The term 'riparian' is derived from the Latin word 'ripa,' which signifies a bank of a river or stream in general, and includes the bank of an artificial stream. Hence, the expression 'riparian land' means land, which is on the bank of, or, to use perhaps a more accurate phrase, which abuts on a stream, either natural or artificial. A riparian proprietor is the proprietor of riparian land; but the phrase, ' riparian rights ' denotes exclusively that group of Natural Rights, which reside in a riparian proprietor, or are incident and inseparably annexed to his ownership of riparian land, abutting on a natural stream only; as distinguished from easements or acquired rights (derived by grant, covenant, prescription, or statute) which a riparian proprietor may have in a stream, either natural or artificial. The expression ' riparian rights ' is large enough to embrace all natural rights annexed to lands which border on a river through the whole length of its course, both below and above the tide. Riparian owners have the same natural riparian rights in public navigable and tidal rivers as in private streams.1)
The word ' water-course ' in its strict etymological sense means the bed or channel through which a stream of water flows, but in law it also denotes the stream itself as it flows in the channel and a right of easement in connection with the water.
A ' natural stream ' is one which arises at its source from natural causes, and flows in a natural channel. The word 'stream' in its primary and natural sense, denotes a body of water having, as such body, a continuous flow in one direction. Water percolating discontinuously through or along strata cannot be described as a stream. Every riparian proprietor is deemed in law to own the soil up to the centre of the river, and if he interferes with it beyond that point he commits a trespass. Of the water itself there is no separate ownership; being a moving and passing body, there can be no property in it. But every landowner has a natural right to the uninterrupted flow, without diminution, deterioration in quality, or alteration, of the water of natural surface streams which pass to his lands in defined channels, and to transmit the water to the land of other persons in its accustomed course.3) Riparian owners are entitled to use and consume the water of the stream for drinking and household purposes, for watering their cattle, for irrigating their land, and for purposes of manufacture ; subject to the conditions that:
He who first applies running water to irrigation or other purposes, does not thereby acquire an extended right, as against others, until his enjoyment has been long enough to give him a title by prescription5); but, till then, the right is only to the natural use, which must be such as not essentially to destroy the natural flow to the damage of those above or below him.6) Each proprietor has a right to a reasonable use of the water as it passes his land, but, in the absence of some special custom, he has no right to dam it back or exhaust it, so as to deprive other riparian owners of like use.7)
A right to pollute a natural stream may be acquired by grant or prescription, though such enjoyment, or any other kind of enjoyment in excess of the natural right, will not begin to be adverse and of right, until the injurious effect is suffered; for, at first, or for many years the deposit or other user, resulting in damage, may have been imperceptible.8) A riparian proprietor who has a prescriptive right to take, in a particular way and at a particular place, water from a river and to return such water to the river in a polluted condition, is not entitled to take the water in any other way or place, nor use even his Common law right of taking it in such a way as to add to the pollution of the stream.9)
If the rights of a riparian proprietor are interfered with, as by diverting the stream, or abstracting, or fouling the water, or by cutting him off from a navigable tidal river, or by embanking the foreshore, he may maintain an action against the wrong-doer, even though he may not be able to prove that he has suffered any actual loss.10)
An upper riparian owner has no right to an injunction to restrain a lower riparian owner from obstructing the flow of water in the stream unless he can show either present damage or probable damage in the future.11)
