
    Rufus Weston versus Elijah Alden.
    The owner of land adjoining to an ancient brook of running water may lawfully divert the water for the purpose of irrigating his close; and an owner of a close below, which becomes less productive by that means, has no cause of action therefor.
    This was a special action of the case against the defendant for diverting an ancient water-course which passed through the plain-ti. - close, and by which it was fertilized, so as to produce annually a large crop of grass.
    The cause was tried before the chief justice, upon the general issue, at an adjournment of the last October term in this county, and a verdict found for the plaintiff, by the consent of the parties, subject to the opinion of the Court upon the following íeport of the judge who sat at the trial.
    It was proved that there was an ancient brook of running water, as described in the.declaration ; and that the plaintiff was seised of the close therein mentioned ; and that this water-course first passed by the defendant’s meadow, which was bounded on it; that in its natural course it passed by several meadows belonging to persons not parties to the action, and then passed by the plaintiff’s meadow, as alleged in' his declaration ; that the defendant, claiming a right to divert the water for any purpose as he pleased, in fact cut * several sluices in the bank of the water-course, in his own land, that he might, with the water passing through those sluices, irrigate his own meadow; that the water thereby passed on to the defendant’s meadow through those sluices, but afterwards passed into the same brook above the plaintiff’s meadow, except such part as was absorbed in the defendant’s meadow, or evaporated; and that so much of the water was absorbed in the defendant’s meadow, or evaporated, in consequence of the sluices so opened by him, that less water than usual came to the plaintiff’s meadow, by reason of which his said meadow wot greatly damaged, the quantity of grass produced thereon being materially diminished.
    If, upon these facts, the defendant had a legal right to divert the water from the said ancient water-course, for the purpose and in the manner aforesaid, the verdict was to be set aside, and a new trial granted; otherwise the verdict was to stand, and judgment to be entered accordingly.
   The action was continued nisi for the opinion of the Court upon the foregoing report; and at an adjourned session of the last March term in Suffolk, present the Chief Justice, and Sewall and Parker, Justices, the opinion of the Court was pronounced to the following effect: —

We think, upon the facts reported in this case, that the plaintiff has no right of action, and that the verdict must be set aside. A man owning a close on an ancient brook may lawfully use the water thereof for the purposes of husbandry, as watering his cattle, or irrigating the close; and he may do this, either by dipping water from the brook, and pouring it upon his land, or by making small sluices for the same purpose; and if the owner of a close below is damaged thereby, it is damnum, absque injuria.

Neiv trial granted. 
      [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 riparian proprietor has an equal right to use the water which flows in the stream ; and, consequently, no riparian proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other riparian proprietors, who may be affected by his operations, no riparian proprietor can either diminish the quantity of water, which would otherwise descend to the riparian proprietors below, nor throw the water back upon the riparian proprietors above. Every riparian proprietor who claims a right either 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 riparian proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years. — Wright vs. Howard, 1 Sim. & Stuart, 203. — Mason vs. Hill, 5 B. & Ad. 1. — 2 New. & Mau. 747.-3 B. & Ad. 304. — Bower vs. Hill, 1 Bing. N. C. 544.— Rex vs. Trafford, 1 B. & Ad. 874.— 8 Bingh. 204. — 2 Cr. & J. 265. — And, although every riparian proprietor has a right reasonably to use the water in the stream, and even to take it in small and reasonable quantities from the stream for domestic and other uses, yet he has no right to divert any part of the water of the stream into a course different from that in whish it has been accustomed to flow, for the purpose of irrigating his land, or any other purpose, to the prejudice of any other riparian proprietor, without such grant or license. Arnold vs. Foot, 12 Wend. 330. — Brown vs. Best, 1 Wils. 174. — En.]
     