LEGAL DEPARTMENT. 64 1 



natum, a right of access to and from the stream wholly distinct from the 

 right of navigation, which he enjoys in common with the rest of the pub- 

 lic. There is no distinction in particular between riparian rights on the 

 banks of navigable, or tidal, and those of non-navigable rivers. In the 

 former case, however, there must be no interference with the public right 

 of navigation. (Lyon v. Fishmongers' Co., i App. Cas. 662.) 



SURFACE WATER AND DRAINAGE. 



The water which flows upon the surface of the land, not gathered 

 in ponds or streams of running water, is usually designated ' ' surface 

 water." It is somewhat difhcult to distinguish between surface water, as 

 such, and running water, and perhaps the best way to distinguish it is to 

 ascertain what a running stream is. Where there is a channel or canal 

 which is made by a general contour of the surrounding land from which 

 the water is collected into one channel, it may be natural or artificial, it 

 flows, however, in a definite channel, having a bed and sides, and usually 

 discharges itself into some other stream. The water need not flow con- 

 tinuously therein, as there are many large rivers which are sometimes 

 dry, but they have a well-defined channel. The owner of the land has a 

 right to the surface water which runs in no definite channel, and he may 

 prevent its flow into a neighboring stream, thus : If there are two fields 

 adjoining each other, one lower than the other, the owner of the upper 

 field has a right to the water that flows on his land ; he need not let it 

 flow off from the same on the land below. The owner of the lower field 

 has the right to erect an embankment to stop the water from the upper 

 field from flowing upon it. But the owner of the upper field has not the 

 right to divert the flow of water from its natural channel and cause it to 

 make a new channel on the lower ground, nor can he collect into one 

 large stream waters usually flowing off into his neighbor's fields by several 

 streams, and thus increasing the rush upon the lower field. The law has 

 always recognized a distinction between the right of the owner to control 

 the surface water which falls or collects on his lands, and his right to con- 

 trol water of a natural water course ; the owner of the land is admitted 

 to have an absolute property in the surface water before it leaves his land 

 and becomes a part of a definite water course, and he may appropriate it 

 to his own use or get rid of it in any way possible, provided he does not 

 collect it and cast it in a body upon the proprietor below him to his 

 injury. (Ostrom v. Sills, 24 A. R. 526.) 



