point of view to cut him off after long continuance, yet the law and morals are different forums.) Maintaining for years a pump which leaked water onto a neighbor's land, creates no duty that the pump must go on leaking. The mill-owner may cease to operate his conduit across the divide, or may cease to operate his mill, or his water wheels, or may change his location, or otherwise take away or alter, in whatever way he pleases, the artificial source of the flow into Second River. This principle is well settled in the decisions. In discussing them, the restricted point so far considered must be carried in mind, viz., the negative act of ceasing to keep up the addition to Second River. The discussion has not yet reached the affirmative act of maintaining the flow and then interfering with it, but only the negative act of no longer maintaining any flow at all; and it will be found that the authorities confine their rulings in the same way. They are cases where the creator of the additional flow acted upon the addition at its source, or while still within his land, and at a point above where it leaves his control.

Among the authorities there is a general proposition that use at a lower point of flow can give rise to no prescriptive right against upper parties. Where, for example, for many years a riparian owner has allowed water to flow by unused, and thereafter he begins to take it upon his own riparian land, the courts permit him at common law, although it stops the flow to others who had been taking it out of the watershed for non-riparian use; the ground being that if such lower parties have used the water in the meantime, it was no invasion of any right of his, and as he could not have sued those below him for using it nor make them stop using it, the latter can acquire no right by prescription against him.3 The act is done by him at the source or situs of his right, before the water gets by him, and is permitted.

With still more strength is this ruled where the flow has an artificial origin (as in the case of the mill now considered). The leading cases are English decisions, the best known being Arkwright v.

Stockport W. W. Co. v. Potter, 3 Hurl. & C. 300 (1864); Lakeside Ditch Co. v. Crane, 80 Cal. 181, 22 Pac. 76 (1889); Hargrave v. Cook, 108 Cal. 72, 41 Pac. 18 (1895); Cave v. Tyler, 133 Cal. 566, 65 Pac. 1089 (1901); Perry v. Calkins, 159 Cal. 175, 113 Pac. 136 (1911); Miller v. Enterprise, etc. Co., 147 Pac. 567 (Cal.) (1915).

Gell. In this case a tunnel had been built to drain a mine, and water from the tunnel came to plaintiffs for over a century and was used by them to work some mills. The mine-owners, in order to drain their mine deeper, now dug a lower tunnel wnich dried up the former one. No right of plaintiffs, it was held, was infringed thereby. The court held:

"But the use of the water [by plaintiffs] in this case could not be the subject of an action at the suit of the proprietors of the mineral field lying below the level of the Cromford Slough, and was incapable of interruption by them at any time during the whole period, by any reasonable mode; and as against them it was not 'of right'; they had no interest to prevent it; and until it became necessary to drain the lower part of the field, indeed at all times, it was wholly immaterial to them what became of the water, so long as their mines were freed from it. We therefore think that the plaintiffs never acquired any right to have the stream of water continued in its former channel." 5

In this case the stoppage was done at the source upon defendants' lands a new tunnel in their own mines; there was no such question as their going a mile below their mines and taking water flowing out of the old tunnel. They did not touch any flow coming from the old tunnel; on the contrary, there ceased to be any flow coming from the old tunnel. This case was followed by a similar English mine-drainage decision. In another English case 7 mine-water was emptied through a launder, to which launder plaintiff connected his ditch just below the boundary of the mineowner's land. Later the mine-owner on his own land removed his launder and diverted the mine-water so that it no longer entered the ditch of plaintiff, and it was held that plaintiff had no cause of action against the mine-owner, as the mine-owner was acting upon the water on his own land while still within his control. In an early Scotch case, Mr. E. owned a mill receiving water from some lakes. The water from the mill descended to a river on which there were many other mills, being the only water to enter that river from those lakes. This had lasted a long time, when Mr. E. began a project to turn the water of the lakes into a different river. Although Lord Kames, in reporting the case, says that the proprietors of 5 Ibid., p. 233.

4 5 Mee. & W. 203 (1839).

