
    Charles Davis versus Elisha Getchell & al.
    
    Every proprietor of land on the banks of a river or stream has naturally an equal right to the use of the water; and this right to use, implies a right to control, detain, and even diminish the volume of the water, but only to a reasonable extent.
    What is a reasonable detention, depends upon the size of the stream, as well as upon the uses to which it is subservient, as the detention must necessarily be sufficient to accumulate the head of water requisite for practical use.
    The right of detention is not limited to time necessary for repairs or to extraordinary occasions, but applies to the ordinary use of such streams, provided it be not an unreasonable use or detention:
    On Exceptions to the ruling of Davis, J., at Nisi Prius.
    
    
      ■ This was an action of the case for an alleged unreasonable detention of the water in' a mill stream in Raymond.
    The plaintiff and defendants were owners of mill privileges bn the stream, that of the defendants being above the plaintiff’s. The title deeds of each party were produced.
    There was evidence tending to support the allegations in the plaintiff’s writ, and evidence to the contrary. »
    
      The presiding Judge instructed the jury, amongst other things, that the defendants, being riparian proprietors, had a right to erect and maintain their dam, save the surplus water, and use it, in a reasonable manner; that the plaintiff, being a riparian proprietor below, upon the same stream, had the right to the natural flow of the current as incident to their privilege, unless such right, as existing at common law, had in some way been abridged; that although the plaintiff claimed, by the grants in his deeds and a reservation in one of the deeds of the defendants, a right greater than the natural current of the stream, the evidence did not sustain such claim; but was sufficient to authorize the jury to find that the plaintiff had the right to the natural flow of the stream at all times, unless it was necessary for the defendants for the purpose of making repairs, or by reason of some extraordinary occurrence, temporarily to detain the water; and if the defendants unreasonably detained the water, so that they deprived the plaintiff of the natural current of the stream, they were liable for the damages caused thereby.
    The jury returned a verdict of #29,36 for the plaintiff, and the defendants excepted.
    
      F. O. J. Smith, in support of the exceptions.
    
      Shepley & Dana, contra.
    
   The opinion of the Court was drawn up by

Rtcb, J.

The parties are riparian proprietors and mill owners on the same stream ; the plaintiff’s mill being located below that of the defendants. The complaint on the part of the plaintiff is, that the defendants, by means of their dam, unreasonably detain the water in its passage to his mill, to his injury..

Among other instructions, to which no objections are now made, the Court instructed the jury that, although the plaintiff claims by the grants in his deeds, and a reservation in one of the deeds of the defendants, a right greater than the natural current of the stream, the' evidence did not sustain a right to more than the natural current; but that the evidence was sufficient to authorize the jury to find that the plaintiff had the right to the natural flow of the stream at all times, unless it was necessary for the defendants, for the purpose of making repairs, or by reason of some extraordinary occurrence, temporarily to detain the water, and, if the defendants unreasonably detained the water, so that they deprived the plaintiff of the natural. current of the stream, they were liable in damages.

The defendants complain of this rule as being more restrictive on them than the law authorizes.

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 land, without diminution or alteration. No proprietor has the right to use the water to the prejudice of the proprietors above or below him, unless he has a prior right to divert, or a title to some exclusive enjoyment. He has no property in the water itself but a simple usufruct while it passes along. This right to use, however, necessarily implies a right to exercise a degree of control over it, and even, to some extent, to diminish its volume. Thus he may apply it to domestic purposes or purposes of irrigation, but not to such an extent as unreasonably to diminish its quantity. He may apply it to purposes of manufacture, or the arts, but may not, in so doing, corrupt it and so injure its quality as to render it unfit for use by other proprietors below. He may use it for hydraulic purposes, but may not unreasonably retard its natural flow, nor injuriously accelerate its motion, by discharging it from his works in an unreasonable manner, nor suddenly and in excessive quantities, nor divert it from its accustomed channel without returning it to the same before it passes from his own premises to those of others. Within these general limitations he may make any practicable use of streams of running water, so far as proprietors below are concerned, and incur no legal liability. The use in all these cases must be a reasonable one. 3 Kent’s Com., 439, note a; Tyler v. Wilkinson, 4 Mason, 401; Springfield v. Harris, 4 Allen, 494.

The reasonableness of the detention of running water by dams, by the riparian proprietor above, to the injury of a riparian proprietor below, depends much upon the nature and size of the stream as well as the use to which it is subservient. Ang. on Water Power, § 119.

In small streams, where the volume of water in its ordinary course would be insufficient for practical use, the law would authorize its detention for a reasonable time in which to accumulate a head which could be made available. Hitchcock v. Deuchler, 6 Barr., 32. It is only by thus accumulating water and then using it, that many small streams can be made practically useful as a power for propelling mills and machinery. And, so far from this detention being confined to times necessary for repairs or by reason of some ex-traoi’dinary occurrence, it is the common and ordinary way in which the water power on such streams is made effective or valuable. The question in such case is whether the detention, under all the circumstances in the case, is an unreasoxxable use of the water, not whether it is unreasonably detained for the specific purpose of repair, or by reason of some extraordiixary occurrence.

Oxx this point we think the jury may have been misled by the instruction of the Court, and, therefore, the exceptions must be sustained.

Appleton, C. J., Davis, Kent and Walton, JJ., concurred.  