effect it may have, in case of deficiency, upon those lower down.1 That is, the right is not limited to the usufruct; the whole may be taken if needed.

And this leads to the remark that one criterion of liability for abstracting water from streams, used for milling purposes, (probably) is whether, considering all the circumstances, the size of the stream and that of the millworks, there has been a greater use of the stream, in abstracting or detaining the water, than is reasonably necessary and usual in similar establishments for carrying on the mill. A mill-owner is not liable for obstructing and using the water for his mill, if it appear that his dam is of such magnitude only as is adapted to the size and capacity of the stream, and to the quantity of water usually flowing therein, and that his mode of using the water is not unusual or unreasonable, according to the general custom of the country in cases of dams upon similar streams; and this, whatever may be the effect upon the owners of land below.2

8

The water of a stream running wholly within a man's land may be diverted, if it be returned to its natural channel before reaching the lower proprietor; and this could perhaps be done where the water runs between the lands of riparian occupants, so far as the rights of parties lower down are concerned. The only person entitled to complain of such an act would be the opposite proprietor.

1 Miner v. Gilmour, 12 Moore, P. C. 131; Wood v. Waud, supra; Evans v. Merriweather, 3 Scam. 492, 495; Fleming v. Davis, 37 Texas, 173, 198; Baker v. Brown, 55 Texas, 377.

2 Springfield v. Harris, 4 Allen, 494; s. c. L. C. Torts, 506. See Davis v. Getchell, 50 Maine, 602; Merrifield v. Worcester, 110 Mass. 216; Hayes v. Waldron, 44 N. H. 580; Pool v. Lewis, 41 Ga. 162; Timm v. Bear, 29 Wis. 254; Clinton v. Myers, 46 N. Y. 511. The statutes with regard to mill-streams should, however, be noticed.

Miner v. Gilmour, supra; Tolle v. Correth, 31 Texas, 362.

It is to be observed, however, that the foregoing supposes that there exists no right by prescription or grant to the use of the stream by either the upper or lower proprietor. The rights and burdens of the parties may be greatly varied by grant or by prescription.

For

With regard to surface water running in no defined channel, the rule of law is that every occupant of land has the right to appropriate such water, though the result is to prevent the flow of the same into a neighboring stream, or upon the land of an adjoining occupant.1 Nor can there be any prescriptive right to such water. example: The defendant, for agricultural and other useful purposes, digs a drain in his land, the effect of which is to prevent the ordinary rainfall, and the waters of a spring arising upon his land, and flowing in no defined channel, from reaching a brook, upon which the plaintiff has for fifty years had a mill. The defendant is not liable for the diversion, however serious the inconvenience to the plaintiff.2

In the Pacific States the law is peculiar. There he who first duly appropriates all the waters of a stream running in the public lands becomes entitled to the same to the exclusion of all others. But if only part is appropriated, another may appropriate the rest; or if all is appropriated only on certain days, others may appropriate on other days.*

1 Broadbent v. Ramsbotham, 11 Ex. 602; Luther v. Winnisimmet Co. 9 Cush. 171; Gannon v. Hargadon, 10 Allen, 106; Curtis v. Ayrault, 47 N. Y. 73, 78; Livingston v. McDonald, 21 Iowa, 160, 166.

2 Broadbent v. Ramsbotham, supra; Rawstron v. Taylor, 11 Ex. 369. 8 Smith v. O'Hara, 43 Cal. 371.

4 Id. As to what is a due appropriation, see Weaver v. Eureka Lake Co. 15 Cal. 271; McKinney v. Smith, 21 Cal. 374.

§ 3. OF SUB-SURFACE WATER.

