WATER AND WATERCOURSES. The right of conducting water through one piece of land for the use of another is an incor poreal hereditament of the class of easements, and was known in the Roman law by the name of the Beretta., agate ductus. The right of taking water out of the well or pond belonging to another person is an incorporeal hereditament of the class of profits called in the Roman law the derritue agars haastus. These rights, in our law, must be either derived from a grant or established by prescription. [PRESCRIPTION.] It is the law of England that water flowing in a stream is originally publici furls, 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 pro prietor 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 proprietor has an equal right to use the water which flows in the stream, and consequently no one eau have the right to use the water to the prejudice of any other without his consent. No pro prietor can either diminish the quantity of water which would other wise descend upon the proprietors below, nor throw back the water upon the proprietors above, so 8.9 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 injure 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 Will. IV., c. 71,s. 2). [PRESCRIPTION.] But if water has not been appropriated, it seems that the person who first appropriates and renders it useful acquires a right, and for a violation of such right an action may be maintained on an enjoyment of less than twenty years.
The privilege of a watercourse is not confined to private individuals. It may be vested in a corporation, or may be claimed by the inhabit ants of a township or parish. If land with a run of water upon it be sold, the water primel facie passes with the land ; but it is laid down by Coke that if a person grants aguam suatn, 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 aquel coopertas : whereas the word stags um, or 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 hereditament, and a licence, by parch or otherwise, to use or take the water at any place, may be revoked even without an express power of revocation being reserved, unless works have been constructed and expenses incurred upon the faith of it.
When the owners of property have, by long enjoyment, acquired special rights to the use of water in its natural state, as it was accus tomed 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 enjoy ment; but where the injury, if any, is to all the king's subjects, the only remedy is by indictment. The mere obstruction of water which has been accustomed to flow through a person's lands does not in itself afford a ground of action. 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 deterioration was occasioned to the premises by the subtraction 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 lie 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 permiteent 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.
The diversion of watercourses or injury to their banks so as to cause Inundation are nuisances against which a court of equity will protect parties by injunction ; and if there be a question as to the right to the flow of water, an issue will be directed to try it Although a court of equity will not in terms decree the brinks of rivers, watercourses, or navigable canals to be repaired, the effect of such an order may be obtained by an order that parties shall not be at liberty to use them while out of repair, or against their impeding the use of them by the obstructions consequent upon a state of disrepair. An injunction may also be obtained against conducting the water from one man's tene ment upon that of another to his injury by drains or otherwise, in a manner in which it has not been accustomed to flow. And it may be laid down generally, that, with respect to water and watercourses, the aid of a court of equity may be obtained for the purpose either of restrainiug injury or of quieting possession.