The question presented by this case is, whether the owners of a mill have the right, when it becomes necessary for the purpose of making repairs, to divert the stream upon which it is situated, to the injury of another proprietor upon the same stream below. So far, at least, as my own researches have extended, the question has npt been adjudged. Its decision must depend upon the general principles applicable to the subject.
The general doctrine relating to water courses is, that every proprietor is entitled to the use of the flow of the water, in its natural course, and to the momentum of its fall on his own land. The owner has no property in the water itself, but a simple usufruct. (lie may use it as it passes along, but he must send down to his neighbor below, as much as he received from his neighbor above. (Angell on Water Courses, §§ 90, 94. 3 Kent’s Com. 439.) “ Though he may use the water while it runs over his land,” says Kent, “ he can not unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he can not divert, or diminish the quantity of water which would otherwise descend to- the proprietors below.” (3 Kent’s Com. 439.)
In Blanchard v. Baker, (8 Greenl. 253, 266,) the doctrine is stated in the following clear and emphatic language. “ It is an ancient and well established principle, that water can not be lawfully diverted, unless it is returned again to its accustomed channel, before it passes the land of the proprietor below. Running water is not susceptible of an appropriation, which will justify the diversion or unreasonable detention of it.” 11 The owners of mills on a stream,” says justice Story, in, Webb v. The Portland Manufacturing Co. (3 Sumner, 189,) “have an undoubted right to the flow of the wrater, as it has been accustomed of right and naturally to flow to their respective mills. The proprietor above has no right to divert or unreasonably retard this natural flow to the mills below.” (Page 200.) “ Ho proprietor can diminish the quantity of -water which would otherwise descend to the proprietors below,” says the vice-chancellor in Wright v. How*521ard, (1 Sim. &. 190, 203.) Lord Ellenborough, in Bealy v. Shaw, (6 East, 208, 214,) says: “ The general rule of law is, that every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration.” Chief .Justice Gibson, in McCalmont v. Whitaker, (3 Rawle, 84, 90,) says : “ The water power to which a riparian owner is entitled, consists of the fall in the stream when in its natural state, as it passes through his land, or along the boundary of it, or in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves it.” It is also laid down as the law of Scotland, that “ although a proprietor may use the water while within his .own premises, yet he must allow it to pass on to the inferior heritors.” (Bell’s Law of Scot. 691, cited by Angell in his treatise on Water Courses, 4th ed. § 95, note. See also Gardner v. Village of Newburgh, 2 John Ch. 162.)
Other authorities to the same effect might be cited, but these are sufficient to show how clearly the general, doctrine on the subject is settled, and how uniformly it has been recognized. The proprietor above has a right to apply the water to his own use, but the proprietor below has an equal right to its subsequent use. Each must so use it, as not to work any material injury or annoyance to his neighbor. The right to use necessarily implies the right to dam and to detain the water long enough to use it to advantage. “ The maxim, Sic utere tuo, ut alienum non loedasf says Thompson Ch. J. in Platt v. Johnson, (15 John. 213, 218,) “ must be taken and construed with an eye to the natural rights of all.” But, while each proprietor has a right to detain the water, as it passes through his land, long enough for the proper and profitable enjoyment of it, he can only detain it. He can not lawfully divert it. Chancellor Kent states the rule on this subject as follows : “ All that the law requires of the party, by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy, or render useless, or materially diminish, or affect the application of the water, by the proprietors above or below on the stream. He must not shut the gates of his dams, and detain the water unreason*522ably, or let it off in unusual quantities to the annoyance of his neighbor.” (3 Kent’s Com. 440, 441.) Judge Story, in noticing the rule as thus laid, down by Kent, says : “ I scarcely know, where else the doctrine can be found reduced to so elegant and satisfactory a formulary.” (See Webb v. The Portland Manufacturing Co., above cited, p. 199.)
The application of this rule to the case under consideration can not, it seems to me, justify the defendants, even for the temporary purpose of repairs, in diverting the water from the plaintiff’s mill. If such diversion had been absolutely necessary, as the referee seems to think, although I am not quite sure that the testimony warranted that conclusion, I think it should be regarded as a defect in the defendants’ water power, the consequences of which should fall upon them and not upon the plaintiff. The question, in every such case, seems to be, according to all the authorities, whether the water has been diverted or unreasonably detained. If there has been a diversion accompanied with injury, the action is sustained. If there has been merely a detention, then the further question arises, whether such detention was reasonable. But whether or not a diversion of water is reasonable, is a question not so much as mentioned by any writer or judge. The very proposition assumes the right of the proprietor above to use the water for his own purposes, to the exclusion of the proprietor below; a proposition inconsistent with the doctrine universally admitted, as we have seen, that all the proprietors have the same rights.
My conclusion, therefore, is, that if the defendants’ water power is so situated, in reference to the two branches of the stream, that they are unable to make repairs to their dam and flume without diverting the water from one branch to the other, and thus entirely depriving the plaintiff of the use of the water so diverted, they must obtain the plaintiff’s consent to make such diversion, or answer to him in damages for the injury he sustains.
I do not think there is any thing in the case to justify the inference of a prescriptive right to divertthe Water.- It is. true, as the referee states, that “ the lapse of time during which the de*523fendants, and those under whom, they claim, have used and enjoyed their mill-site, is sufficient, in the absence of other proof, to presume a grant of the rights they now enjoy.” But there is an entire want of evidence to show that the diversion of the stream, when necessary for repairs; is among those rights. But however this may be, the question has not been passed upon by the referee. He has placed. his decision exclusively upon the right of the defendants, by virtue of their title as riparian owners, to divert the water. Having come to the conclusion that he has erred in this respect, I think the report should be set aside.
Watson, J. concurred.
Parker, J. dissented.
Keport of referee set aside.