
    H. & W. Omelvany v. Elisha Jaggers.
    
      Before Mr. Justice Butler, at Chester, Spring Term, 1835.
    Every proprietor of land thro’ Which a natural stream runs, has a right to the advantage of the stream as it was tvont to flow,and to use it for any purpose of his own, not inconsistent with a similar right of the proprietors above and below. Tiie proprietor above cannot divert or diminish the quantity of water which would otherwise descend, nor can the proprietor below throw back the water ontheproprietor "boyo without his ]ic01isc OT a There- or
    
      This was an action on the case to recover damages for an injury to the plaintiffs’ mill, by obstructing the water course on which it was erected — The plaintiffs and defendant erected mills about a half mile distant from each other, (defendant’s below the plaintiffs’) on Rocky Creek. It appeared that both parties purchased the lands on which the mills are situated about the same time, and in reference to the mill seats ; but the defendant built his mill a month or two before the plaintiffs finished theirs. The defendant’s was an old mill seat: about forty years ago, one Morrison who then owned it had a mill there, which stood about seven or eight years; a part of the old dam, which was of rock, was standing when the defend, ant built. In 1812, Peter C. Wiley erected a saw mill at the same place, which remained about two years, and from this time (which would be from 1814) until the defendant built, there was no mill there. The defendant’s dam raised the water at the plaintiffs’ mill about four feet and a half above its ordinary height; and when the plaintiffs finished their mill, they found that the wheels could not turn in consequence of the back water from the defendants’ dam; and their mill was thus rendered valueless. On this state of facts, the question was, whether the plaintiffs were entitled to recover. For the plaintiffs it was contended, that the owners of the soil through which the stream passed had a right to its free use and enjoy, ment — That as no one above could rightfully deprive one below of the enjoyment of the water, by diverting it from its natural channel, so no one below could be permitted so to obstruct it as to effect the enjoyment of one above, by rendering the stream unfit for the purposes of machinery : and on the part of the defendant, it was insisted that a prior prescriptive right existed for the use of the stream; or should this not avail, that he had acquired a prior right by occupancy.
    where the allJ,out the same time, f“a*rtroain™n reference to mill ’mil6 apmt; ¿ftniu into*3 operation *f\v¿ewas thrown hack on Ujj sopt¿j" ‘thg whoeb^eouidnot the ’ plaintiffs ]™ove? damages for this injury,
    The presiding judge thus reports his views of the law: “ The case of Mason v. Hill, reported in the Jurist, seems to support the plaintiffs’view, but it does not decide, the case. The point did not exactly arise in that case. A case might occur in which it would be exceedingly difficult to lay down any satisfactory rule for its decision, consistently with justice and the rights of the parties. Suppose two persons to buy land on the same stream with reference to mill seals, a mile apart — they each erect costly machinery, and attempt to set their mills going on the same day, and it is ascertained for the first time, that in consequence of the back water from the dam below, the .mill above cannot go. .Who must bear the loss? Both cannot have a mill. But such a case cannot well happen ; one will build before the other, and if he does, I think he has the better right. If the one above were to build his mill first, there is no doubt he could maintain an action for throwing the water back on his wheels from below. But it is a very different case if one build a mill above, and put it down in the millpond of the one below, which had not bached water on Ms mill, but it was placed in water already bached. If the plaintiffs should succeed in this case, the defendant, who has the oldest mill, must take his down. It seems both cannot have a mill, and upon the broad principle of occupancy, the mill first built should stand.” The plaintiffs submitted to a nonsuit with leave to move to set it aside ; which they now did on the ground of error in this decision.
    
      Gregg, for the motion
    Admitted that the position of the circuit judge was sustained-by Angel on Water courses, 69; it is however a solitary dictum unsupported by authority. The general principle applicable to all such cases is, that the proprietors of the soil through which a stream runs, have the right to use an<^ enjoyment, according to its natural flow, and to appropriate it to any purpose not inconsistent with the rights ot^ers above and below. According to this rule, both these parties have the right to the use of this stream, but it must be enjoyed in such manner by each,, as not to affect the rights of the other. The owner of the land above cannot divert the water from its natural channel, and thus deprive his neighbor' below of its enjoyment, nor can he, below, obstruct the stream so as to injure the enjoyment of him above ; they have equal rights which neither can disturb. These principles are sustained in the cases of Wright v. Howard, 1 Eng. Con. Cha. Rep. 95, and Mason v. Hill, Jurist, Vol. 1. Bealy v. Shaw, 6 East. 219, & note. Occupancy of itself confers no exclusive right unless it has continued so long as to give right by prescription, which is not pretended in this case : and even if such did exist, it has been lost by non user. Cited 3 Kent’s Com. 353, 358; 17 Mass. Rep. 289; 15 Johns. Rep. 280,213.
    
