WATER AND WATERCOURSES. The right of conducting water through one piece of land for the use of another is an incorporeal hereditament of the class of easements, and was known in the Roman law by the name of the ser vitus aqua ductus. The right of taking water out of the well or pond belonging to another person is an incorporeal here ditament of the class of profits called in the Roman law the servitus aqua haustus. These rights, in our law, must be either derived from a grant or established by prescription. [PItESCRIPTION1 It is the law of England at water flowing in a stream is originally publici juris, that is to say, a thing. the property of which belongs to no individual, but the use to all. The legal presumption is that the proprietor of each bank of a stream is the proprietor of one-half of the land covered by the stream, but there is no property in the water. Every pro prietor has an equal right to use the water which flows in the stream, and con sequently no one can have the right to use the water to the prejudice of any other without his consent. No proprietor can either diminish the quantity of water which would otherwise descend upon the proprietors below, nor throw back the water upon the proprietors above, so as to overflow or injure their lands. For the same reason, no proprietor has a right to use the water of a stream so as to in jure its quality to the detriment of other proprietors.
The only modes in which a right to the use of running water, in a manner inconsistent with the common law rights of others can be established, are either proof of an actual grant or licence from the persons whose rights are affected, or proof of an uninterrupted enjoyment of such a privilege for such a period as the law considers sufficient to constitute a right by prescription. The period of twenty years had been generally fixed upon by the courts of law and equity for this purpose, and the same period has been adopted in the Prescription Act (2 & 3 Wm. IV c. 71, s. 2). [PaEscale Tzoic.] But if water has not been appro priated, it seems that the person who first appropriates and renders it useful ac quires a right, and for a violation of such right an action may be maintained on an enjoyment of less than twenty years. It has been decided that after the erection of works and the appropriation by the owner of the land of a certain quantity of the water flowing over it, if a propri etor of other land afterwards take what remains of the water before unappropri ated, the first-mentioned owner, however he might before such second appropria tion have taken to himself so much more, cannot do so afterwards. (6 East, 219.)
The privilege of a watercourse is not confined to private individuals. It may be vested in a corporation, or may be claimed by the inhabitants of a township or parish. If land with a run of water upon it be sold, the water prinui facie passes with the land ; but it is laid down by Coke that if a person grants aquam seam, the soil will not pass, but only a right of fishing in that water ; for the proper words in that case to pass the soil would be, so many acres of land aqui coopertas : whereas the word stagnuni, ur pool, will pass both water and land. (1 Inst., 4, b.) The exclusive right to a flow of water once acquired can only pass by grant as an incorporeal heredita ment, and a licence, by parol or otherwise. to use or take the water at any place, may be revoked even without an express power of revocation being reserved, un less works have been constructed and expenses incurred upon the faith of it. (5 B. & Ad., 1.) When the owners of property have, by long enjoyment, acquired special rights to the use of water in its natural state, as it was accustomed to flow, and not merely a use, which is common to all the king's subjects, an action may be maintained for a disturbance of the enjoyment ; but where the injury, if any, is to all the king's subjects, the only remedy is by indictment. The mere obstruc tion of water which has been accus tomed to flow through a person's lands does not in itself afford a ground of ac tion. The plaintiff in such an action must be enabled to show either that some benefit arose to him from the water going through his lands, of which he has been deprived, or at least that some dete rioration was occasioned to the premises by the srbtraction of the water; but where the proprietor of the lands can prove that he is injured by the diversion of the water, it is no answer to his action to show that the defendant was the first person who appropriated the water to his own use, unless he has had twenty years' undisturbed enjoyment of it in its altered course. If the injury occasioned by the diversion or obstruction of water is of a permanent nature and injurious to the reversion, an action may be brought by the reversioner, as well as by the tenant in possession, each for his respective loss.