by this fence, and that in such case she would be without right and without remedy, even though done with the same feelings of malice as induced him to erect the fence; thus making his act lawful when the malice is seasoned with profit or some show of profit to himself, and unlawful.when his malice is unmixed with profit; the injury or inconvenience to her, meanwhile, remaining the same in both cases. If through feelings of malice he desires to shut the light and air from her windows, it is nothing to her whether he makes a profit or loss thereby. Her injury is no greater and no less in the one case than in the other. As to her, it is the effect of the act, and not the motive.

In effect he has the right to shut off the light and air from her windows by a building on his own premises, and she is not in effect concerned in the means by which such effect is produced, whether by a building or other structure; nor is she concerned as to the motive, nor as to whether he makes or loses by the operation. In the one case she might have a strong suspicion of his malice, while in the other such suspicion would be ripened into a certainty. But this is nothing to her as affecting a property right. As long as he keeps on his own property, and causes an effect on her property which he has a right to cause, she has no legal right to complain as to the manner in which the effect is produced, and to permit her to do so, would not be enforcing a right of property, but a rule of morals. It would be controlling and directing his moral conduct by a suit in equity, by an injunction. To permit a man to cause a certain injurious effect upon the premises of his neighbor by the erection of a structure on his own premises if such structure is beneficial or ornamental, and to prohibit him from causing the same effect in case the structure is neither beneficial nor ornamental, but erected from motives of pure malice, is not protecting a legal right, but is controlling his moral conduct. In this State a man is free to direct his moral conduct as he pleases, in so far as he is not restrained by statute.

But it is said that such acts are offensive to the principles of equity. Not so. There is no conflict between law and equity in our practice, and what a man may lawfully do cannot be prohibited as inequitable. It may be immoral, and shock our notions of fairness, but what the law permits, equity tolerates. It would be much more inequitable and intolerable to allow a man's neighbors to question his motives every time that he should undertake to erect a structure upon his own premises, and drag him before a court of equity to ascertain whether he is about to erect the structure for ornament or profit, or through motives of unmixed malice.

The case is not like annoying a neighbor by means of causing smoke, gas, noisome smells, or noises to enter his premises, thereby causing injury. In such cases something is produced on one's own premises and conveyed to the premises of another; but in this case nothing is sent, but the air and light are withheld. A man may be compelled to

keep his gas, smoke, odors, and noise at home, but he cannot be compelled to send his light and air abroad. Mullen v. Stricker, 19 Ohio St. 135. If smoke, gas, offensive odors, or noises pass from one's own premises to or upon the premises of another to his injury, an action will lie therefor, even though the smoke, gas, odor or noise should be caused by the lawful business operations of defendant and with the best of motives. Broom's Legal Maxims, 372. In such cases it is the effect or injury, and not the motive, that is regarded. The true test is, whether anything recognized by law as injurious, passes from the premises of one neighbor to that of another. Anything so passing invades the legal rights of him whose premises it reaches, and such rights will be protected. But Courts cannot regulate or control the moral conduct of a man, unless authorized so to do by statute.

The following cases, cited by plaintiff in error, bear more or less upon the question involved in this case, and seem to produce a decided weight of authority in his favor: Frazier v. Brown, 12 Ohio St. 294; Falloon v. Schilling, 29 Kan. 292; Mahan v. Brown, 13 Wendell, 261; Greenleaf v. Francis, 18 Pick. 123; Chatfield v. Wilson, 28 Vt. 49. . .

But it is strongly urged by counsel for defendant in error, that the maxim, "Enjoy your own property in such a manner as not to injure that of another person," applies in such cases as this, and that as it must be conceded that the fence in question is an injury to the property of the defendant in error, that his acts are in conflict with the above maxim.

