The opinion of the court was delivered by
Gibson, C. J.
The 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 boundary 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. This natural power is as much the subject of property as is the land itself, of which it is an accident; and it may, in the same way, be occupied in whole, or in part, or not at all, without endangering the right, or restricting the mode of its enjoyment, unless where there has been an actual adverse occupancy or enjoyment for a period commensurate with that required by the statute of limitations — a fact that is not pretended here; and as to.a right by prior appropriation, that has regard to the quantum of water withdrawn from a stream common to both parties, and not to the quantum of fall. The latter can be augumented only by subtracting from the proprietor above, by swelling back on him ; or by appropriating a part of the adjoining proprietor’s fall below, by excavating the channel within *91his boundary, and carrying out the bottom on a level to some point in the inclined line of the natural descent; and it seems to me these were the principles, which guided the referees to the conclusion, at which they arrived. Instead of attending to parol evidence of the original height of the defendant’s dam, as well as of present conformity to its original height, and inquiring of the fact of present injury by the state of the fact as it stood originally, they had recourse at once to the best evidence of which the case was susceptible — the evidence of their own senses. They proceeded to restore the creek to its natural state, by drawing off the defendant’s dam till the mouth of the plaintiff’s tail race, which is exactly where the creek issues from his boundary, was left dry; thus demonstrating with conclusive certainty, that for all the swelling above that point, the dam was an injury, provided the channel of the creek were not deepened for a considerable distance below the plaintiff’s line. But even if such deepening existed with the licence of the proprietors below, (and it seems there are intervening ones,) the power thus gained by the plaintiff would be as much the subject of protection from injury as the power afforded by the stream within his boundary. But it seems the referees had regard to the right of the defendant, as far as the plaintiff’s is concerned, as extending to the plaintiff’s lixie; and we are to judge of the case in reference to the view they have taken of it. Now an award such as this, is to be set aside only for plain and palpable error in matter of fact or of law, and not for suspicion of error. The error pointed out is said to have been in the assumption of a right for the plaintiff to set his wheel at any level he might think proper, and a correspondent duty on the part of the defendant to furnish fall for the water to pass off by the tail-race. The referees deny this assumption, and the method by which they proceeded, shows that no such principle was adopted. • Again, it is said, (and this is the only part of the case, about which it seems possible to raise a doubt,) that they did not inquire into the fact of deepening the channel of the creek, because they deemed it immaterial. There was certainly satisfactory evidence of what is indeed admitted, a considerable deepening of the tail-race. But this, it is evident, could have no effect on the result of the experiment to ascertain tbé all important fact of swelling, the water in the bed of the creek at the plaintiff’s boundary. There was, however, evidence of stones or gravel having been taken from the creek, which the arbitrators say, they considered to be of little value ; and I think it was rightly so considered, inasmuch as it was viewed in reference to a deepening immediately at the mouth of the tail race, and not an excavation carried along the bed of the creek into the land of the adjoining proprietor, so as to .lower the level of the surface at the entrance of the tail-race. They say they did not consider an excavation there as a thing that would produce an alteration in the relative level of the surface, but as a hole in the bottom, which would be merely filled with dead water instead of gravel or sand. But there was in fact no evidence *92of such an excavation as would sink the surface of the water at the mouth of the tail-race. If such there had been, it would either have been filled up, or its existence manifested in the overfall consequent on drawing off the defendant’s dam; nothing of which appears to have been discoverable. But the referees, who are the exclusive judges of the credibility of the witnesses, say they were not convinced of the existence of any improper deepening; and in this it seems to me, they judged accurately. In addition to the evidence of the channel itself, which showed no trace of such deepening, it seems pretty clear, that the plaintiff had from twenty-one to twenty-seven inches of fall in his tail race ; and that having enlarged his wheel so as to sink the under part of it but thirteen inches and a half, it now stands from six to eight inches in back water. An ingenious manipulation of the testimony might perhaps involve the case in obscurity ; but these are facts of which there is little doubt or perhaps dispute ; and the conclusion from them is inevitable. There is, therefore, to be judgment on the award.
Huston, J.
The subject of the use of a flowing stream, and the nature and extent of the right to this use, are of much importance ; may come into discussion under a great variety of circumstances, and may require very nice discrimination in the application of principles in the different cases which will occur. It is very common to assume a general principle, or principles, without a very extended view of the subject; without considering all the cases which then exist or may arise. The general principle thus assumed may be correct in the case under consideration, and not correct on a different state of facts and rights. Is it then a general principle? Although it is stated as one by the judge who delivers it, and has been repeated as such never so often, yet if a case not before thought of, occurs, if a person- assuming that principle as universal, proceeds to act on it, in a way to produce undue advantage to himself, or injury to another, it is the duty of a court, to consider carefully, and if necessary, to modify or limit the extent of the principle.
