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Tyler v. Wilkinson - 24 F. Cas. 472, 1827 U.S. App. LEXIS 446

Rule:

Prima facie every proprietor upon each bank of a river is entitled to the land, covered with water, in front of his bank, to the middle thread of the stream. In virtue of this ownership he has a right to the use of the water flowing over it in its natural current, without diminution or obstruction. But, he has no property in the water itself; but a simple use of it, while it passes along. No proprietor has a right to use the water to the prejudice of another. It is wholly immaterial, whether the party be a proprietor above or below, in the course of the river; the right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. There may be, and there must be allowed of that, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and valuable use of the water, perfectly consistent with the existence of the common right. The diminution, retardation, or acceleration, not positively and sensibly injurious by diminishing the value of the common right, is an implied element in the right of using the stream at all.

Facts:

The lower dam owners charged that there was a fraudulent agreement between the upper dam owners and the trench owners to injuriously appropriate and use the water from the river. Thereafter, the lower dam owners filed a bill against defendants, upper dam owners and trench owners, and sought to establish their water rights from a certain river and to obtain an injunction. The lower dam owners charged that the trench owners and upper dam owners were only entitled to use the surplus water that was not wanted by the lower dam owners.

Issue:

Taking into consideration the circumstances of the case at hand, should an injunction in favor of the lower dam owners be issued?

Answer:

Yes.

Conclusion:

The court granted an injunction to the lower dam owners and held that the trench owners were entitled to the use of so much of the water of the river as had been accustomed to flow through that trench to and from their mills during the 20 years last before the institution of the suit, subject only to such qualifications and limitations as had been acknowledged or rightfully exercised by the lower dam owners as riparian proprietors, during that period. However, the trench owners were given no right to appropriate any surplus water not already used by the lower dam owners. The court found that the surplus water was the inheritance of the lower dam owners and was not open to occupancy even by the first occupiers. The court referred the cause to a master for a determination of the quantity to which the trench owners were entitled.

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