riparian owner is only entitled to take the water from the stream on his own. land, returning it to the stream before it leaves his land. This point does not appear to have been expressly decided, but whenever the authorities allude to it at all they speak of taking the water on the land of the riparian proprietor and returning the surplus before it leaves the land, as though this was a wellrecognized condition of a proper use. However this may be, it would not be permissible to take the water at some distance above, and return the surplus at some distance below, the land of the riparian proprietor using the water, if thereby a considerable portion of it would be wasted before reaching the land or after leaving it, and before it is returned to the stream, to the injury of other riparian proprietors below. At all events this circumstance would have an important bearing upon the question of reasonable use.

The defendant diverts the water at a point considerably distant from his land, and his ditch does not return any of the water to the river, but either conducts it on to Danberg's farm or leaves it, principally, to find its way through sloughs or down the natural declivity to the west fork, more than a mile distant, some little, perhaps, to the east fork, whence it is taken. This statement, we think, shows that the use made of the water by the defendant at the period in question was unreasonable and amounted almost to wanton waste. Certainly the defendant cannot, by virtue of his ownership of the soil, justify the diversion of twice as much as he needed on his own land and permit the other half to run upon the land of another. Nor does it seem that the defendant can justify the diversion of so much as one thousand inches of water "as it flows" to irrigate his grass land. For although this quantity is quite indefinite, it is evident that one thousand cubic inches of water constantly flowing is a very considerable quantity, even if we admit the grade of the ditch, which is not given, to be slight.

From the testimony of Klauber, as to his own land, it appears that four hundred inches of water would irrigate four hundred acres of land, if kept constantly flowing. But as the grade of the defendant's ditch is not given, we have no means of knowing how much the one thousand inches "as it flows" exceeds one inch to the acre of defendant's two hundred and thirtyeight acres, as measured by Klauber.

Upon the case as now presented no final decree, which will properly adjust the rights of the parties, can be entered. The case must be referred to a master to make inquiry and report whether the defendant has adopted the mode which causes least waste in taking the water from the river, and, if not, what mode consistent with the fair and beneficial use of the water by him can be adopted; what means are employed to return the water to its natural channel, and are they the best means calculated to prevent waste; if not, or if none have been employed, what method will best effect that object; what amount of water per acre is needed during the irrigating season to irrigate defendant's land; some standard of measurement of the water, and the quantity measured by such standard, flowing in the river and in defendant's ditch. at the time mentioned in the bill. Until the court is in possession of these facts it is not possible to determine the extent to which the use by the defendant was unreasonable, and to which he ought to be enjoined. The decree of the court must be drawn up accordingly, and all other matters are reserved until the coming in of the master's report.

§ 172. Waters on public lands.-The appropriation of water flowing through the public land confers no right on the appropriators, either against the government or its grantee, in

the absence of congressional legislation qualifying the effect of the government patent. And this is so although the customs, laws and decisions of the courts of the state wherein the land lies recognize and enforce rights acquired by prior appropriation in controversies between occupants of the public lands without title from the government. The Union Mill and Mining Co. v. Ferris, 16 Int. Rev. Rec., 114. See § 164-171.

§ 173. The rights of a California canal company which had built a canal through government land and used the water for mining and agricultural purposes is recognized in the grant to the Pacific Railroad Company and in the pre-emption laws relating to such lands, and a purchaser from the company or a pre-emption claimant takes the lands subject to the rights of such canal company. Broder v. Water Co.,* 11 Otto, 274.

§ 174. An adverse use of water to support a claim of title and create a presumption of a grant must be neither secret nor forcible, nor by request, but open, peaceable and as of right. The user to be peaceable must be with the acquiescence of the owner of the servient tenement. Union Mill and Mining Co. v. Dangberg, 2 Saw., 450 (§§ 80-87).

175. If, during the period of the alleged adverse use of water, the plaintiff, the owner of the servient tenement, asserted its right to all the water which its mill-race would carry, and denied the right of the defendants, the owners of the dominant tenement, to obstruct or divert the water to its injury, and repeatedly remonstrated with them against their excessive use of the water in irrigation, such conduct on the part of the plaintiff must negative the presumption of a grant of the right to use the water. Ibid.

