134 BOARD OF AGRICULTURE. 



IRRIGATION. • 



Another question suggests itself which is so intimately 

 connected with the subject of drainage that it almost forms 

 a part of it, to wit; To what extent has the proprietor of 

 lands the right to use the water, flowing in a natural stream, 

 to irrigate his lands? This involves a principle entirely 

 difierent from the rights of flowage as conferred by the 

 statutes. 



The only right of flowage given by statute is what is known 

 under the term "Mill Acts," and this right is restricted to 

 flowage by means of a dam built upon the land of the pro- 

 prietor, for the purpose of creating a water-power to run a 

 mill ; and s.uch proprietor has no right to erect a dam upon 

 land of another without the consent of the owner of said land. 

 But the right of irrigation, if it exists at all, is a common-law 

 right, and hot as yet modified or controlled by any statute in 

 this Commonwealth. And in the absence of any right by pre- 

 scription, which presumes a grant, I think the language of 

 Chief Justice Shaw, uttered several years since, clearly sets 

 forth the rule, so far as a rule can be laid down, which gov- 

 erns the law of irrigation in this Commonwealth to-day. Said 

 the learned justice : " It has sometimes been made a question 

 whether a riparian proprietor can direct water from a running 

 stream for purposes of irrigation. But this we think is an 

 abstract question, which cannot be answered either in the 

 affirmative or negative, as a rule applicable in all cases. That 

 a portion of the water of a stream may be used for the pur- 

 pose of irrigating lands, is, we think, well established as one 

 of the rights of the proprietors of the soil along or through 

 which it passes. Yet a proprietor cannot under color of right, 

 or for the actual purpose of irrigating his own land, wholly 

 abstract or divert the water-course, or take such an unreason- 

 able quantity of water, or make such unreasonable use of it 

 as to deprive other proprietors of the substantial benefits 

 which they might derive from it, if not diverted or used 

 unreasonably." 



It will be observed that in courts generally, a distinction 

 has been made in determining the question whether there has 

 been an imlawful appropriation of the water of a natural 



