Blackstone and the dicta of learned judges, both in some of those cases, and in that of Cox v. Mathews, 1 Ventr. 137, have been misconceived.... The last and principal authority cited is that of Williams v. Moreland, 2 B. & C. 910. The case itself decides no more than this: that the plaintiff having in his declaration complained that the defendants had, by a floodgate across the stream above, prevented the water from running in its regular course through the plaintiff's land, and caused it to flow with increased force and impetuosity, and thereby undermined and damaged the plaintiff's banks, could not recover, the jury having found that no such damage was sustained. The judgments of all the judges proceed upon this ground, though there are some observations made by my brother Bayley, which would seem, at first sight, to favor the proposition contended for by the defendants.

These observations are, that

"Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is coextensive with the beneficial use to which he appropriates it. Subject to that right, all the rest of the water remains publici juris. The party who obtains a right to the exclusive enjoyment of the water does so in derogation of the primitive right of the public. Now, if this be the true character of the right to water, a party complaining of the breach of such a right ought to show that he is prevented from having water which he has acquired a right to use for some beneficial purpose." (2 B. & C. 913.) The dictum of Lord Chief Justice Tindal, in Liggins v. Inge, 7 Bing. 692, is to this effect:

"Water flowing in a stream, it is well settled by the law of England, is publici juris. By the Roman law, running water, light, and air were considered as some of those things which were res communes, and which were defined, things, the property of which belongs to no person, but the use to all. And, by the law of England, the person who first appropriates any part of this water flowing through his land to his own use has the right to the use of so much as he then appropriates against any other;"

and for that he cites Bealey v. Shaw and Others, 6 East, 208, which case, however, is no authority for this position, as far as relates to the owner of the land below; and probably, therefore, the Lord Chief Justice intended the expression "any other" to apply only to those who diverted or obstructed the stream. To these dicta may be added the passage from Blackstone's Commentaries, Vol. 2, 14:

"There are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences. Such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untamable disposition, which any man may seize upon and keep for his own use or pleasure.

All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandones the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterward."

And, 2 Blackstone's Commentaries, 18:

"Water is a movable, wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary, transient, usufructuary property therein; wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it."

None of these dicta, when properly understood with reference to the cases in which they were cited, and the original authorities in the Roman law, from which the position that water is publici juris is deduced, ought to be considered as authorities that the first occupier or first purpose has a title against the owner of land below, and may deprive him of the benefit of the natural flow of water.

The Roman law is (2 Inst. Tit. 1, S. 1) as follows:

"Et quidem, naturali jure, communia sunt omnium hæc: aer, aqua profluens, et mare, et hoc littora maris."

It is worthy of remark that Fleta, enumerating the res communes, omits "acqua profluens." (Lib. 3, Chap. 1.) Vinnius, in his Commentary on the Institutions, explains the meaning of the text. . . . And he proceeds to describe the use of water,

"acqua profluens ad lavandum et potandum unicuique jure naturali concessa." The law as to rivers is,

"fluminia autem omnia et portus publica sunt, ideoque jus piscandi omnibus commune est in portu fluminibusque.”

And Vinnius, in his commentary on this passage, says:

"Uniquique licet, in flumine publicó navigare et piscari."

And he proceeds to distinguish between a river and its water-the former being, as it were, a perpetual body, and under the dominion of those in whose territories it is contained; the latter being continually changing, and incapable, whilst it is there, of becoming the subject of property, like the air and sea. In the Digest, Book 43, Tit. 13, in public rivers, whether navigable or not, it appears that every one was forbidden to lower the water, or narrow the course of the stream or in any way to alter it, to the prejudice of those who dwelt near. Tit. 12 distinguishes between public and private rivers; and in Sec. 4 it is said that private rivers in no way differ from any other private place.

From these authorities, it seems that the Roman law considered running water, not as a bonum vacans, in which any one might acquire a property, but as public or common, in this sense only, that all might drink it, or apply it to the necessary purposes of supporting life; and that no one had any property in the water itself, except in that par

ticular portion which he might have abstracted from the stream, and of which he had the possession, and during the time of such possession only.

We think that no other interpretation ought to be put upon the passage in Blackstone, and that the dicta of the learned judges above referred to, in which water is said to be publici juris, are not to be understood in any other than this sense; and it appears to us that there is no authority in our law, nor, as far as we know, in the Roman law, (which, however, is no authority in ours) that the first occupant (though he may be the proprietor of the land above) has any right, by diverting the stream, to deprive the owner of the land below of the special benefit and advantage of the natural flow of water therein..

We are, therefore, clearly of opinion that the plaintiff is entitled to recover in respect of the abstracting of the water taken from the Over Canal Springs, as well as the other injuries complained of, and for which damages have been assessed by the jury.

As to the right to recover for the injury sustained, by the water being returned in a heated state, there can be no question.

Whether he could have maintained an action before he had constructed his mill, or applied the water of the stream to some profitable purpose, we need not decide. . . It must not, therefore, be considered as clear that an occupier of land may not recover for the loss of the general benefit of the water without a special use or special damage shown.

But, be that as it may, the plaintiff in this case, who has sustained actual damage, is entitled to the judgment of the Court.

Judgment for the plaintiff.

