§ 388. The right to use water of a stream for irrigation. -Rights of irrigation are perhaps more difficult to subject to abstract rules than any others. Technically, it comes within the class of artificial rather than natural uses, inasmuch as its exercise depends upon some labor and mechanical contrivance or work of man; and how far a riparian proprietor can be permitted to divert the water of the stream has been the subject of repeated judicial inquiry.

The general rule appears to be that the owner of land, by or through which a stream runs, may, in all cases, use so much of the water as is necessary for his family and his live-stock; but he has no right to use it in irrigating his land if he thereby deprives other proprietors of the reasonable use of the water in its natural channel. What is a just and reasonable use may often be a difficult question, depending on various circumstances.1

purposes, it is absolutely indispensable. In civilized life, water for cattle is also necessary. These wants must be supplied, or both man and beast will perish." "From these premises would result this conclusion, that an individual owning a spring upon his own land, from which water flows in a current through his neighbor's land, would have the right to use the whole of it if necessary to satisfy his natural wants. He may consume all the water for his domestic purposes, including water for his stock. If he desires to use it for irrigation or manufactures, and there be a lower proprietor to whom its use is essential to supply his natural wants, or for his stock, he must use the water so as to leave enough for such lower proprietor. Where the stream is small, and does not supply water more than sufficient to answer the natural wants of the different proprietors living on it, none of the proprietors can use the water for either irrigation or manufactures. Each proprietor may in his turn, if necessary, consume all the water for the supply of these natural wants; and if, beyond the supply of these, any surplus is left, all have a right to participate in its benefits, and no rule can be laid down as to how much each may use without infringing the rights of others. The question, in such cases, must be referred to a jury to say whether a party has, under all the circumstances, used more than his just proportion of the water." And tried by the tests which had thus been premised, the Court held that defendant was not warranted in thus diverting the water to his wells. (Ingraham v. Hutchinson, 2 Conn. 584; Blanchard v. Baker, 8 Me. 253.)

13 Kent's Com. 441, Note 2. "A riparian proprietor has the right to irrigate his land from the stream, if he does not interfere with the rights of other proprietors; and whether this use be reasonable or not depends on the circumstances of each case." (Evans . Merriweather, 3 Scamm. 492.)

Pitts v. Lancaster Mills, 13 Metc. 156. "What would be a reasonable and proper use of a considerable stream, ordinarily carrying a large volume of water, for irrigation, or other similar uses, would be an unreasonable and injurious use of a small stream just sufficient to furnish water for domestic uses, for farm-yards, and watering-places for cattle." (Elliott v. Fitchburg R. R. Co. 10 Cush. 191.)

§ 389. Reasonable consumption of water depends on circumstances.-The reasonableness of the detention of the water by the upper proprietor must depend on the circumstances of each case, and is to be judged by the jury. The law requires of the party that he should use the stream in a reasonable manner; and one of the conditions of the use is that he do not destroy, or render useless, or materially lessen or affect, the application of the water by those situated above or below him on the stream.1

§ 390. Right of proprietor to have water unpolluted.— The owner of land through which a stream runs is entitled to the use of the water in its natural state; and any one who pollutes it so as to render it unfit for such use is liable in an action for damages, unless he has acquired, by grant or prescription, an adverse right against the owner of the land. And where a stream is polluted by one who has not acquired a right to do so, an action will lie against him by the owner of the land through which the stream flows, although he may not be able to show any actual damage by injury to his live-stock or to persons on his farm. His right is to the water, pure and clear, and any interference with that right is actionable.

The manner in which streams are most commonly polluted is by the operating of mills or manufactories upon the banks, and making use of the passing waters so as to taint them, or allowing deleterious or discoloring matter to pass from their works into the stream.

The right to do so may be acquired by direct purchase of

1 The interest of riparian proprietors in a stream is not a title to the water, but merely a right to use it while passing over the land. No one can divert or detain it unreasonably, to the injury of the usufructuary rights of others below him, in the nature of a nuisance, which may be abated, or for which an action on the case will lie.

