
    Dennis McElroy and James McElroy v. Reuben Goble.
    'The use of streams of water for domestic, agricultural, and manufacturing purposes, being, to some extent, publica juris, an action for a nuisance, caused by any obstruction or diversion of the water of a stream for any such purpose, will not lie, unless the damage occasioned thereby be real, material, and substantial.
    
    Cooper v. Hall, 5 Ohio, 321, followed and approved.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Perry county.
    The parties being adjacent proprietors on a stream of water in Perry county, the defendant constructed and kept up a mill-dam on his premises, which flowed back the water upón the land of the plaintiffs, for which they brought this suit. On the trial, the district court charged the jury, that if they should find that the defendant had raised his dam to an unjustifiable hight, and thereby backed up the water in the channel of the stream through the lands of the-plaintiffs, and also overflowed their lands, yet, unless the proof showed that material and substantial damage had been thereby done-to the plaintiffs, they would not be entitled to a verdict. The jury found for the defendant. Plaintiffs moved for a new trial for misdirection of the court to the jury. The court overruled the motion, and plaintiffs excepted; and now assign the above instruction-of the court to the jury as ground of error.
   *Per Curiam.

The charge of the district court to the jury was in strict accordance with the principle decided in the case of Cooper v. Hall, 5 Ohio, 321, which has been regarded as settled law in Ohio for more than twenty years. It has been said that this ease was not strictly adhered to by the late Supreme Court on the circuit, in some parts of the state. We can not sanction this assertion. The case of Cooper v. Hall was decided on the authority of Palmer v. Mulligan, 3 Caine, 307, and the doctrine laid down by Chancellor Kent, in his Commentaries, 3d vol., sec. 440, page 546. And it is a doctrine which rests upon sound reason, and is well sustained by the analogy of numerous well-considered cases both in England and in this country. Weston v. Alden, 8 Mass. 136; Beissel v. Strall, 4 Dallas, 211; Wadsworth v. Tillotson, 15 Conn. 366; Johns v. Stephens, 3 Vt. 308; Williams v. Morland, 9 Eng. Com. L. 269; Embrey et al. v. Owen, 4 Eng. L. & Eq. 466.

The right of the riparian proprietor to the natural flow of the stream through his premises is subject to qualification, from the circumstance that streams of water being intended, as is well said by Chancellor Kent in his Commentaries, “ for the use and comfort of man, it would be unreasonable, and contrary to the universal consent of mankind, to debar riparian proprietors from the application of the water to domestic, agricultural, and manufacturing purposes,” in a proper manner, even although it did, to some extent, interfere with the natural flow of the water. The principle, therefore, arises out of the nature of the subject-matter, and the necessity required in the practical application of the water of running streams to the useful purposes mentioned, that no action can be sustained for any such use of the water, whereby the quantity is diminished in the: stream, or the water caused to flow more irregularly, *or to [18^ flow back on the land of the proprietor on the stream above,.unless the damage occasioned bo real, material, and substantial, arising from an unreasonable or improper use, appropriation, obstruction, or diversion of the water from its natural course or flow.

Motion overruled.  