BACK-WATER. That water in a stream which, in consequence of some obstruction below, is detained or checked in its course, or re-flows.
The term is usually employed to designate the water which is turned back, by a dam erected in the stream below, upon the wheel of a mill above, so as to retard its revolu tion.
Every riparian proprietor is entitled to the benefit of the water in its natural state. Another such proprietor has no right to alter the level of the water, either where it enters or where it leavea his property. If he claims either to throw the water back above, or to diminish the quantity which is to descend below, he must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his opera tions, or an uninterrupted enjoyment for twenty years. If he cannot maintain his claim in either of these ways, he is liable for damages in favor of the injured party, or to an injunction to restrain his unlawful use of the water ; 1 B. & Ad. 258, 874 ; 9 Coke 59 ; Brown v. Mfg. Co., 5 Gray (Mass.) 460 ; Mertz v. Dorney, 25 Pa. 519 ; Butz v. Ihrie, 1 Rawle (Pa.) 218; Sherwood v. Burr, 4 Day (Conn.) 244, 4 Am. Dec. 211; Noyes v. Stillman, 24 Conn. 15; Gardner v. New burgh, 2 Johns. Ch. (N. Y.) 162, 7 Am. Dec.
526 ; Watson v. Bartlett, 62 N. H. 447 ; Hill v. Ward, 2 Gilm. (Ill.) 285 ; Bowman v. City of New Orleans, 27 La. Ann. 501; McDonald v. Bacon, 3 Scam. (Ill.) 432 ; Johns v. Stev ens, 3 Vt. 308 ; Tyler v. Wilkinson, 4 Mas. 400, Fed. Cas. No. 14,312; Lincoln v. Chad bourne, 56 Me. 197; De Vaughn v. Minor, 77 Ga. 809, 1 S. E. 433. But he must show some actual, appreciable damage ; Garrett v. Mc Kie, 1 Rich. (S. C.) 444, 44 Am. Dec. 263 ; Chalk v. McAlily, 11 Rich. (S. C.) 153 ; con tra, Hendrick v. Cook, 4 Ga. 241; Graver v.
Sho]l, 42 Pa. 67.
A riparian owner who obstructs a stream, impeding the usual flow of water or that caused by ordinary freshets and causing land to be overflowed, becomes liable ; Bierer v. Hurst, 155 Pa. 523, 26 Atl. 742. Where a railroad company maintains a dam which causes water to overflow adjacent land, it is liable, although the dam was originally constructed by the county under authority of the legislature ; Payne v. R.' Co., 112 Mo. 6, 20 S. W. 322, 17 L. R. A. 628. At common law a railroad company must construct and maintain its road across a watercourse so as not to injure adjacent lands ; Ohio & M. Ry. Co. v. Thillman, 43 Ill. App. 78 ; Fick v. R. Co., 157 Pa. 622, 27 Atl. 783.
An action to recover damages for flowing land is local, and must, therefore, be brought in the county where the land lies ; Worster v. Winnipiseogee Lake Co., 25 N. H. 525 ; Watts' Adm'rs v. Kinney, 23 Wend. (N. Y.) 484 ; 2 East 497.
In Massachusetts and other states, acts have been passed giving to the owners of mills the right to flow the adjoining lands, if necessary to the working of their mills, sub ject only to such damages as shall be ascer tained by the particular process prescribed, which process is substituted for all other ju dicial remedies ; Leland v. Woodbury, 4 Cush. (Mass.) 245; Nutting v. Page, 4 Gray (Mass.) 54; Waddy v. Johnson, 27 N. C. 333; Knox v. Chaloner, 42 Me. 150 ; Pratt v. Brown, 3 Wis. 603; Anderson v. R. Co., se. Ky. 44, 5 S. W. 49, 9 Am. St. Rep. 263. These statutes, however, confer no authority to back upon existing mills ; Baird v. Wells, 22 Pick. (Mass.) 312. See DAMAGES; INUNDATION; WATERCOURSE.