Agawam C. Co. v. Edwards, 36 Conn. 476, 497. "A proprietor cannot, for the purpose of irrigating his own land, wholly abstract or divert the water-course, or take such unreasonable quantity of water as to deprive other proprietors of the substantial benefits which they might derive from it if not diverted or used unreasonably." (Elliott v. F. R. R. Co. 10 Cush. 191; Arnold v. Foot, 12 Wend. 330.) "The defendant had a right to use so much of the water as was necessary for his family and his cattle, but had no right to use it for irrigating his meadow, if thereby he deprives the plaintiff of the reasonable use of the water in its natural channel."

the privilege from the parties who, being on the stream lower down, are affected, or by adverse possession and user by the person who commits or suffers the act complained of for a period equivalent to that prescribed in the Statute of Limitations applicable to title to lands by prescription.

In the measure of damages may be considered such as naturally or necessarily result from the pollution of the watersthe diminution of rental or sale value of land, the inconvenience suffered, loss of animals, or such other loss, inconvenience, or injury as may have resulted directly from the act complained of.

With the right to recover for damages suffered by the unlawful pollution of the waters of a stream is coupled the further relief of an action to abate the nuisance; and the two actions, being for the same act, may be joined, as a general rule.1

§ 391. Accretion, or land created by alluvion, through the action of the water of a stream leaving deposits and creating soil along the shore, belongs to the riparian proprietors on the bank of the stream, so that those who own land fronting on a river are entitled to the land added thereto by accretion, their respective rights to be ascertained by extending the original river frontage of the respective parcels belonging to the several

1 Murgatroyd v. Robinson, 7 Ellis & Black. 391; Dickenson v. Grand Junction Canal Co. 7 Exch. 282; Wood v. Wand, 3 Ibid, 748; Embrey v. Owen, 6 Exch. 353; Gardner v. Trustees Etc. 2 Johns. Ch. 162; Gladfelter v. Walker, Court of Appeals of Maryland, July, 1875-to appear in 40 Md. This was an action upon a complaint by a farmer, through whose land a stream ran, against the owners of a paper mill for pollution of the stream. The substance of the case appears from the opinion, which was that "the owner of land through which a stream flows is entitled to the use of the water in its natural state; and any one who pollutes it, so as to render it unfit for such use, is liable in an action for damages, unless he has acquired, by grant or prescription, an adverse right against the owner of the land. And where a stream is polluted by one who has not acquired a right so to do, by long enjoyment or grant, an action will lie against him by the owner of the land through which the stream flows, although he may not have suffered any actual damage. Where the owner of a farm through which a stream flows brings an action for damages for polluting the stream, he is entitled to recover such damages as naturally or necessarily resulted from the wrongful acts of the defendant; the loss of an opportunity by the plaintiff to rent his grist-mill, the diminution of the rental value of his farm, and the inconvenience he may have been put to in the use of the same, resulting directly from the conduct of the defendant, are proper elements for the consideration of the jury in estimating the damages."

proprietors, as nearly as practicable at right angles with the course of the river to the thread, or middle line of the stream, as it exists after the accretion is formed.1

Alluvion is the addition to riparian lands, gradually and imperceptibly made by the water; it differs from reliction, the increase of land by the sudden retreat of the sea or a river, in that the land, in the latter case, generally belongs to the State,2 and is the direct opposite to avulsion, where, by the immediate and manifest power of a stream, the soil is taken suddenly from one man's estate and carried to another's, and where the title remains in him from whose land it was detached. The test as to what is gradual and imperceptible, under the rule of definition given, is that, though the persons who notice the change may see, from time to time, that progress is being made by the increase of soil, they could not perceive it while the process was going on. It makes no difference what may be the producing cause of the deposit or increase, whether natural or artificialthe result as to ownership remains the same: the increase of land belongs to him who owns that land to which it becomes attached. The riparian right to this increase is an essential and inherent attribute of the original ownership; it rests in the law of nature, and is of like character as that of the owner of a tree to the fruit it bears, and of the owner of animals to their natural growth and increase. The owner is subjected to the risk of loss by imperceptible wearing away of his property, and the chances of gain to him by the same cause operating upon property of others. If there be a gradual loss, he must bear it; if a gradual gain, it is his. The principle applies alike to streams that do and those that do not overflow their banks, and where