§ 176. So long as the title to land through which a stream of water flows remains in the United States there can be no use or enjoyment of the waters of the stream which will avail the person so using as foundation for a title by prescription against the grantee of the government. In order that such use may ripen into a prescriptive title it must continue for the full period recognized by the statute of limitations after the title to the land has passed from the United States. The Union Mill and Mining Co. v. Ferris, 16 Int. Rev. Rec., 114. See SS 164-171.

§ 177. The defendants having had the adverse possession, for twenty years, of certain water which had previously flowed into the plaintiffs' mill-pond, which they had used during that period by means of an aqueduct for supplying water to a certain town, suffered it to go into disuse, in consequence of a decay of the logs of this aqueduct for three years, during which time the water again flowed into the plaintiffs' pond. Upon the defendants commencing the reconstruction of the aqueduct the plaintiffs applied for an injunction. This was refused by the court, twenty years' possession having vested a complete title to the water in the defendants, which was not impaired by the three years' re flow of the water into the plaintiffs' pond, it appearing that the right of the defendants was not intended to be abandoned. Haight v. The Proprietors of the Morris Aqueduct, 4 Wash., 601.

§ 177a. Acquiescence by the plaintiff, or by those under whom he claims, for a shorter period than twenty years would be sufficient to induce a refusal of the injunction. Ibid. § 178. By appropriation a man acquires only the right of possession and user of water, qualified by the right of others to its use in such manner as shall not materially diminish or deteriorate it at the place of his appropriation, in quantity or quality. Columbia Mining Co. v. Holter,* 1 Mont. T'y, 296.

§ 179. A notice posted of an intention to appropriate water is of no effect. Such intention, to be effectual as against other parties, must be carried into actual execution with all reasonable diligence by some known and tangible means and at some designated point. A declaration of a claim to water, unaccompanied by acts of possession, is wholly inoperative as against those who shall legally proceed to acquire a right to the same. Ibid.

§ 180. A. appropriated the water of a creek at a certain point, and B. subsequently appropriated the water of the same creek at a point above, returning it to its original channel at a point above A.'s dam. Held, that A. had no right by reason of his prior appropriation of the stream to divert the water at a point above B.'s dam. Ibid.

§ 181. Water lease construed.— A., as lessee, received the grant of the right to draw from a canal so much water as would pass through an aperture of two hundred square inches, the lower edge of which was not to be nearer the canal bottom than two feet. Owing to the manner in which A. constructed his forebay he only received about half the quantity of water which commonly came to the other mills through an aperture in the canal of two hundred square inches. Neither the amount of water actually received, nor the amount ordinarily passing through an aperture the size of A.'s, was sufficient to operate his mill, so he agreed with the canal company to lease such additional quantity of water as should be required to operate the mill, upon the usual terms and on payment of a bonus of $5 for every square inch which should be added to the aperture. Owing to the peculiar structure of the forebay the aperture could not be enlarged laterally, but only vertically upwards, and to furnish the requisite volume of water five hundred square inches were added to the aperture.

Held, that A. was entitled under his lease to the amount of water which under ordinary circumstances would flow through an aperture of two hundred inches, and that he could only be required to pay for an additional aperture of two hundred and seventeen square inches, such being, according to estimates, the additional aperture which would have been required if the forebay had been properly constructed, and it had been possible to enlarge the aperture laterally; or in other words, that A. was only obliged to pay the stipulated price per inch for four hundred and seventeen square inches, whereas in fact the aperture, as enlarged, actually contained seven hundred square inches. (STRONG and Davis, JJ., dissented on the ground that such a judgment practically made a new contract for the parties.) Canal Co. r. Hill, 15 Wall., 94.

