Page:Harvard Law Review Volume 8.djvu/156

140 140 HARVARD LAW REVIEW. the riparian proprietor's land.^ Tiie proprietor has a right that the stream shall continue to flow to his premises in its natural way. " This right is a part of his property in the land and in many cases constitutes its most valuable element." ^ The Massachusetts legis- lature can, by making provision for compensation, constitutionally authorize such taking or diversion, as against lower riparian pro- prietors in Massachusetts. But it does not follow that the Massa- chusetts legislature can thus authorize the taking as against lower riparian proprietors in New Hampshire. Because Massachusetts can compel a sale of property in Massa- chusetts, it does not follow that it also can compel a sale of property in New Hampshire. Massachusetts has not the power to compel a New Hampshire riparian proprietor to sell his right (annexed to and arising out of his New Hampshire land), that the water of the river should continue to flow to his land. A State cannot exercise the power of eminent domain extra-territorially. Massachusetts can- not condemn land in New Hampshire.^ Massachusetts cannot, as against a citizen of New Hampshire, authorize the doing of an act in Massachusetts which will result in the taking of property rights in New Hampshire. Massachusetts could not authorize the build- ing of a dam in Massachusetts which would flood land in New Hampshire.* By parity of reasoning, Massachusetts could not authorize the construction of an aqueduct or canal in Massachusetts which would divert water from a stream naturally flowing to New Hamp- shire. The right infringed by flooding New Hampshire land may be called absolute ownership. The right infringed by diverting water from New Hampshire land maybe called an easement. The consequence in the one case may be positive, and in the other case negative. But in each case it is a property right that is in- fringed ; and the consequence is as direct in the latter case as in the former.^ Possibly it may be argued that the New Hampshire riparian owner's right to have the stream flow from Massachusetts to his ^ 45 Am. Rep. pp. 661-662. ^ Lewis on Eminent Domain, s. 61. Knowlton, J., 147 Mass. p. 561. ^ Crosby v. Hanover, 36 N. H. 404; Randolph on Eminent Domain, s. 28. Salisbury Mil's v. Forsaith, 57 N. H. 124, p. 127 ; I. W. Smith, J., in Same Case, p. 131- ^ See Holmes, J., 138 Mass. p. 90 ; Saunders v. Bluefield, &c. Co., 58 Fed. Rep. 133; Randolph on Eminent Domain, s. 28.
 * Appleton, J., in Worster v. G. F. M. Co., 39 Maine, 246, p. 250. Ladd, J., in