Page:The New International Encyclopædia 1st ed. v. 20.djvu/421

* WATER RIGHTS. 351 WATE3, RIGHTS. WATER RIGHTS. A general expression to deseribe the Icf^al jHiucr cif nsing or of control- ling the use of the water of Ilowing streams, ponds, lakeSj and of the sea. These rights are numerous and varied in character, Init may bo generally classified as (1) natural rights, (2) easements, (3) customary rights, an<l (4) pub- lie rights. Strictly speaking, tliis classification has to do only with private waters, those, namely, wlicther Ilowing or stationary, which occupy land subject to private ownership. By the com- mon law the bed of the sea and of tidal waters generally (teclmically described as 'navigable' waters) is not subject to private ownership, but belongs to the State — in England to the Crown; in the United States to the peojile of the .several States — and is open to publi<' use for all proper purjio.ses (as navigation, fishing, bathing, etc.) without restriction. But wherever waters ordi- narily public have become subjected to private ownership, the nature of the pro])rietary right so gained and the extent to which it is limited by rights of user vested either in the puldic or in other private citizens become proper subjects of inquiry, just as in the case of waters originally and inherently private. (See Rh'ari. Right,s; EiVERS.) Even waters strictty public, however, may be subject to private rights which to a cer- tain extent limit the public right of user above referred to — as the rights of access of landing, mooring, and wharfing out, enjoyed by an abutting or riparian owner on a navigable river. It is of the essence of the doctrine of w-ater rights that the water itself is, in our legal s.ys- teni, not deemed to be capable of ownership. It is true that water collected in cisterns, arti- ficial ponds, etc., the water held in marshy or spongy ground; even the water percolating through the soil or flow'ing in undefined chan- nels on the surface or underground, is regarded as a part of the earth, and to all intents and purposes as belonging to the owner of the land. Wherefore a landowner may drain his land, or may collect the water therein in wells or cisterns, and may make any use he pleases of it, even though in so doing he cuts off his neighbor's sup- pl.v of surface drainage or of percolating waters which feed the latter's well or stream. But there is no such thing as the ownership of run- ning streams. Every landowner has a natural right to the use and enjoyment of the watercourse which flows through his land. It is not acquired by grant or prescription, like an easement, nor can it be alienated apart from the land, nor is it, like an easement, extinguished by non-user or abandonment, nor by 'unity of possession.' It exists jure natura as an incident to the land, and passes with the land upon the alienation of the latter in whole or in part. It includes the use of the water for all jiroper purposes — for watering stock, for irrigation, for power, for fishing, for navigation, and for drainage — but such use is strictly limited by the right of every other riparian proprietor to make a similar use thereof. Conversely, the right is infringed by any act — such as diverting, fouling, detaining, or damming back the water, or by draining into it — which inflicts actual damage or excessive incon- venience. (See RiP.RiAN RiGHT.s.) A riparian proprietor has a right to a steady flow of the watercourse without material alteration, and the riglit is not limited to the main stream, but extends to all contributing streams and springs actually connected therewith, but not to per- colating or surface waters not flowing in a de- fined channel. But a stream flowing in a well- defined channel underground is cfpially subject to the law of user, above outlined, as is a sur- face stream. The infringement (jf riparian rights is a nuisance, remediable by an action for dam- ages and by injunction, and, in a proper case, by direct abatement of the nuisance. By far the most numerous class of water rights are those which come under the descrip- tion of easements. They include such well- known easements as drainage, or the right of discharging water ujion another's land, the right to take water by a pipe, ditch, or otherwise, fi(jm another's land, and the right to flood another's land by damming back a running stream upon it. To these may be added, for convenience, the rights (jiropcrly described as profits a prendre rather than as easements) to take ice from the pond of another, to flsli in his stream or trout pond. Like other rights of this character (some- times comprehensively grouped as servitudes, or rights in alieno solo), these may be acquired by grant or prescription and may be lost by release or abandonment. See Easement. Customary Water Rif;iiT.s are not of frequent occurrence. They consist in the right 'of a com- munity (as the inhabitants of a town or village), based on inimeniorial usage, to take water from a private spring or stream or to water cattle at such spring or stream. Rights of this char- acter are not favored in the United States and can hardly be said to exist here, though they are of ancient standing in English law. See Cus- tom. Public Water Right.s. or the right of the pub- lic at large to use and enjoy private waters, may exist either in waters naturally private, as in non-navigable streams, or -in w^aters which have become subjected to private ownership, as oc- casionally happens in the seashore or in navi- gable streams. It is a general rule of the common law that a private stream which is adapted to navigation, even though it be only for floating logs, is subject to the public use for that pur- pose. This right of the public is strictly lim- ited, however, and does not extend to the taking of fish or cutting ice, or even of landing, but only to the purpose of passing and repassing in a suitable boat, or, as said above, of floating logs at appropriate seasons of the year. The right of fishing, in particular, is an incident of the ownership of the bed of a stream or pond, and no length of user will vest that right in a com- munity or in the public at large. The only ex- ception to this rule appears in the rights en- joyed by the public in the seashore in the rare cases where the latter has become -private prop- erty. The public ownership of the seashore, i.e. of the strip between low and high water mark to which reference was made above, may be divested by grant from the Crown in England, by legislative act or charter in the United States, in favor of a private individual. In a few of the United States, indeed (JIaine. New Hampshire, Massachusetts, and Virginia), the owner of the upland owns the shore. But in all these cases the private owner takes the shore subject to certain immemorial rights of the pub-