§ 182. A grant of "so much water as will pass through an aperture in the side of a canal of two hundred square inches,” under certain conditions specified, must be considered as a grant of so much water by bulk or weight as the contracting parties may be supposed to have had in mind when the contract was made, and in determining what that quantity is it is proper to examine into the state of things existing at the time, and the circumstances under which the lease was made. Ibid.

§ 183. An agreement between A. and B. recited that A. was entitled to draw water from a dam for purposes of irrigation "when the water is running to waste, or flowing over the dam or flash-boards.” In a deed afterwards given the right is reserved to A. to draw water according to said agreement, "whenever the water is running to waste over said dam or flashboards." Held, that the meaning of the provisions was that A. had a right to draw water from the dam whenever the water was of sufficient height to flow over the top log of the dam, but that the owners of the dam could not restrict the right by putting flash-boards on top of the dam to raise the water above the top of the dam. The reservation provided also that side gates should be constructed in the tunnels to which the water was drawn off "to stop the run of the water when not wanted for watering the land." Held, that the water was not to run continuously but only when needed. Held, also, that the structures which A. had a right to erect for the purpose of taking the water were only such as would enable him to use the water for irrigation so far as was reasonably practicable in consistency with the rights of the owners that only so much water shall be taken as may be reasonably necessary for that purpose. Lonsdale Co. v. Moies,* 2 Cliff., 538.

§ 184. Mill owners.— The plaintiffs and defendants were owners of different mills in severalty on the same mill-dam. The defendants opened a canal into the pond at some distance above the dam, for a supply of water to work one of their mills situated at one side of the dam, the water thus withdrawn being returned into the river immediately below the dam. Held, that both parties were entitled per my et per tout to their proportions of the whole stream on its arrival at the dam, and that neither party could divert any portion of it, though the portion diverted were a less quantity than he would naturally use at his mill on the dam; and that it was no answer, in case of such a violation of right by one party, that he had increased the quantity of water in the stream by means of a reservoir higher up. Webb v. The Portland Manuf'g Co., 3 Sumn., 189; 3 Law Rep., 374.

§ 185. Where an estate out of which a mill privilege has been carved becomes united in ownership with other estates below, the owner of both may convey different rights and privileges from what were before attached to either estate; but in conveying either to different and new persons, any change in the privileges made appurtenant to each must distinctly appear or each will be presumed to exist as before the junction of the estate. Perry v. Parker, 1 Woodb. & M., 280.

§ 186. Flowing back water into another state.

Whether the legislature of one state can authorize a dam locally in that state to be raised so as to flow back a public river flowing into another state, to the injury of mill privileges locally situated in the latter state, quære? Farnum v. Blackstone Canal Corporation, 1 Sumn., 46.

§ 187. A canal corporation may permit water to be drawn through its canal for mill purposes if neither the public use nor any private right is thereby injured. The Lonsdale Co. v. Moies,* 21 Law Rep., 658.

§ 188. A grant in gross of an incorporeal right to divert water is valid. The right thus granted may afterwards for the purposes of enjoyment be annexed to a messuage or tract of land, and again severed therefrom by a conveyance of the messuage or land without the right, or a conveyance of the right without the land. Ibid.

§ 189. Mining.- Where a mining company in its search for ore has by means of a tunnel reached a subterranean stream of water, part of which it uses for mining purposes and the remainder of which it sells, it will be protected in its enjoyment of the water against diversions thereof caused by a tunnel dug ostensibly for mining purposes, but really to reach the stream in question. Cole Silver Mining Co. v. Virginia & Gold Hill Water Co.,* 1 Saw., 470.

§ 190. Diversion of water by digging well.-If A. digs a deep well or fountain, thereby occasioning a diversion of the water from a certain spring and water-course on the meadow land of B., so as to render the same dry during a portion of the year, the latter is entitled to relief against the former. Dexter v. The Providence Aqueduct Co., 1 Story, 387.

§ 191. A party may recover at law nominal damages for a diversion of a water-course, where no actual damage has been sustained, as a means of establishing and protecting his right. He may also assert his right in equity by a writ of injunction. Webb v. The Portland Mfg. Co., 3 Sumn., 189; 3 Law Rep., 374 (S$ 88-101).

