Chamberlain v. Hemingway. All the waters on the face of the earth may be divided into tide waters and inland waters. It is only to the latter that the term water-course can be applied. Water-courses are commonly denominated rivers, rivulets or brooks according to their magnitude. It is only upon water-courses that riparian rights exist. Chancellor WALWORTH, in Child v. Starr, 4 Hill, 375, said that "a water-course had ripam but not littus." So conversely it may be said that the tide water has littora but not ripas. Littoral are very different from riparian rights. A water-course consists of bed, banks and water. Yet the water need not flow continually; there are many water-courses which are sometimes dry. To maintain the right to a water-course it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides. Angell on Water-courses, §4: Gould on Waters, § 41. "It may be natural, as where it is made by the natural flow of the water caused by the general superficies of the surrounding land from which the water is collected into one channel; or it may be artificial, as in case of a ditch or other artificial means used to divert water from its natural channel, or to carry it from low lands from which it will not flow in consequence of the natural formation of the surface of the surrounding land." Earl v. De Hart, 12 N. Jer. Ch., 283, 284. A water-course implies a source, a current and a place of discharge. "A river or stream begins at its source, where it comes to the surface." Angell on Water-courses § 46. "A water-course is a stream of water usually flowing in a definite channel, having a bed and sides or banks, and usually discharging itself into some. other stream or body of water." Luther v. Winnisimmet Co., 9 Cush., 174; Gillett v. Johnson, 30 Conn., 180. "A river is a considerable stream of water that has a current of its own, flowing from a higher level which constitutes its source, to its mouth where it debouches." The Garden City, 26 Fed. Rep., 766. "It is the moving of the water from the source to the mouth that makes the water-course." Challoner v. Thomas, Yelv., 143. tium, est aquæ cursus. "Fons aquæ, aqua currens, et osThe word 'river' is derived from the Latin rivus. Chamberlain v. Hemingway. Rivus est locus per longitudinem depressus, quo aqua decurrat." Ulpian's Dig., De Rivis. Ulpian's Dig., De Rivis. And it is used constantly by the Latin authors in a sense that implies a current from a source to a mouth." "Rivorum a fonte deductio." Cicero. "Omnia flumina atque rivos qui ad mare per tinebant." Cæsar. State v. Gilmartin, 9 N. Hamp., 461; S. C., 14 id., 477. "It is a river or water-course from the point where the water comes to the surface and begins to flow in a channel, until it mixes with the sea, arm of the sea, lake or other water. It may sometimes be dry, but in order to be within the above definition it must appear that the water usually flows in a particular direction and has a regular channel with bed, banks or sides." Dudden v. Guardians of Clutton Union, 1 Hurlst. & Nor., 627; Gould on Waters, 41; Gallup v. Tracy, 25 Conn., 10, 17; Stanchfield v. City of Newton, 142 Mass., 110, 116, and note. "A large stream of water flowing in a channel on land towards the ocean, a lake or another river; a stream larger than a rivulet or brook." Webster's Dict., River. "A large inland stream of water flowing into the sea, a lake or another river; a stream larger than a brook." Worcester's Dict. "A stream flowing in a channel into another river, into the ocean or into a lake or sea." Stormonth's Dict. "A large stream of water flowing through a certain portion of the earth's surface and discharging itself into the sea, a lake, marsh or another river." Imperial Dict. "A considerable body of water flowing with a perceptible current in a certain definite course or channel, and usually without cessation during the entire year." Century Dict. "A water-course as defined in the law means a living stream with definite banks and channel, not necessarily running all the time, but fed from more permanent sources than mere surface water." Jeffers v. Jeffers, 107 N. York, 650; Joliet & Chicago R. R. Co. v. Healy, 94 Ill., 416, 421. We have cited these numerous authorities for the purpose of showing clearly that the sluiceway in question was not and is not a water-course, as that term is known in the law. If it be granted that the reclaimed land owned by the plaintiffs Chamberlain v. Hemingway. may be treated as upland, it does not follow that the sluiceway is a river or any other kind of water-course. At the most it is like an inlet or ravine in the land, into which the water of the harbor runs when the tide rises and out of which the water flows when the tide falls. That it is open at both ends so that the water may run clear through-in one direction when the tide is rising and in the other direction when the tide falls-can make no difference. If by a figurative use of speech this sluice can be said to have banks and a bed, it certainly has no water of its own. The water of the harbor runs into it and runs out again. A man can take as many steps on a treadmill as on a highway, but he cannot perform a journey on it. The treadmill is not a highway. Water may flow into this sluice and flow out again, but it does not therein pursue a course. There is no stream of water passing through it in the sense of a water-course. There is no current, as the word "current" is applied to a stream of