SECRETARY'S REPORT. 253 



perhaps no such power should ever be conferred. All owners upon 

 streams, great and small, have, however, the right to the natural flow of 

 the water, both above and below. Their neighbors below cannot obstruct 

 a stream so as to How back the Avater upon, or into, the land above ; and 

 where artificial water-courses, as ditches and drains have long been 

 opened, the presumption would be that all persons benefited by them, 

 have the right to have them kept open. 



Parliament is held to be omnipotent, and in the Act of 1847, known 

 as Lord Lincoln's Act, its power is well illustrated, as is also the deter- 

 mination of the British nation that no trifling impediments shall hinder 

 the progress of the great work of draining lands for agriculture. The 

 Act, in effect, authoi-izes any person interested in draining his lands, to 

 clear a passage through all obstructions, wherever it would be worth the 

 expense of works and compensation. 



Its general provisions may be found in the 15th volume of the Journal 

 of the Royal Agricultural Society. 



It is not the province of the author, to decide what may properly be 

 done within the authority of different States, in aiil of public or private 

 drainage enterprises. The State Legislatures are not, like Parliament, 

 omnipotent. They are limited by their written constitutions. Perhaps 

 no better criterion of powei", with respect to compelling contribution, by 

 persons benefited, to the cost of drainage, and with interfering with indi- 

 vidual rights, for public or private advantage, can be found, than the 

 exercise of power in the cases of fences and of flowage. 



If we may lawfully compel a person to fence his land, to exclude the 

 cattle of other persons, or, if he neglect to fence, subject him to their 

 depredations, Avithout indemnity, as is done in many States ; or if we 

 may compel him to contribute to the erection of division fences, of a 

 given height, though he has no animal in the world to be shut in or 

 out of his field, there would seem to be equal reason, in compelling him 

 to dig half a division ditch for the benefit of himself and neighbor. 



If, again, as we have already hinted, the legislature may authorize a 

 corporation to floAV and inundate the land of an unwilling citizen^ to 

 raise a water-power for a cotton mill, it must be a nice discrimination of 

 powers that prohibits the same legislature from authorizing the entry. 

 into lands of a protesting mill-owner, or of an unknown or cross-grained 

 proprietor, to open an outlet for a valuable, health-giving system of 

 drainage. 



In the valuable treatise of Dr. Warder, of Cincinnati, recently pub- 

 lished in New York, upon Hedges and Evergreens, an abstract is given 

 of the statutes of most of our States, upon the subject of fences, and we 

 know of no other book, in which so good an idea of the legislation on 

 this subject, can be so readily obtained. 

 32* 



