Where water percolates in no known chan nel, one who put down an extensive well to supply water to the inhabitants of the dis trict (some of whom were not riparian own ers) was held not liable to a mill owner who had for sixty years enjoyed the use of a stream chiefly supplied by such percolating water ; 7 H. L. Cas. 349. One may collect percolating waters for use off the land, though he thereby drains a well on neighbor ing premises, the waters from which had been used only for domestic purposes ; Hous ton & T. C. R. Co. v. East, 98 Tex. 146, 81 S. W. 279, 66 L. R. A. 738, 107 Am. St. Rep. 620, 4 Ann. Cas. 827. See 16 Harv. L. Rev. 295. Each landowner may absolutely enjoy the percolating water and owes no duty to his neighbor ; Chatfield v. Wilson, 28 Vt. 49.
A pool of water, or a stream or water course, is considered as part of the land ; hence a pool of twenty acres would pass by the grant of twenty acres of land, with out mentioning the water ; 2 Bla. Com. 18 ; Bullen v. Runnels, 2 N. H. 255, 9 Am. Dec. 55 ; Rogers v. Jones, 1 Wend. (N. Y.) 255, 19 Am. Dec. 493 ; Mitchell v. Warner, 5 Conn. 497; Hart v. Evans, 8 Pa. 13. A mere grant of water passes only a fishery ; Co. Litt. 4 b; Jackson v. Halstead, 5 Cow. (N. Y.) 216. But the owner of land over which water flows may grant the land, reserving the use of all the water to himself, or may grant the use of all or a portion of the water; reserving the fee of the land to himself; Rood v. John sou, 26 Vt. 64.
But it is held that a riparian proprietor may not assign his rights in gross ; 3 H. & C. 300; see 19 Harv. L. Rev. 216. A ripari an owner cannot assign his water-rights as against upper or lower proprietors, but can create only a contract right against himself ; 16 Harv. L. Rev. 145, citing 11 Q. B. D. 115 ; Gould v. Eaton, 117 Cal. 539, 49 Pac. 577, 38 L. R. A. 181. But see Gillis v. Chase, 67 N. H. 161, 31 Atl. 18, 68 Am. St. Rep. 645 ; St. Anthony Falls W. P. Co. v. Minneapolis, 41 Minn. 270, 43 N. W. 56.
The public cannot, in the United States, gain any proprietary right in streams of inland water too small to be used for the transportation of property ; Ang. Water-C. § 2 ; Wadsworth v. Smith, 11 Me. 278, 26 Am. Dec. 525. In the case of navigable waters used as a highway of commerce be tween the states or with foreign nations no state can grant a monopoly for the navi gation of any portion of such waters ; Gib bons v. Ogden, 9 Wheat. (U. S.) 1, 6 L. Ed.
23; Illinois C. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018 ; ders v. R. Co., 144 N. Y. 88, 38 N. E. 992, 26 L. R. A. 378, 43 Am. St. Rep. 729 ; Pacific G. I. Co. v. Ellert, 64 Fed. 436. A state has the same power to improve such waters as it has in the case of any highway; Cooley, Const. Lim. 738 ; Stockton v. Powell, 29 Fla. 1, 10 South. 688, 15 L. R. A. 42 ; Mononga hela Nay. Co. v. U. S., 148 U. S. 312, 13 Sup. Ct. 622, 37 L. Ed. 463 ; Falls Mfg. Co. v. Imp. Co., 87 Wis. 151, 58 N. W. 257 ; and, having expended money for such improve ment, it may impose tolls upon the commerce which has the benefit of the improvement ; Palmer v. Cuyahoga County, 3 McLean 226, Fed. Cas. No. 10,688 ; McReynolds v. Small house, 8 Bush (Ky.) 447. The states may au thorize the construction of bridges over such waters, for railroads and other species of highways, notwithstanding they may to some extent interfere with navigkion. See Hare, Am. Const. L. 457, 487, 497 ; Cora. v. Breed, 4 Pick, (Mass.) 460 ; State v. Leighton, 83 Me. 419, 22 Atl. 380 ; Willamette I. B. Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811, 31 L. Ed. 629 ; Oregon City Transp. Co. v. Bridge Co., 53 Fed. 549; BRIDGE. A state may establish ferries over such waters; Conway v. Taylor, 1 Black (U. S.) 603, 17 L. Ed. 191; Marshall v, Grimes, 41 Miss. 27 ; and authorize the construction of dams ; Cooley, Const. Lim. 740. A state may also regulate the speed and general conduct of vessels navigating its water highways, provided its regulations do not conflict with any regulations made by congress ; People v. Jenkins, 1 Hill (N. Y.) 469. See Cooley, Const. Lim. 737, 741. It may prohibit the transportation of its water into any other state ; Hudson County Water Co. v. McCarter, 209 U. S. 349, 28 Sup. Ct. 529, 52 L. Ed. 828, 14 Ann. Cas. 560.
In the Salton Sea Cases the court, having jurisdiction of land alleged to be injured by the wrongful acts of, the defendant corpora tion in flooding the plaintiff's land, enjoined the defendant though the wrongful act was committed in Mexico ; The Salton Sea Cases, 172 Fed. 792, 97 C. C. A. 214.