This water-power to which a riparian owner is entitled consists. of the fall in the stream when in its natural state as it passes through his land, or along the boundaries of it. Or, in other words, it consists of the difference of level between the surface where the stream first touches his land and the surface where it leaves it, and hence the rule must be, that a man has a right to dam back the water to his upper line, as the water was, and as the bottom of the creek was, in a state of nature when he built his dam.1

§ 394. Mill privilege. The use of this power of a stream, or, as it is technically termed, "mill privilege," is, as a rule, exclusive and adverse to all the world; and hence one of the most common instances of acquiring a right by adverse enjoyment is that of obstructing the waters of a stream, and often of thereby setting back water upon the land of another, by means of a dam erected upon the owner's land for the purpose of raising a head of water for the operation of mills or hydraulic works. If this is continued uninterruptedly and adversely for the term of twenty years, or such other period of time as prescribed by the Statute of Limitations of actions concerning possession of real property, the mill-owner acquires thereby an easement, or right to obstruct 2 such stream to the extent to which it shall

1 McCalmot v. Whitaker, 3 Rawle, 84, 90; Plumleigh v. Dawson, 1 Gilm. 544. "The general doctrine relating to water-courses is, that every proprietor is entitled to the flow of the water in its natural course, and to the momentum of its fall on his own land." (Van Hoesen v. Coventry, 10 Barb. 518, 520; Davis v. Fuller, 12 Vt. 178.)

But the reasonableness of the detention of the water by a mill-owner depends on the size and nature of the stream, and the exigencies of the business to which it is subservient. (Pool v. Lewis, 41 Ga. 162; Webster v. Holland, 58 Me. 168; Daniels v. Chaffin, 28 Iowa, 327.)

2 Powers v. Osgood, 102 Mass. 454; Carlisle v. Cooper, 21 N. J. Eq. 576; Washburn on Easements, 243; Seeley v. Brush, 35 Conn. 419; Heiskell v. Gross, 7 Phil. (Pa.) 317. 'Any incorporeal rights which may be lawfully granted, as the right to divert water from, or to flow it upon, the land of another, may be acquired by prescription." (Phinizy v. Augusta, 47 Ga. 260.)

"A complaint, setting forth that the defendant had, for upwards of five years, been diverting and using water belonging to the plaintiff, but not that such use was under claim or color of right. Held, on demurrer, not to allege a prescriptive right in the defendant." (Winter v. Winter, 8 Nev. 129.)

"To acquire the right to overflow the land of another, there must have been an uninterrupted enjoyment, under color of right, for a period of five years. There must have been an actual occupation by the flow of water, to the knowl

have been enjoyed. But no priority of occupation, or use of water by a mill-owner upon a stream within the limits of his own estate, affect the right of a riparian proprietor above to erect and operate a mill, in a suitable and reasonable manner, upon his own land.1

CHAPTER XXXV.

ROADS AND HIGHWAYS.

§ 395.

§ 396.

Public roads-Rights of public and of land-owner.
Title to land in roadway.

§ 395. Public roads-Rights of public and of landowner. Every thoroughfare, common to the public, is a highway, whether it be a carriage-way, a horse-way, a foot-way, or a navigable stream. The law is the same, with regard to a public way, as to fresh-water rivers, so far as relates to the right of soil, and it is always to be presumed that he who owns land adjoining such a way, or thoroughfare, owns the land in front of his premises to the center of the same, and has the right to the soil, exclusive of all the world, save so far as it is subject to the right of passage in the public.1

This is a principle of the common law, and equally the rule in every State, unless specially controlled by statute; and, therefore, when the owner of land, bounding upon a highway, conveys to another such land, bounding it upon the road, in terms or by implication, it will always be presumed that he intended, and the law will give to his deed such effect as, to convey to the grantee the fee of the land to the center of the road, incumbered only with the public easement or right of way over it.2

13 Kent's Com. 432; The Queen v. Saintliff, 6 Mod. 255; Rangeley v. Midland R. Co. L. R. 3, Chan. Ap. 306, 310, 311; 1 Rol. Abr. B. Pl. 5; Harg. Law Tracts, 5; Stevens v. Whistler, 11 East, 51.

2" A highway is said not to be an easement, but a dedication to the public of

But this presumption may be overcome by express words of reservation in the grant, and it is competent for the owner of a farm, or any other land bounding upon a public highway, to describe and in his deed bound it on the side or edge of the highway, so as to rebut this presumption of law, and so retain his title to the land lying within the road.1

§ 396. The title to the land over which the road runs generally remains in the original owner, subject to the public

easement.

