ered. 239 The right may be one which a person enjoys in common with others and for an injury to these there can be no recovery; the damage must be special and personal to the one claiming compensation. This question will be considered more fully in a succeeding section. § 750. Concrete illustrations. Where the necessity exists for an exercise of the power, all property including personal may be taken 240 including portions of real property; rock, gravel or soil; 241 the necessities of the oc 239 City of Chicago v. Rumsey, 87 Ill. 348; Randall v. Christiansen, 76 Iowa, 169, 40 N. W. 703; Wehn v. Gage County Com'rs, 5 Neb. 494; Ely v. City of Rochester, 26 Barb. (N. Y.) 133; Burwell V. Vance County Com'rs, 93 N. C. 73. 240 Burnett v. City of Sacramento, 12 Cal. 76. Money excluded. Emery v. San Francisco Gas Co., 28 Cal. 345; Christy's Adm'rs v. City of St. Louis, 20 Mo. 143; City of Galveston v. Brown, 28 Tex. Civ. App. 274, 67 S. W. 156. In respect to the right of a state to authorize the appropriation of property of the United States, see United States v. City of Chicago, 7 How. (U. S.) 185; United States v. Railroad Bridge Co., Fed. Cas. No. 16,114; Pratt v. Brown, 3 Wis. 603. In respect to an exercise of power over property belonging to the state itself, see City of Atlanta v. Central R. & Banking Co., 53 Ga. 120; St. Louis, J. & C. R. Co. v. Institution for Education of the Blind, 43 Ill. 303. The grant of the power to appropriate state lands must be considered as applying only to those vacant and unappropriated-not to such as have been already devoted to a special use on behalf of the state. St. Paul & N. P. R. Co. v. State, 34 Minn. 227, 25 N. W. 345. Lots Abb. Corp. Vol. II — 53. belonging to a state university not used or held for public purposes by the state and not contiguous to the university grounds are subject to appropriation under eminent domain. Attorney General v. Hudson Tunnel R. Co., 27 N. J. Eq. 176; In re Alexander Avenue, 63 Hun (N. Y.) 630; In re City of Utica, 73 Hun 256, 26 N. Y. Supp. 564. The grant of the right to exercise the power of eminent domain does not authorize the grantee to condemn land owned by the state since the statute is not binding on the state unless it is expressly named or included in it by necessary implication. Seattle & M. R. Co. v. State, 7 Wash. 150, 34 Pac. 551, 22 L. R. A. 217. 241 Lewis, Em. Dom. (2d Ed.) § 61a. In speaking of the rights of other riparian owners, the author says: "The principal uses to which the water of a stream may be put are for domestic purposes, for watering stock, for irrigation and for manufacturing. The right to take water for domestic purposes and for watering stock is an absolute right, and each proprietor may take what is necessary for these purposes, without regard to the effect upon lower proprietors. But the right to take water for irrigation or manufacturing purposes is qualified and limited by the exist casion can be satisfied through eminent domain irrespective of the quantity or the property appropriated.24 Waters and riparian rights. Every riparian owner has the right of access to the water and to a continuance of its flow to and from his premises in the quantity, the quality and the manner in which it is accustomed to flow by nature, subject, however, to the right of other proprietors to make use of it in a lawful manner.243 This right, the courts have held, is property, and cannot be taken or damaged without the payment of just compensation. The text book writers seem to agree that this right can be taken or injuriously affected through an abstraction or diversion of the water or by any interference with the flow of the water or its current. Public corporations may, in the exercise of their