66

Rep. 578; 36 L. R. A. 417). To the same effect are the cases of Brown v. Pine Creek Ry. Co., 183 Pa. St. 38 (38 Atl. Rep. 401); Jungblum v. Minneapolis N. U. & S. W. R. Co., 70 Minn. 153 (72 N. W. Rep. 971). Where the owners of a mill who had constructed upon their land a side track to a railroad, entered into a contract with persons erecting a saw mill near by, in which it was stipulated that, for a valuable consideration they do, by these presents, grant, bargain, sell, remise, release, alien, and confirm unto the said parties of the second part, their heirs and assigns, forever, the undivided one-half of the said side track or railroad; to have and to hold the said side track to the said parties of the second part, their heirs and assigns, to the sole and only proper use, benefit, and behoof of the said parties of the second part, their and assigns, forever," it is held that the instrument constituted a conveyance of a right of way appurtenant to the grantee's mill and not a mere license; that it was not personal to the grantees but passed to their heirs and assigns, and that the subsequent removal and reconstruction on another line, of a portion of the side track, by the consent of the assignee of the original grantee under an agreement that its rights should not be thereby affected, was not an abandonment. Kent Furniture Co. v. Long, 111 Mich. 383 (69 N. W. Rep. 657). Construction of particular conveyance of right of way for railroad across a brickyard. Elkhart & W. R. Co. v. Waldorf, 17 Ind. App. 29 (46 N. E. Rep. 88). Minn. Gen. Stat. 1894, §§ 4590, 4591-contracts for right of way over lands of deceased persons or persons under guardianship—amended, Laws 1899, p. 203.

Sec. 814. Title to and use of right of way. A statute (Mo. Laws 1850-51, p. 259), authorizing plank road companies with the consent of the county court, to construct toll roads upon public highways, which provides that the highways so occupied "shall become the property of said company for the purpose of making and maintaining said road and the gates and toll houses thereon," gives such a company so using the highway only an easement therein, and upon the expiration of the company's charter the improved road reverts to the public as a highway free of tolls. State v. Hannibal &

R. C. Gravel-Road Co., 138 Mo. 332 (39 S. W. Rep. 910; 36 L. R. A. 457). The estate acquired by a railroad company in its right of way under the presumption of a grant created by N. C. Acts 1863, ch. 26, § 8, where there has been no contract concerning the land or appropriation of it, is only an easement in the land to an extent necessary for its purposes in the conduct of its business. Faircloth, C. J., dissenting. Raleigh & A. Air-Line R. Co. v. Sturgeon, 120 N. C. 225 (26 S. E. Rep. 779). A railroad company has the right to designate the places abutting on its depot platforms where the owners of competing omnibus lines shall stand their vehicles while awaiting the arrival and departure of trains and where they shall receive and discharge passengers and baggage. Lucas v. Herbert, 148 Ind. 64 (47 N. E. Rep. 146). Ia. Code 1880, § 1260 (McClain's Code, § 1928), construed and applied-estate taken by railroad in right of way-reversion upon failure to use. Smith v. Hall, 103 Ia. 95 (72 N.

W. Rep. 427).

Sec. 815. Highway and farm crossings. Legislative authority, under the police power of the state, extends to all matters necessary to a safe crossing of a railway track by a highway, and without regard to whether exercised before or after the construction of the railroad, or before or after the construction of the highway, or whether the highway existed at the time of the construction of the railroad, or was thereafter constructed across it. The requirement for the construction and maintenance of cattle guards, warning posts, crossing signs, crossing gates, and the planking of tracks are equally proper subjects for police regulations when the legislature shall see fit to exercise its authority in that regard. Wis. Rev. Stat., § 1836, in regard to the restoration of highways crossed by railroads, does not apply to a highway constructed after the construction of the railroad which it crosses; but § 1809, in regard to crossing signs, and § 1810, in regard to the construction and maintenance of cattle guards, apply to all railroads without respect to when constructed. Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 97 Wis. -418 (72 N. W. Rep. 1118). See opinion for extensive collection of authorities as to the exercise of police power over rail

roads. Ia. Code 1873, § 1288, which requires a railway corporation to "construct at all points where such railway crosses any public highway, good, sufficient, and safe crossings and cattle guards at such points at a sufficient elevation from such highway to admit the free passage of vehicles of every kind, and a sign with large and distinct letters placed thereon to give notice of the proximity of the railway," is held not to include overhead crossings. City of Albia v. Chicago, B. & 2. R. Co., 102 Ia. 624 (71 N. W. Rep. 541). Where one whose lands are severed by a railroad right of way has a right to the use of a crossing, this right passes to a grantee of a portion of the premises situated wholly on one side of the right of way. Rathbun v. New York, N. H. & H. R. Co., 20 R. I. 60 (37 Atl. Rep. 300).

RIPARIAN OWNERS.