Where the defendant company supplied their engines and station with water from the plaintiff's stream, the plaintiff, a mill-owner, sued for an injunction and compensation; it was held that as there was no damage caused in wet weather, and the working of the mill was never in any case shortened by more than a few minutes a day, the defendant company was not liable.12) Where a non-riparian owner, with the license of a riparian owner, took water from a river, and after using it for cooling certain apparatus, returned it undiminished in quantity and unpolluted in quality; it was held that a lower riparian owner had no right of action, for his right to have the water undiminished in quantity and undefiled in quality was not infringed.13) A mine owner is not, apart from contract or prescriptive right, entitled to pump water into a stream, though the water may not make the stream unfit for ordinary purposes but only for some special purpose, e.g., distilling whisky.14)
Indian cases: A dam had been in existence across a river for upwards of 280 years, and during all that time the villages of D and P had received an equal supply of water from separate sluices in the dam. The Government authorities, being of opinion that D required less water than P, reduced the size of the D sluice, and consequently the amount of water flowing to the D village. The inhabitants of D appealed against the action of Government. Held, that the Government had no such right of interference, neither;
The owners of a tank fed by natural streams, which depended for their supply on natural rainfall and surface water, sued for an injunction to restrain superior riparian owners from damming the streams or interfering with the supply of water, over which the plaintiffs claimed a right of easement. Held, that an easement can be acquired in regard to the water of the rainfall : but surface water not flowing in a stream and not permanently collected in a, pool, tank, or otherwise is not a subject of easement by prescription though it may be the subject of an express grant or contract. It is the natural right of every owner of land to collect or dis- pose of all water on the surface which does not pass in a defined channel.16) A claim to demolish an embankment erected by a person on his own land which intercepts the natural flow of water on to the land of another, cannot be maintained by the other so long as a reasonable and fair quantity of water is allowed to pass.17) A right of easement may be acquired in the surplus water of a tank flowing through a defined channel, whether natural or artificial.18) The appellants placed within the limits of their own estate a dam across a natural stream flowing through their estate on to that of the respondents and diverted the water into a new channel leading to a reservoir of their own. The respondents destroyed this dam and the appellants then brought the present suit for a declaration “ that the plaintiffs are entitled to carry the water of the river to their reservoir by placing bunds at any part of the river within the estate of the plaintiff's and that the defendants have no right to obstruct or oppose them.” The plaint contained no averment or proof either as to the size and character of the dam or as to the quantity which it had the effect of diverting and did not state that the dam did not materially diminish the flow of the stream. Held, that the right as alleged and claimed in the plaint was excessive and could not be allowed.19)
The right to surface water standing on the soil, or not running in a defined channel, is in the owner of the soil.20)
An artificial stream is one that arises by the agency of man, or though arising from natural causes, flows in a channel made by man, An artificial water-course may have been originally made under such circumstances, and have been so used as to give to the owners on each side all the rights which a riparian proprietor would have had if it had been a natural stream. The law governing artificial water-courses depends upon whether they are of a permanent or temporary character, and upon the circumstances under which they were created. If an artificial stream is permanent in its character, a right to an uninterrupted flow of water may be acquired by prescription or grant against both the originator of the stream, and also against any person over whose land the water flows;21) ; but long enjoyment of an artificial stream will not give a right to the unobstructed use of a stream obviously made for temporary purposes, as to drain a mine.22). With regard to water-courses although artificial, there seems no reason to doubt that the long continued submission of the servient owner to the discharge of water upon his tenement, or to the conducting of it through his land by the owner of the dominant tenement, will confer the right to continue the discharge of the water, or to continue to receive the supply of it, through the land of the servient owner.