legal powers, take such action as will effect the taking of this particular property right and for which injury the property owner will be entitled to compensation. Considering first then the abstraction or diversion of water by a public corporation for the purpose of securing a water supply for its own use and that of its inhabitants: To furnish a sufficient supply of pure and wholesome water is required as a public and governmental duty. It cannot attain this end without securing the water in a legal manner. A public corporation no more than the individual is permitted to appropriate the property of others even though this use is a public one. Where, therefore, in the construction or maintenance of a system of waterworks, the water of a riparian owner is abstracted or diverted, he is entitled to recover compensation and this whether the water is taken directly from the stream or body of water, ence of like rights in the lower owners, and must be exercised with a due regard to such rights." 242 Baring v. Erdman, Fed. Cas. No. 981; City of Hartford v. Day, 64 Conn. 250, 29 Atl. 480; Martin v. City of Evansville, 32 Ind. 85 Use of property below high-water mark may be regulated by virtue of the general property conferred to promote navigation but lands above high-water mark can only be acquired or regulated upon making compensation to the property owner. 243 Gould, Waters, § 204; Angell, 245 Water Courses, §§ 90, 96; Farnham, Waters & Water Rights, §§ 62, 64, 65, 66, 76 et seq. 244 Bottoms v. Brewer, 54 Ala. 288; St. Helena Water Co. v. Forbes, 62 Cal. 182; Lux v. Haggin, 69 Cal. 255; Harding v. Stamford Water Co., 41 Conn. 87; City of Emporia v. Soden, 25 Kan. 588; Clark v. Cambridge & A. Irr. & Imp. Co., 45 Neb. 799, 69 N. W. 239. 245 United States v. Great Falls Mfg. Co., 112 U. S. 645; Long Island Water Supply Co. v. City of Brooklyn, 166 U. S. 685; Saunders v. Bluefield Waterworks Co., 58 Fed. 133; Pine v. City of New York, 103 Fed. 337. A municipality cannot condemn land situated in another state for the purpose of a water supply. Dudden v. Guardians of Poor of Clutton Union, 1 Hur. & N. 630; Stein v. Burden, 24 Ala. 130, Id., 29 Ala. 127; St. Helena Water Co. v. Forbes, 62 Cal. 182; City of Santa Cruz v. Enright, 95 Cal. 105, 30 Pac. 197; Harding v. Stamford Water Co., 41 Conn. 87; Fisk v. City of Hartford, 70 Conn. 720; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 So. 780, 33 L. R. A. 376; City of Elgin v. Elgin Hydraulic Co., 85 Ill. App. 182; Bass v. City of Ft. Wayne, 121 Ind. 389, 23 N. E. 259; Dodge v. City of Council Bluffs, 57 Iowa, 560, 10 N. W. 886; City of Emporia v. Soden, 25 Kan. 588; Reddell v. Bryran, 14 Md. 444; Aetna Mills v. Inhabitants of Brooklyn, 127 Mass. 69; Johnson v. City of Boston, 130 Mass. 452; Watuppa Reservoir Co. v. Mackenzie, Mass. 71; Cowdrey v. Woburn, 136 Mass. 409; Pickman v. Peabody, 145 Mass. 480, 14 N. E. 751; Proprietors of Mills v. Braintree Water Supply Co., 149 Mass. 478, 4 L. R. A. 272; Nemasket Mills v. City of Taunton, 166 Mass. 540, 44 N. E. 609; Hall v. City of Ionia, 38 Mich. 493; Minneapolis Mill Co. v. St. Paul Water Com'rs, 56 Minn. 485, 58 N. W. 33; Id., 168 U. S. 349, where the court held that the appropriation of waters of a lake for a city water supply thereby preventing their flowing past a water power in a river without any compensation for the resulting injury to riparian owners is a matter of local law on which the federal courts must follow state decisions. 