use the water arose before the enactment of the statute, as depriving him of property without due process of law, Neilson v. Sponer, (Wash. 1907) 89 Pac. 155. Evidence examined and found to show that the water in a stream in the dry season at a certain point came from the source of the stream and not by seepage from another source, and it therefore entitled a lower land owner to have a dam erected by the upper riparian owner in the dry season removed, Desmond v. Sanders, (Wash. 1907) 89 Pac. 179.

Amount. Where the defendant had acquired a right by prescription to I inch of water flowing through a pipe from a creek, he was not entitled to any more if it was proved that the rest of the water ran on the plaintiff's land, and a decree was valid which provided that the plaintiff should have the entire flow except one inch for 20 days and that the defendant should have the whole stream one day in 21, Gutierrez v. Wege, (Cal. 1907) 91 Pac. 395. When a city has built a dam diverting the water of a stream into the city mains it has no right to permanently diminish the flow of water in the stream by repairs to the dam, and although the repairs might be necessary other riparian owners could not be injured by receiving less. water, Osborne v. Norwalk, 77 Conn. 663, 60 Atl. 645. When A holds a preferential privilege to the use of the water of a reservoir and B also holds a right to the use of the water, the court shall not draw a line four feet below the top of the dam and allow A the right to close the dam whenever the water was lower than the imaginary line, but each party has a right to his proportional share in the whole body of water, Berry v. Hutchins, 73 N. H. 310, 61 Atl. 550.

Rights under unrecorded deeds. When the defendants. purchasing a tract of land had no notice of a water right reserved by an unrecorded deed which was subsequently lost, they were not bound by it, especially when the recorded deed. of the plaintiff contains no reference to the large water right reserved to it in the unrecorded deed to the defendant's property, Schmidt v. Olympia Light & Power Co., (Wash. 1907) 90 Pac. 212.

Right to take water artificially created. When water has been artificially produced by the petitioner's draining certain mines, he has a right to use all the excess water drained into a stream less the natural flow of the stream and a fair allowance for evaporation of the artificial water from the point where it

was discharged from the head gate where the petitioner has appropriated it, and no one else using water on the stream has a right to interfere with the petitioner, provided he has been the first to appropriate the excess water, Ripley v. Park Center Land & Water Co., (Colo. 1907) 90 Pac. 75.

Protection of rights. If an estate has a right to take water coming through another estate, equity may prevent the interference with the easement, by the construction of tunnels, walls or other means, Johnson v. Gould, 60 W. Va. 84, 53 S. E. 798.

Purposes. A person has the legal right to reasonable use for domestic purposes of water flowing in a defined stream across his land, although such stream arises on the land of another person; and such other person has no right to deprive the lower owner of such right, in the absence of prior legal appropriation, by using the water for irrigating purposes in such a way that none of it is returned to the stream, and is unnecessarily wasted, Nielson v. Sponer, (Wash. 1907) 89 Pac. 155.

Waiver or other loss of rights. After a town had built a pumping station and connected water mains so that a riparian owner had due notice of the intention of a municipality to divert a creek, and he raised no objection, he was not entitled to an injunction, especially when the evidence was conflicting as to whether any damage to him would result or not, City of Elberton v. Pearl Cotton Mills, 123 Ga. 1, 50 S. E. 977. When a mill owner consents to the diversion by a city of the waters of a stream he has no right to damages and as no irreparable injury was threatened thereby he cannot have an injunction against the increase of the diversion, Beckerle v. Danbury, (Conn. 1907) 67 Atl. 371. Where upper and lower riparian owners entered into an agreement by the terms of which the upper proprietor could discharge water taken by it from the stream to be used in making steam, into a pond at a level where it could not be used by the lower owner, the latter thereby lost his ordinary rights as riparian owner to the use of the water, although at the end of the agreement there appeared the following clause, "by executing this agreement neither party waives any rights as riparian owners on said stream," New England Cotton Yarn Co. v. Laurel, Lake Mills, 190 Mass. 48, 76 N. E. 231.

Sec. 620. Rights in lakes, great ponds and islands. A riparian owner takes only to the high water mark of an inland lake, State v. Thompson, 134 Ia. 25, 111 N. W. 328.

Great ponds. Ponds of more than 10 acres in extent are "great ponds" and are under the direct control of the legislature, and when a town has been granted the right to divert water from a "great pond" it is not required to compensate the riparian owners, American Woolen Co. v. Kennebec Water District, (Me. 1906) 66 Atl. 316. Under Mass. St. 1895, p. 565, c. 488, the metropolitan water and sewerage board has power to prohibit boating upon Lake Cochituate; a great pond used for water supply, Sprague v. Minon, 195 Mass. 581, 81 N. E. 284.

Island in great pond. Under Massachusetts Colonial Ordinances 1641-47 providing that no town shall appropriate to any person any great pond of more than 10 acres the Commonwealth has title to a barren island in a great pond in a town, no part of which island has been granted or conveyed by the town, the colony, the province, or commonwealth, Attorney General v. Herrick, 190 Mass. 307, 76 N. E. 1045.