Indian: The right which a riparian proprietor has, under certain restrictions, to the use of the water of a natural water-course, has no application to a water-course, artificially constructed, and the mere fact of riparian proprietorship gives no rights whatever over such a stream.23) There is no right to tap an artificial water-course unless by grant or prescription.24)
If a steam-engine or sough, is constructed and used by the owner of a mine to drain it, and the water pumped up by the engine, or collected by the sough, flows in a channel to the estate of the adjoining landowner, and is there used for agricultural purposes for twenty years, no right to the water in perpetuity can be gained from any such user, so as to burthen the owner of the mine and his assigns with the obligation of keeping up the steam-engine or a sough, and pumping or collecting water for the benefit of the adjoining landowners. In cases of this sort no right is acquired as against the owner of the property from which the course of water takes its origin, though as between the first and any subsequent appropriator of the water-course itself such a right may be acquired.25) If a farmer, by some system of drainage, draws off the rainfall from his lands, and pours it into the plaintiff's ditch, and so creates a new and artificial supply of water, and the latter uses the water for more than twenty years, and after that the farmer adopts a new mode of drainage, and in so doing cuts off the artificial supply of water, the plaintiff has no remedy for the loss of water, the supply being of a temporary character, and in the circumstances showing that one party never intended to give, nor the other to enjoy, the use of the artificial drainage water, as a matter of right.26)
Indian cases: Water falling on A's land and collected in a reservoir there, used to flow on to B's land. Held, that B had no right to the use of the water, and that A was entitled to erect on his own land a bund to prevent the water flowing on to B's land.27)
The law as to a subterranean stream, the course of which is well known and clearly defined, is similar to that of natural streams flowing above ground.28) If the course of a subterranean stream were well known; as where a stream sinks underground, pursues for a short space a subterranean course, and then emerges again; the owner of the soil under which the stream flowed could maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover if the stream had been wholly above ground. If underground water flows in a defined channel into a well supplying a stream aboveground, but the existence and course of that channel are not known and cannot be ascertained except by excavation, the lower riparian proprietors on the banks of the stream have no right of action for the abstraction of the underground water.29)
Water percolating discontinuously through or along strata cannot be described as a ' stream. There is no Natural Right to the uninterrupted flow of such streams. A right to the uninterrupted flow of such streams cannot be acquired by prescription30), though it may be acquired by express grant.31) Any such right against another person, founded upon length of enjoyment, is supposed to have originated in some grant; but what grant could be presumed in the case of percolating waters depending upon the quantity of rain falling, or the natural moisture of the soil, and in the absence of any visible means of knowing to what extent, if at all, the enjoyment would be affected by any water percolating in and out of the defendant's or any other land ? The presumption of a grant only arises where the person against whom it is to be raised might have prevented the exercise of the subject of the presumed grant, but how could a man prevent or stop the percolation of water ?32) The owner of land containing underground water, which percolates by undefined channels and flows to the land of a neighbour has the right to divert or appropriate the percolating water within his own land so as to deprive his neighbour of it.33)
Although a land owner has unrestricted liberty to collect or dispose off underground water as he pleases, regardless of his neighbour's interest, yet;
A and B two neighbours, each possessed a well, A turned sewage into his well, in consequence whereof the well of B became polluted, it was held that an action lay by B against A. For there is a considerable difference between intercepting water in which no property exists, and sending “ new foreign and deleterious substance on to another's property. The immediate damnum, namely, the pollution of the water, might be possibly no legal damnum; but allowing sewage to escape into another's property is of itself an injuria which needs no damnum.36)
Where the plaintiff's mill was worked by a river supplied by water produced by the rainfall over a large district, and the defendant sunk a well on his own land, and pumped up water for the supply of Croydon, thereby preventing an enormous quantity of water from ever reaching the river or the mill, it was held that the plaintiff had no right of action against the defendant.37) Where a local Board of Health, represented by the defendant, made a drain to collect percolating underground water, and the effect was that surface water which flowed in a defined stream sunk into the earth, and the stream was diminished; it was decided that, though ordinarily a land owner has the right to act as the defendant had acted, yet that he had no right even indirectly to interfere with the surface stream, and an injunction was granted to restrain him from collecting the underground water in such a manner as to interfere with that on the surface.38) This case is distinguished, from Chasemore v. Richards where the water the river was diminished, but was diminished by preventing the subterranean water from ever reaching it, not as in this case by drawing water away from the river itself.
A lessor demised by lease a distillery, cottages, and thirteen and a half acres of land, with two ponds, ” together with the right to the water in the said ponds and in the streams leading thereto.“ The lessor sunk a tank on ground outside but adjoining the demised subjects, and drew off from marshy ground percolating water which would have found its way eventually into one of the ponds. Held, that water percolating through the ground towards the pond was not water in any stream leading to the pond.39)