pronounced the following opinion.
It appears by the case, that the defendant erected his mill before the plaintiff erected his, but it does not appear how long before ; nothing shows it to have been fifteen years before. And the case negatives any wanton waste or obstruction on the part of the plaintiff.
*187The decision of the county court which we now review, presents this question, merely, whether the defendant’s having first appropriated the water of the stream to the use of his mill, entitled hito to the water without such obstruction as was created by the plaintiff’s use of the water at his mill ? No objection is raised to the method used by the defendant to assert his right, if his right be as he contends for.
The common law of England seems to be, that each land owner, through whose land á stream of water flows, has a right to the water in its natural course, and any diversion of the same to his injury, gives him a right of action. He must have previously appropriated it to some use, before he can be said to sustain any damage. If this common law is to govern, it supports the defendant in his defence. But the Court consider it not applicable to our circumstances, and not of binding force here. There must have been a time when it was not applicable, so as to do justice in all cases, in England. Should this principle be adopted here, its effect would be to let the man who should first erect mills upon a small river or brook, control the whole and defeat all the mill privileges from his mills to the source.
I, for one, should like to see some old case in point; some case in which the injury compláined of was merely the prudent use of the water, with machinery proportioned to the stream; after which use it flows down its natural channel.
Not only the interest of those who own water privileges, but of the surrounding inhabitants, seems to require that mills should be erected in suitable different places on the same stream. The cases cited at the bar seem all to be either diversions of the water out of its channel, or such obstructions, as effect a visible if not a wanton waste. At least none of them are like the present case, which negatives any imprudent use or wanton waste of the water. The case of Platt vs. Johnson, 15th of Johns. Rep. 213, noted on the plaintiff’s brief, but not produced at the hearing, is found, upon the reading, to be full in point, in favour of the plaintiff upon the question now submitted.
Questions relating to water privileges, of great importance to our citizens, must arise and be decided ; and this court are disposed to be careful not to anticipate them before they come properly before the court; and while we are ready to decide in this case, that the mere prior occupancy of the water by the" defendant does not give him a right to prevent the plaintiff from using the same water in a prudent way, as it flows down its channel, we wish it fully understood, that we give no intimation what our opinion would have been, had the defendant proved an occupancy of the water for his mills, more than fifteen years before the plaintiff erected his.
Skinner, Ch. J.As I presided at the trial in the county court, it may be proper that I make some remarks. I should have preferred at that time, that the whole case should have *188come up, but the counsel chose to put the case on the present ground. Sitting as I did, I chose to give to the jury the rule of the common law. But I then thought, as I now do, that we are authorized by the statute adopting the common law, to say how far js applicable to our circumstances. 1 perfectly concur in the opinion now given.
Moses Strong, R. C. Royce, and S. S. Phelps, for the plaintiff. C. Langdon and John Kellogg, for the defendant. Prentiss and Royce, Justices, also concurred.New trial granted.