In Brown v. Cun

remove the water in its congealed state. ningham, 82 Iowa 512 (48 N. W. Rep. 1042; 12 L. R. A. E83), it is held that the same rights to ice exist which may be held to the water, "for ice is water in another form,congealed water." In Marsh v. McNider, 88 Iowa 395 (55 N. W. Rep. 469; 45 Am. St. Rep. 240; 20 L. R. A. 333), it is held that ice in a running stream is, in most respects, subject to the rules which govern the rights of the riparian proprietor to the water. That the defendants' right to the ice is the same as in the water before it is congealed is well settled. Elliot v. Railroad Co., 10 Cush. 191 (57 Am. Dec. 85); Stevens v. Kelley, 78 Me. 445 (6 Atl. Rep. 868; 57 Am. Rep. 813); Cummings v. Barrett, 10 Cush. 186; Hydraulic Co. v. Butler, 91 Ind. 138 (46 Am. Rep. 580); State v. Pottmeyer, 33 Ind. 402 (5 Am. Rep. 224); Ice Co. v. Guthrie, 42 Neb. 238 (60 N. W. Rep. 722; 28 L. R. A. 581); Bigelow v. Shaw, 65 Mich. 341 (32 N. W. Rep. 800; 8 Am. St. Rep. 902). The rule is stated in several of the cases above cited, that the owner of the soil under a nonnvavigable water course has the right to cut and remove the ice from, the stream adjoining his land in any quantity, and to any extent, for his own use, or for storage or sale, if he does not thereby appreciably diminish the head of water at the dam of the lower proprietor. Payne v. Woods, 108 Mass. 172; Searle v. GardPa. (13 Atl. Rep. 835); Howe v. Andrews, 62 Conn. 398 (26 Atl. Rep. 394); Gould, Waters, § 191. We have not discussed the evidence in detail in this case; indeed, we have not referred to all of it, but we have fully considered it in arriving at our conclusions. There is evidence tending to show that the backwater from plaintiffs' pond flowed over some of the land where defendants' dam and pond were situated, but we are impressed with the conviction that the weight of the evidence, in view of all the facts, is to the contrary. We are of the opinion that defendants had a right to build the dam, and to reasonably detain the water until their pond was filled, and to remove and sell the ice which might be formed thereon, and that whatever damage plaintiffs sustained by reason thereof was necessarily incident to such reasonable use, and hence furnished no cause of action to the plaintiffs. In view of the disposition made of the case, we need not pass

ner,

upon the appellees' motion. For the reasons given, the decree of the district court is reversed. Ladd, J., takes no part.