• Wood v. Waud, 3 Exch. 748 (1849).
7 Gaved v. Martyn, 19 C. B. N. S. 732 (1865).

many mills who would thus lose the water "took the alarm," his report of the case shows that Mr. E. took the judgment.

Elsewhere similar rulings have been made. In one case the Blue Point Mining Company brought water in a flume to its mines. After it was discharged there, other parties caught it in lower flumes (Cheek and Ackley and Side Hill flumes). Several years later the Blue Point Mining Company extended its own flume, cutting out the other parties. This was a change of flow while still within its control, and the lower parties had no cause of action. The court said:

"If those owning and working the mining ground elected to abandon their property at a particular point and for a particular length of time, it did not therefore become obligatory upon them to continue to do so, even though the flume companies, encouraged by the circumstances of abandonment for a time, had incurred the expense of constructing the flumes for the purpose of obtaining a profit from the water and earth so abandoned. When the Cheek and Ackley and the Side Hill flumes were constructed, their owners assumed the risk of loss by the miners ceasing to abandon the water and tailings from their mining grounds, and they cannot justly complain because the Blue Point Mining Company adopts means by which it may obtain the full benefit of its mining enterprise." 10

In a more recent case," for thirty years a riparian owner, after using water for irrigation, had allowed the waste to flow into a ditch of his neighbor, who had no right in the stream itself and got only this waste-water; and it was held that the upper party, the riparian owner, could change the course of his ditch on his own land, although no water thereafter went into plaintiff's ditch.

In other courts similar rulings have been made; and, to sum up the decisions, it may be said that: (1) the ruling is especially well settled in mine-drainage cases, where the mine-owner changes the drain-flow in the mine, or at the mouth of the tunnel, or at some other place within his own boundary; 12 (2) it is also applied to

8

Magistrates of Linlithgow, contra Elphinstone of Cumbernauld, 3 Kames (Scotch) 331 (1768).

10 Ibid., p. 299.

Correa v. Frietas, 42 Cal. 339 (1871) is a similar case.

"Davis v. Martin, 157 Cal. 657, 108 Pac. 866 (1910). See Dannenbrink v. Burger, 23 Cal. App. 587, 138 Pac. 751 (1913), setting forth the general doctrine.

12

Arkwright v. Gell, 5 Mee. & W. 203 (1839) (flow stopped underground); Wood v.

water draining from an irrigated field by seepage, where the owner of the field changes the drain-flow on his own land, or above where the water passes his boundary line; 13 and (3) it is applied to water brought from a stream and discharged in a foreign locality at the end of a canal or flume, where the canal-owner stops or changes the location of his canal above the point where it leaves his control.14

III

The authorities thus far are clear that the party and his privies having the conduit over the divide, as the creator of the artificial flow into Second River, may ordinarily stop it or take away the source of the flow, if he does so at a point above where the water leaves his land or his mill or the end of his tail-race.

But these authorities did not go further than that; and, moreover, there are decisions under which even the above limited extent of the rule has possible exceptions. One is where he stops it only wantonly to harm some lower party on Second River without other object 15 (whereby the law is beginning to infringe upon the distinction between law and morals). The other possible excep

Waud, 3 Exch. 748 (1849); Gaved v. Martyn, 19 C. B. N. S. 732 (1865) (flow stopped below tunnel, but before it left mine-owner's flume, and while still on his land); Broadbent v. Ramsbotham, 11 Exch. 602 (1856) (water overflowing from a well); Burrows". Lang, L. R. [1901] 2 Ch. 502; Crescent, etc. Co. v. Silver King, etc. Co., 17 Utah 444, 54 Pac. 244 (1898) (flow diverted by tunnel-owner at the tunnel-mouth on his own land); Cardelli v. Comstock T. Co., 26 Nev. 284, 66 Pac. 950 (1901) (place and manner of stopping flow not stated, except that the tunnel company "owns land from the mouth of the tunnel to the Carson River, over which the waters from the tunnel flow into said river," and appears to have retaken it before it reached the river). See Chandler v. Utah Copper Co., 43 Utah 479, 135 Pac. 106 (1913).