245. TYLER v. WILKINSON

UNITED STATES CIRCUIT COURT, DISTRICT OF RHODE ISLAND. 1827

4 Mason, 397, Fed. Cas. No. 14312

BILL in equity [by Ebenezer Tyler and others against Abraham Wilkinson and others] to establish the right of the plaintiffs to a priority of use of the waters of Pawtucket River, &c. The cause was argued at great length, by Whipple and Webster, for plaintiffs, and by Cozzens and Searle, for defendants, at the last November term, and continued for advisement to this term when the following opinion was delivered.

STORY, Circuit Justice. This is a very important case, complicated in facts, and voluminous in testimony. It will not, however, be necessary to go over the details of the proofs, or even of the arguments, urged at the bar, further than may serve to explain the opinion of the Court, and give a clear understanding of the points in controversy.

The river Pawtucket forms a boundary line between the states of

Massachusetts and Rhode Island, in that part of its course where it separates the town of North Providence from the town of Seekonk. It is a fresh water river, above the lower falls between these towns, and is there unaffected by the ebb or flow of the tide. At these falls there is an ancient dam, called the lower dam, extending quite across the river and several mills are built near it, as well on the eastern as on the western side of the river. The plaintiffs, together with some of the defendants, are the proprietors in fee of the mills and adjacent land on the eastern bank, and either by themselves or their lessees are occupants of the same. The mills and land adjacent, on the western bank, are owned by some of the defendants. The lower dam was built as early as the year 1718, by the proprietors on both sides of the river, and is indispensable for the use of their mills respectively. There was previously an old dam on the western side, extending about three quarters of the way across the river, and a separate dam for a saw-mill on the east side. The lower dam was a substitute for both. About the year 1714 a canal was dug, or an old channel widened and cleared on the western side of the river, beginning at the river a few rods above the lower dam, and running round the west end thereof, until it emptied into the river about ten rods below the same dam. It has been long known by the name of "Sergeant's Trench," and was originally cut for the passage of fish up and down the river; but having wholly failed for this purpose, about the year 1730 an anchor-mill and dam were built across it by the then proprietors of the land; and between that period and the year 1790, several other dams and mills were built over the same; and since that period more expensive mills have been built there, which are all owned by some of the defendants. About thirty years before the filing of the bill, to wit, in 1792, another dam was built across the river at a place above the head of the trench, and about 20 rods above the lower dam; and the mills on the upper dam, as well as those on Sergeant's trench, are now supplied with water by proper flumes, &c., from the pond formed by the upper dam. The proprietors of this last dam are also made defendants.

Without going into the particulars of the bill (for in consequence of intervening deaths and devises, the cause is now before the Court upon a supplemental bill, in the nature of a bill of revivor), it is necessary to state, that the bill charges that the owners of Sergeant's trench are entitled, as against the owners of the lower dam, only to what is called a waste-water privilege, that is, to a right to use only such surplus water, as is not wanted by the owners of the lower dam and lands for any purposes whatever. In other words, that the right of the owners of Sergeant's trench is a subservient right to that of the plaintiffs, and takes place only as to any water which the plaintiffs may not, from time to time, have any occasion to use for any mills erected, or to be erected, by them. It charges a fraudulent combination between the owners of the upper dam and Sergeant's trench, injuriously to appropriate and

use the water, and that the latter appropriate a great deal more water than they are entitled to by ancient usage, and waste the water to the injury of the plaintiffs. The object of the bill is to establish the right of the plaintiffs, and to obtain an injunction and for general relief.

The principal points, which have been discussed at the bar, are, first, what is the nature and extent of the right of the owners of Sergeant's trench; and, secondly, whether that right has been exceeded by them to the injury of the plaintiffs.

Before proceeding to an examination of these points, it may be proper to ascertain the nature and extent of the right, which riparian proprietors generally possess, to the waters of rivers flowing through their lands. Unless I am mistaken, this will relieve us from a great portion of the difficulties which incumber this cause, and lead us to a satisfactory conclusion upon its merits. I shall not attempt to examine the cases at large, or to reconcile the various dieta, which may be found in some of them. The task would be very onerous; and I am not aware that it would be very instructive. I have, however, read over all the cases on this subject, which were cited at the bar, or which are to be found in Mr. Angell's valuable work on water courses, or which my own auxiliary researches have enabled me to reach. The general principles, which they contain and support, I do not say in every particular instance, but with a very strong and controlling current of authority, appear to me to be the following:

Prima facie every proprietor upon each bank of a river is entitled to the land, covered with water, in front of his bank, to the middle thread of the stream, or, as it is commonly expressed, usque ad filum aquæ. In virtue of this ownership he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction. But, strictly speaking, he has no property in the water itself; but a simple use of it, while it passes along. The consequence of this principle is, that no proprietor has a right to use the water to the prejudice of another. It is wholly immaterial, whether the party be a proprietor above or below, in the course of the river; the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all. The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed, by operation of law, to the land itself. When I speak of this common right, I do not mean to be understood as holding the doctrine that there can be no diminution whatsoever, and no obstruction or impediment whatsoever, by a riparian proprietor, in the use of the water as it flows; for that would be to deny any valuable use of it. There may be, and there must be allowed of that, which is common to all, a reasonable use. The true test of the principle and