The test as to "domestic supply" is not whether the water is used in the course of trade, but whether the user is in its nature domestic; [1914] A. C. 118.
Pollution. Where a statute authorized one to empty sewage into a stream, it was held that only landowners above tide water could recover damages, since the foreshore of tidal streams is owned by the state ; Simmons v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642 ; contra, Lyon v. Fishmongers Co., L. R. 1 App. Cas. 662 ; Bowman v. Wathen, 2 McLean 376, Fed. Cas. No. 1,740.
A landowner may not pollute the quality of the water by unwholesome or discoloring impurities ; 8 E. L. & E. 217 ; Townsend v. Bell, 62 Hun 306, 17 N. Y. Supp. 210 ; Indi anapolis Water Co. v. Strawboard Co., 57 Fed. 1000 ; [1893] App. Cas. 691; Spence v. MdDonough, 77 la. 460, 42 N. W. 371; Sat terfield v. Rowan, 83 Ga. 187, 9 S. E. 677; but see, where the pollution results from a reasonable use ; Hayes v. Waldron, 44 N. H. 580, 84 Am. Dec. 105 ; Barnard v. Sherley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 L. R. A. 568, 41 Am. St. Rep. 454 ; Fergu son v. Mfg. Co., 77 Ia. 576, 42 N. W. 448, 14 Am. St. Rep. 319.
The plaintiffs, neither owning nor leasing any land abutting on a river, leased from a power company the right to draw water from the power canals which it had dug above its dam upon the river. A city higher up the river was impliedly authorized by statute to drain its sewage into the stream.
It was held that the plaintiffs could recover in an action against the city for pollution of the water ; Doremus v. Paterson, 65 N. J. Eq. 711, 55 Atl. 304.
A state may have relief in the federal su preme court against another state to prevent it from polluting the waters of a river flow ing through both states, on which the com plainant state relies for water supply ; Mis souri v. Illinois, 200 U. S. 496, 26 Sup. Ct. 268, 50 L. Ed. 572.
See Porzumon.
Dams. A riparian owner may construct a dam ; Fisher v. Feige, 137 Cal. 39, 69 Pac. 618, 59 L. R. A. 333, 92 Am. St. Rep. 77 ; Anderson v. R. Co., 86 Ky. 44, 5 S. W. 49, 9 Am. St. Rep. 263. It is not per se an im proper structure as to lower owners ; Ar royo D. & W. Co. v. Baldwin, 155 Cal. 280,
100 Pac. 874 ; Sullivan v Jones, 13 Ariz. 229, 108 Pac. 476. But a dam may not be con structed of such a height that it will back the water upon the lands of others. This rule is the same under the doctrine of ap propriation as at common law ; Kalama E. L. & P. Co. v. Driving Co., 48 Wash. 612, 94 Pac. 469, 22 L. R. A. (N. S.) 641, 125 Am. St. Rep. 948 ; Cline v. Stock, 71 Neb. 70, 98 N. W. 454, 102 N. W. 265 ; North Alabama C. I. & R. Co. v. Jones, 156 Ala. 360, 47 South. 144 ; Trullinger v. Howe, 53 Or. 219, 97 Pac. 548, 99 Pac. 880, 22 L. R. A. (N. S.) 545 ; Mentone Irr. Co. v. Power Co., 155 Cal. 323, 100 Pac. 1082, 22 L. R. A. (N. S.) 382, 17 Ann. Cas. 1222.
By act of congress June 29, 1906, the di version of water from Niagara river or its tributaries in the state of New York is pro hibited except with the consent of the sec retary of war, who is authorized to grant permits for the diversion of water in the United States for the creation of power to individuals, companies and corporations le gally authorized therefor, and who may reg ulate the amount of water diverted. The ob ject of the act was to prevent injury to the scenery of Niagara Falls. In pursuance of the act a treaty between the United States and Great Britain, Jan. 11, 1909, was made for the purpose of limiting the diversion of water from Niagara river.
Where streams flow through more than one state it will be presumed, in the absence of legislation on the subject, that each allows the same rights to be acquired from outside the state as could be acquired from within; Bean v. Morris, 221 U. S. 485, 31 Sup. Ct. 703, 55 L. Ed. 821. It has been held that one may appropriate water from a stream in one state for application to lands in another; Willey v. Decker, 11 Wyo. 496, 73 Pac. 210, 100 Am. St. Rep. 939.
Where riparian rights of several parcels of land in different states, but on the same river, are involved, the courts of both states have concurrent jurisdiction, and the court first taking jurisdiction should proceed to a determination without interference ; Rickey L. & C. Co. v. Miller, 218 U. S. 258, 31 Sup. Ct. 11, 54 L. Ed. 1032.