13 Burkart v. Meiberg, 37 Colo. 187, 86 Pac. 98 (1906); Roberts v. Gribble, 43 Utah 411, 134 Pac. 1014 (1913); Garns v. Rollins, 41 Utah 260, 272, 125 Pac. 867, 872 (1912). In this case the court says: “The law is well settled, in fact the authorities all agree, that one landowner receiving waste water which flows, seeps, or percolates from the land of another cannot acquire a prescriptive right to such water, nor any right (except by grant) to have the owner of the land from which he obtains the water continue the flow." See also 43 Land Dec. 321.

14 Dougherty v. Creary, 30 Cal. 290 (1866); Correa v. Frietas, 42 Cal. 339 (1871); Davis v. Martin, 157 Cal. 657, 108 Pac. 866 (1910); Green Valley Co. v. Schneider, 50 Colo. 606, 115 Pac. 705 (1911); Staffordshire, etc. Canal v. Birmingham Canal, L. R. 1 H. L. 254 (1866).

15 Green Valley Co. v. Schneider, 50 Colo. 606, 115 Pac. 706 (1911); especially where the water originates in drainage, Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766 (1903).

tion is where the artificial flow has continued for a very long time. In the English cases, and occasionally elsewhere, artificial flows of water are found whose beginning is buried so deep in the past that all evidence is lost of the circumstances under which they arose, and it is held that parties creating them are presumed to have agreed that they shall not be stopped.16 This is sometimes extended to cases where the lapse of time has not been so extreme, but has exceeded the period of the Statute of Limitations.1

Yet the authorities are not decisive, either, that the period of the Statute of Limitations need be covered. Although that period is taken as a general guide, yet the demands of justice in the individual case may be looked to as in any case of dedication of property to the public, and application of the principle withheld though the prescriptive period has been exceeded (as in the cases previously considered), or applied though that period has not yet been reached. In the chief case usually cited in this connection,18 a new channel was artificially cut by defendant for an existing stream. Plaintiff built a saw-mill on the new channel. After eight years defendant attempted to return the water to the old channel, but his acquiescence in use of the new channel by other parties was declared to

16 Whitmores v. Stanford, [1909] 1 Ch. 427 (250 years); Baily v. Clark, [1902] I Ch. 649; City of Reading v. Althouse, 93 Pa. St. 400, 405 (1880). In this case the court says: "Its origin is literally buried in the shades of the past; hence, for all practical purposes, it is a natural watercourse."

17 (When) "the use of the (artificially, from a foreign source) augmented volume of water has been enjoyed beyond the prescriptive period by an inferior owner, the right to redivert will be lost, and the inferior heritor can insist on the continuance of the flow to which he has been accustomed." FERGUSON, THE LAW OF WATER IN SCOTLAND, 232.

A decision in the state of Washington was as follows: Defendant diverted the water from a spring and carried it into another watershed (Gilmore Creek) in order to drain the land at the spring. Plaintiff, a riparian owner on Gilmore Creek, used the water and became dependent thereon for domestic use. After thirty years, the defendant on his own land at the spring diverted the water elsewhere for his own use, and was enjoined. The court said that the proprietor of a stream, by diverting it into an artificial channel and suffering it to remain in its changed condition for a period of time exceeding the statute of limitations, is estopped, as against a person making a beneficial use of the water, from returning it to its natural channel to that person's loss and injury; that the user does not have to show a prescriptive right in himself to secure this relief. Hollett v. Davis, 54 Wash. 326, 103 Pac. 426 (1909). See also Hough v. Porter, 51 Ore. 318, 412-16, 98 Pac. 1083, 1100-1101 (1909); Pacific Livestock Co. v. Davis, 60 Ore. 258, 119 Pac. 147 (1911); Falcon v. Boyer, 157 Ia. 745, 142 N. W. 427 (1913); Cloyes v. Middlebury, etc. Co., 80 Vt. 109, 66 Atl. 1039 (1907). 18 Ford v. Whitlock, 27 Vt. 265 (1855) per Redfield, C. J.