In cafe of
dilputes, a
diftribution
of the right
to water rauft
be made.
A rivulet
muft not be
dammed up
for the con-
venience of
one partner,
without the
confent of the
others.
veyed water through it towards his own grounds for the purpofe of
watering them,— when the Kdzee muft decree it to him, as he thus
fubftantiates his claim.— (Analogous to this is a contention concerning
the property of a river-head,, or a water drain, a fpout, or a road
through the court of another.)
I f a rivulet be jointly held by feveral perfons, and they difpute
concerning their particular proportion's of right to water, a diftribution
muft be made according to the extent of land which they feverally
poflefs;— for as the objeft-of right to water is to moiften their lands,
it is confequently fit that each receive in proportion to his territory.'— •
It is otherwife in the cafe of a road; for the objeft in that being to
pafs and repafs, the fmallnefs or largenefs of the houfe is of no weight
in the divifion;— that is to fay, i f the partners in a road difpute
concerning their fhares, it is decreed that they fhall hold it equally,
and that no diftindlion fhall be made from the difference of their
houfes.
If it happen that the perfon who pofleffes the higheft 'part of a
rivulet be not able, without flopping the current, to enjoy his right
to water in a fatisfacfory manner, (for this reafon, that his lands,
being high, precipitate the water from them with great velocity,)
ftill he muft not be permitted to dam the rivulet, as he would thereby
deftroy the right of the others: he muft, therefore, take his fhare
without flopping the current.' If, however, the others affent to his
flopping the current that he may the better water his land, or enter
into an agreement that each fhall flop it in his turn, it is lawful,, as
being their right. But if it be pofEble to effedl the ftoppage with
a board, they muft not ufe clay, or any kind of plaifter, without
the confent of the whole, as an injury would be thereby occafioned to
the other fharers. 8
I t
I t is not permitted to any of the fharers to dig another rivulet
leading from the common one, or to eredl a water mill upon i t b e -
caufe, in the former inftance, the bank of a common rivulet muft
neeeffarily be broken; and in the latter, an eredtion is made of a
building upon a partnerfhip concern;— unlefs, however, the mill be
ftationed on the builder’s land, and be not injurious, either "to the
cround, by breaking down the banks, or to the water, by diverting
it into another channel;— in which cafe it is lawful, as being the
exercife of a power derived from property, and from which there re-
fults not any injury to others.— (The eredling of a machine for railing
water by camels, or oxen, is confidered in the fame light as .the
eredling of a mill.)— It is likewife unlawful for any of the fharers
either to eredt a fmall bridge which may be occafionally withdrawn,
or a large one of ftone or bricks which is durable and fixed.— In
fhort, a private rivulet is confidered in the fame light as a private
road, in which feveral participate, but in which none have any particular
privileges.— It is otherwife where a perfon pofleffes a fmall
One partner
in a rivulet "
cannot dig a
trench or
ere& a mill
upon it without
private rivulet brought put from a large private one jointly held by
feveral; for in that cafe, if the proprietor of the little rivulet choofe
he may eredl upon it a large folid bridge; or, if there was previoufly
a bridge over it, he may if he pleafe pull it down, (provided a greater
quantity of water than formerly do not, by that means, flow into
his rivulet,) for under thefe circumftances the demolition of the bridge
is lawful, being in virtue a power derived from his own property,
which occafions no detriment to others. He muft not, however,
extend the inlet of the' frhaller rivulet, as he would thereby deftroy
the banks of the large one, and likewife draw a greater quantity of
water into his own than is his due.— Neither muft he be fuffered to
enlarge the fluice through which he receives his fhare of water,
where the diftribution is made in that manner,— that is, where
boards with holes are fixed on the bank of the river contiguous to
the lands o f each partner, that he may receive, as his fhare, what-
the general
confent;
nor conflruft
a water engine
or a
bridge.
ever