132 Thorn v. Sweeney, 12 Neb. 251; Higgins v. Flemmington Water Co., 36 N. J. Eq. (9 Stew.) 538; Olmsted v. Morris Aqueduct Co., 46 N. J. Law, 495; Ingersoll v. Town of Newton, 57 N. J. Eq. 367, 41 Atl. 385; Butler Rubber Co. v. Newark, 61 N. J. Law, 32, 40 Atl. 224; Gardner V. Village of Newburgh, 2 Johns. Ch. (N. Y.) 161; Chace v. Warsaw Waterworks Co., 79 Hun, 151, 29 N. Y. Supp. 729; Sumner v. City of Gloversville, 35 Misc. 523, 71 N. Y. Supp. 1088. See, also, as holding the same, Auburn v. Union Water Power Co., 90 Me. 576, 38 L. R. A. 188; Smith v. City of Brooklyn, 18 App. Div. 340, 46 N. Y. Supp. 141; Id., 160 N. Y. 357, 54 N. E. 787, 45 L. R. A. 664; In re Middletown, 82 N. Y. 196; Smith v. City of Rochester, 92 N. Y. 463; Neal v. City of Rochester, 156 N. Y. 213; Appeal of Haupt, 125 Pa. Atl. 436, 3 L. R. A. 536; Lord v. Meadville Water Co., 135 Pa. 122, 19 Atl. 1007, 8 L. R. A. 202; Howe v. Norman, 13 R. I. 488; Leonard v. City of Rutland, 66 Vt. 105; Wisconsin Water Co. v. Winans, 85 Wis. 26, 54 N. W. 1003, 20 L. R. A. 662. But see Barre Water Co. v. Carnes, 65 Vt. 626, 27 Atl. 609, 21 L. R. A. 769. See, also, Farnham, Waters, § 137. 211, 17 The rights of a riparian owner may be defeated by grant, custom or estoppel. See the following cases: Race v. Ward, 30 Eng. L. R. Eq., 187; Stein v. Ashby, 24 Ala. 521; Feliz v. City of Los Angeles, 58 Cal. 73; Vernon Irrigation Co. v. City of Los Angeles, 106 Cal. 237, 39 Pac. 762; Fisk v. City of Hartford, 70 Conn. 720; Mitchell V. Parks, 26 Ind. 354; City of Logansport v. Uhl, 99 Ind. 531; Jones v. Portsmouth Aqueduct, 62 N. H. 488. The facts considered not held sufficient to create an estoppel. Hannum v. Borough of West Chester, 70 246 or whether it is lost by a percolation through the soil. The taking in either case is complete and compensation must be made. This subject has been somewhat considered in a previous section.247 A public corporation may interfere with a water right in respect to the second class of injuries by a discharge of its sewage into a stream or body of water in such a manner as to take or injuriously affect the right of the riparian owner to the flow of the stream or the preservation of the condition of a body of water in its natural purity.248 Where such conditions and injuries can Pa. 367; Lonsdale Co. v. City of Woonsocket, 21 R. I. 498, 44 Atl. 929; Fisher v. Bountiful City, 21 Utah, 29, 59 Pac. 520. 246 Cowdrey v. Inhabitants of Woburn, 136 Mass. 409; Smith v. City of Broklyn, 18 App. Div. 340, 46 N. Y. Supp. 141; Van Wycklen v. City of Brooklyn, 118 N. Y. 427; Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 Pac. 147, 26 L. R. A. 425. 247 See §§ 462 et seq. 248 Attorney General v. Corporation of Halifax, 39 Law J. Ch. 129; Id., 21 Law T. (N. S.) 52; City of Birmingham v. Land Co., 137 Ala. 538, 34 So. 613; Peterson v. City of Santa Rosa, 119 Cal. 387; Platt v. City of Waterbury, 72 Conn. 531, 45 Atl. 154, 48 L. R. A. 691. "The use of a stream for drainage is unreasonable when it results in the concentration of filth and its discharge into the stream in such quantities that it is necessarily carried to the premises of another where it produces a nuisance dangerous to health and destructive to the value of the property. And although a city has implied power to construct drains beneath its streets, if, by their use it creates a nuisance, the city is liable." City of Jacksonville v. Lambert, 62 Ill. 519. "It may be true that a city is liable to be compelled to afford sufficient drainage for the health and comfort of the people, but that would not authorize them so to construct the work as to destroy or seriously impair the value of the property of an individual. If * * * there is no means of making proper drainage without injury to individuals, let the community for whose benefit it is constructed, through their corporate government, by condemnation or otherwise, make compensation. Every principle of justice, and the dictates of reason, would say that it is