was rightly left to the jury, who must have found that it did him no such damage. We consider the other direction correct also, as we understand it. The question was not, if the defendants had caused a damage to the plaintiff, amounting in law to a disturbance of his right, for which an action would lie, whether it would be barred by an advantage of equal value, conferred in nature of a set-off; but whether, the improvements of Clark upon his meadow taken together as a whole, including the dam and ditches as parts of one and the same improvement, any damage was done to the plaintiff; and this, we think, was correctly so left. It may perhaps be proper to guard against misconstruction, in considering what are the general rights and duties of persons owning lands bounding on running streams, by the general rules of law and for general purposes, that some alterations of these rules may be effected in Massachusetts, by the acts of legislation on that subject, in respect to mills, and the construction which has been judicially put upon such legislative acts. This system originated with the provincial act, 13 Anne, passed in 1714, Ancient Laws and Charters, 404. This act by its operation necessarily secures, to some extent, advantages to the prior occupant of a stream, by a dam erected to work a mill. Bigelow v. Newell, 10 Pick. 348; Bemis v. Upham, 13 Pick. 167; Baird v. Wells, 22 Pick. 312. It is not necessary, however, now to go into this subject, but merely to say that the rights to streams of running water, upon which the present question turns, are not dependent upon or affected by the mill acts. Exceptions overruled. Surface Water. (a.) Foreign Law. - In the preceding note we have discussed the question of the liability of one who fails to keep within his own premises a dangerous element which he has brought there; and particularly the liability of a man who has allowed water, which he has collected for use, to escape upon his neighbor's premises. In the present note we propose to consider, e converso, the question of a man's right to withdraw water from the reach of his neighbor, or otherwise to prevent its passage to him, in whole or in part, or in its usual course. The Roman law contained a provision that it was not actionable for a man, by digging in his own land, to cut off a spring of water from his neighbor, provided it was done in the course of improving his land, and not with intent to commit injury. An owner of lower land could maintain an action against the owner of the upper tenement, if the defendant should send down water otherwise than as it was wont to flow by nature. In fine, it was said, one could have the action aquæ pluvia arcendæ, if the injury from the surface water was caused by work done, unless the work was done in the course of the cultivation of the land. There appears, also, to have been a distinction between injuries to land by surface water, and injuries to buildings or walls by water dripping (stillicidium), and by water running in gutters and drains (flumen); the action being general in the latter case, and special in the former. Dig. lib. 39, tit. 3, 1, §§ 12-17. The English law, it will be found, contains similar principles, with, how ever, some modifications as it descends into the details. The rule as to surface water running in no defined channel, as we have seen in the preceding note, is that the owner of the soil may collect and use it, wholly preventing its passage to his neighbor. See ante, p. 496; Rawstron v. Taylor, 11 Ex. 369. This was the Roman law also. Dig. lib. 39, tit. 3, 1, § 11. The law of France, which is similar, is very clearly stated by M. Fournel, in his Traité du Voisinage, vol. 1, § 95, pl. 1 (p. 363, 4th ed.). Rain and spring water, he says, considered merely as an element, cannot be the subject of exclusive ownership. It is common property, like the air, and belongs to him who first takes possession of it. But this common character ends the moment when the waters are brought together upon a particular estate. Then, mixing and identifying themselves with the soil, they become property, like things "accessary." The owner, M. Fournel proceeds to say, can then, at his own pleasure, use this water; he can put and keep it in basins, cisterns, or reservoirs, and he can make it disappear by subterraneous channels, without being bound to account to his neighbors for the use which he has made of it, unless the lower land-owner has acquired against him the right to restrain him in the exercise of this extreme liberty, as it was called. And this is the principle of the French Civil Code, art. 641, which declares that he who has a spring in his land can use it at will, save the right that the owner of the lower land may have acquired by grant (titre) or prescription. There is also a limitation in respect of water of this character which is useful to the public. Le propriétaire de la source ne peut en changer le cours, lorsqu'il furnit aux habitans d'une commune, village, ou hameau l'eau qui leur est nécessaire; mais si les habitans n'en ont pas acquis ou prescrit l'usage, le propriétaire peut en réclamer une indemnité, laquelle est réglée par expert." Code Civil, art. 643; 1 Fournel; Du Voisinage, p. 375 (4th ed.). As to what is mere surface water not running in a defined channel, see Rawstron v. Taylor, 