Page:Harvard Law Review Volume 8.djvu/165

POWER TO DIVERT AN INTERSTATE RIVER. 149 for in case of an artificial watercourse (an apparent, continuous, and reasonably necessary easement) extending across adjacent lots held by different parties under titles derived from a common grantor, can it fail to apply to grants by one and the same sove- reign of adjacent provinces crossed by natural streams ? Was the Confederation of ^777-7^, or the Constitution of 1787, intended to enlarge the powers of the respective colonies to harass and annoy, not to say destroy, each' other ? Was the United States Constitu- tion adopted with the view of conferring on each State power to inflict injuries upon sister States, — injuries of a nature which none of them had hitherto possessed the right to inflict, and which would not be justifiable under the rules regulating the intercourse of civilized nations ? In this connection it should be carefully noted that the rights claimed for the New Hampshire riparian owners are Jure natiiroj, the river being a natural stream, and the law being a recognition of the course of nature in every part of the stream. No artificial servitude has been forced upon Massachusetts territory along the banks of the Nashua River by the Nashua Companies, restricting the natural enjoyment of the use of the water which they once had, but the Nashua Companies have simply enjoyed that which was left after riparian owners in Massachusetts enjoyed their natural privi- leges.^ Rights like these are not created by toleration or the un- reasonable deprivation of the Massachusetts riparian owners. The conduct of these sister States towards each other and the common law which prevailed while they were colonies, sanctioned the con- fidence that such property rights had locality, and that under that view they would be as permanent and inviolable as the mills to which they were by natural law attached. That confidence was based upon the history of similar water rights in the lands from which the colonists came, as elsewhere, and became the founda- tion of great investments, and gave rise to the growth of large cities. What results would follow if the opposite view is adopted .-' Let us look at the consequences of conceding to each State the full power of sovereignty supposed to be now claimed for Massachu- setts. Consider, first, the consequences in respect to dealings with 1 Gould on Waters (2d ed.) pp. 300, 301, 302 ; Yates v. Milwaukee, 10 Wall. 497 ; Lyon V. Fishmonger's Company, L. R, i App. Cas. 662 ; Diedrich v. N. W. Ry. Co., 42 Wis. 248 ; Stevens Pt. Boom Co. v. Reilley, 44 Wis. 295, 305 ; Morrill v. St. Anthony Falls Co., 26 Minn. 222.