GEHLEN v. KNORR.

(101 Iowa 700.)

Right of riparian owner to erect dam to form an ice pond. Where the usefulness of his dam will be only temporarily impaired, a riparian owner who has acquired by condemnation the right to maintain a mill dam, which only supplies one-fourth of the power for his mill, can not enjoin an upper owner from erecting a dam to form an ice pond to furnish ice to sell, although a prior grantor of the latter was a party to the condemnation proceedings establishing the mill dam, he having received no award of damages therein.

Sec. 816. Statement of the case. This is an action in equity by the plaintiffs to restrain the defendants from erecting a dam across the Floyd river, at any point thereon within such distance above plaintiffs' dam as would interrupt or stop the natural flow of the water in said stream to plaintiffs' detriment. The plaintiffs allege: That they own and operate a steam and water power grist mill which was erected in 1870, and has since been used as a flouring mill. That part of the power with which said mill has been operated was derived from water taken from said river, and, to utilize the

water of said river, a dam was built, which has ever since been maintained. Before erecting said dam, the then owner of said mill site brought an action in the proper court against parties owning land adjacent to said river above the point where said dam was thereafter located, and which might be overflowed by backwater from the dam, to which action Jacob Rubel was made a defendant. He then owned the land upon which the dam objected to by the plaintiffs was afterwards built. That the free and uninterrupted flow of the water in said river above plaintiffs' dam is essential for the full enjoyment and operation of plaintiffs' mill. It is averred, that the defendants are about to construct a dam, which will stop the flow of the water down said stream, which would irreparably damage plaintiffs. The defendants admit the ownership of the property where said dam was proposed to be built; that they expected to erect a dam thereon for the temporary purpose of forming a pond of water from which to harvest ice during the winter months, and say that such acts would not divert the flow of the river, or decrease the volume of water therein. They deny all other allegations of the petition. A temporary injunction issued as prayed, and on final hearing it was made perpetual. Defendants appeal. Reversed.

KINNE, C. J.

Sec. 817. Rights acquired by condemnation proceedings establishing a mill dam. Plaintiffs claim that by virtue of the condemnation proceedings they have acquired a right, as against the defendants, not only to flow the water back upon their land, but also a right to the use and enjoyment of the water of the stream which they would not otherwise possess as riparian owners.

In the condemnation proceedings it appears that the defendant Rubel, the owner of the land, was found not entitled to any compensation for damages. It is fair to presume, in view of this and of other evidence in this case, that such finding was based upon the theory that the back water from the plaintiffs' dam would not overflow Rubel's land, and hence he was not entitled to damages. We think the testimony in the case before us shows that ever since the erection of plaintiffs' dam there has been a current in the river below

Rubel's land, hence it can not be said to be affected with backwater from the dam. Such being the case, plaintiffs acquired no right as against the upper landowner, Rubel, to the water itself or its use, which is not enjoyed by riparian owners generally.

Sec. 818. Riparian rights as to artificial use of water by erecting dams-Reasonable use-Interference with others-Principles discussed and authorities collated. We first proceed to state the law applicable to this case. We shall then be better able to apply it to the facts as they are disclosed by this record. Plaintiffs use the waters of the stream for propelling, in part, the machinery of their mill. Defendants propose to use the water from the same stream, in a congealed state, in the form of ice, which is to be gathered for sale. Both uses are what are known in law as artificial, as distinguished from natural uses. Willis v. City of Perry, 92 Iowa 297 (60 N. W. Rep. 729; 26 L. R. A. 124). We need only consider then, what the law is as to the rights of riparian owners to the use of the waters of a nonnavigable stream for artificial purposes. Some general propositions may well be stated. The law is that as to such use, and in the absence of superior rights acquired by license, grant, or prescription, the rights of such proprietors in the water of the stream are equal. Willis v. City of Perry, 92 Iowa 297 (60 N. W. Rep. 729; 26 L. R. A. 124). It follows, therefore, that the defendants had the right to use the water reasonably, having reference to plaintiff's rights therein. Washb. Easem., p. 379. Broadly stated, the general rule is that the owner of land through which a stream of water runs has a right to have it flow over his land in the natural channel, undiminished in quantity, and unimpaired in quality, except in so far as diminution or contamination is inseparable from a reasonable use of such water. Willis v. City of Perry, 92 Iowa 297 (C0 N. W. Rep. 729; 26 L. R. A. 124); Furguson v. Manufacturing Co., 77 Iowa 578 (42 N. W. Rep. 448; 14 Am. St. Rep. 319); Spence v. McDonough, 77 Iowa 462 (42 N. W. Rep. 371); 28 Am. Eng. Enc. Law, p. 948; Elliot v. Railroad Co., 10 Cush. 191 (57 Am. Dec. 85, notes); Moulton v. Water Co., 137 Mass. 163; Garwood v.