extent of this doctrine.* In this case it appeared that a small stream ran through the lands of both parties, and that the plaintiff, the lower proprietor, had enjoyed the use of the water for upwards of twenty years. The defendant requested the judge at nisi prius to charge the jury that he was entitled to a reasonable use of the water for the purpose of his business, and that if they believed that no more than a reasonable quantity for such purpose had been used, as for the creation of steam to drive his engine, the plaintiff had no ground for complaint. The court declined the request, and charged that the defendant had the right to use the stream for any legal purpose, provided he returned it to its channel uncorrupted, and without any essential diminution; and this instruction was upheld by the supreme court. "The wrong," said the court, "must cease, no matter how trifling it may seem. The right of the plaintiff is absolute to be restored to the full enjoyment of his own property, and is not dependent in any manner upon its value to himself or his adversary."

The true principle, however, is that the lower riparian proprietor has, as against the upper proprietor, merely a usufruct, and not an absolute right to the water, however long he may have been in the enjoyment, as the cases above cited show; and this being so, there can be no infraction of the right by any abstraction of water which does not sensibly and injuriously diminish its volume. Without such an act the usufruct is not interfered with and the plaintiff's right, therefore, has not been encroached upon.

In some particulars, indeed, the right of action of a lower proprietor does not depend upon the question of damage. Thus, in Sampson v. Hoddinott,† the plaintiff had been accustomed immemorially to receive the water of a stream from the defendant, an upper mill proprietor, at certain times of the day, and he now complained that the defendant let it down at other times; and the court held that he was entitled to recover without proof of actual damage. It follows, a fortiori, that an action can be maintained for a permanent diversion,

* Wheatley v. Chrisman, 24 Penn. St. 298.

ti Com. B., N. S., 509.

regardless of the effect.* And in general it is probably true that where a right is exactly defined, any infraction will be ground for an action, entitling the plaintiff to nominal damages at least. Thus, in the case of a right to the possession of land, no one can lawfully put foot upon the soil of another without permission, express or implied; and for every infraction of this right an action may be maintained, though the owner of the land suffered no harm whatever. But the right of usufruct in running streams is incapable of any such exact definition, and the courts can, therefore, only say that where the plaintiff has sustained actual injury from an undue use of the water, he has a ground of action; short of this he has not.

Whether the test of liability in cases not arising under the statutes concerning mill privileges be the reasonable use of the water, or that of damage to the lower proprietor, is not clear. Both tests are mentioned in Elliot v. Fitchburg R. R. Co., as though they were equivalent; but it was not necessary to consider the point, nor was it considered, since no damage was proved. And it is clear, as we have said, that there must be damage in order to the maintenance of the action. Suppose, however, there is damage to the plaintiff, and yet the use of the water by the defendant has been no more than was usual and reasonably necessary in carrying on his business; is there then a right of action?

In Gillett v. Johnson, the test of the reasonable use was applied, but applied as equivalent to that of damage or no damage. The question raised was of the extent of the right of the defendant to the use of a small stream for purposes of irrigation. It was held that the defendant could use the stream for that purpose; but the right, it was said, could only be exercised upon a reasonable regard to the plaintiff's right to the

* Tillotson v. Smith, 32 N. H. 90; Chatfield v. Wilson, 27 Vt. 670; S. C., 31 Vt. 358; Corning v. Troy Iron and Nail Factory, 40 N. Y. 191, 204; Van Hoesen v. Coventry, 10 Barb. 518; Parker v. Griswold, 17 Conn. 288.

† Williams v. Esling, 4 Barr, 486.

$30 Conn. 180.

use of the water. It was not enough that the water had been applied to a useful and proper purpose, and in a prudent and husband-like manner, as was alleged; the defendant was bound to use it "in such a reasonable manner and quantity as not to deprive plaintiff of a sufficient supply for his cattle."

In an earlier case, cited as authority for this decision, the same court went much farther, and applied the test of reasonable use where it was conceded that the plaintiff had suffered damage. In this case the defendant had brought water by an aqueduct, from the common stream to her house for domestic and culinary purposes, and instead of returning the surplus, above what was necessary for such use, to the stream, she allowed it to escape by flowing through small apertures in penstalks, in order to keep the water from freezing in winter, and becoming impure in summer. Part of this water irrigated the land, and part went to waste. It was held that these facts gave the plaintiff no right of action.t

It was for some time a doubtful question in England whether water could be diverted from streams for purposes of irrigation; but it is now settled that it may be so used in proper cases.§ And in Miner v. Gilmour, just cited, Lord Kingsdown, in delivering the judgment of the court, rejected the test of damage or not, saying that by the general law applicable to running streams, every riparian proprietor has a right to the ordinary use of the water flowing past his land; "for instance," said he, "to the reasonable use of the water for his domestic purposes, and for his cattle, and this without regard to the effect which such use may have in case of a deficiency upon the proprietors lower down the stream."

