proprietor from the application of the water to domestic, agricultural and manufacturing purposes, provided the use of it be made under the limitations mentioned; and there will, no doubt, inevitably, in the exercise of a perfect right to the use of the water, be some evaporation and decrease of it, and some variations in the weight and velocity of the currents. But de minimis non curat lex, and a right of action by the proprietors below would not necessarily flow from such consequences,' but would depend upon the nature and extent of the complaint or injury, and the manner of using the water. All that the law requires of a party by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish or affect the application of the water by the proprietors above or below on the stream." In England it seems that a proprietor is not permitted to use water for irrigation, if thereby he sensibly diminishes the stream: Wood v. Waud, 3 Exch. 746; Embrey v. Owen, 6 Exch. 353. In this latter case it was said: "Nor do we mean to lay down the rule that it would in every case be deemed a lawful enjoyment of the water, if it was again returned into the river with no other diminution than that which was caused by the absorption and evaporation attendant on the irrigation of the lands of the adjoining proprietor. This must depend on the circumstances of each case. On the one hand, it could not be permitted that the owner of a tract of many thousand acres of porous soil, abutting on one part of the stream, could be permitted to irrigate them continually by canals and drains, and so cause a serious diminution of the quantity of water, though there was no other loss to the natural stream than that arising from the necessary absorption and evaporation of the water employed for that purpose; on the other hand, one's common sense would be shocked by supposing that a riparian owner could not dip a watering-pot into the stream in order to water his garden, or allow his family or cattle to drink it. It is entirely a question of degree; and it is very difficult, indeed impossible, to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application." And it was there held, that, as the "diminution of the water was not per

ceptible to the eye," the use of it by the defendant for irrigation was not unreasonable, or prohibited by law. Actual, perceptible damage, it seems, would give a right of action. In our own country, while any general or unlimited right to use water for irrigation has been denied, it has sometimes been said, that owing to differences in the climate and the size of the streams, a more liberal use is allowed than in England. In Maine, it is held that a proprietor may make a reasonable use of the water for domestic purposes for watering cattle, and even for irrigation, provided it is not unreasonably detained, or essentially diminished: Blanchard v. Baker, 8 Greenl. 253. In Connecticut, the doctrine is thus stated: "The right of the defendant to use the stream for purposes of irrigation can not be questioned. But it was a limited right, and one which could only be exercised with a reasonable regard to the right of the plaintiff to the use of the water. She was bound to apply it in such a reasonable manner and quantity as not to deprive the plaintiff of a sufficient supply for his cattle." Gilbert v. Johnson, 30 Conn. 180. The stream in question rose on the defendant's land, and naturally flowed to the plaintiff's, who had a place on his land for watering his cattle, and the whole stream could be run in a half-inch pipe. The Supreme Court of Massachusetts say: "That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established, as one of the rights of the proprietors of the soil along or through which it passes. Yet a proprietor can not, under color of that right, or for the actual purpose of irrigating his own land, wholly abstract or divert the watercourse, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it if not diverted or used unreasonably." Elliot v. Fitchburg R. R. Co., 10 Cush. 191. In New York, "the defendant has a right to use so much water as is necessary for his family and his cattle, but he has no right to use it for irrigating his meadow if thereby he deprives the plaintiff of the reasonable use of the water in its natural channel." Arnold v. Foot, 12 Wend. 330. It would be useless to cite or quote more from the numerous cases on this subject. The re

sult of the authorities appears to be well expressed by Mr. Washburn in the late edition of his work on "Servitudes and Easements," in the following language:

"The right of a riparian proprietor, jure naturæ, to divert water from a stream, when reduced to a simple proposition, seems to be this: He may not do it for any purpose except domestic uses, and that of irrigating his land; and whether and to what extent he may do the latter, depends, in each particular case, upon whether it is reasonable, having regard to the condition and circumstances of other proprietors upon the stream; and this is to be determined in all cases of doubt by a jury. But in no case may he do this so as to destroy, or render useless, or materially diminish, or affect the application of, the water by other proprietors." Washb. on Eas. and Serv., 2d Ed. p. 240, 12. The fundamental principle upon which the authorities all go is this: That every proprietor of land, through or by which a stream of water flows, may make a reasonable use of it for any useful purpose. What is a reasonable use depends on the circumstances of each case, and can not be stated in a general rule. Every proprietor along the stream has an equal right to its use and benefit. All have a usufruct; none have any absolute property in the water, and no one has a right to use it unreasonably to the injury of his neighbor, above or below. It is sometimes stated that the proprietor above may exhaust the stream for household purposes, and for watering his cattle; and that to this extent, having the first opportunity, he has a preferred right. If this be so, it is still upon the ground that the use is reasonable under the circumstances. No case is recollected where this precise question was necessarily involved; and it may admit of question whether an upper proprietor on a small stream would be permitted to consume the whole of it in watering his cattle, and deprive his neighbor below of sufficient water to quench the thirst of himself and family. In some cases, the wants of riparian proprietors have been divided into natural and artificial; natural wants being primary wants, and such as are absolutely necessary to be supplied, such as thirst of people and cattle; and artificial wants being secondary, and such as are simply for the comfort, convenience or prosperity of the proprietor; and these latter are held to be subservient

