Opiirnm,
Mu. Justice Williams :The plaintiff below is the owner of land lying on the west bank of the Lehigh river, on which he has a factory for the making of school slates. The machinery has for several years been propelled by the water of the river. Directly opposite the plaintiff’s factory is an island, between which and the west bank of the river flowed a stream which, in ordinary stages of water, was about eighty feet wide and from four to five feet ■deep. Across this channel the plaintiff had built a dam high ■enough to raise the water about one foot above its ordinary level, and this furnished his water power. The main stream *205of the river passed along the east side of the island. The defendant below, Fulmer, owned land on the bank of the river adjoining and next above the land of the plaintiff. He operated a slate quarry, and the plaintiff alleged and the jury has found that he has filled the stream, from his own land opposite-the head of the island, many feet beyond low-water mark, with the debris from his quarry, until he has in effect diverted the, water of the river from the plaintiff’s land and destroyed his. water power, the water now passing on the east side of the-island. The evidence shows quite clearly that the filling up of the channel below low-water mark was done with a deliberate and freely expressed purpose to depreciate the value of the plaintiff’s property and to destroy his water power.
The Lehigh river is a navigable stream, a public highway. The plaintiff had no grant from the state or its grantee, theLehigh Navigation Company, of' the use of the water for any purpose. The defence set up the public character of the river and denied that the plaintiff had a title to the water power as; riparian owner or otherwise. The court instructed the jury that the plaintiff had no title below low-water mark, but that between low- and high-water marks he was the owner of the soil, and, subject to the right to navigate the stream by the-public, he had a right to use the water; and that he could recover for the destruction of the power so far as it grew out of the water flowing above low-water mark. The assignments of error are seventeen in number, but the case presents two principal questions : first, what are the rights of a riparian owner on the shore of a navigable stream between high- and low-water marks ? second, what are the rights of such owner in the water flowing over this strip of shore ? Both questions require to be considered: (1) As between the riparian owner and the public. (2) As between him and other riparian owners.
In the British Islands the rivers are inconsiderable in volume and of little value for purposes of navigation except where they are affected by the ebb and flow of the tide. From this it resulted naturally that royal or public streams, the bed of which belonged to the Crown, came to be distinguished from private streams, the beds of which belonged to the owners of the banks, by reference to the presence or absence of tide*206water. On this continent the early settlers found large rivers with navigable tributaries, forming-vast systems of internal communication, extending hundreds and in some instances thousands of miles above the reach of tide-water. The common law definition of a navigable river was unsuited to this state of things, and seems never to have been adopted in Pennsylvania; on the contrary, navigability in fact was made the test by which the character of a stream, as public or private, was determined, and the great but tideless rivers of the state were held to be navigable rivers, public highways, belonging to the state, and held for the use of all her citizens. The beds of such rivers, between the lines of ordinary low water, on their opposite sides, have not been granted out by the commonwealth to individuals, but continue to be held and controlled by and for the public: Carson v. Blazer, 2 Binn. 475; Flanagan v. City of Phila., 42 Pa. 219.
A grant of land bounded upon a stream not navigable extends usque ad filum medium aquse; but a grant of land bounded upon a navigable river extends to ordinary low-water mark only. Between this line and high-water mark, the land of the grantee is, by the nature and necessities of the situation, subject to a servitude in favor of the public. The stream must run within its natural banks after as well as before the -grant. The grantee takes subject to the rights of the public in and upon the highway, and as between him and the public he may use his land below the line of high water for such purposes only as do not interfere with the free flow and navigation of the water that flows over it. As to neighboring riparian owners, the manner in which he may irse the shore becomes a question of private right. While, as citizens, they are all entitled to the unobstructed use of the highway, as individual owners of land along the stream, they are clothed with the rights and are subject to the duties that grow out of their ownership and their neighborhood. The maxim, sic utere tuo ut alienum non lsedas, is as clearly applicable to their water fronts as to their back lands. If a riparian owner places a structure upon his .own land between high- and low-water marks that impedes navigation, he infringes the public right, and subjects himself to liability therefor. His ownership of the land over which the water flows along the shore, will not *207relieve him from the consequences of his act, for his title to the shore is subject to the right o£ the public in the stream. If he places the structure in such manner as to throw the current against his neighbor’s shore at such an angle as to wear it away and undermine and wash out his land, he inflicts a private injury upon his neighbor for which a right to compensation exists. In the case of a private stream, no one would doubt the right of an injured owner to maintain an action for the damages suffered by him by reason of a change in the current. But one has no more right to injure another with the water of a navigable stream than with that of a non-navigable, private stream. It is not the character of the stream, but the character and consequences of the act of the owner of the shore that determines the right of the injured party to compensation. As between themselves, riparian owners are owners of the soil, and are bound to observe the obligations that grow out of their ownership and their proximity. In Zug v. The Commonwealth, 70 Pa. 138, it was held that an owner of the soil might use the river-bed between high- and low-water marks for his own private purposes if he did not interfere with the rights of the public. This declaration is, however, to be understood as qualified by the rule we have just considered, that he must not, in the exercise of his right as a riparian owner, inflict injury upon his neighbors. This rule sets limits to the manner in which property of every description may he used, and is unaffected by the accident of location.