§ 192. Water right, passes by deed, when.- A water right granted in gross is an easement without any fixed or limited dominant estate, and where such water-power is taken to certain property and there applied to run a mill and machinery thereon, it does not become "appurtenant" to such property in the technical sense of that term. But if, while the water is being thus used, the owner conveys the premises by metes and bounds, making no mention of the water right, it will nevertheless pass therewith, such appearing to have been the intention of the parties. And where the water-power is being used at the time when the conveyance is made, such conveyance being made to secure a loan, and it appears that the premises, including the water right, are worth but little more than the amount of the loan, and that the water right alone is worth one-third the amount, such facts and circumstances are sufficient evidence of the intention of the parties that the water right should pass. Bank of British North America v. Miller, 6 Fed. R., 545; 7 Saw., 163.

III. OBSTRUCTIONS TO NAVIGATION.

SUMMARY Authority of congress paramount, §§ 193, 194.- Tributaries to the Mississippi, S$ 195, 207.- Bridge not deemed an obstruction, when, § 196.— Bridge authorized by a state, § 197, 206.— Mode of redress, § 198.- Booms and dams in river wholly within a state, 199, 201, 202, 203.— Chippewa river, Wisconsin, § 200.- Ordinance of 1787, $ 202, 204.- Improvement of navigable rivers, § 204.- Draw bridge, § 205.— Illinois river, § 206.— Mississippi river and tributaries, § 207.- Party obstructing not entitled to notice to remove, § 208.- Pontoons sunk by accident; party entitled to a reasonable time to raise and remove, § 209.— Removal of wrecks; diversion or change in course of channel, SS 210, 211.- Boat injured by collision with bridge, § 212.- Bridge erected under act of congress not necessarily legal, §§ 213, 214.- Erection of structure enjoined, when, § 215.— Withdrawal of consent by congress to erection of bridge, § 216.- Jurisdiction of federal courts, § 217.

§ 193. In the regulation of commerce the authority of congress is paramount, and its determination in respect to interference with navigation is conclusive, and a court will not enjoin the erection of a bridge over a navigable river which has been authorized by congress and is being built according to the requirements of the act authorizing it. Miller v. Mayor, etc., of New York, §§ 218-223.

§ 194. Under the provisions of the constitution giving congress authority to regulate commerce, congress has authority to exercise jurisdiction over all navigable streams to the extent that may be necessary for the encouragement and protection of commerce between two or more states. Jolly v. Terre Haute Bridge Co., §§ 224-231.

195. While the several states of the original Northwest Territory have jurisdiction over the tributaries of the Mississippi, and may authorize the erection of bridges over them, yet they must not infringe upon the provisions of the ordinance of 1787, relating to the free navigation of such tributaries. Ibid.

§ 196. A bridge across a navigable river will not be considered a material obstruction to navigation where it involves merely slight difficulties and short stoppages, but if it involves much loss of time in passing, or danger of accident, or injury to life or property, or the use of extraordinary caution, then it becomes an obstruction. Ibid.

§ 197. It is no defense to an action for damages caused by a bridge over a navigable tributary to the Mississippi, which is an obstruction to navigation, that it was authorized by a state legislature. Ibid.

§ 198. Where, in the absence of congressional legislation on the subject, a private corporation, authorized by the legislature of a state to place obstructions in a navigable river of that state, exceeds its authority, a court of equity will not, at the instance of a private individual, declare such obstructions a nuisance. The only remedy of a party injured is a suit for damages. Heerman v. Beef Slough Manuf'g Co., §§ 232–236.

§ 199. In the absence of congressional action it is within the province of a state legislature to determine whether the benefit to the logging interest and to the general commerce of the state to be derived from the construction of booms, dams, etc., in a navigable river wholly VOL. XXVIII - 50 785

within the state would counterbalance the injury which such obstructions would cause to steamboat navigation. Ibid.

