66 A. 485 | N.H. | 1907
The plaintiff is trying to prevent the defendants from using their share of the water without his consent, even if that may be done without trespassing on his land or interfering in any way with his making a like use of his share of the water, and they are seeking to avoid paying for the benefit they have received from their use of his share. The rule that riparian proprietors have a right "to insist that the stream shall continue to run uti currere solebat" (Tillotson v. Smith,
Although the owners of the land are not, strictly speaking, the owners of the water which flows in a natural channel over it, nor is the owner of either bank the owner of that part of the water which flows over his land, still the owners of the banks are the owners of the right to use the water for any lawful purpose — each owning an undivided half of that right. Consequently, their rights and liabilities in respect to the use of the water are those of tenants in common in respect to common property. Although they are not the common owners of the water, they are of the right to use it. If either uses it, his rights and his liabilities to the other owners will be the same as though they were tenants in common of the water. Since this is so, no reason can be given why a different rule should be applied when one of the owners is asked to account to the other for any benefit he has received from his use of more than his fair share of the water, from that applied in the case of an accounting between the common owners of any other property.
It is settled in this state that when a common owner uses more than his share of the common property, — in this case the common right to use the water, — he must account to his cotenants for their equitable share of the benefit he received from his use of their share. Gage v. Gage,
Case discharged.
All concurred. *221