We come now to our second question, viz.: What rights has a riparian owner in the water of a navigable river flowing between high- and low-water marks ? The water of a stream is not the subject of ownership in the ordinary sense of that word. If one is the owner of the land over which a stream flows, he is entitled to the use of the water because of his ownership of the bed in which it flows. He may not retain the water upon his land indefinitely or divert it from its natural channel or sell it to be removed; but, subject to the reasonable use of the water by him, lower owners have a right to the stream and he must deliver it to them. In the case of all navigable rivers the beds in which they flow belong to the public. The right to the use of water follows the ownership of the bed in which it flows. The commonwealth is therefore the owner of the rivers and *208holds'them for the use of its citizens. They are public property — natural highways — open to all who may have occasion to use them: Carson v. Blazer, supra; Poor v. McClure, 77 Pa. 214. When the volume of the stream swells in time of high water,, its surface remains the surface of the highway and the riparian owner must do nothing that shall interfere with the use of the highway or any part of it by the public up to the line of high water. The fact that the water of the highway flows over his. land, when it rises above low-water mark, gives him no title to. it, for he holds his shore subject to tins servitude in favor of' the public. The stream is not divisible by the lines of riparian owners or susceptible of divided and hostile ownership, but is the same public highway in all stages of water, and belongs in all its breadth and depth to the public. The owner of the shore having no ownership in the water has as .between him and the commonwealth no greater right in it than any other citizen. He has no right to erect a dam to turn the water to his mill without a grant from the commonwealth of the right so to do, and if he erects such dam without a grant he is a trespasser and acquires no title to the water power resulting therefrom. He stands in the same position as an intruder upon a public road, without right, and liable to removal at any moment. He has an indisputable right as a. citizen to the use of the river as a public’ highway, but as a riparian owner he has no right to obstruct its flow, or to divert its waters except for domestic purposes and, within certain limits, for purposes of irrigation. If he does erect a dam and turn the water to his mill he, ordinarily, infringes the public right only. For such infringement he is liable to the public, and his dam may bo abated as a nuisance. But such use of the water is not necessarily an injury to other riparian owners, as such, especially to those who, like the defendant in the court below, are further up the stream. If the navigation is unobstructed, it is not easy to see what reason the owners living up the stream have for objecting to the use of the water as a power! The state, as the owner of the river, may object, and between her and the mill-owner the question is one of properly as well as one of interference with the right of navigation. The mill-owner must buy the power, if he would use it safely. Without such grant he is a trespasser upon the property of the public, and an ob*209structor of the public way. But to justify an objection by a neighboring riparian owner, as such, he must be able to show that he has suffered a private injury from the acts of the mill-owner.
Applying these principles to the case now before us, it is clear that the plaintiff was allowed to recover for what did not belong to him. He had no title to the water, whether above or -below low-water mark, and he could have no legal right to the power resulting from the erection of his dam. Its destruction was, therefore, damnum absque injuria. The fact that he Was intending to acquire a title to the water power from the grantees of the commonwealth is quite immaterial. He had not in fact done so, and he had no better title to this water power than he had to any other property of the navigation company. The action was brought to recover for the loss of a power to which he could show no title, because he had none. It was not the case of an undershot wheel moved by the current in time of high water, but of a mill or factory provided with power by an unauthorized and illegal obstruction of the natural current, which could have been removed at any moment by the public authorities, or by the grantees of the commonwealth.
But while the plaintiff in the court below may not recover damages for the loss of the water power which was not his, we do not think he is without a remedy for such injury as he has actually suffered. Upon suitable averments he may recover for the damages he has sustained, as a riparian owner, from the illegal acts of his neighbor. The evidence shows that Fulmer has obstructed the stream far beyond low-water mark, and practically closed the channel between the island and the west shore. This deprives Williams of convenient access to and use of the current for many legitimate purposes. This has not been done under the authority of the commonwealth, or by an exercise of the right of eminent domain, but in obvious disregard of the rights of the public, as well as those of his neighbor. It appears by the evidence to have been done for the purpose, of compelling his neighbor to resort to steam, power for his factory, and to deprive him of the use of the water. Such invasion of the bed of the stream was an unlawful act, and if, in consequence of it, Williams was deprived of convenient access, to the river, for purposes of navigation, for fishing, for domestic *210or other proper purposes, he is entitled to recover damages for the injury sustained. It is not as a mill-owner, but as a landowner, that he has suffered by being deprived of the conveniences which resulted from his riparian ownership, and which, as between him and his neighbor, were his own.
If the unlawful act from which he suffers was done with malice, proof of the malice is competent upon the question of damages.
What Fulmer said in reference to the filling of the stream, its effect upon Williams, and his own motives or purposes, is competent for the purpose of showing malice, and was properly received on the trial. As the ease stood, however, in the court below, the narr set out the loss of the water power and that only as the cause of action, and for that the plaintiff was not entitled to recover.
Judgement reversed, and venire facias de novo awarded.
Gordon, O. J., and Sterrext, J., dissented.