to the former: Angell on Watercourses, 210, 1. In Evans v. Merriweather, 3 Scam. 496, the Supreme Court of Illinois make this division of wants, and say that while water for irrigation is an artificial want in Illinois, in a hot and arid climate it would be a natural want. There was no question in that case in regard to irrigation, and the remark is simply dictum. The Supreme Court of Texas, in Rhodes v. Whitehead, 27 Texas, 304, said upon this subject: "It may be admitted that the purpose of irrigation is one of the natural uses, such as thirst of people and cattle, and household purposes, which must absolutely be supplied; the appropriation of the water for this purpose would therefore afford no ground of complaint by the lower proprietor if it were entirely consumed," and they cite Evans v. Merriweather. The question evidently received no consideration, but the court made the admission, as courts often do, because, admitting such a right to use the water for irrigation, the defendant in that case had exercised his right in an unlawful manner, and the case went off on that point.

These two cases are the only ones referred to as sustaining the defendant's claim that water for irrigation is, in this climate, a natural want, and we are asked to class it with the want of water to quench thirst of men and cattle. To put the use of water for irrigation upon the same footing as the use of it to satisfy thirst, is to say that an upper proprietor may take the whole stream, if needful to the growth of vegetation upon his land, and leave those below him without water to drink. This certainly can not be law in any climate. But "water for irrigation " is not a natural want in the same sense that water to quench thirst is. If it were it could not be made to depend upon the climate. Water is a natural want of man and beast in every country and climate. So water is a natural want of vegetation everywhere, without reference to the climate, for the laws of vegetable growth are the same in Illinois and in Nevada. Irrigation is a mode of applying water to satisfy this want. Hence it does not seem to be entirely accurate to say that "water for irrigation" is a natural want in Nevada and not so in Illinois. What is true, undoubtedly, is, that there exists in this climate a greater necessity for the application of water to the purpose of irrigation than in countries where the rain falls during the summer months, and this may

be a proper fact to consider in determining the question of reasonable use. To lay down the arbitrary rule contended for by the defendant, and say that one proprietor on the stream has so unlimited a right to the use of the water for irrigation, seems to us an unnecessary destruction of the rights of other proprietors on the stream, who have an equal need and an equal right. The more we examine the more we become impressed with the wisdom of the common law rule, that each proprietor may make a reasonable use of the stream, and that what that is depends upon the circumstances of each case. It will also be seen from the rule, as before stated, that the question of reasonable use is not to be determined solely by the wants of the party using the water-whether the amount is reasonably sufficient for his own lawful purposes-but reference must also be had to the rights and needs of other prɔprietors upon the stream. "The necessities of one man's business can not be made the standard of another man's rights in a thing which belongs equally to both." Wheatley v. Chrisman, 24 Penn. St. 302; Brace v. Yule, 10 Allen, 447; Hayes v. Waldron, 44 N. H. 583-4. No more definite rule can be safely laid down which will be of universal application. Under this rule the character of the soil and climate, instead of fixing the right absolutely, become circumstances only to be weighed in determining the question of reasonable use. The climate of Nevada is arid in the summer season, and the soil then needs irrigating to make it productive, but not always to the same extent. In the valley of the Carson river, some of the land needs little or no irrigation, other portions. require a great deal. The defendant's land requires less water than that of his neighbor Danberg. Indeed, some seasons he says it needs no water for irrigating in order to raise grain. This must be considered in ascertaining the extent to which Lightle may reasonably use the water. There will also enter into the inquiry the nature and size of the stream; the uses to which it can be or is applied; the nature and importance of the use claimed and exercised by one party, as well as the inconvenience or injury to the other party; the proportion of water diverted, compared with the whole volume of the stream; the quantity lost and absorbed; the manner of taking and conducting the water onto the land; the mode in which it is used