wholly wrong to impose the burden of the nuisance on one or a few citizens." City of Jacksonville v. Doan, 145 Ill. 23, 33 N. E. 878; Village of Dwight v. Hayes, 150 Ill. 273, 37 N. E. 218; Robb v. Village of La Grange, 158 Ill. 21, 42 N. E. 77; City of Valparaiso v. Moffitt 12 Ind. App. 256, 39 N. E. 909; Woodward v. City of Worcester, 121 Mass. 245; O'Brien v. City of St. Paul, 18 Minn. 176 (Gil. 163); Foncannon v. City of Kirksville, 88 Mo. App. 279; Vale Mills v. Nashua, 63 N. H. 136; Doremus v. City of Paterson, 65 N. J. Eq. 711, 55 Atl. 304; Grey v. City of Paterson, 58 N. J. Eq. 1, 42 Atl. 749; Demby v. City of Kingston, 60 Hun, 294, 14 N. Y. Supp. 601; Noonan v. City of Albany, 79 N. Y. 470; Chapman v. City of Rochester, be established, there is a taking clearly of private property for which compensation must be made. The claim has been made that where there is statutory permission to turn sewage into a stream or body of water, that it relieves the corporation from any claim for damages. This claim involves a determination of the power of the legislature to grant authority for the creation of a nuisance and this question is necessarily determined not by an inspection and consideration of the statute itself but by constitutional provisions. The weight of authority sustains the right of a riparian owner to recover damages and this is especially the case where the liberal theory as to the meaning of the words "property" and "taking" have been adopted, or where constitutional provisions exist using words other than "taking" or "taken" and which enlarge the owner's right of compensation. See as holding to the contrary, however, the Indiana and New England cases cited in the notes.249 The general principle applying 110 N. Y. 273, 18 N. E. 88, 1 L. R. A. 296; Good v. City of Altoona, 162 Pa. 493, 29 Atl. 741; Clark v. Peckham, 9 R. I. 455; City of San Antonio v. Pizzini (Tex. Civ. App.) 58 S. W. 635; New Odorless Sewerage Co. v. Wisdom, 30 Tex. Civ. App. 224, 70 S. W. 354; City of San Antonio Board v. Smith, 94 Tex. 266. But see Vickers v. Durham, 132 N. C. 880, 44 S. E. 685. An injunction will not be granted at the instance of a riparian owner where there is no evidence that the proposed acts of the defendant will cause injury. 249 Lind v. City of San Luis Obispo, 109 Cal. 340; Nolan v. City of New Britain, 69 Conn. 668, 38 Atl. 703; Watson v. Town of Milford, 72 Conn. 561, 45 Atl. 167; City of Champaign v. Forrester, 29 Ill. App. 117; City of Bloomington v. Costello, 65 Ill. App. 407; Loughran v. City of Des Moines, 72 Iowa, 382; Randolf v. Town of Bloomfield, 77 Iowa, 50, 41 N. W. 562; Hollenbeck v. City of Marion, 116 Iowa, 69; Long v. City of Emporia, 59 Kan. 46; Herr v. Central Ken tucky Lunatic Asylum, 97 Ky. 458. 30 S. W. 971, 28 L. R. A. 394; Franklin Wharf Co. v. City of Portland, 67 Me. 46; Attwood v. City of Bangor, 83 Me. 583, 22 Atl. 466; West Arlington Imp. Co. v. Mt. Hope Retreat, 97 Md. 191, 54 Atl. 982; Morse v. City of Worcester, 139 Mass. 389, 2 N. E. 694; Middlesex Co. v. City of Lowell, 149 Mass. 509, 21 N. E. 872; Bacon v. City of Boston, 154 Mass. 100; Titus v. City of Boston, 161 Mass. 209, 36 N. E. 793; Lincoln v. Commonwealth, 164 Mass. 368, 41 N. E. 489; Edmondson v. City of Moberly, 98 Mo. 523, 11 S. W. 990; Smith v. City of Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711; Simmons v. City of Paterson, 60 N. J. Eq. 385; Seifert v. City of Brooklyn, 101 N. Y. 136; Sammons v. Gloversville, 175 N. Y. 346, 67 N. E. 622; City of Mansfield v. Balliett, 65 Ohio St. 451, 63 N. E. 86, 58 L. R. A. 628; Owens v. City of Lancaster, 182 Pa. 257; City of Paris v. Allred, 17 Tex. Civ. App. 125, 43 S. W. 62; Trevett v. Prison Ass'n, 98 Va. 332, 36 S. E. 373, 50 |