11 Ex. 369; Broadbent v. Ramsbotham, ib. 602. (b.) Usufruct and Reasonable Use. - In regard to surface streams running in defined channels, the principal case, Elliot v. Fitchburg R. Co., enunciates a doctrine which has become well settled in the law. The principle is, that riparian proprietors have no absolute right to the water of the streams flowing by them, but merely the usufruct. They are entitled to make a proper use of the water; and in no case is a party liable to a lower land-owner for abstracting water, if actual damage has not been done him. Wadsworth v. Tillotson, 15 Conn. 366; Gillett v. Johnson, 30 Conn. 180; Seeley v. Brush, 35 Conn. 419; Chatfield v. Wilson, 31 Vt. 358; Gerrish v. New Market Manuf. Co., 30 N. H. 478, 483; Pollitt v. Long, 58 Barb. 20; Dilling v. Murray, 6 Ind. 324; Williams v. Morland, 2 Barn. & C. 910; Mason v. Hill, 3 Barn. & Ad. 304; s. c. 5 Barn. & Ad. 1; Embrey v. Owen, 6 Ex. 353; Wood v. Waud, 3 Ex. 748, 781; 3 Kent's Com. 440 note 1 (12th ed.). There have been expressions by the courts, and one or two decisions, to the effect that the right to the use of the water of a running stream is something more than a usufruct, and is in fact absolute, like that to the enjoyment of land; so that any diminution of the water by an upper proprietor is actionable, if he have not a right by grant or prescription, just as an entry upon land without license is actionable. In Crooker v. Bragg, 10 Wend. 260, it was decided that the diversion of a stream was actionable, though the plaintiff, a mill-owner upon the opposite bank, did not need the whole or any part of the stream for the use of his mill. But the situation was such that the plaintiff, in order to obtain a supply of water after the diversion, would be compelled to construct a dam or raceway; so that, in fact, there was a prejudice to him by the act of the defendant, and so the court held. The language of the case must therefore be taken with reference to this fact. However, in saying that the right to the water of a stream running through a man's land was as perfect and indefeasible as the right to the soil, the court were clearly wrong. But a case in Pennsylvania seems to have gone to the full extent of this doctrine. Wheatley v. Chrisman, 24 Penn. St. 298. In this case it appeared that a small stream ran through the lands of both the parties, and that the plaintiff, the lower proprietor, had enjoyed the use of the water for upwards of twenty years. The defendant requested the judge to charge the jury that he was entitled to a reasonable use of the water for the purpose of his business, and that if they believed that no more than a reasonable quantity for such purpose was used, as for the creation of steam to drive his engine, the plaintiff had no ground for complaint. The court declined the request, and charged that the defendant had the right to use the stream for any legal purpose, provided he returned it to its channel uncorrupted and without any essential diminution; and this instruction was upheld by the Supreme Court. The wrong," said the court, "must cease, no matter how trifling it may seem. The right of the plaintiff is absolute to be restored to the full enjoyment of his own property, and is not dependent in any manner upon its value, either to himself or his adversary." The true principle, however, is that the lower riparian proprietor has, as against the upper proprietor, merely a usufruct, and not an absolute right to the water, however long he may have been in the enjoyment; and, this being so, there can be no infraction of the right by any abstraction of water which does not sensibly and injuriously diminish its volume. Without such an act, the usufruct is not interfered with, and the plaintiff's right, therefore, has not been encroached upon. In some particulars, however, the right of action of a lower proprietor does not depend upon the question of damage. See 3 Kent's Com. 440, note 1 (12th ed.), where several cases of this kind are mentioned. Thus, in Sampson v. Hoddino:t, 1 Com. B. N. s. 590, the plaintiff had immemorially enjoyed the right of receiving the water from the defendant's mill at certain times of the day for the purposes of irrigating his land. Recently, however, the defendant, for the purpose of irrigating his own land, had diverted the water after it had passed the mill, and before it reached the plaintiff; and though it did not appear that the quantity which ultimately reached the plaintiff was diminished, it reached him so late in the day that the plaintiff could not use it fully. It was held that the action was maintainable without proof of actual damage. It follows, a fortiori, that an action can be maintained for a permanent diversion. Tillotson v. Smith, 32 N. H. 90; Chatfield v. Wilson, 27 Vt. 670; s. c. 31 Vt. 358; Corning v. Troy Iron & Nail Fact., 40 N. Y. 191, 204; Van Hoesen v. Coventry, 10 Barb. 518; Parker v. Griswold, 17 Conn. 288. In Mill River Manuf. Co. v. Smith, 34 Conn. 462, it was held actionable for a riparian proprietor to cut ice from a pond. And, in general, it is probably true that where a right is exactly defined, any infraction will be ground for an action, entitling the plaintiff to nominal damages at least. Thus, in the case of a right to the possession of land, no one can lawfully put foot upon