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be better to bring the suit for negligence, and in this case evidence of negligence must be secured.

VIOLATION OF WATER RIGHTS

Classification of Waters. There are several classes of waters whose characteristics, and the rights connected with which, the engineer should understand. A sufficient classification for present purposes is: 1. Watercourses. 2. Surface waters. 3. Percolating water. 4. Navigable waters. 5. Lakes and ponds.

Watercourses. A watercourse consists of bed, banks, and flowing water; constant flow is not essential, however; it may be dry at times. As to title or ownership, the bed of a stream is regarded as real property, real estate; with navigable streams, the title rests in the State; if the stream separates two States, it rests in the Nation. The boundary lies along the middle of the main channel, unless provided otherwise by treaty or agreement; and if a new and distinct channel is afterwards formed, the middle of the old channel is still the boundary; when a channel is constantly and slowly changing by attrition and accretion, however, the boundary changes with it.

Riparian Rights. With non-navigable streams the riparian owner on either side owns to the middle of the stream, and each has rights in connection with it.

Every riparian owner has a right to the reasonable use of water flowing past his land, but is not allowed to interfere with the lawful use of the water by other proprietors to their injury; their rights are equal to his; in general, he must allow the water to pass on undiminished in quantity and unimpaired in quality.

Reasonable Use of Water. What is a reasonable use of the water by the riparian owner? This varies somewhat in different States. In the older States, in the eastern part of the country, it is restricted to the domestic uses of home and farm, drinking, washing, cooking, and for his stock. For these purposes he probably could consume all the water of the stream if necessary, but any extensive use would be looked upon with suspicion, and would be justified only by real necessity combined with economy, and secured perhaps only after a costly lawsuit; ordinarily the reasonable use will consume comparatively little of the volume. A city or town which has become a riparian owner clearly cannot take the water for a town supply for domestic or fire purposes. In these sections of the country, a use must be clearly necessary to justify abstracting any considerable quantity; the water may not be used for the general purposes of manufacturing as distinct from power.

Priority of Appropriation. In the mining regions of the Pacific coast and in the arid regions, the reasonable use of water has been quite different; without water, mining is impossible; and irrigation for the lands is a necessity for productiveness and for the prosperity or even the existence of the community. Growing out of these necessities priority of appropriation of the water became the early custom, and was acquiesced in by the national government which was the riparian owner of the other lands on a stream; and finally Statute Laws were passed, first sanctioning the customs prevailing in mining camps, and later definitely regulating these rights along the line of priority of appropriation; Congress also passed legislation legalizing priority of possession on the public domain of the United States.

Water Power. In New England, the use of water power for mills has been of much importance to the prosperity of the community and has been favored in various ways by legal decisions. As the simple use of water power does not consume nor injure the water, it is an allowable use, and one to be protected. In some of the New England States if a man wants to build a dam to develop a water power, he may by right of eminent domain secure flowage rights over the lands above, paying of course a reasonable sum for these rights.

Mill Privileges. In Massachusetts, something of the principle of prior appropriation also exists to protect the owner of a mill privilege. If an owner erects a mill and builds a dam, he has a right, by prior appropriation and use, to the waters of the stream to run his mill, and the owners above or below must not build dams to interfere with the workings of his mill; he, on his part, however, must return to his lower neighbors all the water he has used to run his mill.

Law versus Economic Use. It is idle to suggest that, where no question of water power is involved, the economic use of water would best be reached if each riparian owner was allowed a considerable use for all purposes, so regulated that, while each has his share, the owner lowest on the stream should by his use exhaust it; clearly this is not the law except that, in the Pacific and arid States, some approach is made to it. The right of the riparian owner to use the water is incident and appurtenant to the ownership of the land, and this fact strongly tends to prevent legislation modifying this right materially, as this would smack of taking a man's property without due process of law and without adequate compensation, and would be therefore unconstitutional.

Lawyer Necessary. It is hardly safe to carry on any important work involving riparian rights without consulting a careful lawyer practicing in the State where the work is to be done, since the interpretation of the laws in different States varies materially. Probably in every State the water

must run past without deterioration in quality, a matter of interest to engineers in connection with water supply, with sewerage, and with manufacturing.

Manufacturing Wastes. Manufacturing wastes are often deleterious, and it may happen that continued use may lead to the acquirement by prescription of rights to discharge waste. Certainly if damage can be shown by the riparian proprietor lower on the stream, he has, if taken in time, his remedy by action at law. Even where his damage is nominal, he may bring a case in Equity (explained in a later chapter) to enjoin further pollution of the stream, for the manufacturer's rights acquired by use and prescription might afterwards be exercised with some large measure of pollution.

Anomalies. There are some anomalies in the law touching this matter. For instance, sewage must not be discharged into a stream, as that would constitute a nuisance; but, if a city is a riparian owner, the water flowing over the lands may carry street droppings and in that way bring much filth into the stream. Again cattle may go to the stream to drink and may stir the mud and otherwise foul the water; but a pigpen close to the banks of a stream is a nuisance.

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Waterworks and Sewers. A city may purchase the riparian rights of all owners down the stream and then be entitled to use the water for a public supply; the city may perhaps, by buying rights, turn its sewage into a stream provided no nuisance is created; a mill and manufacturing company may do the same and turn mill wastes into the watercourse. All work of this sort should be done only under competent legal advice.

