is more than this: it is essential to it; and the defendant should therefore either restore the premium, by removing the dangerous thing, or be required to make good the destruction done by it. Or, to put the case in another way, he should be ready to restore the plaintiff at all times to the position in which he was before he (the defendant) altered it. If he is not willing to do so before the calamity, when the plaintiff cannot compel him, but elects to go on, he should be compelled to make good the situation afterwards. It is an elementary principle that if a person fails to restore property to another which he has taken, while he may, he must pay for its value if, by electing to keep it, he destroys it. He becomes, in effect, an insurer. The servitude of aqueduct, as it is called in the foreign law, which consists in the right of directing the course of flowing water from an upper estate upon a lower, has received more consideration in the law of France than it has in modern times in the law of England; though there is much in Bracton upon the subject. See note on Nuisance; Bracton, 231 b, where there is a short chapter on aqueducts. It is fair to presume that the good sense of the French and Roman law will, so far as it is applicable to the situation of the country, generally commend itself to our courts. In the Digest it is said that there are three things which subject the lower land to the purposes of the upper, the law, the nature of the place, and length of time. Lib. 39, tit. 3, 2. Commenting upon this passage, a well-known French writer says that when nature indicates the passage and flow of these waters by the slope of the land and by the respective situation of the places, the upper proprietor has no need of any other title than that of the locality itself; and upon this circumstance alone he can compel the lower proprietor to receive the waters by right of a natural servitude. 1 Fournel, Du Voisinage, p. 388 (4th ed.). And so the Digest also directly declared. But this is a natural servitude, and the water must flow by nature, without the hand of man. Ib. The foreign law further requires that the flow should be perpetual (perennis) in order to raise a natural servitude; a momentary and accidental flow does not confer the same right. Ib. p. 389. But this, as explained by M. Fournel, seems to refer to changes made by the hand of man. If, says he, a man make an artificial watercourse, the flow of which is directed upon his neighbor, the latter may refuse to receive it, since the claim is not derived from a continuous watercourse, imposed by nature. Ib. p. 390. that The same writer proceeds to say if the lower land has no natural slope, by which the water can pass to his neighbor further down, he must keep the same until an agreement is made with his neighbor below; and so on until the water flows into other waters which by a natural course have acquired a right of passage upon the lower estates. It is worthy of notice, that by the law of France, if the water flows from a spring newly opened, or from a collection of water lately made, then the direction of the flow should be deter mined by agreement with the lower proprietor, who has the power of choosing the place by which the flow will least discommode him. 1 Fournel, Du Voisinage, p. 389 (4th ed.). It follows, in such case, that the upper owner lets the water flow down at his peril before consulting his neighbor below. Ib. p. 390. But when the bed of the flow is once fixed, whether by agreement or possession (which latter would, it seems, equally indicate consent), the upper proprietor cannot change the direction of the stream. Ib. p. 389. In the following note we consider the converse case, of the right of obstructing and diverting running water, and thus preventing its passage to the lower proprietors. OBSTRUCTING AND DIVERTING WATER. SPRINGFIELD v. HARRIS, leading case. ELLIOT V. FITCHBURG R. Co., leading case. Foreign law. Usufruct and reasonable use. Grant and prescription. Sub-surface water. CITY OF SPRINGFIELD v. SAMUEL HARRIS. (4 Allen, 494. Supreme Court, Massachusetts, September, 1861.) Mill Privileges. The owner of land over which a natural stream of water flows has a right to the reasonable use of the water for mills or other purposes, whatever may be the effect upon the owners of lands below; and he is not liable to an action for obstructing and using the water for his mill, if it appears that his dam is only of such magnitude as is adapted to the size and capacity of the stream and to the quantity of water usually flowing therein, and that his mode of using the water is not unusual or unreasonable, according to the general custom of the country in cases of dams upon similar streams. TORT for the obstruction of a natural stream of water by means of a dam. At the trial in the Superior Court, before Vose, J., there was evidence to show the uses which the plaintiffs have heretofore made of the water of the stream, where it crosses Main Street in the city of Springfield, below the defendant's land, and the method in which the defendant has used and obstructed the same; and it was a question in dispute whether the plaintiffs had established a title to Main Street. Upon the evidence in respect to the latter question, the facts not being denied, the judge ruled that the plaintiffs had not made out their title, and he directed the jury to return a verdict for the defendant, and also to answer the two following questions: "1. Is the dam of the defendant of such magnitude as is adapted to the size and capacity of the stream, and to the quantity of water usually flowing therein? 