Island. Accretion to island, see ante, §612. It was held that the title to an island in the Missouri River that existed before Missouri became a state and was surveyed as government land and patented by the U. S. did not vest in the State of Missouri, Stoner v. Royer, 200 Mo. 444, 98 S. W. 601. An island formed in a river, beyond low-water mark, belongs to the county and may be disposed of as swamp land for the benefit of the public schools under Rev. St. 1899, Art. 6, c. 122, Frank v. Goddin, 193 Mo. 390, 91 S. W. 1057. Where a deed grants the title to a farm bounded by a river which is not navigable, an island between the farm and the main thread of the stream is also conveyed, Wall v. Wall, 142 N. C. 387, 55 S. E. 283.

The ac

Sec. 621. Landings, wharves and ferries. quisition, by cities, of riparian lands for docks is permitted by N. J. Laws 1907 Ch. 272. When a municipality has planned a wharf which will interfere with navigation and cause heavy expense to the owners of a line of ferries, it may be enjoined although it has authority under its charter to construct a wharf, Vellejo Ferry Co. v. City of Vellejo, 146 Cal. 392, 80 Pac. 514. No person has the right to build a pontoon bridge over a navi

gable stream without special legislative authority, and a police jury in Louisianna has a right by ordinance to forbid the operation of unlicensed free bridges and ferries within competitive distance of the lessee of a public ferry, Blanchard v. Abraham, 115 La. 989, 40 S. 379. A city may maintain a free wharf at the intersection of a public street and a river, although it owns merely an easement in the street, Williams v. Intendant &c Gainesville, (Ala. 1907), 43 S. 209.

The City of Providence assumed the right of granting all wharf privileges, and later actually obtained a grant from the State of the submerged land in a cove owned by the State. A lessee of one of the owners of upland did not have any right to erect a storehouse over the land granted to the city, and the city was not estopped because of the levy of taxes on the building or because of a notice filed of the lessee's intention to build, and the city might recover possession by an action of ejectment, City of Providence v. Comstock, 27 R. I. 537, 65 Atl. 307. Where the property leased was the right to use a certain part of the plaintiff's dock and flats "for a public float and landing place for boats" and the "right to drive, cap and maintain four oak piles"—and to "build a platform from one side of the pier” and a run—from the platform to the float, the mere removal of the float by the lessee for repairs did not constitute an abandonment of the lease even although it was never brought back. A letter from the mayor of the defendant city, the tenant, tending to show that it was holding over under its lease was prima facie admissible to show such holding over, Commercial Wharf Corp. v. Boston, 194 Mass. 460, 80 N. E. 645.

Wharves shutting in riparian owners. When a riparian owner owns land bordering on a cove 1600 feet in length, she has no right to erect a pier to the channel of the river when a pier would injure the other riparian owners in the cove, and therefore she has no right to damages for the loss of such a right when a railroad builds an embankment across the mouth of the cove, leaving only a narrow entrance through which a boat with masts cannot pass, and she is only entitled to damages on account of the injury to her through diminished opportunity of access to the river, and as the cove is very shallow so large vessels could not use it she is only entitled to nominal damages. Two lines drawn at right angles to the channel of the river would embrace the frontage owned by the

plaintiff, Richards v. New York, N. H. & H. R. Co., 77 Conn. 501, 60 Atl. 295. Littoral proprietors on a convex shore, having appurtenant rights of wharfage, may build wharves extending them to lines on either side at right angles to the general contour of the shore. Where there has been a public landing place for 40 years between two wharves but the plaintiff's wharf does not run at right angles but in the direction of the defendant's wharf the former cannot restrain the latter from building on to his wharf at right angles, although if both wharves were extended along their present lines they would meet before they reached the channel and close up the public landing place, Lane v. Smith Bros. Inc., (Conn. 1907) 67 Atl. 558. An irrigation company, holding land beneath a lake under a United States patent previous to the adoption of the State constitution, erected a dam across an arm of the lake and irrigated the land. When the plaintiff owning riparian lands at the end of the arm was thus cut off from the use of the water, the fact that he had remained silent although he knew of the money the defendant was expending in building the dam, did not estop him from raising any objection; but he had a right to have the use of the dam enjoined unless condemnation proceedings were begun to condemn his riparian rights, Madson v. Spokane Valley L. & W. Co., 40 Wash. 414, 82 Pac. 718.

Ferry. An act passed Feb. 27, 1879 authorized a railroad company to purchase the franchises and property of a company and by that act it was provided that the railroad company furnish the transportation of persons and produce across the James River. The Act of May 20, 1887, (Acts 1887, Ex. Sess, p. 422, c. 329), provided that by reason of complaints of serious injuries caused by the maintenance of certain dams across the waterway, commissioners should be appointed to report the feasibility of removing the dams. Then the railroad company or its successors should be authorized to remove the dams reported as proper for removal, and for such removal the railroad company should not be liable for any damages. arising therefrom. By the removal of a dam under this act, thereby preventing the running of a ferry across the river, the railroad was not required to furnish a bridge in lieu of ferries, Chesapeake & O. Ry. Co. v. Commonwealth, (Va. 1906) 54 S. E. 331.