At first blush this would seem to be so, but a careful consideration shows the contrary. The maxim is a very old one, and states the law too broadly. In this case, for instance, it is conceded that the plaintiff in error had the right to enjoy his property by erecting a house so as to do the same injury which was done by the fence, and that while that would be an injury to the property of defendant in error, she would be without remedy, and his act in erecting such house would not be regarded as violating the maxim. In Jeffries v. Williams, 5 Exch. 797, it was claimed, and in Railroad Company v. Bingham, 29 Ohio St. 369, it was held, that the true and legal meaning of the maxim is, "So use your own property as not to injure the rights of another." Boynton, J., in that case says:

"Where no right has been invaded, although one may have injured another, no liability has been incurred. Any other rule would be manifestly wrong." . .

The Circuit Court erred in overruling the demurrer to the petition, and in rendering judgment in favor of defendant in error upon the facts as found by the Court. The judgment of the Circuit Court is therefore reversed, and proceedings to render such judgment as the Circuit Court should have rendered upon the facts found, the petition of plaintiff below is dismissed at her cost. Judgment reversed.

THE first count of the declaration stated that before and at the time, etc., the plaintiff was lawfully possessed of a certain mill, manufactory, hereditaments, close, and premises, with the appurtenances, in the county of Stafford; and, by reason thereof, of right ought to have had and enjoyed the benefit and advantage of the water of a certain stream which had been used to run and flow, and during all that time ought to have run and flowed, in great plenty and purity, and still, of right, ought so to run and flow unto the said mill, etc., of the plaintiff, to supply the same with water for working, using, and enjoying the same respectively, and for other necessary purposes; yet the defendants, contriving, etc., by a certain dam and divers obstructions, placed in and across the said stream above the plaintiff's premises, impounded, penned back, and stopped the water of the said stream, and also wrongfully and injuriously laid down, into and near the said stream, above the plaintiff's premises, divers pipes and tiles, and kept and continued the said dam and obstructions so placed in and across the said stream, and the said pipes and tiles so laid down, for a long space of time, to wit, hitherto; and thereby, during all that time, unlawfully and wrongfully diverted and turned divers large quantities of water of the said stream, which ought to have flowed to the said mill, etc., respectively, away from the said mill, etc., and stopped and prevented the same from flowing along the usual and proper course to the said premises. And also that the defendants wrongfully and injuriously heated and spoiled the water which ran and flowed unto the said mill, etc., so that it became of no use to the plaintiff, whereby he was prevented from using his mill, etc., in so extensive and beneficial a manner as he otherwise would have done. In the second count, the plaintiff stated himself to be possessed of a close and lands, with the appurtenances, and of a mill and manufactory situate therein, near to the said stream, and claimed a right to have the stream run to the said close and premises for supplying the same with water for the necessary purposes thereof. In the third count, a similar right was claimed for the convenient enjoyment of certain hereditaments, lands, and premises, with the appurtenances. There was a fourth count, for turning foul water upon the plaintiff's premises. Plea, not guilty. At the Stafford Spring Assizes, 1831, the jury found a special verdict. . . . The case was argued in last Easter Term, before DENMAN, C. J., LITTLEDALE, J., and PARKE, J., by

The Solicitor-General for the plaintiff.

It has already been decided, after argument in this very case (3 B. & Ad. 304) that the plaintiff, who is the proprietor of lands contigu

ous to a stream, might, as soon as he was injured by the diversion of the water from its natural course, maintain an action against the party so diverting it; and that it was no answer to the action, that the defendants first appropriated the water to their own use, unless they had twenty years' undisturbed enjoyment of it in the altered course. All the au

thorities were cited and commented on.

Peake, Sergt., contra.

The principal question is, whether the right to the use of flowing water can be acquired by the owner of adjoining land, unless it has been enjoyed for twenty years. . . It was said, upon the former argument in this case, that flowing water, like light and air, is publici juris. If that be so, it cannot belong to the owner of the land adjoining its channel until it is appropriated. Mr. Justice Blackstone, in his Commentaries, Vol. 2, 14, 18, states water to be one of those things the property in which is acquired by occupancy. . . .

