44 Minn. 367 | Minn. | 1890
These litigants are the owners of separate tracts of land situate upon opposite banks of a water-course, the plaintiffs tract extending above and below that belonging to the defendant. In the stream where it passes defendant’s land there are rapids for about 900 feet, with a fall of some 5 feet; The plaintiff has made no attempt to-use the water for the propulsion of machinery, and although
The general rule governing the use of running water is that it must be used in such a manner* as not to be inconsistent with or prejudice the rights which other riparian proprietors have to the use of the stream. No proprietor has the right to use the water to the prejudice of other proprietors above, or below, or opposite, unless he has a prior right of diversion or a title to an exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat is the maxim. He must not unreasonably detain it or give it another direction, and must return it to the original channel when it leaves his estate. By virtue of his ownership of the banks and the land in front thereof to the middle of the stream, each riparian proprietor has a right to the use of the water-flowing in its natural channel, without diminution or obstruction, and no proprietor has the right to diminish the quantity which will flow, according to the natural current, to a proprietor below. This is the necessary result of a perfect equality of right among all, of that which is common to all riparian owners. It must not be understood, however, that there can be no diminution, and no obstruction or impediment whatsoever in the use of the water as it flows, for that would be to deny any valuable use of -it to the riparian owners. There must be allowed a reasonable use to each, of that which is common to all. There may be a diminution in quantity, or a retardation or acceleration of the natural current, perfectly consistent with the common use. The diminution, retardation, or acceleration, not positively and sensibly injurious by decreasing the value of the common right, is an implied element in the right of using the stream at all. Streams of water are intended for the use and comfort of man; and it would be unreasonable and contrary to the universal sense of mankind to debar every riparian proprietor from an application of the water to domestic, agricultural, and manufacturing purposes, provided the use of it be made under the limitations just mentioned. All that the law requires of the party by or over whose land a stream passes is that he should use
The law, as stated above, applied to the facts as established on the trial of this action, necessarily disposes of the plaintiff’s claim that in any event the canal or race must be abated because the defendant’s right to take out water must be exercised exactly at the dam, and nowhere else. As between opposite proprietors who maintain and use a joint dam, or as between such proprietors between whom there is a water-power improved by a dam used by one and not by the other, but which power and dam each has the legal right of using, it might be conceded that the right to use the water attaches at the dam and there only. Webb v. Portland Mfg. Co., 3 Sumner, 189; Blanchard v. Baker, 8 Greenl. 253; Parker v. Griswold, 17 Conn. 288. But in the case at bar the plaintiff has no right to use and no ownership in the dam, for it was constructed by the defendant, wholly, as declared by the trial court, upon his tract of land. The defendant is certainly entitled to the beneficial use of the water, and
The appellant further insists that the finding that no part of the wing-dam or crib was built on his land was without evidence to sustain it. The appellant owns to the middle or thread of the stream, when the water is in its natural and ordinary stage at a medium. height, neither swollen by freshets nor shrunken by drought, and the
Order affirmed.
ÍTote. A motion for a reargument of this case was denied October 23, 1890.