WATER RIGHTS. A general expression to describe the legal power of using or of control hug the use of the water of flowing streams, ponds, lakes, and of the sea. These rights are numerous and varied in character, but may be generally classified as ( I) natural rights, (2) easements, (3) customary rights, and (4) pub lic rights. Strictly speaking, this classification has to do only with private waters, those, namely, whether flowing or stationary, which oeeupy land subject to private ownership. By the com mon law the bed of the sea ;Ind of tidal waters generally (technically described as 'navigable' waters) is not subject to private ownership, but belongs to the State—in England to the Crown; in the United States to the people of the several States—and is open to public use for all proper purposes (as navigation, fishing, bathing, etc.) without restriction. Rut wherever waters ordi narily public have become subjected to private ownership, the nature of the proprietary right so gained and the extent to which it is limited by rights of user vested either in the public or in other private citizens become proper subjects of inquiry, just as in the ease of waters originally and inherently private. (See RIPARIAN ; RIVERS.) Even waters strictly public, however, may be subject to private rights which to a cer tain extent limit the public right of user above referred to—as the rights of access of landing, mooring, and wharfing out, enjoyed by an abutting or riparian owner on a navigable river.
It is of the essence of the doctrine of water rights that the water itself is, in our legal sys tem, not deemed to be capable of ownership. It is true that water collected in cisterns, arti ficial ponds, etc., the water held in marshy or spongy ground, even the water percolating through the soil or flowing in undefined chan nels on the surface or underground, is regarded as a part of the earth, and to all intents and purposes as belonging to the owner of the land. \\Therefore a landowner may drain his land, or may collect the water therein in wells or cisterns, and may make any use he pleases of it, even though in so doing he cuts off his neighbor's sup ply of surface drainage or of percolating waters winch feed the latter's well or stream. But there is no such thing as the ownership of run ning streams.
Every landowner has a natural right to the use and enjoyment of the watercourse which flows through his land. It is not acquired by graft or prescription, like an easement, nor can it be alienated apart from the land, nor is it like an easement, extinguished by non-user or abandonment, nor by 'unity of possession.' It exists jure linturce. as an incident to the land, and passes with the land upon the alienation of the latter in whole or in part. It includes the use of the water for all proper purposes—for watering stock, for irrigation, for power, for fishing. for and for drainage—but such use is strictly limited by the right of every other riparian proprietor to make a similar use thereof. Conversely, the right is infringed by any act—such as fouling, detaining:, or damming back the water, or by draining into it— which inflicts actual damage or excessive ineon venience. (See RIPARIAN RIGHTS.) A riparian proprietor has a right to a steady flow of the watercourse without material alteration. and the right is not limited to the main stream, but extends to all contributing streams and springs actually connected therewith, but not to per colating or surface waters not flowing in a de fined channel. But a stream flowing in a well defined channel underground is equally subject to the law' of user, above outlined, as is a sur face stream. The infringement of riparian rights is a nuisance, remediable by an action for dam ages and by injunction, and, in a proper case, by direct abatement of the nuisance.
By far the most numerous class of wafer rights nre those which come under the deserip lion of casements. They include such well known easements as drainage, or tho right of discharging Water upon another's land, the right to take water by a pipe, ditch, or otherwise, from another's land, and the right to flood another's land by damming back a running stream upon it. To these may be added, for convenience, the rights (properly described as profits a prendre rather than as easements) to take ice front the pond of another. to fish in his stream or trout pond. Like other rights of this character (some times comprehensively grouped as servitudes. or rights in alieno so/o), these may be acquired by grant or prescription and may be lost by release or abandonment. See EASEMENT.