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variant definitions of these phrases by decisions in different states.

If the interference complained of is for the purpose of collecting the water and using it in ordinary quantities on the lands on which appropriation takes place, although damage results to another land-possessor from loss of the water, there will be no legal wrong committed, no matter in what jurisdiction the facts occurred. We should have such a case if Jackson dug a well on his land near that of James to obtain a supply of water for his house, thus causing James's well to become dry. Even foresight on the part of Jackson that his well would destroy that of James would not make his act wrongful; nor would ill feeling towards James, provided that Jackson's real purpose was to get a supply of water for his own use and not merely to injure James. On the other hand, use of the water in great quantities off the land on which it was collected-as, for instance, by a water company selling it to others (11)—or, a fortiori, wanton waste of the water, would be without the limits of reasonable use in at least most jurisdictions.

If loss of the water to others is caused by the ordinary improvement of the defendant's land, there is no wrong chargeable against the defendant on account of the loss, unless it is an unnecessary result of the improvement and is caused by carelessness. If, for instance, mining operations in upper land necessarily cause a diversion of percolating water from lower agricultural land, there is no

(11) Katz v. Walkinshaw, 141 Cal. 116.

violation of right, though much damage results to the farmers.

§ 20. Same: Unreasonable use not illegal in some states. In some jurisdictions apparently the law gives no rights whatsoever in diffused percolating water to the possessor of the land containing it, as against persons intercepting and diverting the flow by operations on other lands. Where this is the case, a land-possessor may render useless his neighbor's valuable water works (12) and destroy the fertility of his land, perhaps, by diverting percolating water on upper land and letting it run to waste, without legal responsibility to his neighbor. In a few other jurisdictions, the only legal check on the power of the diverter to accomplish such results seems to be the existence of a legal duty not to damage his neighbor by maliciously or wantonly misusing the percolating water.

§ 21. Natural water courses. Underground streams. A natural water course is a stream flowing permanently or regularly at intervals along a definite channel, having a bed and banks or sides. In natural water courses, a possessor of land along the bank has certain rights enforceable against the world in general. He has a right to insist that no one shall dam the stream or cause its waters to flow back, or accelerate or diminish its flow past his land, in any way which will interfere materially with an ordinary reasonable use of the stream by him, or cause damage to or flooding of his land; except that he cannot complain of an interference with his use of the stream, if it is the reasonably necessary result of the use of an

(12) Mayor of Bradford v. Pickles, [1895] A. C. 587.

other riparian proprietor, which is a fair one, having regard to the interests of all concerned. He has a right to drain into the stream from his riparian land, within the capacity of the channel. He has a right to exhaust the stream if necessary to water the cattle and horses and other domestic animals, and supply the domestic needs of the people upon his riparian land. He has a right to make such other uses of the stream, in connection with his riparian land, as will not materially and unreasonably interfere with ordinary uses by other riparian owners, or cause damage to other land. Generally a use which affects the stream materially is illegal, unless it is related to the use of riparian land. He commits a wrong to lower riparian possessors along the stream if he causes injurious pollution of the stream to an unreasonable extent, or not as a necessary incident to some reasonable use of the stream.

This is a rough statement of part of the complex law of riparian rights in our eastern, and some of our western states. In our arid western states there are rights, obtainable by and against riparian owners and others, through prior appropriation, to the use of the waters of a stream to the extent of certain volumes of flow. These rights are treated in the article on Irrigation Law in Volume VI of this work.

§ 22. Underground streams. A land-possessor has rights, duties, and liberties with respect to ascertained underground streams flowing through his land similar to those in water courses on the surface. He commits no

wrong in interfering with the flow of an unknown subterranean stream accidentally.

§ 23. Artificial water courses. In private artificial water courses that may exist or be made across the land of others, a land-possessor has no rights except those founded upon some grant, agreement, devise, or prescriptive user. His rights to use such a water course crossing another's land would be an easement—a right of the sort discussed in Chapter II, below.

sor.

§ 24. Termination of natural rights of a land-possesThe rights and duties discussed in this chapter, as well as other property rights generally, may be modified or abolished by grant, or by written agreement conforming to the requisites for a valid contract between the parties concerned, or by prescriptive adverse user or interference, in accordance with the principles of the law of prescription discussed in the article on Title to Real Estate, §§ 161-71, in Volume VI of this work.

§ 25. Same: Estoppel. Also a land-possessor may lose one of his natural rights as against a certain person or the successive possessors of a parcel of land, by permitting permanent changes to be made off his land which will interfere with the continued exercise of the right. For instance, if one riparian owner gives permission to another to drain the stream or to divert its flow permanently, above the licensor's land, he cannot after the change is made get legal redress for its permitted effects; nor can he insist upon a restoration of the former flow. Likewise, if a land-owner gives permission to the owner of an adjoining lot to make a permanent excavation in

such a way as to withdraw the lateral support due his land, he cannot after the excavation is made insist upon the restoration of the support. In all these cases the natural right is gone, as against the licensee land-possessor and his successors, by what is technically called estoppel.

In cases similar to those just discussed, with the difference that the work causing the change is done on the licensor's own land, the natural right interrupted cannot be enforced if consideration was given with the view to its abolishment at the time of the giving of the license (13), and, in some jurisdictions, even if no such consideration was given, but there has been great expense by the licensee or great damage will be caused to him as a net result of the transaction if the right is enforced (14).

(13) (14)

Devonshire v. Elgin, 14 Beav. 530.

Clark v. Glidden, 60 Vt. 702. Contra: Crosdale v. Lanigan, 129 N. Y. 604.

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