Weston v. Alden

8 Mass. 136

Opinion

The action was continued nisi for the opinion of the Court upon the foregoing report; and at an adjourned session of the last March term in Suffolk, present the Chief Justice, and Sewall and Parker, Justices, the opinion of the Court was pronounced to the following effect: —

We think, upon the facts reported in this case, that the plaintiff has no right of action, and that the verdict must be set aside. A man owning a close on an ancient brook may lawfully use the water thereof for the purposes of husbandry, as watering his cattle, or irrigating the close; and he may do this, either by dipping water from the brook, and pouring it upon his land, or by making small sluices for the same purpose; and if the owner of a close below is damaged thereby, it is damnum, absque injuria.

Neiv trial granted.

[The right to the use of water rests on clear and settled principles. Prima facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream) but there is no property in the water. Every riparian proprietor has an equal right to use the water which flows in the stream ; and, consequently, no riparian proprietor can have the right to use the water to the prejudice of any other proprietor. Without the consent of the other riparian proprietors, who may be affected by his operations, no riparian proprietor can either diminish the quantity of water, which would otherwise descend to the riparian proprietors below, nor throw the water back upon the riparian proprietors above. Every riparian proprietor who claims a right either to throw the water back, above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant, or license, from the riparian proprietors affected by his operations, or must prove an uninterrupted enjoyment of twenty years. — Wright vs. Howard, 1 Sim. & Stuart, 203. — Mason vs. Hill, 5 B. & Ad. 1. — 2 New. & Mau. 747.-3 B. & Ad. 304. — Bower vs. Hill, 1 Bing. N. C. 544.— Rex vs. Trafford, 1 B. & Ad. 874.— 8 Bingh. 204. — 2 Cr. & J. 265. — And, although every riparian proprietor has a right reasonably to use the water in the stream, and even to take it in small and reasonable quantities from the stream for domestic and other uses, yet he has no right to divert any part of the water of the stream into a course different from that in whish it has been accustomed to flow, for the purpose of irrigating his land, or any other purpose, to the prejudice of any other riparian proprietor, without such grant or license. Arnold vs. Foot, 12 Wend. 330. — Brown vs. Best, 1 Wils. 174. — En.]