      Mills, contra.
    Water flowing in a stream is publici juris, and the owner of the land through which the stream runs, who-first appropriates it to some useful purpose, acquires a title by occupancy to so much as may be necessary, against all the world; and neither the owner of the land above can divert it, nor the one below obstruct it,, so as to prevent him from the full enjoyment of the right thus acquired. This position is sustained in 2 Black. Com. 403, where the rule is laid down that ene may erect a mill on a stream unoccupied, yet not so as to. injure his neighbor’s prior mill, for he has by the first occupancy acquired a property in the current. See also Angel on Water courses, 39, 67, 68, 69,70; who, after reviewing all the authorities, comes to the conclusion, that if one erect a mill above which is subjected to injury from the back water of a mill previously erected below, he has no right to complain. The same doctrine is maintained in the reasoning of Ch. J. Tin-dall, in 7 Bingham, 682; and by Ch. J. Parker, in Hatch an.Dwight, 17 Mass. Rep. 289. See also 4 Dallas, 211. To apply these principles to this case. The defendant purchased his site from the representatives of Morrison, who had a mill on it for many years, and until it was carried off by a freshet; part of the old dam is still standing — it was rebuilt and used for some years, and then went down. During all this time the plaintiffs’ site is flooded — they purchased with a knowledge of all the facts, put up their mill after defendant had finished his, and set it down in his mill pond, and then ask the Court to compel the defendant to pull his down. The defendant was the first occupant — he had acquired a right to the use of the stream by appropriation, of which he cannot be divested by the act of the plaintiffs, who should bear the consequences of their own folly in erecting a mill in the defendant’s pond. The cases cited on the part of the plaintiffs do not conflict with the positions here contended for. The case from 6 East, 208-219, is one of the diversion of a water course, and decides that after one has appropriated a portion of the water, and the surplus is subsequently employed by another, he cannot appropriate any more to the prejudice of the second occupant; thus favoring the doctrine of occupancy. Wright v. Howard, only decides that the proprietor above has no right to change the direction of water from its natural flow, — it does not touch this question. The case of Mason v. Hill, from the Jurist, maintains the right of occupancy; and although, in the opinion of the Court, it is said that the owner above, although the first occupant, cannot divert the water so as to deprive one below of its use, yet it does not hold that the owner below, who is the first occupant, may not obstruct the water so far as may be necessary, and thus back it on one above, who afterwards may wish to employ it. A distinction may well be taken between a diversion by the owner above, and a necessary obstruction by the owner below ; for the latter cannot use the water beneficially in machinery, without obstructing it and throwing it back; and to deprive the first occupant of this privilege at the pleasure of the owner above, would be giving one owner an unreasonable advantage over the other, which might be exercised capriciously and unjustly.
   Harper, J.

The case is not free from difficulty and apparent hardship, but from the best view we can take of authorities and the reason of the law, we are of opinion with the plaintiff, and that his motion must be granted. There arc some dicta in the English books which seem to favor the construction of the law which the presiding judge has given ; such as that from 2 Black. Com. 403, that “ if a stream be unoccupied, I may erect a mill thereon, and detain the water, yet not so as to injure my neighbor’s prior mill, or his meadow, for he hath, by his prior occupancy, acquired a property in the current.” But these dicta are all, perhaps, susceptible of a different interpretation. The first case in which the point seems to have been directly considered, is that of Wright v. Howard, 1 Cond. Eng. Ch. Rep. 95, (1 Simmons & Stuart, 190,) and that case seems more expressly in point than the counsel for the plaintiff supposed. It applies not only to the right of diverting the water from the lands of proprietors below, but that of throwing it back on those of proprietors above. That was a bill for specific performance. The plaintiff was the owner of lands on the river Goit, on which were mills and machinery worked by water taken from the river by means of a weir or dam, and thence conveyed into the river Mersey, below its junction with the Goit. The Duke of Norfolk was the proprietor above, on whose land the water was thrown back by the weir, and the Duke of Norfolk and two others were the proprietors of lands below, from which the water was diverted. The right to use the water, by means of the weir, was held under a lease from the Duke of Norfolk. The defendant objected to the performance of his purchase, on the ground that the plaintiff could not make a good title to the mills ; first, because, after the expiration of the lease, he could have no right to throw back the water on the land of the Duke of Norfolk above; and secondly, because he had no right to divert it from the proprietors below. The Vice Chancellor, Sir John Leach, considers both objections together, and decides them on the same reasoning. “The right to the use of water rests on clear and settled principles. Prima facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the-stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream ; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other proprietors who may be affected by his operation, no proprietor can either diminish the quantity of Water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above. Every proprietor who claims a right to throw the water back above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from the proprietors affected by his operations, or must prove an uninterrupted enjoyment for twenty years: which term of twenty years is now adopted on a principle of general convenience, as affording conclusive presumption of a grant.” He adds: “ It appears to me that no action will.lie for diverting or throwing back water, except by a person who sustains an actual injury; but the action must lie at any time within twenty years when the injury happens to arise, in consequence of a new purpose by the party to avail himself of his common right.” The subject is fully considered by Chief Justice Denman, in the case of Mason v. Hill, re-published in the Jurist, vol. I, part 3. That case respected the diverting of water from the proprietors of lands below. All the English authorities and dicta are reviewed and commented on, and it is unnecessary to repeat here that which is better said there. The position which is sustained by the Court is, “ that the possessor of lands through which a natural stream runs, has a right to the advantage of the stream flowing in its natural course, and to use it as he pleases, and for any purposes of his own not inconsistent with a similar right of the proprietors of the land above and below; that neither can a 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 loss by the 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.”