In cases involving the privileges of mill owners, the rule seems to be well settled that the true test of liability is whether under all the circumstances, considering the size of the watercourse, and that of the mill-works, there has been a greater use of the stream, in abstracting or detaining the water, than is

* Wadsworth v. Tillotson, 15 Conn. 366.

† See also Chatfield v. Wilson, 31 Vt. 358. Wood v. Waud, 3 Ex. 748, 781.

? Embrey v. Owen, 6 Ex. 353; Miner v. Gilmour, 12 Moore, P. C. 131.

reasonably necessary and usual in similar establishments for carrying on the mill, and not whether a lower land-owner has been injured.*

There is no suggestion that these cases stand upon peculiar grounds, and it is difficult to see any distinction between mill privileges and other privileges of using the water, except in so far as a difference has been made by statute. It must frequently be impossible to know that a particular use of the water may not injure the lower proprietors. Suppose, for instance, in the case of a brook, that at a time when the lower proprietor is in great need of the water, the necessities of the upper land-owner are also greater than usual, and without surpassing the bounds of what is reasonably necessary for a proper purpose, he exhausts the supply of the brook, and a drought follows; shall the upper proprietor be held liable in view of what he may not have known (the needs of his neighbor), and what he could not foresee (the drought), the act which he did being one which was usual among the riparian

owners?

In the Pacific states the rights of prior occupants are much greater. Thus, it is held in California that the person who first appropriates, for mining or other purposes, the waters of a stream running in the public lands, is entitled to the same, to the exclusion of all subsequent appropriations, by other persons for the same or for other purposes. But if the first occupant appropriate only part of the water, another may appropriate the rest; or if he take all upon certain days of the week, another may take all upon other days.§ The appropriation, however, must be for some "useful purpose," present or in

* Springfield v. Harris, 4 Allen, 594; Davis v. Getchell, 50 Maine, 602; Gould v. Boston Duck Co., 13 Gray, 442; Pitts v. Lancaster Mills, 13, Metc. 156; Merrifield v. Worcester, 110 Mass. 216; Hayes v. Waldron, 44 N. H. 580; Snow v. Parsons, 28 Vt. 459; Pool v. Lewis, 41 Ga. 162; Timm v. Bear, 29 Wis. 254; Clinton v. Myers, 46 N. Y. 511.

† See Gould v. Boston Duck Co., supra.

Smith v. O'Hara, 43 Cal. 371.

? Ibid.

contemplation, and is not permitted for speculation,* or for drainage simply.†

As to the right to cut off underground water, there was formerly some conflict among the authorities. In Balston v. Bensted an action was brought against the defendant for cutting a drain in his close, whereby the supply of water in a certain spring upon the close of the plaintiff, was injuriously diminished. It appeared that the plaintiff had had uninterrupted enjoyment of the spring for upwards of twenty years; and Lord Ellenborough held that an exclusive enjoyment of water for a period of twenty years afforded a conclusive presumption of right in the party so enjoying it.

The leading case of Acton v. Blundell§ was of similar character, except that the plaintiff had not been in possession for twenty years. The plaintiff was possessed of a well, which the defendants in carrying on mining operations in their land had drained. It was held in the Exchequer Chamber that the defendants were not liable. This case underwent great consideration; the English authorities, ancient and modern, and the doctrines of the Roman law, being exhaustively reviewed. But the court expressed no opinion as to what would have been the decision had the plaintiff shown an uninterrupted user for twenty years.

In Dickinson v. Grand Junction Canal Co.|| the defendants had sunk a well (after there had been disputes and compromises between the parties concerning the abstraction of water from the plaintiffs' ancient mills) on their own land, and erected over it a pump and steam engine, by which they pumped up a quantity of underground water which would otherwise have flowed through the ground into certain streams and supplied the mills of the plaintiffs with water. It was held that the defendants were liable for the damage. But though the mills.

* Weaver v. Eureka Lake Co., 15 Cal. 271.

McKinney v. Smith, 21 Cal. 374. See also McDonald v. Bear River Co., 13 Cal. 220; Wixon v. Water and Mining Co., 24 Cal. 367; Hill v. Smith, 29 Cal. 476.

+1 Campb. 463.

17 Ex. 282.

12Mees. & W. 324.