Arnold vs. Foot, 12 Wend. 330

By the Court, Savage, Ch, J. The doctrine of. the common law in respect to the use of running waters is no where better expressed than by Chancellor Kent, in his commentaries, 3 Kent, 439. Every proprietor of lands on the banks of a river has an equal right to the use of the water which flows in the stream, as, it was wont to run, without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors above or below him. He has no property in the water itself, but a simple usufruct while it passes along.

He may use the water as it runs in its natural channel, but he cannot unreasonably detain it, or give it another direction. He cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above.

Streams of water are intended for the use and comfort of man, and every proprietor is entitled to a reasonable use of the water, and may apply it to domestic, agricultural, and manufacturing purposes; but not so as to destroy or materially diminish or affect the application of the water by the proprietors below on the stream.' Although each proprietor through whose lands a stream flows, has a right to the use of the water in its natural channel, he may not use it to the prejudice of another. In the language of Mr.

Justice Story, “ The natural stream, existing by the bounty of Providence for the benefit ^anc^ ^lrougfi which it flows, is an incident annexed to the land itself.” 4 Mason, 400. The use of the water for culinary and agricultural purposes implies a diminution of it, but this use must be with the least possible injury to others interested in the same stream. In the case now before the court, the water from the spring in question was wont to run currere solebat, in a direct line, in-xo the plaintiff’s premises.

This was the direction given to it by Providence; it was intended to water the land immediately below the spring; and it must continue to water that land, no matter who may be the owner. The defendant has 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, it thereby he deprives the plaintiff of the resonable use of the water in its natural channel. The evidence shows that the defendant has appropriated the whole water to his own use; and he seems to suppose that he possesses that right.

Such also must have been the opinion of the common pleas — and in this consists the error. The general principle laid down by Lord Ellenborough in Bealey v. Shaw, 6 East, 214, is this: “ The general rule of law, as applied to this subject, is, that independent of any particular enjoyment used to be had by another, every man-has a right to have the advantage of a flow of water in his own land, without diminution or alteration.” This proposition has often been quoted with approbation and adopted by this court, and recently in the case of Crooker v. Bragg, 10 Wendell, 264. The case of Brown v.

Best, 1 Wils. 174, was in some of its circumstances, much like the present, and fully exemplifies the principle. The plaintiff declared upon his possession of the land through which the water used to run, and set out the course thereof, and averred that the defendant obstructed it by digging pits and making ponds, by which the water was diverted and sunk so that no water came to the plaintiff’s grounds.

The defendant pleaded that all the water sprung in his ground; that two pits had been there time out of mind, for the-use of water for the meadows and cattle; that at the time when, &c. those pits were choaked up with mud, and therefore he dag two large pits and made dams and banks, which he insisted it was lawful for him to do. That case and this are just alike, except that in that the defendant claimed a right by prescription to have two large pits full of water, which is not pretended in this case. The question there arose upon demurrer, as to the sufficiency of the defendant’s plea.

Chief Justice Lee held the declaration right, and that the plea admits the existence of the water-course, and acknowledged that the defendant had enlarged the pits. This the chief justice said really amounted to a confession of the plaintiff’s action : for though there might have been pits on the defendant’s ground time out of mind, yet he could not enlarge them, but they must remain as they always had been; and such, he said, is the rule both in the common and civil law. The whole court concurred in giving judgment for the plaintiff.

That case shows what was meant by Lord Ellenborough by the expression independent of any particular enjoyment. The particular enjoyment was the right to fill the two pits. The defendant had used the water in that way time out of mind, and therefore had a prescriptive right to that use besides the natural use of the stream.

So, if the plaintiff in this case had submitted for twenty years to the defendant’s appropriation of the water of the spring, by diverting it from the natural channel and carrying it in a different direction, his right would be gone ; and but for the prescriptive right set up in Brown v# Best, the defendant would have had no right to fill those pits. The court decided that he had'no right to dig mew pits.

The defendant in this case, by ploughing furrows and thus diverting the water from its natural channel, has done the same thing which the defendant in that case did by digging new pits; and in both .cases the consequence is the same — the soakage of the water into the defendant’s ground, whereby the plain-ttiff is deprived of the use of it. The defendant had no such right, and the plaintiff has sustained damage. The action" therefore lies. Judgment of common pleas of Livingston reversed, with costs, and judgment of the justice affirmed.