A distinction was attempted to be taken between the diverting and throwing back of water. But I cannot perceive the slightest ground for this distinction. In neither case can an action be sustained ; at all events, no damages can be recovered until the party has applied the water, or been prevented from applying it, to a useful purpose; where the injury is sustained, however, on what principle can we make a distinction between the proprietor above and him below? It may be observed that 'water cannot be thrown back on the land of the proprietor above without overflowing his soil. And though the water still remain within its natural channel, being only raised to a greater height upon the banks, yet still it is, in strictness, an invasion of the proprietor’s soil, over which, on general principles of law, he has the exclusive right of dominion. And in reference to this principle I think the right of occupancy must be explained. A man may do what he will upon his own land, provided he does not injure his neighbor. But he has no right to make any alterations in the condition of his neighbor’s property without his consent. The other instances of the right of occupancy mentioned by Blackstone, may help to illustrate this. If I build a house near my neighbor’s wall, by which my windows are darkened, I can sustain no action for it, because he was the first occupant; so if I erect a tan-yard, which is noisome, and another comes and builds his house near it, I was the first occupant, and he must submit to the inconvenience. So if I raise a mill pond on my own land, which renders the air unwholesome, and another person comes and lives near it, he has no right of action for this injury. But in neither of these cases is there any interference with the soil of another.

There seems to be a great apparent hardship on the part of the defendant, if he should lose the expense which he has incurred in building his mill. Yet 1 can conceive that there may be as great hardship on the part of the plaintiffs. They purchased their lands about the same time. The plaintiffs purchased with a view to this mill seat, and paid their money for it. Then who ought to be the sufferer? He who claims to use his own land as he will, or he who claims to alter the condition of his neighbor’s property, without his consent, for his own benefit ? The -result will be that a person who is about to obstruct a running stream, for any purpose, must obtain the license of the other proprietors with whom his operations are likely to interfere, and it does not appear to me that this can be regarded as a matter of hardship.

There is an American case (Hatch v. Dwight, 17 Mass. Rep. 289,) in which it is said that the first occupant of a mill seat has a right to sufficient water to work his wheels, even if it should render useless the privilege of one above or below. But we think this opposed to the weight of reasoning and authority.^To this is opposed the case of Platt v. Root, 15 John. Rep. 213, in which it was held that the prior occupant of mills below had no right to prevent the erecting of mills above, and making a reasonable use of the water. The case of Palmer v. Mulligan, 3 Caine, 307, is referred to, and the opinion of Mr. Justice Livingston, who utterly rejected the doctrine that the person erecting the first mill - (¿hereby acquired any superior rights. To this conclusion Chancellor Kent arrives, upon a consideration of all the authorities. “ Every proprietor of lands on the banks of a river, has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to flow, {currere solebat) without diminution or alteration. No proprietor has a right to use the water to the prejudice of other proprietors above or below him. unless he has a prior right to divert if, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple use of it while it passes along. Aqua currit et debet currere, is the language of the law. Though he may use the water while it runs over his land, he cannot reasonably detain it or give it another direction, and he must returrPit to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw back the water upon the proprietors above,^without a grant, or an uninterrupted possession of twenty years, which is evidence of it.” 3 Kent’s Com. 353.

The motion to set aside the nonsuit is granted.

Johnson, J. concurred.

O’Neall, J.

I am not satisfied that the law is as ruled in the foregoing opinion.  