Nuisances relative to water rights fall into three classes, (1) those which result in diverting water so as to deprive the plaintiff of its use to which he was entitled; (2) those which result in damaging the plaintiff's land by turning water upon it, and (3) those which result in the pollution of water.

All persons owning land abutting on a running stream have certain rights in the water of such stream which all other persons are bound to recognize and respect.50 As a general rule, a riparian owner is entitled to have any stream running through or bordering on, his land, flow in its natural manner, without any material alteration or diminution either as to quantity or quality.51 Each riparian proprietor, however, is entitled to a reasonable use of the waters even although such use may diminish the natural flow to lower riparian proprietors.52 Riparian owners may also acquire special rights in the water by grant, license, or prescription.53 The general rules of law governing the rights of riparian owners are very clearly set out by the Supreme Court of Illinois in the case of Evans vs. Merriweather:54 "In an early case decided in England, it is laid down that 'A water course begins ex jure naturae', and having taken a certain course, naturally 'cannot be diverted.' " The language of all the authorities is, that water flows in its natural course, and should be permitted thus to flow, so that all through whose land it naturally flows, may enjoy the privilege of using it. The property in the water, therefore, by virtue of the riparian ownership, is in its nature usufructury, and consists, in general, not so much of the fluid itself as of the advantage of its impetus. A riparian proprietor therefore, though he has undoubted right to use the water for hyrdaulic or manufacturing purposes, must so use it as to do no injury to any other riparian proprietor. Some decisions, in laying down the rights of riparian proprietors of water courses, have gone so far as to restrict their right in the use of water flowing over their land, so that there shall be no diminution in the quantity of the water, and no obstruction to its course.

44 Thurston vs. Hancock, 12 Mass., 220.

45 Patton vs. Holland, 19 Johns, 92. Unless the plaintiff had acquired a right by grant or prescription to have the land supported in its present condition.

46 Strayon vs. Knowles, 6 Hurl. & W., 454.

47 4 See Bigelow on Torts, p. 223.

48 Lemmon vs. Webb., 3 Ch., 1.

49 Grandona vs. Loudal, 70 Cal.,

161; Countryman vs. Lightfall, 24 Hun. (N. Y.), 405. 50 North Shore R. Co. vs. Pion, 14 App. Cas., 612; Elgin vs Elgin Hydraulic Co., 85 111. App., 182; Hoehl vs. Muscatine, 57 Iowa, 444.

51 Mason vs Hill, 5 B. A A. D., 1, 27 E. C. L., 1; Bearley vs. Shaw, 6 East, 208.; Norbiry vs Kitchin, 15 L. T. N. S., 501; Buddington vs. Bradley, 10 Comm., 213, 26 Am. Sec, 386.

52 Standen vs. New Rochelle Water

Co., 91 Hun. (N. Y.), 272; Merrifield vs. Worcester, 110 Worcester, 110 Mass., 219.

53 For a further treatment of this subject, Subject of Real

Property, Vol. VI, Subject 17.

54 4 lll., 492.

The decision last referred to cannot, however, be considered as furnishing the true doctrine on this subject. Mr. Justice Story in delivering the opinion of the court in the case of Tyler vs. Wilkinson, says: 'I do not mean to be understood as holding the doctrine that there can be no diminution whatever, and no obstruction or impediment whatever, by a riparian proprietor in the use of water as it flows; for that would be to deny any valuable use of it. There may be, and there must be of that which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is the injury of the other proprietors or not. There may be diminution in quantity, or a retardation or acceleration of the natural current, indispensable for the general and valuable use of the water, perfectly consistent with the use of the common right. The diminution, retardation, or acceleration, not positively and sensibly injurious, by diminishing the value of the common right, is an implied element in the right of using the stream at all. The law here, as in many other cases, acts with a reasonable reference to public convenience and general good, and is not betrayed into a narrow strictness, subversive of common use, nor into an extravagant looseness, which would destroy private rights.' The same learned judge further says: That of a thing common by nature, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive rights. This doctrine is fully sustained by English and American cases. In the case of Arnold vs. Foot, it was held, where a defendant had diverted the water from a spring rising on his land, to irrigate his meadow, 'that he had a right to use so much as is necessary for his family and his cattle, but he has no right to use it for irrigating his meadow, if thereby he deprive the plaintiff of the reasonable use of the water in its natural channel.'

"Each riparian proprietor is bound to make use of running water, as to do as little injury to those below him as is consistent with a valuable benefit to himself. The use must be a reasonable one. Now the question fairly arises, is that a reasonable use of running water by the upper proprietor, by which the fluid itself is entirely consumed? To answer this question satisfactorily, it is proper to consider the wants of man in regard to the element of water. These wants are either natural or artificial. Natural are such as are absolutely necessary to be supplied, in order to his existence. Artificial, such only, as by supplying them, his comfort and prosperity are increased. To quench thirst, and for household purposes, water is absolutely indispensable. In civilized life, water for cattle is also necessary. These wants must be supplied, or both man and beast will perish.