Sec. 821. Ice-Riparian rights. A riparian owner has the right to cut all the ice which forms on the portion of the stream owned by him and may lease this privilege to another. Oliver v. Olmstead, 112 Mich. 483 (70 N. W. Rep. 1036). As to whether ice is real estate or personal property, see Ballards' Law Real Prop., Vol. I, § 111. Ice formed on that part of the bed of a stream included in leased premises belongs to the lessee if there is nothing in the lease restricting his use of the property. Marsh v. McNider, 88 Ia. 390 (55 N. W. Rep. 469; 45 Am. St. Rep. 240; 20 L. R. A. 333). Ice formed on land appropriated by a water supply company under the right of eminent domain belongs to the water company and not to the owner of the fee. Wright v. Woodcock, 86 Me. 113 (29 Atl. Rep. 953; 25 L. R. A. 499). A mill owner who has the right to flow back the waters of a non-navigable stream upon the lands of another in order to maintain his mill-dam, does not own the ice formed from such water, but it belongs to the owner of the land who may remove it when he can do so without damage to the mill owner, and he may recover damages off the latter for his willful interference with this right. Stephens v. Kelley, 78 Me. 445 (57 Am. Rep. 813); Eidemiller Ice Co. v. Guthrie, 42 Neb. 238 (60 N. W. Rep. 717; 28 L. R. A. 581). In the last case the court say: "There is, or propably it may more correctly be stated, there was, some contrariety of opinion, as expressed in the decisions of the courts, in reference to which one is the owner of ice upon a mill pond,-the party who erected the dam, and owns the right to the water, and to flow or hold it back, or the party holding the legal title to the land (the riparian owner); but where the stream is of the character of the one which figures in this case, i. e. not navigable, we are satisfied both reason and precedent support the doctrine that the riparian owner has the right to use all the water which it is necessary for him to employ for any purpose, and to cut and remove the ice which may form upon the stream adjoining his land, in any quantity or to any extent, for his own use, or to store for sale, provided he does not by so doing, diminish or decrease the flow of water to the mill, below what is required to successfully operate or run the mill. Gould, Waters, § 191, and cases cited; Stephens v. Kelley, 78 Me. 445 ( 6 Atl. Rep. 868; 57 Am. Rep. 813); Hydraulic Co. v. Butler, 91 Ind. 134 (46 Am. Rep. 580), and cases cited; ▲ Washington Ice Co. v. Shortall, 101 Ill. 46 (40 Am. Rep. 196). The riparian owner and the person who flows have each a qualified right in the ice which forms in an artificial pond, i. e. the mill owner has the right to have the ice remain, if its removal will appreciably diminish the head of the water at his dam, and the riparian owner the right to cut and remove the ice if its removal will not appreciably diminish such head.' Bigelow v. Shaw, 65 Mich. 341 (32 N. W. Rep. 800; 8 Am. St. Rep. 902); Parne v. Woods, 108 Mass. 172; Searle v. Gardner, Pa. (13 Atl. Rep. 835); Cummings v. Barrett, 10 Cush. 186; Marsh v. McNider, 88 Ia. 390 (55 N. W. Rep. 469; 45 Am. St. Rep. 240; 20 L. R.

A. 333); Howe v. Andrews, 62 Conn. 398 (26 Atl. Rep. 394)." For additional authorites upon the subject of the rights of riparian owners in respect to ice, see Ballards' Law Real Property, Vol. II, § 652; Vol. III, § 679; Vol., V., § 799.

EPITOME OF CASES.

Sec. 822. Riparian rights-General principles. Riparian rights are property which cannot be taken without compensation. Allison v. Davidson, Tenn. (39 S. W. Rep. 905). In order for a landowner to have riparian rights, his land must not only be contiguous to the water but in contact with it. Proximity without contact is insufficient. Slauson v. Goodrich Transp. Co., 94 Wis. 642 (69 N. W. Rep. 990). Where one is a riparian owner upon two streams to a point below their junction, the appropriation, by condemnation proceedings by a municipality, of the waters of one of the streams does not affect his riparian rights in the other, nor can he recover damages in such proceedings on account of such appropriation increasing his use of the other stream so as to make him liable for damages to lower owners thereon. New London Water Board v. Perry, 69 Conn. 461 (37 Atl. Rep 1059).

Sec. 823. Title to land covered by, and use of waters. Where the riparian owner owns the fee of land covered by waters not navigable for any useful purpose, he may maintain trespass against strangers who go upon it in boats and hunt wild fowl against his will. Hall v. Alford 114 Mich. 165 (72 N. W. Rep. 137; 38 L. R. A. 205). A riparian owner who has purchased the right to use a certain amount of water is entitled to use or waste that amount as he may see fit, as against an upper owner who took subject to the purchase. Home Elec. L. & P. Co. v. Globe Tissue-Paper Co., 146 Ind. 673 (45 N. E. Rep. 1108). A railroad company's right to use water taken from lands leased from a riparian owner, is subject to the right of a water company to appropriate the waters on such land under the right of eminent domain. Philadelphia & R. R. Co. v. Pottsville Water Co., 182 Pa. St. 418 (38 Atl. Rep. 404). One who has acquired a prescriptive right to maintain an artificial state or condition