DENMAN, C. J., in this term, delivered the judgment of the Court. After stating the pleadings, his Lordship proceeded as follows:

The substance of the special verdict is this: The defendants' mill was erected in 1818; the plaintiff's in 1823, on a piece of land, the former owner and occupier of which had, for twenty years prior to 1818, appropriated the water of the stream and springs for watering his cattle and irrigating that land. At the time when the defendants' mill was erected, the then owner and occupier of the plaintiff's land gave a parol license to the defendants to make a dam at a particular place above where the Sitchwell Tree stood, and to take what water they pleased from that point to their mill, which water was so taken, and returned by pipes into the stream, above the spot where the plaintiff's mill was afterward erected. In 1818, the defendants conducted part of the water of the Over Canal Springs, which had before flowed into the stream, into a reservoir for the use of their mill. After the plaintiff erected his mill, namely, in 1828, he appropriated to its use all the surplus water, viz., that which flowed over and through the dam; that from the Over Canal Springs, which was not conducted into the reservoir; and all from the Sitchwell Spring (which was another feeder of the brook), and also that which was returned by the defendants into the stream. In January, 1829, the plaintiff demolished the dam at the Sitchwell Spring. The defendants erected a new dam lower down, and by means of it diverted from the plaintiff's mill, at some times, all the stream, including all the water so appropriated; at others, a part of it, and returned the remainder in a heated state into the stream.

And the questions upon this special verdict are, whether the plaintiff is entitled to recover for the diversion of the whole water of the stream, or of any and what part of it, or for the heating of the part returned...

The last question is, whether the plaintiff ought to recover in respect of that portion of the water which was diverted from the Over Canal

Springs, and collected in a. tank in 1818. This was taken without license, and appropriated by the defendants to the use of their mills before any other appropriation, but has not been so appropriated for twenty years; and the point to be decided is, whether the defendants, by so doing, acquired any right to this against the plaintiff, through whose field it would otherwise have flowed in its natural course; and we are of opinion that they did not.

This point might, perhaps, be disposed of in favor of the plaintiff, even admitting the law to be as contended for by the defendants, that the first occupant acquires a right to flowing water; for, by this special verdict, all the water of the brook is found to have been appropriated by Ashley the father, and used for twenty years up to the year 1818 for watering his cattle and irrigating the field, now the plaintiff's. A right to use the water thus acquired by occupancy, in right of the field, must have passed to the plaintiff, and could not be lost by mere nonuser from 1819 to 1829; and the total or partial abstraction of the water may be an injury to such a right in point of law, though no actual damage is found by the jury to have been sustained in that respect.

But we do not wish to rest a judgment for the plaintiff on this narrow ground. We think it much better to discuss, and, as far as we are able, to settle the principle upon which rights of this nature depend.

The proposition for which the plaintiff contends is that the possessor of land through which a natural stream runs has a right to the advantage of that stream, flowing in its natural course and to use it when he pleases, for any purposes of his own, not inconsistent with a similar right in the proprietors of the land above and below; that neither can any proprietor above diminish the quantity or injure the quality of water which would otherwise descend, nor can any proprietor below throw back the water without his license or grant; and that, whether the loss by diversion of the general benefit of such a stream be or be not such an injury in point of law as to sustain an action without some special damage, yet, as soon as the proprietor of the land has applied it to some purpose of utility, or is prevented from so doing by the diversion, he has a right of action against the person diverting.

The proposition of the defendants is that the right to flowing water is publici juris, and that the first person who can get possession of the stream, and apply it to a useful purpose, has a good title to it against all the world, including the proprietor of the land below, who has no right of action against him, unless such proprietor has already applied the stream to some useful purpose also, with which the diversion interferes, and in default of his having done so, may altogether deprive him of the benefit of the water. . .

We think that this proposition has originated in a mistaken view of the principles laid down in the decided cases of Bealy v. Shaw, 6 East, 208; Saunders v. Newman, 1 B. & A. 258; Williams v. Moreland, 2 B. & C. 913. It appears to us, also, that the doctrine of