LAW AS TO FLOl^^NG WATER. 133 



is no reason why the public, who own only an easement over 

 the land, should thus acquire it. But the mere right of dj'ain- 

 age over the general surface of land, is very different frOm 

 the right to the flow of a stream or brook across the premises 

 , of another. 



It has been observed that it is only when the flow of water 

 on one person's land is identified with that on his neighbor's, 

 by being traceable to it along a distinct and defined course, 

 that the two proprietors can have natural relations with each 

 other in respect of it, considered as the subject of separate 

 existence. AVhile the water forms a part of the soil and the 

 produce of the soil, actually resting upon it, no proprietor 

 can claim any interest in it, until it reaches his land, and 

 neither can any proprietor claim any right to oppose another 

 proprietor who attempts to prevent it from flowing upon his 

 land. 



So water, rising naturally from the peculiar property of the 

 "soil, and freely flowing over and beneath the surface, acquires 

 no public character whatever, although it somewhere eventu- 

 ally may help form a stream ; but before it becomes a natural 

 stream, the owner of land may use it just as he sees fit ; if the 

 natural channel begins at the very source, like a stream from 

 a well-defined spring or fountain, where the water first shows 

 itself, then it at once assumes a public character, and cannot 

 be interfered with to the injury of other conterminous propri- 

 etors. A river begins at its source where it comes to the 

 surface ; and a stoppage of it at the spring-head, is just as 

 much a diversion of it, as if the water had been taken lower 

 down. 



I have entered quite at length into the examination of the 

 subject of drainage, because it has seemed to enter quite 

 largely into the many discussions before the Board, and it has 

 seemed, generally, to meet with favor by agriculturists in 

 this and other States. 



How far the right can be exercised by one owner of land to 

 the injury of another, seemed to me to be a practical question. 

 In the suggestions I have made, I have generally adopted the 

 language of the courts, believing it would be more concise 

 than my own, and not liable to misconstruction. 