§200. The Chippewa river, in Wisconsin, is a public highway for the passage of boats and also for the floating of logs and lumber. The right to use the river for the floating of logs is common to all and is recognized and protected by the courts. Ibid.

§201. If a river lies wholly within a state the legislature may authorize a private corporation to build dams, piers and booms to assist in floating logs, although such dams, etc., may interfere with the navigation of the river by vessels, congress not having assumed control of the commerce of the river. Ibid.

§ 202. In the absence of congressional prohibition the state of Wisconsin, by its legislature, may authorize the erection of a dam across a navigable river within its borders, notwithstanding the ordinance of 1787, and although such dam may partially obstruct navigation. Woodman v. Kilbourn Manuf'g Co., §§ 237, 238.

§ 203. The erection of a dam across a navigable river, which is authorized by the state legislature on condition that it shall be so constructed that rafts of lumber can pass safely and without delay, will not be enjoined, though it is alleged, as a ground therefor, that the erection of a dam in compliance with those conditions is a physical impossibility. Ibid.

$204. The ordinance of 1787, making navigable rivers free public highways, referred to such rivers in their natural state, and does not prevent their improvement by means of structures therein or forbid tolls on rivers thus improved. Palmer v. Commissioners of Cuyahoga Co., SS 239-243.

§ 205. A draw-bridge is not an obstruction to navigation, and a state may authorize the erection of such a bridge across a navigable river when such erection does not infringe on federal powers or violate the ordinance of 1787. Ibid.

§ 206. Defendants placed piers in the principal channel of the Illinois river so as to essentially obstruct its navigation, in consequence of which plaintiff suffered loss. Held, that it was no defense on the part of the defendants that in placing the piers they had complied with an act of the legislature of Illinois authorizing a bridge to be constructed, but that they must go further and show that the piers were not a material obstruction to the navigation of the river. Columbus Ins. Co. v. Curtenius, §§ 244-249.

§ 207. The whole legislation from the ordinance of 1787 to the present time clearly indicates that congress has intended that the Mississippi river and its navigable tributaries should remain free from all material obstruction to their navigation. Hence a state cannot authorize any material obstruction to be placed in the channel of a navigable tributary of the Mississippi. Ibid.

§ 208. A person who places an obstruction in a navigable river is not entitled to notice to remove the same; and if injury be caused by such obstruction he is liable in damages, although no notice to remove the nuisance was ever given him. Missouri River Packet Co. v. Hannibal & St. Joseph R. Co., $ 250-257.

§ 209. Where pontoons, which are lawful and proper structures for the protection of a bridge erected over a navigable river, are sunk by unavoidable accident, the owner is entitled to a reasonable time in which to raise or remove them; but where it appeared that such pontoons were sunk, and that two years afterwards a passing vessel was injured by reason of the current of the river having been diverted by the sunken pontoons, no effort having in the meantime been made by the owner to raise or remove them, held, that such owner was liable for the injury. Ibid.

§ 210. Those navigating a river are under no obligation to remove wrecks which may be made in the ordinary and proper course of navigation; but he who for his own benefit, and not for the purpose of navigation or commerce, uses any navigable part of a river, is liable in damages to the party injured if such use causes a diversion and change in the ordinary course of the channel of the river, and thereby increases the difficulty and danger of navigation, and injury results therefrom. Ibid.

$211. Where the defendant, a bridge company, had put pontoons in a navigable river for the protection of its bridge, not being required by law so to do, and such pontoons from some cause sunk, thus diverting the current of the river from its usual and ordinary course or channel, and such change of current caused or contributed to the collision of plaintiff's boat with one of the piers of the bridge, held, that the defendant was liable for the injury sustained, provided that, at the time of the collision, the plaintiff was navigating his boat with care and skill and did not contribute to the injury by his own neglect. Ibid.

§ 212. The owner of a vessel which has been injured by collision with a bridge constructed over a navigable river under authority granted by an act of congress must show, in order to maintain an action for damages against the bridge owners, not only that such bridge was not constructed according to the requirements of the act, but that the unlawful structure actually caused or contributed to the injury complained of. Ibid.