprocal rights are recognized, the element of equitable estoppel appears to have had considerable weight, that is, the court considered that, the servient owner having incurred expenditures under the reasonable supposition created by the dominant owner's conduct, that the exercise of the easement would not be discontinued, the dominant owner should not be allowed to discontinue it. The doctrine of estoppel is evidently entirely independent of any doctrine of reciprocal easements by prescription, and if the former doctrine is otherwise applicable in favor of the servient owner, it is difficult to see why its application should be limited to the case in which the user of his land by the. dominant owner has ripened into a right by reason of its continuance for the prescriptive period.
So far as concerns the right of one who has, for the prescriptive period, caused the water of a stream to flow through another's land, subsequently to restore the stream to its original channel, to the detriment of such other, the latter might perhaps be protected, in some states,94 upon the theory that, after the prescriptive period has elapsed, even if not before, the artificial channel is to be regarded as the natural channel, so far as concerns the rights of those through whose land it passes, and so in the case of a lake or pond created by the flowage of another's land, the person whose land is subjected in part to the flowage might be
Feather Club v. Thomas, - Tex. Civ. App - , 138 S. W. 150. See also Smith v. Youmans, 96 Wis. 103, 37 L. R. A. 285, 65 Am. St. Rep. 30, 70 N. W. 1115; Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 50 L. R. A. 836, 74 Am. St. Rep. 859.
93. Belknap v. Trimble, 3 Paige 573; Murchie v. Gates, 78 Me. 300, 4 Atl. 698. See Marshall Ice Co. v. La Plant, 136 Iowa, 621, 12 L. R. A. (N. S.) 1073, 111 N. W. 1016.
94. Ante, Sec. 339(h).