2. Is the mode of using the dam by the defendant, by closing the gate at night for the purpose of letting the pond fill, an unusual and unreasonable use, according to the general custom of the country in cases of dams upon similar streams?" The judge instructed the jury that, in answering these questions, they were to decide as practical men, upon the evidence in the case, with their judgments aided by the testimony of the experts, and the evidence relative to the general usage or custom of the country, or to dams upon similar streams, and by their own view of the premises, and that they were not to take into view the rights claimed by the plaintiffs in determining the facts involved in these inquiries. The plaintiffs made no objections to these instructions, and did not ask for any others; and the jury answered the first question in the affirmative, and the second in the negative. To the ruling of the judge directing the jury to return a verdict for the defendant, the plaintiffs alleged exceptions. N. A. Leonard, for the plaintiffs. J. Wells, for the defend ant. MERRICK, J. It appears from the pleadings, and from the facts stated in the bill of exceptions, that Garden Brook is a natural stream running by and over the land of the defendant, and thence through Main Street in the city of Springfield. The plaintiffs claim to be owners in fee of all the land included within the limits of said street, and that they are entitled to have the water flow in said stream at all times without obstruction, in order that they may use it, as they have a right to do, for sewerage, for extinguishing fires, and for all other purposes essential to the health and safety of the city. The defendant is the owner and occupant of a mill standing upon his said land; and he admits that during the whole period in which the obstruction complained of is alleged to have occurred, he has, in operating his mill and the works contained in it, used the water of said stream by means of a dam, which for that purpose he has erected and maintained across it. The plaintiffs in their declaration allege that this dam was and is "of a larger magnitude than is adapted to the size and capacity of the stream, and to the quantity of water usually flowing therein." And this is the particular grievance of which they complain, and which they set forth as their cause of action against the defendant. The action can be maintained only by the proof of this material allegation; for the defendant had a right to use the water in a reasonable and lawful manner to work and operate his mill, whatever might be the effect of such use in reference to any easement to which proprietors of land situate at any point below it might otherwise be entitled. Each proprietor of land through which a natural watercourse flows has a right as owner of such land, and as inseparably connected with and incident to it, to the natural flow of the stream for any hydraulic purpose to which he may think fit to apply it; and it is a necessary consequence from this principle that such proprietor cannot be held responsible for any injurious consequences which result to others, if the water is used in a reasonable manner, and the quantity used is limited by, and does not exceed, what is reasonably and necessarily required for the operation and propulsion of works of such character and magnitude as are adapted and appropriate to the size and capacity of the stream and the quantity of water usually flowing therein. Thurber v. Martin, 2 Gray, 394; Gould v. Boston Duck Co., 13 Gray, 442; Tourtellot v. Phelps, 4 Gray, 376. The jury having found, under instructions in matter of law which are admitted to have been correct and unobjectionable, that the plaintiffs have failed to establish the material allegations in their declaration relative to the dam erected and maintained by the defendant across the stream, and having also found that the said dam is only of such magnitude as is adapted to the size and capacity of the stream and to the quantity of water usually flowing therein, and that the manner in which he used the water was not an unusual or unreasonable use of it, according to the general custom of the country in cases of dams upon similar streams, it is obvious that the plaintiffs were not entitled to recover any damages, and therefore that the verdict was properly rendered for the defendant. It is objected that the court erred in ruling that the plaintiffs had not upon the evidence shown that they had acquired any prescriptive right to the water in the brook, and in directing the jury for that reason to return a verdict for the defendants. It would have been more regular to reserve these directions, which were predicated wholly upon questions of law, and to submit to the jury the questions of fact in issue, which were specially submitted to them with instructions that if they found the first in |