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Page:Harvard Law Review Volume 2.djvu/336

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many books entitled Law of Watercourses, Law of Running Waters, less about the law of still waters or the law of lakes, and almost nothing about the intermediate case, where there is a lake with one brook running out of it and another running into it. They are hardly satisfied when told that a riparian's rights are to con- figuration of the soil from mountain-top to the sea. They do not find any such fearfully broad doctrine in the books. They know that infinite changes in territory between the outlet riparian and the mountain-top may be legally made, to his very great prejudice ; that forests may be felled on the upland slopes so that the water that comes to his mill may come in disastrous floods. They know that extensive marshes and swamps above him may be legally drained by their owners, so that his mill-wheel stops ; that the surface water of thousands of acres may be legally diverted, so that he can never use its propelling force. They know that the passage of rains and melting snows over the surface for twenty years gives no title to its continuance.^ They know that an inter- cepting sink, currentless, intercepts the miller's title, though a watercourse may exist both above and below the sink. They know that subterranean percolations, an enormous source of every river's supply, can be legally diverted. They were told by the court ^ that, even being a "natural water-way" is not enough to make it a watercourse, unless there is a current. They do not know that the " form and identity of the natural features of the country " is enough to give the miller any title to surface water, subterranean water, marsh water, swamp water, though all of them are important sources of supply to every "natural water-way."

In fact, they do not find in the books that he has any right at all extending from his mill to the mountain-top, unless there is a regular watercourse all the way, unbroken, with definite chan- nel and a perceptible current, with a bed and sides or banks. They ask to know why the courts have been so careful to inquire whether the situation amounted in fact to a watercourse, e,g,^ why Lewis, C. ],? says, " To entitle it to the consideration of the law, it is certainly necessary that it should be a watercourse in the proper sense of the term ; " and they have come to believe that the miller's right only extended as far as the water was in the

1 lo Gray, 28.

s Godfrey v, Macomber, 108 Mass. 221.

» Whcatley v, Baugh, 25 Penn. St. 528; also Bigelow, C. J., 2 Allen, 589.