— The owners of water courses are denominated riparian proprietors. The land on opposite sides of a stream of water may be owned by different persons ; when such is the case, each proprietor owns to the middle or thread of the stream. Angel on water courses, §10.
The right of private property in a water course, is a corporeal right when it is derived from the ownership of the soil over which it passes ; it is an incident to the land ; ib., §5 ; and it is sometimes called a natural easement in contradistinction to an artificial easement, which is a right in derogation of riparian rights, as a right to interfere with the accustomed course of running water, by diverting it, or keeping it back upon the land above, or by transmitting it altered in quantity or quality to the land below; ib., §141. Or it is a right to the use of a stream underived from ownership of the soil.
Riparian rights are applicable to artificial water courses as well as natural ones, and from which they are not distinguishable. A title may be gained by twenty years user, as well to the former as to the latter. Ib., §206; 6 Paige Oh., 435 ; 3 Paige Ch., 605.
The plaintiffs’ land joins the artificial water course made by the priests upon the first settlement of the country, to convey water to their mission. The length of time of its existence, elevates it to the character of a natural water course, insomuch that its water cannot now *206be changed to the original bed, without affecting legal rights acquired by the owners of the land adjoining it, who may be regarded, to all intents and purposes, as riparian proprietors. The plaintiffs, therefore, are to be considered as such, their rights growing out of, and existing by, that relation.
Every proprietor of lands on the bank of a river, has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run, without diminution or alteration. No proprietor has the right to use the water to the prejudice of the proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. Though he may use the water while it runs over his land, he cannot unreasonably detain it, or give it another direction. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below. The owner must so use the water as to work no material injury to his neighbor below him, who has an equal right to the subsequent use of the same water, as he has no property in the water itself, but a simple usufruct as it passes along. All the law requires is, that its use should be in a reasonable manner, which would not exclude domestic, agricultural and manufacturing purposes ; 8 Kent Comm., 488. In 3 Rawle, 256, it was held that a person had a right to so much of the water of a stream running across his land, as was needful and proper for supplying his tan-yard and bark-mill. A right to its use may be acquired by prescription, affecting riparian rights. In such case, the natural right of the riparian proprietor becomes subservient to the acquired right of the manufacturer. Ib., 442.
In Arnold v. Foote, 12 Wend., 330, the facts were that the lands of the parties joined. A spring issued from the land of the defendant, and ran across his land, and upon the land of the plaintiff, where it was used by the latter to water his cattle and irrigate his lands. No more water ran from the defendant’s spring than what was wanted for domestic use, for his cattle, and for irrigation. The defendant ploughed a furrow below the spring, and thereby diverted the water from its natural channel, and caused it to flow upon his own meadow. The *207court said tbe water from bis spring must continue to run into tbe plaintiff’s premises ; and it must continue to water tbe land, no matter wbo may be its owner. Tbe defendant bas a right to use so much as is necessary for bis family and bis cattle, but not for irrigation, if the plaintiff is thereby deprived of tbe reasonable use of tbe water in its natural channel.
In 4 Mason, 400, Story, J., says, “ Tbe natural stream existing by the bounty of providence, for tbe benefit of tbe land through which it flows, is an incident annexed to the land itself.” In 1 Wils., 174, tbe defendant’s defense was, that tbe stream issued from bis land, and that by prescription he bad a right to two pits of water for bis cattle, &c.; but tbe facts were that be bad enlarged tbe pits. Tbe court said he bad no right to enlarge tbe pits, and bis defense failed. See also 10 Wend., 264. In tbe above mentioned case, in 6 Paige, tbe court say, “ Tbe law is well settled that the owner of tbe superior heritage bas no right to detain or divert tbe water which passes through bis land, to tbe injury of those wbo were accustomed to receive it upon their lands below.”
These authorities fully establish tbe position that tbe plaintiffs, as ripar rian proprietors, have a right to a reasonable use of tbe water flowing in tbe ditch by their land, without diminution; that Russel bad no right, as riparian proprietor of the stream above the plaintiffs, to divert the water, or authorize others to do it; and neither bad tbe defendants or Majors such right, when such diversion of tbe water affected tbe riparian rights of tbe plaintiffs.
It is no excuse for tbe defendants that tbe plaintiffs have, since tbe commencement of their tannery, increased their capital, which necessarily required an increase of water, as the defendants are not in a position to avail themselves -of this objection, they possessing no riparian rights — the rights of other riparian proprietors not being before the court ‘for its consideration. The defendants possessing no riparian rights, are therefore without excuse.
The testimony shows that the plaintiffs permitted one PleeJc to divert a portion of the water from said stream, provided the plaintiffs were not thereby injured. The testimony does not establish that the injury, *208if'any, which the plahitiffs sustained, by insufficiency of water, was the result of the abstraction of water by Fleck, whose use of the water was at fixed hours when it was not needed by the plaintiffs.
Having disposed of the various defenses of the defendants, one other inquiry will dispose of the case, which is, did the.diversion of the water by the defendants, affect the rights of the plaintiffs to such an extent as to require, for relief, the extraordinary remedy By injunction.
The erection of the dam across the stream by the defendants, and diverting a portion of the water to their brick-yard and there using it, and the consequent injury to the plaintiffs by such diminution of water, are facts too fully established to be resisted. The amount of capital in fresh hides necessary to prosecute the business of this tannery, their liability to injury for want of fresh water, render the business expensive and precarious, and even ruinous, unless there is a sufficient supply of fresh water when needed. The testimony shows that the plaintiffs on various occasions, to save their hides and prosecute their business by a supply of fresh water, were constrained to abate the dam, and to cause the water to flow in its accustomed channel. This, however, seems not to have been effected without exciting bad feelings — the issue between the parties was, who should have the water. The plaintiffs being riparian proprietors, and the defendants not sustaining that relation, the question is of easy solution. The plaintiffs needed the water when they were not supplied .with it, and that the defendants’ diversion of it occasioned the want of supply, are facts which must be conceded.
An injury has been proven. An injury to the hides for the want of fresh water, when it may happen daily, is irreparable. No prudent man would devote his time and risk his capital upon such an uncertainty. The plaintiffs’ business must cease or the injunction must be granted. The injunction heretofore ordered with some modification, is made perpetual.