9 Pa. 74 | Pa. | 1848
As the evidence given on the trial is not brought up with the record, we are unable to ascertain the precise extent of the diversion of the Avater in question, or of its use by the defendant. Nor is this, perhaps, necessary to enable us to decide understandingly the principal point presented on the argument. It is not Avhether the owner above has a right to use the water flowing through his lands for the purposes of irrigation, but Avhether he is bound so to use it as not materially to diminish the quantity which before flowed over and across the land of the occupier below.
The general rule on this subject is, that any proprietor of lands on the banks of a river or other stream, has an equal right to use the Avater Avhich flows adjacent to his property; but, without the assent of the adjoining proprietors, he cannot divert it or diminish the quantity of water which Avould otherwise descend to the proprietors below. The law requires of the party that he should use the stream in a reasonable manner; and one of the conditions of this 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. The general doctrine will be
For this reason, we find no error in that part of the charge principally complained of. The learned judge was right in saying that “ the question does not turn on whether the occupier below, who complains, has sufficient water left for his domestic purposes, or more than he was previously using from the stream; but whether the quantity flowing on his land, which he had a right to use, has been materially lessened or diminished ? There is nothing in the bills of exceptions. The second of them was properly abandoned, and the first is not better founded. The declaration made by the defendant of his interest was certainly evidence, leaving it open to him to show he had never carried it into effect. It was proper to show the spirit by which he was actuated,- if for nothing else.
Judgment affirmed.