In regard to underground streams, if their course is defined and known, as is the case with streams which sink under ground, pursue for a short distance a subterraneous course, and then emerge again, the owner of the land lower down has the same rights as he would have if the stream flowed entirely above ground. But, if the underground water be merely percolation, there can be no breach of duty in cutting it off from a lower or adjoining land-owner. And there can be no prescriptive right to the water. For example: The defendant, a land-owner adjoining the plaintiff, digs on his own ground an extensive well for the purpose of supplying water to the inhabitants of a district, many of whom have no title as land-owners to the use of the water. The plaintiff has previously for more than sixty years enjoyed the use of a stream (for milling purposes) which was chiefly supplied by percolating underground water, produced by rainfall; which water now, after the digging of the well, is cut off and fails to reach the stream. The defendant's act is no breach of duty to the plaintiff.2

1 Dickinson v. Grand Junc. Canal Co. 7 Ex. 282.

2 Chasemore v. Richards, 7 H. L. Cas. 349, overruling Balston v. Bensted, 1 Camp. 463. No right to such percolating water can arise by grant or by prescription apart from the right to the land itself. Id. Further see Chase v. Silverstone, 62 Maine, 175; Wilson v. New Bedford, 108 Mass. 261; Frazier v. Brown, 12 Ohio St. 294; Cases, 360; Hanson v. McCue, 42 Cal. 303. In New Hampshire the right to cut off percolating water depends upon the reasonable use of the soil. Bassett v. Salisbury Manuf. Co., 43 N. H. 569; Swett v. Cutts, 50 N. H. 439; Cases, 376. As to polluting streams, see post, pp. 292, 293.

CHAPTER XIV.

NUISANCE.

§ 1. INTRODUCTORY.

1

Statement of the duty. A owes to B the duty (1) to forbear to obstruct or impair the use of the public ways or waters in such a manner as to cause damage to B; (2) to forbear, except in the ordinary, natural use of his own, to flood the land of B with water collected upon his own land, or by changing the course of currents; (3) to forbear to cause or suffer the existence upon his own premises of anything not naturally there which while there causes damage to B; (4) to forbear so to use his own premises as to endanger the life or impair the health of B, or to disturb his physical comfort in a material degree in the use of his (A's) premises.

1. Public nuisances are indictable nuisances, being committed (1) in the public ways or waters, or (2) on private premises to the prejudice of the general public.2

2. Private nuisances are non-indictable nuisances, being committed on private premises to the prejudice of one person, or but a few persons, of the neighborhood.

A public nuisance may be also a private nuisance.

1 But see infra, p. 292.

2 'If a person erects on his own land anything whatever calculated to interfere with the convenient use of the road, he commits a nuisance.' Stephen, J. in Brown v. Eastern Ry. Co., 23 Q. B. Div. 391, 392, case of a heap of dirt by the roadside. Negligence is not necessary. Hauck v. Tide Water Co., 153 Penn. St. 366; Cases, 385; Rapier v. London Tramways Co., 1893, 2 Ch. 588, 600.

§ 2. OF WHAT CONSTITUTES A NUISANCE.

It appears to be of the essence of a nuisance that there should be some duration of mischief; a wrong producing damage instantaneously, as in the case of an explosion,1 could hardly be a nuisance. And then further to determine what constitutes a nuisance, so as to render the author of it liable to a neighbor in damages, a variety of other considerations must often be taken into account; especially where the act in question has been committed in a populous neighborhood, in the prosecution of a manufacturing business. And, even if the business itself be unlawful, it does not follow that a private individual can call for redress by way of a civil action for damages. Whether he can do so or not will depend upon the question whether he has sustained special damage, by reason of the thing alleged to be a nuisance.

Even supposing the nuisance not to be a public one, that is, not to affect seriously the rights of the public in general, much difficulty arises in determining when the business carried on upon neighboring premises, either in itself or in the manner of conducting it, is so detrimental as to subject the proprietor or manager to liability in damages. And this difficulty was until recently increased by certain inexact terms used in the old authorities. It was said that if a business was carried on in a 6 reasonable manner,' an action for damages could not be maintained, though annoyance resulted; and the term 'reasonable manner' was explained as meaning that the business was to be carried on merely in a convenient place. That is, a trade was not to be treated as a nuisance if carried on in the ordinary manner in a convenient locality. The result was to bestow upon a manufacturer the right

1 An explosion might be a consequence of a nuisance, however.