Grants of the government for lands bound ed on streams and other waters, without any reservations or restrictions of terms, are to be construed as to their effect according to the law of the state in which the lands lie ; Hardin v. Jordan, 140 U. S. 371, 11 Sup.
Ct. 808, 838, 35 L. Ed. 428 ; Hardin v. Shedd, 190 U. S. 508, 23 Sup. Ct. 685, 47 L. Ed. 1156.
It is for the states to establish for them selves such rules of property as they may deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent thereto ; the proprietorship of the beds and shores of navigable waters, above as well as below the flow of the tide, properly belongs to the states by their in herent sovereignty, and the United States has wisely abstained from extending (if it could extend) its survey and grants beyond the limits of high water. The cases in which this court has seemed to hold a contrary view depended on the local laws of the states in which the lands were situated ; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224.
When land is conveyed by the United States bounded on navigable water, the land under the water does not belong to the Unit ed States, but has passed to the state by its admission to the Union. If it passes to the riparian proprietor, it does not pass by the grant alone, but by force of the declaration of the state which does own it that it is attached to the shore ; Scott v. Lattig, 227 U. S. 229, 33 Sup. Ct. 242, 57 L. Ed. 490, 44 L. R. A. (N. S.) 107. Congress, in disposing of the public lands, has constantly acted upon the theory that navigable waters and the soil under them, whether within or above the flow of the tide, shall be held in trust for the future states, which, when admitted to the Union, shall have all the powers per taining to the older states with regard thereto ; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331 (an exhaustive opinion by Gray, J.).
There is no federal right involved in the obstruction or use by private owners of a non-navigable stream wholly within a state ; where a state court has decided it to be non navigable in fact, there is no right left to review; Illinois v. Economy Light &c. Co.,
234 U. S. 497, 34 Sup. Ct. 973, 58 L. Ed. -.
Quantity Used. 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 ; Ulbricht v. Water Co., 86 Ala. 587, 6 South. 78, 4 L. R. A. 572, 11 Am. St. Rep. 72 ; Davis v. Getchell, 50 Me. 602, 79 Am. Dec. 636; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105 ; L. R. 2 Ex. 1; Brown v. Kistler, 190 Pa. 499. The right to use for domestic purposes is primary and for mechanical power is secondary. When the two rights conflict the latter right must Yield to the former ; Auburn v. Water Power Co., 90 Me. 576, 38 Atl. 561, 38 L. It. A. 188. The right of a riparian pro prietor on a non-navigable stream to the use of its ordinary flow of water, undimin ished by an unrehsonable use by an upper proprietor, is not an easement or appurte iinnoc, hut is insenarablv annexed to the soil and is part and parcel of the land itself ; Pine v. New York, 103 Fed. 337. One who diverts water from a flowing stream for a teneficial purpose may have the use of it so long as he conforms to the law regulating such matters, but he has no contract with or grant from the government, federal or state, in respect to his privilege; Mohl v. Canal Co., 128 Fed. 776.
Riparian owners may not divert or sell running water for general use, and are lim ited in their own use of it to ordinary pur poses incident to the enjoyment of the ripa rian laud, and in exceptional cases to ex traordinary uses upon the land itself, if such use does not unreasonably decrease the quan tity of the water or impair its quality; Carpenter v. Gold, 88 Va. 551, 14 S. E. 329. But the extraordinary use must be upon the riparian land. A railroad company, being a riparian owner, cannot divert the water to a reservoir several miles distant, to be used for railroad purposes ; Scranton G. & W. Co.• v. R. Co., 240 Pa. 604, 88 Atl. 24, 47 L. R. A. (N. S.) 710.
Landowners along tidal streams have no private riparian rights of which the state, as owner of the foreshore, may not deprive them at will ; Gould v. R. Co., 6 N. Y. 522 ; Stevens v. R. Co., 34 N. J. L. 532, 3 Am. Rep. 269.