It may be admitted that, generally, a man has a rjght to use all the fall in a stream of water, from the place where it enters his land to the spot where it leaves it: nay more, that if at the first erection of his machinery he did not use it all, he may change his site within his land, or raise his dam to flow it hack to his line, or deepen his tail-race as low as he can, so as to deliver the water into its natural channel at his lower line. But he cannot raise his dam so as to throw the water back on the man above him; nor can he dig his tail-race through the land of the owner below, so as to deliver the water into its natural channel at a point where that channel is lower than at his own line; nor can he go into the channel of the creek in the farm below, and deepen that channel so as to make the bottom of the creek lower at his own lower line, than it was in a state of nature. He has no better right to blow rocks, or dig out gravel, or *93clay, in the channel of a creek below his own line, than he has to go into the fields below and diga race: in either case he commits a trespass on the man owning below. If he could do either, .he could take from the owner below all that person’s fall and add' it to the tract above. In the case before us, the person below had all the rights which have been stated, as fully as the plaintiff had: to the lower line of M‘Calmont he could dam back the water, and no farther ; but his right existed, as the creek, both at the bottom and top line of the water, was in a state of nature.
Every man who has seen a stream of water, knows that its bottom is not a regular inclined plane. If it were, the depth and the current would be equal; it is often very far from it; for many yards we find it almost a stagnant pool, and several feet deep ; immediately below this we find a ledge of rock or of slate, or of hard pan, over which the water flows only a few inches in depth, and flows rapidly, and exhibits a ripple of more or less length, or a succession of ripples. Now if you dig away the hard pan or gravel, or blow out the rocks the whole length of these ripples, to the depth of a foot or two, you change the pool above, and its surface is sunk a foot or two. Suppose the line of the tract above crossed the creek over this pool; by taking down the bottom of the creek below, the owner of the land above can then lower the surface of the water on the tract above — can do so ? But can he do it legally ? Certainly he cannot.
Suppose in a stale of nature there was four feet fall in the space of one hundred yards in the land below'; if M‘Calmont could dig out all this fall, so as to make it level for the whole of the hundred yards, he w'ould have four feet fall at his own lower line, and by sinking his tail-race up to his wheel, could sink his wheel four feet, and make four feet addition to his head; but if the man below cannot dam back on this new wheel, he has taken four feet of water power from the man below, and that he has no right to do. The principle then is, that he may use all the fall from hisown upper to his own low'er line, but he cannot add to that by sinking the bed of the creek on the land below: and this last limitation is as essential and important ioMCalmont the plaintiff, as to the defendant;, for if the plaintiffcan do this, the man above him may do the same thing. Rowland could then sink the bottom of the creek on M‘Calmonfs land and on his own land above, and lower his wheel, so as that M‘Calmont’s pi’esent dam will throw back water on his wheel, and then sue him ; and the principle adopted by these referees will lower M‘Calmonfs own dam, and so it may proceed from dam to dam to the head of the stream.
The rule must be, that a man has a right to dam back the water to his own upper line, as the water was, and as the bottom of the creek was in a state of nature, when he built his dam; and the man above, although it is possible to sink the bottom of the creek so as to make the dead water to extend, and the back water to stand over and on to his own land, he does not and he cannot make the man below a trespasser by so doing.
*94It seems to me then, there was an essential error in law in the principle as applied to the'case before the arbitrators. The important inquiry, perhaps the sole inquiry, or rather inquiries were, did Whitaker’s dam when originally built, dam the water at all on the plaintiff’s landl If it did not, has it been raised since ? The arbitrators say, they were disposed to disbelieve the witnesses as to deepening the bed of the creek, but were of the opinion that the dam of Whitaker had not been raised since its first erection; but they all thought it immaterial whether the bed of the creek at and below the plaintiff’s line, had or had not been deepened. It does not appear to have occurred to them, that by the sole act of deepening the bed of the creek below, and then sinking his own tail-race, MCalmont can set his wheel as low as the foundation of Whitaker’s dam ; in other words, take away the whole of Whitaker’s water power. I assume if, that Whitaker had become the owner of the water power all the way up to M‘Calmont’s line. That Whitaker’s dam has never been raised, is proved in so many ways, and so certainly, that it cannot be doubted. That it did not at first occasion the water to overflow MCalmont’s land is proved; I may say, admitted; the plaintiff’s own witnesses all say so. There is contradictory evidence as to blowing out rocks at the mouth of the tail-race, and in the bed of the creek below, and the referees, or some of them, say they rather believed those called by (he plaintiff There are, however, cases in which a matter is proved incontestibly by the nature of things. If Whitaker’s dam did not throw any back water on the plaintiff’s land when it was built, and has never been raised, it would not throw any back water on it now, unless the plaintiff had lowered the bottom of the creek, and of his tail-race, unless there is some late discovery about the level of water, which I have not learned.
I consider this, then, a case of plain and palpable mistake of both fact and law, and would have set aside the report. I would have set it aside if there were reason to suspect that the matter had not been viewed in the true light. The plaintiff will allege this settles the rights of the parties finally; I would then be certain they were settled rightly. There is no good reason why a report of three men should have more sanctity than a verdict of twelve instructed by a judge. The law makes them equal: I would not give any preference to the report.
Judgment on the award.