Surface Waters. Where water spreads like a blanket in flowing over the surface, it is not a watercourse, and the law of riparian rights does not apply. An owner may appropriate so much as he likes of such water, but he must not befoul it. In many States he is at liberty to erect a barrier at the upper side of his land and turn back the water, or divert it upon a neighbor's land; in other States the law does not justify this; so again no general rule can be stated here.

Percolating Waters. When the water percolates beneath the surface, if it is known to flow in a regular channel, the owner of lands above the stream must not appropriate the waters to the injury of other owners; but this is seldom the case and, with waters percolating widely under the surface, an owner may sink his well or draw off the water for any reasonable purpose, even if it should drain his neighbor's well; the law will support him in so doing. However, it is the law, in New York State at least, that the city may not sink wells on its own land and pump large quantities of water, with the effect of drawing away water from an extensive contiguous district, for this is not a reasonable use or exercise of the right. Neither

will a man be allowed to contaminate percolating waters by building privies or cesspools where the effect will be contaminating. This matter is perhaps more peculiarly appropriate to the subject of Nuisance.

NUISANCE

Definition. Nuisance has been defined as the disturbing of

"the reasonably comfortable use and enjoyment of his property by another, or the enjoyment by him of a common right."

The test to be applied is whether the conduct of the defendant, or the state of things for which he is responsible, subjects ordinary persons in the neighborhood to material and unreasonable discomfort.

Nuisance, Trespass, Negligence. It is difficult in some cases to distinguish between nuisance, trespass, and negligence. Nuisance ordinarily means the use of one's property to the disadvantage of a neighbor; trespass, an offense against a neighbor's property; either offense may be entirely free from negligence. For a nuisance to exist it must violate some legal right, must work some material annoyance, inconvenience, or injury; that it is unpleasant or unsightly is not sufficient, and the question of intent is not important. What is a nuisance in one place, or under certain circumstances, is not necessarily so in all places and under all circumstances. In definitely residential sections, the carrying on of certain necessary trades would constitute a nuisance; the courts consider not only the thing done, but the place and the circumstances.

Injury to Health, Comfort, or Property. The injury may be either to property or to health and comfort. In most localities chemical works, gas works, slaughter houses, or any works sending out noxious or offensive odors, vapors, or stenches, such as to cause material physical discomfort and annoyance, are nuisances; the same is true of manufacturing plants where the noise, vibration, or smoke cause sufficient discomfort to residents close by. The fouling of streams or waters, whether on the surface or underground, whether ponds or watercourses, constitutes a similar offense. Along a different line, the unlawful obstruction of navigable waters, a highway, a sidewalk, or a right of way is a nuisance; also erecting or maintaining a building whose roof overhangs a neighbor's lot and discharges water from the eaves; also maintaining a dam in an insecure state, or any other structure likely to give way and do damage. Nuisance may also result from the storage of explosives or gas or oil, or a large volume of water, or of any dangerous things in a place where their escape (or discharge) will do serious injury, and where their presence is a menace to health or reasonable comfort. There is evidently an opportunity to take

action in these cases before direct physical damage has resulted, provided that injury to property has resulted, whether in rental value or otherwise.

Negligence Often a Feature. In a number of these cases, negligence is a feature of the offense, but in some of them a suit for nuisance may be instituted at once, while a suit for negligence may be allowed only after direct physical damage has followed the negligence. In the conduct of engineering work, in cities especially, there is the opportunity for the creation of a nuisance; and, perhaps in some cases where it is well-nigh unavoidable, it may be wise to trust to the good nature of the community to tolerate a temporary invasion of their rights. Sometimes, however, this may prove expensive; a firm of contractors occupied part of a public square in a large city to the injury of a hotel opposite, and finally paid $80,000 for the injury done.

Public or Private. A nuisance may be public or private. When it is purely public, an individual who suffers only as others of the public do, cannot sue for damages to himself; he must sustain damages peculiar to himself or distinct from the general public. He must then present evidence of personal damage; injury to his neighbor is not material, and evidence of it will not be accepted except for the purpose of establishing the character of the nuisance; he must show injury to himself or his household. The damages he may recover will be the amount of depreciation in the value of the property, perhaps fixed by the rental value, or they will depend upon the injury to health or comfort, and the injury established by the evidence will fix this as well as determine whether the offense does exist to an extent sufficient to constitute a nuisance.

Equity. In some cases, a court of Equity will take the case in hand, and issue an injunction against the continuance of a nuisance.

PROCURING BREACH OF CONTRACT; OR MALICIOUSLY, A REFUSAL TO CONTRACT

Duty Defined Breach of Contract. A duty exists not to bring about to another's injury a breach of contract, knowing one to exist. Originally this had application mainly in enticing servants, and no doubt still has use in this way.

Apparently one is at liberty to offer work to one employed by another and thus secure for himself a desirable employee, provided that the employee is not in some way under contract. If an engineer is under contract to serve a city, or other corporation, for six months or a year, an offer to him which results in his leaving his employer (breaking the contract) is actionable. Procuring the breaking of any other kind of contract is equally unlawful.

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