WATER.
Those who own land bounding upon a water-course are denominated by the civilians riparian proprietors ; and this convenient term has been adopted by judges and writers on the common law. Angell, Wat.-Conrses, 3 ; 3 Kent, Comm. 354 ; 4 Mas. C. C. 397.
3. By the rules of the common law, all proprietors of lands have precisely the same rights to waters flowing through their do mains, and one can never be permitted so to use the strcam as to injure or annoy those situated on the course of it, either above or below him. They have no property in the water itself, but a simple usufruct: aqua currit et debet currere ut currere solebat, is the language of the law. Accordingly, while each successive riparian proprietor is entitled to the reasonable use of the water for the supply of his natural wants and for the operation of mills and machinery, he has no right to flow the water back upon the proprietor above, Croke Jae. 556; 9 N.H. 502; 24 id. 364; 9 Watts, Penn. 119 ; 20 Penn. St. 85 ; 3 Rawle, Penn. 84 ; 4 Eng. L. & Eq. 265 ; 1 Barnew. & Ald. 874; 3 Green, N. J. 116 ; 4 Ill. 452 ; 38 Me. 243 ; nor to disoharge it so as to flood the proprie tor below, 17 Johns. N. Y. 306 ; 3 Hill, IN. Y. 531 ; 5 Vt. 371 ; 3 Harr. & J. Md. 231 ; nor to divert the water, 17 Conn. 288 ; 13 Johns N. Y. 212 ; 10 Barb. N. Y. 518 ; 24 Ala. x. s. 130 ; 28 Vt. 670 ; 38 Eng. L. & Eq. 526, even for the purpose of irrigation, unless it be returned without essential diminution, 38 Eng. L. & Eq. 241 ; 13 Mass. 420 ; 5 Pick. Mass. 175 ; 8 Me 263 ; 12 Wend. N. Y. 330 ; 4 Ill. 496 ; nor to obstruct or detain it, except for some reasonable purpose, such as to obtain a head of water for a mill and to be again discharged, so as to allow all on the same stream a fair participation, 17 Barb. N. Y. 654 ; 10 Cush. Mass. 367 ; 6 Ind. 324 ; 28 Vt. 459 ; 6 Penn. St. 32 ; 29 id. 98 ; 4 Mas. C. C. 401 ; 17 Johns. N. Y. 306; 13 Conn. 303 ; nor to corrupt the quality of the water by unwholesome or discoloring impurities. 24 Penn. St. 298 ; 22 Barb. N.-Y. 297 ; 3 Ramie, Penn, 397 ; 8 Eng. L. & Eq. 217 ; 3 Hill, N. Y. 479 ; 4 Ohio, 833. But, while such are the rights of the riparian proprietors wben unaffected by contract, these rights are sub ject to endless modifications on the part of those entitled to their enjoyment either by grant, 3 Conn. 373 ; 13 Johns. N. Y.525 ; 17
Me. 281 ; 3 Hill, N. Y. 418 ; 6 Metc. Mass. 131 ; 7 id. 94 ; 7 Penn. St. 348 ; 18 Eng.
L. & Eq. 164 ; 9 N. H. 282 ; 3 N. Y. 253, or by reservation, 6 N. Y. 33 ; 20 Vt. 250, or by a license, 2 Gill, Md. 221 ; 13 Conn. 303 ; 1 Mete. Mass. 331 ; 14 Serg. & R. Penn. 267 ; 4 East, 107, or by agreement, 19 Pick. Mass. 449; 21 id. 417 ; 22 id. 333 ; 3 Harr. & J. Md. 282; 17 Wend. N. Y. 136, or by twenty years' adverse enjoyment from which a grant or contract will be implied, 6 East, 208 ; 1 Campb. 463 ; 4 Mas. C. C. 397 ; 6 Scott, 167 ; 9 Pick. Mass. 251, in such a way as to adapt the uses of the water to the complex and multiplying demands and improvements of modern civilization.
4. Wherever a water-course divides two estates, each estate extends to the thread or central line of the stream ; but the riparian owner of neither can lawfully carry off any part of the water without the consent of the other opposite, each riparian proprietor being entitled not to half or other proportion of the water, but to the whole bulk of the stream, undivided and indivisible, or per my et pertout. 13 Johns. N. Y. 212 ; 8 Me. 253 ; 3 Sumn.
C. C. 189 ; 13 Mass. 507 ; 1 Paige, Ch. N. Y. 447. When an island is on the side of a river, so as to give the riparian owner of that side only one-fourth of the water, he has no right to place obstructions at the head of the island to cause one-half of the stream to descend on his side of the river, but the owner opposite is entitled to the flow of the remaining three-fourths. 10 Wend. N. Y. 260.
Where tbere is an under-ground flow of water so well defined as to be a constant etream, the owuer of the land through which it flows has no right to divert it to the injury of the person on whose land it comes to the surface ae a spring. 25 Penn. St. 528 ; 29 id. 59 ; 6 Paige, Ch. N. Y. 435 ; 1 Stor. C. C. 387. But see 12 Mees. & W. Exch. 324 ; 28 Vt. 49 ; Angell, Wat. fi 109, 114. And see, generally, Washburn, Easeinents ; Angell, Water-Courses ; 3 Kent, Comm. 439, 441 ; Woolrych. Waters ; 78 Law Lib. ; Schultes, Aquatic Rights ; Comyns, Dig. Action for Nuisance; Crabb, Real Prop. /i 398-443 ; Lois des Bill. pt. 1, c. 3, sec. 1, art. 3.