the soil of another without permission, express or implied; and for every infraction of this right an action may be maintained, though the owner of the land suffered no damage what ever. Williams v. Esling, ante, p. 371. But the right of usufruct in running streams is incapable of any such exact definition, and the courts can only say that where the plaintiff has sustained actual injury from an undue use of the water, he has a ground of action; short of this, he has not. Compare the doc trine concerning the right to the lateral support of ground, which is similar. Smith v. Thackerah, Law R. 1 C. P. 564. Whether the test of liability in cases not arising under the statutes concerning mill privileges be the reasonable use of the water, or that of damage to the lower proprietor, is not clear. Both tests are mentioned in Elliot v. Fitchburg R. Co., as though they were equivalent; but it was not necessary to consider the point, nor was it considered, since no damage was proved; and it is clear, as we have stated, that there must be damage in order to the maintenance of the action. Suppose, however, there is damage to the plaintiff, and yet the use of the water by the defendant has been no more than was usual and reasonably necessary in carrying on his business; is there then a right of action? In Gillett v. Johnson, 30 Conn. 180, the test of the reasonable use was applied, but applied as equivalent to that of damage or no damage. The question raised was of the extent of the right of the defendant to the use of a small stream for purposes of irrigation. It was held that the defendant could use the stream for that purpose; but the right, it was said, could only be exercised upon a reasonable regard to the plaintiff's right to the use of the water. It was not enough that the water had been applied to a useful and proper purpose, and in a prudent and husband-like manner, as was alleged; the defendant was bound to use it "in such a reasonable manner and quantity as not to deprive the plaintiff of a sufficient supply for his cattle." In an earlier case, cited as authority for this decision, the same court went much farther, and applied the test of reasonable use where it was conceded that the plaintiff had suffered damage. Wadsworth v. Tillotson, 15 Conn. 366. In this case the defendant had brought water by an aqueduct from the common stream to her house for domestic and culinary purposes; and instead of returning the surplus, above what was necessary for such use, to the stream, she allowed it to escape by flowing through small apertures in penstocks, in order to keep the water from freezing in winter and becoming impure in summer. Part of this water irrigated the land, and part went to waste. It was held that these facts gave the plaintiff no right of action. See also Chatfield v. Wilson, 31 Vt. 358. It was for some time a doubtful question in England whether water could be diverted from streams for purposes of irrigation (Wood v. Waud, 3 Ex. 748, 781); but it is now settled that it may be so used in proper cases. Embrey v. Owen, 6 Ex. 353; Miner v. Gilmour, 12 Moore P. C. 131. And in the latter case (which involved rights of mill-owners) the test of damage or not was rejected, and that of reasonable use adopted. Lord Kingsdown, in delivering the judgment, said: "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, to the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have, in case of a deficiency, upon proprietors lower down the stream." See Nuttall v. Bracewell, Law R. 2 Ex. 1, 9. In cases involving the privileges of mill-owners, the rule seems to be well settled, in accordance with the doctrine of the principal case, Springfield v. Harris, that the true test of liability is whether, under all the circumstances, considering the size of the stream and that of the mill-works, there has been a greater use of the stream, in abstracting or detaining the water, than is reasonably necessary and usual in similar establishments for carrying on the mill. See Davis v. Getchell, 50 Maine, 602; Gould v. Boston Duck Co., 13 Gray, 442; Pitts v. Lancaster Mills, 13 Met. 156; Merrifield v. Worcester, 110 Mass. 216; Hayes v. Waldron, 44 N. H. 580; Snow v. Parsons, 28 Vt. 459; Pool v. Lewis, 41 Ga. 162; Timm v. Bear, 29 Wis. 254; Clinton v. Myers, 46 N. Y. 511. There is no suggestion that these cases stand upon peculiar grounds, and it is difficult to see any distinction between the case of mill privileges and other privileges of using the water of streams, except in so far as a difference has been made by statute. See Gould v. Boston Duck Co., 13 Gray, 442, 450. It must frequently be impossible to know that a particular use of the water may not injure the lower proprietors. Suppose, for instance, in the case of a brook, that at a time when the lower proprietor is in great need of the water, the necessities of the upper proprietor are also greater than usual, and, without surpassing the bounds of what is reasonably necessary for a proper purpose, he exhausts the supply of the brook, and a drought follows: shall the upper proprietor be held liable in view of what he may not have known (the needs of his neighbor), and what he could not foresee (the drought), the act which he did being one which was usual among the riparian owners? The French law does not give such |