of flowing water, by means of a dam, cannot change such state or condition to the injury of other riparian owners. So long as he claims a right to his easement, persons benefited by it have a right to have it continued in the established manner. Smith v. Youmans, 96 Wis. 103 (70 N. W. Rep. 1115; C5 Am. St. Rep. 30; 37 L. R. A. 285). Applying Wash. Laws 1863, p. 68, as amended by Code Proc., § 108, which provides that "the common law, so far as it is not repugnant to, or inconsistent with, the constitution and laws of the United States and the organic act and laws of Washington state, nor incompatible with the institutions and conditions of society in this state, shall be the rule of decision in all the courts of this state," it is held that the common law doctrine concerning riparian rights upon natural water courses prevails in that state and applies to its arid portion; and such existing rights are not destroyed by Laws 1873, p. 520, regulating irrigation and water rights in the county of Yakima, Washington Territory. Benton v. Johncox, 17 Wash. 277 (49 Pac. Rep. 495; 61 Am. St. Rep. 912; 39 L. R. A. 107). See opinion for exhaustive discussion of this subject.

Sec. 824. Riparian rights in navigable waters. Riparian owners on navigable waters hold their land subordinate to the public use of such waters, if such use is reasonably exercised, precisely as do the owners of land abutting on any other public highway. Such an owner may recover damages caused by the careless and negligent acts of a navigator. Ducette v. Little Falls Imp. & Nav. Co., 71 Minn. 206 (73 N. W. Rep. 847). The title of adjoining owners to sub merged lands along navigable waters and the right of access thereto, are subject to the paramount right of the United States to use the land in such manner as it shall determine to be necessary in aid of navigation. Scranton v. Wheeler, 113 Mich. 565 (71 N. W. Rep. 1091). A riparian owner on navigable water has the right to construct, below high water mark bridges, piers, and landing places, if he conforms to the regulations of the state and does not interfere with the right of navigation. Mills & Allen v. Evans, 100 Ia. 712 (69 N. W. Rep. 1043). The erection of a dam on a river for irrigation purposes, several miles above the point where it is navi

gable, will not be enjoined although it operates to decrease the volume of water which would otherwise flow into the navigable portion of the river. Act Cong. Sept. 19, 1890, construed and applied.

United States v. Rio Grande Dam & Irr. Co.,

N. M. (51 Pac. Rep. 674). Riparian owners upon tide lands have no right to construct wharfs, buildings and other improvements in front of their lands on the lands owned by the city, where it will obstruct and deflect the flow of water. Murphy v. Bullock, 20 R. I. 35 (37 Atl. Rep. 348). For the determination of riparian rights in a particular case by the construction of a deed made by the state of Rhode Island to the City of Providence in 1870, see Murphy v. Bullock, 20 R. I. 35 (37 Atl. Rep. 348). Ind. Laws 1899, p. 133, authorizes a riparian owner upon navigable waters of the state, within the width of his premises, to build, maintain and occupy piers, wharves, docks and harbors.

Sec. 825. Riparian rights in navigable watersRights of the public. The ownership of a riparian proprietor to the middle of a navigable river does not carry with it the right to the exclusive use of the water over land ordinarily covered by water, but is subordinate to the paramount easement of navigation by the public, which includes the right to use such water for navigation and commerce, and such use as may be reasonably incident thereto. Among the rights of the public is that of mooring vessels for the purpose of repairs, and of putting in engine, boilers and machinery, after such vessels have been launched. Such use, reasonably enjoyed, is not a trespass upon the lands of a riparian owner, in front of whose river bank, outside of the dock line, such vessels are moored, and such owner will not be entitled to an injunction forbidding such use useless special injury to his property is shown. But the right of the public does not extend to the use of the lands of the owner not covered by water. And where a builder of vessels so moored carries lines from them across the river bank of such riparian owner, against his objection, and fastens them upon the land of such builder, and insists upon the right to continue such acts, the riparian owner may be entitled to an injunction, although his land is unimproved, and such acts produce no actual present damage. Pollock v.