LEGAL DEPARTMENT. 595 



cannot be deprived of them, so the owner of property should not make 

 a change in the natural flow of the stream that would materially injure 

 any other owner situated upon it, or interfere with the stream flowing 

 as it is its wont to flow, or he will be responsible for the damage it 

 will occasion. Of course these rights are subject to the privilege of 

 each owner to make reasonable use of the water while it is passing 

 through his land. A diversion of the stream may be made by the 

 owner of the land if it is returned to its natural channel before it leaves 

 his premises. 



Diversion of Water Beneath the Surface. — If the owner of 

 land, without any intention of injuring his neighbor, and while making 

 use of his land for any lawful purpose, cuts off hidden currents, though 

 he destroys altogether the use of water which has no visible course, 

 but has been accustomed to flow into the land of his neighbor, an 

 action cannot be maintained against him for the diversion or stoppage 

 of such water. He may, therefore, drain the land, dig a well, open 

 and work a mine, although by so doing he may cut off the supply of 

 water of the springs and wells in his vicinity. But where the course 

 of a stream is well known, and it leaves the surface at some point and 

 flows for a distance beneath the surface, then emerges again, the owner 

 of the land lower down upon the stream has the same right as he would 

 have if the stream remained entirely above ground. 



MILL PRIVILEGES. 



A person who has a natural stream of water flowing through his 

 land, has a right to use the water for mills, providing he does not cut 

 off the water from those living lower down the stream, and he is not 

 liable for an action for using and obstructing the water for his mill; for 

 which it appears that the dam is of the size that is adapted to the 

 capacity of the stream and quantity of water usually flowing therein, 

 and that his mode of using the water is not unusual or unreasonable, 

 and is in accordance with the general custom of the country in the 

 case of dams upon similar streams. In many of the States laws have 

 been passed encouraging the erection of mills by authorizing the owners 

 and occupants, through condemnation proceedings, to take land of other 

 persons by paying such damages as may be legally assessed. 