1 Miller v. Hepburn, 8 Bush, Ky. 326; 3 Kent's Com. 428. "Land formed by alluvion, on the bank of a river not navigable, by the gradual wearing away of the opposite bank, is to be divided, ordinarily, according to this rule: Ascertain the length of the old shore-line, and of the part of it belonging to each proprietor; Then measure off for each proprietor a part of the new shore-line, in proportion to what he held in the old shore-line; and then draw lines from the boundaries at the ancient bank to the points of division on the new shore as thus ascertained. In this way, if such land is formed in the bend of the river, and the new shore-line is just one-half the length of the old one, each proprietor will take of the new shore-line just one-half the extent of his former shore-line." (Batchelder v. Keniston, 51 N. H. 496.)

2 Schultz on Aq. Rights, 115, 138; Angell on Tide Waters, 75; Bract. 221; 2 BI. Com. 262.

dykes and other defenses are, and where they are not, used to restrain the water.1

§ 392. Islands situated in a river are, as to title, subject to the same general rule-that is to say, they belong to the person who owns the land on that bank of the stream to which the islands lie nearest; and where the two channels caused by the division of the stream by the island are both considerable, as compared to the entire volume of water, so that the island is in the middle of the river, the dividing line should be run through the middle of the island, and each proprietor would own half. In case the island is formed by accretion, and is in the middle of the stream, the division line should be according to the original dividing line, or filum aquæ, the center of the stream, continued on from the place where the waters begin to divide.2

§ 393. Ownership of water-power of a stream. The water-power of a stream for milling purposes is a species of property to which the riparian proprietor may justly lay claim.

1 "Alluvium is an addition to land, gradually and imperceptibly made by water to which the land is contiguous. The test as to what is gradual and imperceptible, in the sense of the rule, is that, though the witnesses may see, from time to time, that progress has been made, they could not perceive it while the progress was going on." (County v. W. Ferry Co. U. S. Sup. Ct. Feb. 1875.)

"Whether it is the effect of natural or artificial causes, makes no difference, the result as to ownership in either case is the same. The riparian right to future alluvium is a vested right; it is an essential and inherent attribute of the original property." (Ibid.)

23 Kent's Com 428. "The whole of the old and the whole of the new line are to be taken into consideration, so that each may have his due proportion of the water-front." (O'Donell v. Kelsey, 4 Sandf. 202; Granger v. Swart, 1 Woolw. 88; Schools v. Risley, 10 Wall. 91.)

These general rules apply where accretions occur slowly, from year to year; but if the alteration be sudden, it is not deemed within the strict rule of accretions.

Chancellor Kent states the proposition thus: "If a fresh-water river, running between the lands of separate owners, insensibly gains on one side or the other, the title of each continues to go ad filum medium aquæ; but if the alteration be sensibly and suddenly made, the ownership remains according to the original bounds; and if the river should then forsake its channel, and make an entirely new one in the lands of the owner on one side, he will become owner of the whole river, so far as it is inclosed by his land." (3 Kent's Com. 428; Chapman v. Hoskins, 2 Md. Ch. 485.)

"The title of a riparian pro

Ang. on Water-Courses, Sec. 53; 2 Bl. Com. 519. prietor is extended by alluvium or dereliction only where the accretion of dry land is by imperceptible degrees." (Halsey v. McCormick, 18 N. Y. 147.)