He may convey the soil under the highway without selling the land which adjoins the same, or the adjoining lands without the fee to the land covered by the road; these estates being severable he can part with one and retain the other, or sell them each to different persons; but if they are to be so severed it must be by express terms, and such as distinctly meet and rebut the legal presumption that a grant of land bounded upon a highway carries the fee in the half of the same opposite the land.2

§ 397. Estate retained by owner of land in public road. The value of this estate in the half of the road-bed consists in the rights which the owner retains therein; notwithstanding its devotion to the public use, the owner of the fee retains his exclusive right to all the mines, springs of water, earth,

the occupation of the surface of the land for the purpose of passing and repassing, the public generally assuming the obligation of repairing it." (3 Kent's Com. 432, Note 1; Cuming v. Prang, 24 Mich. 523.)

13 Kent's Com. 434. "But it is competent for the owner of a farm or lot, having one or more of its sides on a public highway, to bound it by express terms on the side or edge of the highway, so as to rebut the presumption of law, and thereby reserve to himself his latent fee in the highway." (Sibley r. Holden, 10 Pick. 249.)

"Whether a grant of lands, bounded on a street, highway, or running stream, extends to the center of such street, highway, or stream, or is limited to the exterior line or margin thereof, depends upon the intent of the parties to the grant, as manifest by its terms; and while the presumption is in every case that the grantor does not intend to retain the fee of the soil within the lines of the street or under the water, no particular word or form of expression is necessary to overcome such presumption." (A. L. J. Feb. 26th, 1876, p. 145; White's Bank v. Nichols, N. Y. Court of Appeals, Feb. 1st, 1876.)

23 Kent's Com. 434; 1 Roll. Abr. 392, pl. 5; Headlum v. Headley, Holt, N. P. 463; Wright v. Howard, 1 Sim. & Stu. 190; Brown v. Kennedy, 5 Harr. & J. 195; Cortelyon v. Van Brundt, 2 Johns. 357; Cole v. Drew, 44 Vt. 40.

timber, and quarries which are within his half of the road, for every purpose not incompatible with the public right of way. He may maintain trespass, or ejectment, or waste, in respect to the same; and should the road be abandoned, or the public easement be lost, the entire and exclusive property and right of enjoyment revest in the proprietor of the soil.1

§ 398. The rights of the public in a highway are to appropriate it to the public use in passing over it in the usual course of travel, with the powers and privileges incident to that right, such as digging the soil, using the timber and other materials for making or repairing the road which are found within the limits of the way; it is true that many of the uses to which this material may by the public be applied are inconsistent with the exclusive ownership thereof by the owner of the fee, but it must be remembered that the legal title by which the fee is retained is subject to the public easement; so also the right to use the soil, timber, and stone is controlled by the superior claim of the public in this right to use the same, which goes with the easement, upon the general principle that the grantor of any estate in lands is presumed to convey the right to use such property of the grantor as is requisite to the enjoyment of the property granted.2

§ 399. Right of public to soil and timber in roadway.— The public acquires only an easement in such soil, timber, or other material as may be found within the highway, and is requisite for building and repairing the road; it does not become the owner of it, can devote it to no other use, and will not be permitted to transport it to other roads, or apply it to

13 Kent's Com. 432; Fairfield v. Williams, 4 Mass. 427; Perley v. Chandler, 6 Ibid, 454; Stackpole v. Healy, 16 Ibid, 33; Overman v. May, 35 Iowa, 89. "Where a highway or street in a municipal corporation has been acquired by prescription, the fee remaining in the land-owner, he has a right to all things connected therewith, such as trees upon or mines and quarries under the land over which the highway passes, subject only to the right of passage by the public, and the incidental right of repairing and keeping it in proper repair." (Dubuque v. Maloney, 9 Iowa, 450; Dubuque v. Benton, 23 Ibid, 248; Perley v. Chandler, 6 Mass. 454; Jackson v. Hathaway, 15 Johns. 447: Wash. on Ease. 514.)

2 Wash. Ease. 159; 3 Kent's Com. 434; Hatch v. Dwight, 17 Mass. 229; Jackson . Hathaway, 15 Johns. 447; Webber v. Eastern R. R. Co. 2 Met. 151; Child v. Starr, 4 Hill, 369; Dunlap v. Stetson, 4 Mason, 349.

FARM-29.