water. It has no source distinguishable from its mouth and it has no mouth distinguishable from its source. It is not a water-course. In their brief and in their oral argument the plaintiffs made their claim in another form-that the court erred in holding that they, the plaintiffs, had not the right to have the waters ebb and flow in the sluiceway as they had been accustomed to flow. This is only claiming that the ordinary riparian rights which attach to an inland stream of water ought to apply to the water of the sluice. The plaintiffs say that the waters of the harbor have ebbed and flowed through the sluice for more than fifteen years and that thereby they have obtained the right to have the waters continue to so ebb and flow by adverse use. We are not able to see that anything has been done or omitted, by the plaintiffs or by the defendants, which was adverse to any right of the other. The plaintiffs have done nothing which they had not a perfect right to do. They have done nothing to which the defendants could have made any legal objections. The plaintiffs and their grantors were the owners of the upland adjacent to the water. They exercised their unquestioned right to reclaim Chamberlain v. Hemingway. the flats in front of their land by filling them up in such manner as they chose as far out as the channel of the harbor or as far as they desired to do. They did not make the filling continuous, but left a space unfilled into which the tide has ever since caused the water to flow. They owned the land next north of the causeway built as an approach to the Grand Avenue bridge. In that causeway there had been. left an open space twenty feet wide. The plaintiffs put their unfilled space so that it connected with the open space in the causeway. And they have at all times since made such use of their unfilled space as they desired, at no time doing anything of which the defendants or any other owner could make any legal complaint. The defendants and their grantors owned the upland bordering upon the tide water next south of the causeway. They too exercised their right to reclaim the flats in front of their land by filling them up in such manner as they chose as far out as the channel of the harbor or as far as they desired to do. But they did not make their filling solid and continuous. They left an unfilled space so that it connected on the south with the opening in the causeway, and into which the tides have ever since set the waters of the adjacent river. They have made such use of their open space as they desired, at no time doing anything they had not the most perfect right to do, and at no time doing anything of which the plaintiffs or any other owner could have made legal complaint. So that nothing has been done at any time by either of these parties which was adverse to any right of the other. Let this be tested in another way. Suppose the defendants had never filled in their flats further than the east side of the sluiceway, and that they now proposed to continue the filling further west as far as the harbor line, and to make the filling solid, could the plaintiffs cause them to be enjoined? Obviously not, for the defendants would be doing only that which they had the clear right to do. Prior v. Swartz, 62 Conn., 132; Mather v. Chapman, 40 id., 382. If the plaintiffs could not successfully resist an obstruction to the sluice in the way supposed, it is certain that they Gerrish v. New Haven Ice Co. cannot lawfully complain of what the defendants are now doing. There is no error in the judgment appealed from. In this opinion the other judges concurred. CHARLES GERRISH vs. THE NEW HAVEN ICE COMPANY. New Haven & Fairfield Cos., Jan. T., 1893. ANDREWS, C. J., CARPEN- The plaintiff, as servant of the defendant company, was employed in the hauling of ice from a pond into an ice-house by machinery operated by a steam engine, and, in adjusting some of the machinery that had got out of order, while the engine was stopped for the purpose, was placed in a position that would become one of great danger if the engine should be started. The company had a rule, known to all its employees, that the superintendent of the work should stand at a certain place where he could oversee all the work and have in reach a bellcord by which he could signal the engineer when to stop and when to start the engine; and that when the engine was stopped on account of any disarrangement of the machinery the engineer should be personally notified and should not start the engine until specially directed to do so. At this time the superintendent had left the place to get some appliance needed, and by some unexplained accident the bell-cord was pulled and the engineer started the engine, and the plaintiff was seriously injured. Held that the company, both in not observing its own rule to have the superintendent at the point of control, and in his leaving the place without putting some person in charge of it, was guilty of negligence and liable to the plaintiff for the injury. [Argued January 24th-decided March 6th, 1893.] ACTION for an injury through the negligence of the defendant company; brought to the Superior Court in New Haven County. The defendants suffered a default, and the case was heard in damages before Thayer, J. Facts found and damages assessed at seven hundred dollars, and appeal by the defendants. The case is fully stated in the opinion. W. B. Stoddard and S. C. Loomis, for the appellant. |