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Page:Harvard Law Review Volume 2.djvu/217

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land through which it passes. In the absence of controlling rights acquired by grant or prescription the riparian owners on a stream are entitled to the natural flow of the water without any diminution or obstruction except such as is incident to its reasonable use by the proprietors above. The water of the stream cannot lawfully be diverted, except for such use, unless it is returned again to its accustomed channel before it reaches the land of the proprietor below. ^

II. The diversion of the waters of a spring which is the source of a stream is equally a wrongful diversion of the waters as against a riparian proprietor on the stream as if the water had been taken lower down. The rule is the same where the source of the stream is a lake or pond, instead of a spring ; for a pond is part of a natural watercourse, collected from springs and the adjacent watershed, on its way to the sea. The inflow from the springs and sources must be at least as large as the outflow by the stream, so that, all the time, it is moving and running water, and no owner of the land over which the water passes, no matter what may be the rate of its flow, has the right to divert it or diminish it to the injury of a riparian proprietor below.^

III. The right of the riparian owner to the undiminished flow of the stream is property within the meaning of the Constitution,^ and the Legislature cannot, even for a public purpose, like supply- ing a city with water, authorize the taking of this property — that is, authorize the diversion or diminution of the water naturally flowing in the stream — without providing for compensation to the riparian proprietors whose rights are thereby injuriously affected.*

It is therefore clear, as appears to have been admitted by all the members of the court in the recent Watuppa Pond cases, that the Legislature would not have had the right to authorize the tak- ing of the water from the pond to the injury of the riparian pro-

��1 Elliot V, Fitchburg R. R. Co., 10 Cush. 191; Thurbcr v, Martin, 2 Gray, 394; Chandler v. Howland, 7 Gray, 348; Ware v. Allen, 140 Mass. 513.

  • Dadden v. Guardians of the Poor, i H. & N. 627; Hebron Gravel Road Co. v.

Harvey, 90 Ind. 192; Bennett v. Murtaogh, 20 Minn. 151.

•Gary v. Daniel, 8 Met. 466; Wadsworth z/. Tillotson, 15 Conn. 366; Harding v. Stamford Water Co., 41 Conn. 87.

  • Pumpelly v. Green Bay Co., 13 Wall. 166; Ipswich Mills v. County Commissioners,

108 Mass. 363; Lee v, Pembroke Iron Co., 57 Me. 481.