One partner
cannot alter
the mode of
partition
without the
other’s con-
fen t;
or increafe
the number
of openings
through
which he receives
his
fliare,
or convey his
fhare into
lands not entitled
to receive
it,
or through
fuch lands
into thofe
that are entitled
:
ever quantity of water iffues through his board. — But any of
them who chufes may either heighten or lower, his particular
board, as the equality of the divifion depends upon the largenefs or
fmallnefs of the holes, and not upon the height or lownefs of them,
for an alteration in that refpeót occafions no difference in the diftri-
bution.
If , where the dillribution is made by fluices, in thé mannhr above
defcribed, one of the partners choofe that the partition be made by the
meafure of time, he is not at liberty fo to adjuft it, unlefs with the
concurrence o f the othérs; for whatever is the eftablifhed mode muft
be continued ; as the right of every one is by that means more clearly
diftinguifhed.
If each partner in an appropriated rivulet have a {pacific number
of holes or fluices allotted to him, it is not - permitted to ahy of
them to increafe that number, notwithftanding it may o'CCafion no
injury to the others; for here exifts a partnerfhip in particular property,
and in which the right of each is particularly fpecified.— It
is otherwife in the !eafe of large rivers, fuch as the 'Tigris or the
Euphrates; for as there any perfon is at liberty to dig a {mail
rivulet, and fill it from them, he is confequently at liberty
to increafe the holes or fluices through which the waters pafs from
them.
I t is not lawful for any of the partners in a river to convey
his fhare of water into fuch o f his lands as are not entitled to
receive water from that river; for this circumftance might, in
procefs of time, furnifh an argument of his having a right to
water thefe lands from that river. — Neither is it lawful for a
partner to convey his fhafe of water through fuch of his lands
as are not entitled to it, into others that are; for, in this cafe,
it
it is ■ probable he would receive a greater quantity of water than
his due, as part would be abforbed by the lands through which
they firft pafled. (Th is is analogous to the cafe of a joint road,
where one of the partners wifhes to open a road to. the-inhabitants
of a houfe, in the fame range, whofe road lies through another
way, by "permitting them to pafs through his houfe in their way to
their own.)
If two perfons poflefs a rivulet jointly, and receive their {hares
by water iffuing through fluices-,- and the one whofe {hare lies nearefl the waterto
the fource be 'inclined to flop feveral of thd fluices allotted to him,' Tents'
to prevent the iffue of a fu-perfluity of water into his lands, he mult
not be allowed fo to do, as he might thereby fubjedt the lands of
the other {harer to be overflowed.— Neither is he at liberty to change or a?°P' 1 . . partition by
the mode of participation, by taking the ufe of. the whole, in rota- rotation.
tion, inflead-of each receiving, a moiety o f the whole quantity; for
as the divifion ||as already been fettled by the mode of vents or
fluices, he' cannot afterwards require any other mode,— unlefs -the
other, aflent, in which cafe he may do fo;— it {till, however, remaining
at the option of this partner (or of his heir, afte.r his de-
ceafe) to annul this, and revert to the former mode becaufe
the eftablilhment of a divifion, by giving the whole to each in rotation,
in a cafe where each had formerly held a feparate {hare, is,
in fa£t, lending a right to water, (as an exchange of Shirb for Shirb
is null ;) and, a right to water js inheritable, or the ufe of it may
lawfully be left in legacy; but it can neither be fold nor be flowed
in gift, nor left in legacy to fell, give away, or bellow in alms,
thefe feveral deeds being unlawful on account of the uncertainty
to which they are liable, either from ignorance or deceit, with regard
to the quantity of water,— or becaufe Shirb is not, in itfelf,
a fubftantial property, but rather a privilege or immunity, info-
much that i f a perfon water his lands from the Shirb of another,
5 he