This is a suit in equity for an injunction to restrain the defendants from intercepting, *Page 490 by means of a dam, built on the land of the defendant Norman, the water of a stream which rises on said land and flows thence to the land of the complainant, where it is ponded for domestic uses. Three defences are set up to the suit.
The first defence is that the defendant Norman has a right to intercept and appropriate the water because it comes to the surface on his own land, rising there in springs and forming a pond. It is admitted, however, or at any rate it has been made to appear to the court, that the water, though rising on Norman's land, flows away from it over the land of the complainant, into her door-yard, in a natural and definite course or channel. To allow Norman, therefore, to intercept and appropriate it would be to allow him to deprive the complainant of a natural and immemorial privilege or easement appurtenant to her estate, and which is as much a part of her estate as the ground to which it appertains. At common law, of course, he has no right to do this. See especially, among cases cited for the complainant, Dudden v. Guardians of Clutton Union, 1 II. N. 627; Arnold v.Foot, 12 Wend. 330. In the first of these cases water, which flowed from a spring in a natural channel, was cut off at its source. The court decided, in favor of a lower owner, that this was not permissible. Said Martin, B.: "A river begins at its source where it comes to the surface, and the owner of the land on which it rises cannot monopolize all the water at the source so as to prevent its reaching the land of other proprietors lower down." And Watson, B., said: "The stoppage at the spring head is just as much a diversion as if the water had been taken lower down." In Broadbent v. Ramsbottom, 11 Exch. 602; 34 Eng. Law Eq. 553, which is cited for the defendant, the water which was intercepted soaked through the ground and did not run in a natural channel. In Gibbs v. Williams, 25 Kan. 214, also cited for the defendant, the water was surface water taken before it took the form of a watercourse. In our opinion, therefore, the first defence is not tenable.
The second defence is this: The defendant Norman has a contract with the city of Newport to supply the city with pure water, and in execution of this contract has constructed a costly system of water works. His purpose in erecting the dam is to create an *Page 491 additional source of water supply; but he represents that it is uncertain whether he will have need of it for many years, the supply which he has being sufficient for the present wants of the city. If this were the whole case, the suit might perhaps be regarded as premature. It is not the whole case. The defendant admits, that while he has no present need of the water for the city, yet it is his present purpose to intercept it in order to flood the land behind his dam, so that vegetation growing thereon will be killed and die out and the water be purified for future use in supplying the city. But if he has no right ultimately to intercept and appropriate the water permanently for the use of the city, neither has he any right to intercept and accumulate it, even temporarily, with a view to such ultimate permanent appropriation. The ultimate appropriation being unlawful, a present retention intercepting the customary flow, with a view simply to such ultimate appropriation, is equally unlawful and should be enjoined.
The third defence is that the defendant has a right to take the water for the proposed uses under Pub. Laws R.I. cap. 863, of April 21, 1881.1 Chapter 863 enacts that "the provisions of chapter 92 of the General Statutes are hereby extended to and are made to include lands, water privileges, and water rights, taken to supply or to enlarge the supply of any town, city, or village with water, and the remedies provided in said chapter for any person whose land may be taken, or rights of property, corporeal or incorporeal, may in any way be affected, are hereby given against the party or corporation taking such property or affecting such right to the full extent, as if the same had been taken for mill purposes under the provisions of the said chapter 92 of the General Statutes." The complainant contends that the chapter does not give the power to take, but only provides a remedy in case the power has been otherwise conferred and acted upon. The power is not expressly granted, and the general rule is that such a power, being in derogation of common right, is not to be implied. Cooley's Constit. Limit. *560. But notwithstanding this rule, we were at first inclined to think that here, in order *Page 492 to make the statute effectual without further legislation, the power might be implied; but the strong reasons against that view which are set forth in the opinion drawn up by Judge Potter on this point have brought us to a contrary conclusion.
Let a decree be entered perpetually enjoining the defendants from preventing, or in any way materially diminishing, the customary flow of the stream, with costs for the complainant.
1 Given in full in the concurring opinion of POTTER, J., below.