One erecting fences and culverts across a stream is not liable for injuries to an upper riparian proprietor because they are not suf ficient to pass an extraordinary flood, due to the giving way of a dam or to an unprec edented rainfall ; American Locomotive Co. v. Hoffman, 105 Va. 343, 54 S. E. 25, 6 L. R. A. (N. S.) 252, 8 Ann. Cas. 773. Riparian owners upon navigable fresh water lakes may construct in the shore waters in front of their lands wharves, piers, landings, and booms; Revell v. People, 177 Ill. 468, 52 N. E. 1052, 43 L. R. A. 790, 69 Am. St. Rep. 257 ; Mobile Transp. Co. v. City of Mobile, 153 Ala. 409, 44 South. 976, 13 L. R. A. (N. S.) 352, 127 Am. St. Rep. 34.
A state has full power, in the absence of legislation by congress, to authorize dams across interior streams although previously navigable to the sea ; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274.
If there be no license or act from which a license will necessarily follow, a person erecting a dam so as to flood the land of an other, is a trespasser and acts at his peril ; De Vaughn v, Minor, 77 Ga. 809, 1 S. E. 433.
When one side of the stream is owned by one person and the other by another, neither, without the consent of the other, can build a dam which extends beyond the filuin thread of the river, without committing a trespass ; Cro. Eliz. 269 ; Tyler v. Wilkinson, 4 Mas. 397, Fed. Cas. No. 14,312 ; Lindeman v. Lindsey, 69 Pa. 93, 8 Am. Rep. 219. See Lois des Bat. p. c. 3, s. 1, a. 3 ; Pothier, Traite du Contrat de Societe, second app. 236; Stiles v. Hooker, 7 Cow. (N. Y.) 266 ; McCalmont v. Whitaker, 3 Rawle (Pa.) 90, 23 Am. Dec. 102; Anthony v. Lapham, 5 Pick. (Mass.) 175 ; Goodwin v. Gibbs, 70 Me. 243.
Many of the states have statutes enabling persons to build dams on their own land, al though in so doing the land of a higher ri parian owner may be overflowed ; and in some cases this permission is given although the party may own the land on one side only. In all these instances, however, a remedy is provided for assessing the damages resulting from such dam. See Angell, Waterc. §§ 482, 484.
Where the natural flow of water has been collected by a permanent artificial dam into an artificial channel, and such condition has continued for more than twenty years, the riparian owners acquire a prescriptive right to have the water remain at such high stage, and the person who placed the permanent obstruction in the stream, and all other per sons clalming under him are estopped from restoring the water to its original state ; 4 Hurlst. & O. 714; Jones, Eason. 808; Washb.
Easem. § 47 ; Woodbury v. Short, 17 Vt. 387, 44 Am. Dec. 344 ; Belknap v. Trimble, 3 Paige Ch. (N. Y.) 577 ; Shepardson v. Per kins, 58 N. H. 354 ; Delaney v. Boston, 2 Harr. (Del.) 489 ; Mathewson v. Hoffman, 77 Mich. 420, 43 N. W. 879, 6 L. R. A. 349; Smith v. Youmans, 96 Wis. 103, 70 N. W. 1115, 37 L. R. A. 285, 65 Am. St. Rep. 30; Murchie v. Gates, 78 Me. 300, 4 Atl. 698 ; Canton Iron Co. v. Biwabik Bessemer Co., 63 Minn. 367, 65 N. W. 643 ; City of Reading v. Althouse, 93 Pa. 400 ; gray v. Muggli, 84 Minn. 90, 86 N. W. 882, 54 L. R. A. 473, 87 Am., St. Rep. 332, where the owner of the dam acquired his right to maintain it by prescription. The owners of the land flooded by the dam had improved their property with reference to the changed conditions, the court held that a reciprocal right accrued to the owners of the flooded lands to have the dam remain, and that the person who maintained it could not by any affirmative act restore the stream to its original condition. The decision is criticised, as are certain expressions to the same effect in Belknap v. Trimble, 3 Paige Ch. (N. Y.) 577, as not being in accord with the weight of authority; Farnham, Waters 2399 ; Lake Drummond Canal & Water Co. v. Burnham, 147 N. C. 41, 60 S. E. 650, 17 L. R. A. (N. S.) 945, 125 Am. St. Rep. 527. It is of the essence of such an easement (to divert a stream by an artificial way) that it exists for the benefit of the dominant tene ment alone. Being in its very nature a right created for the benefit of the dominant own er, its exercise by him cannot create a new right for the benefit of the servient owner. Like any other right its exercise may be dis continued if it becomes onerous or ceases to be beneficial to the party entitled; L. R. 6 Q. B. 578. In Lake Drummond Canal & Wa ter Co. v. Burnham, 147 N. C. 41, 60 S. E. 650, 17 L. R. A. (N. S.) 945, 125 Am. St. Rep. 527, it is said that decisions upholding the rights of the servient owner may be upheld under the doctrines of dedication and estop pel.