Water

As designating a commodity or a subject of ownership, this term has the same meaning in law as in common speech ; but in another sense, and especially in the plural, it may designate a body of water, such as a river, a lake or an ocean or an aggregate of such bodies of water, as in the phrases "foreign waters," "waters of the United States," and the like. Water is neither land nor tenement nor susceptible of absolute ownership. It is a movable thing and must of necessity continue common by the law of nature. It admits only of a transient usufructuary property, and if it escapes for a moment, the right to it is gone forever, the qualified owner having no legal power of reclamation. It is not capable of being sued for by the name of "water," nor by a calculation of its cubical or superficial measure; but the suit must be brought for the land which lies at the bottom covered with water. As water is not land, neither is it a tenement, because it is not of a permanent nature, nor the subject of absolute property. It is not in any possible sense real estate, and hence is not embraced in a covenant of general warranty. Mitchell v. Warner, 5 Conn. 518.

— Coast waters. See Coast.

— Foreign waters. Those belonging to another nation or country or subject to another jurisdiction, as distinguished from "domestic" waters. The Pilot. 50 Fed. 437, 1 C. O. A. 523.

— Inland waters. See Inland.

— Navigable waters. See Navigable.
—P ercolating waters. Those which pass through the ground beneath the surface of the earth without any definite channel, and do not form a part of the body or flow, surface or subterranean, of any watercourse. They may be either rain waters which are slowly infiltrating through the soil or waters seeping through the banks or the bed of a stream, and which have so far left the bed and the other waters as to have lost their character as a part of the flow of that stream. Vineland Irr. Dist. v. Azusa Irr. Co., 120 Cal. 480, 58 Pac. 1057. 46 In It. A. 820; Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 585; Herriman Irr. Co. v. Keel, 25 Utah, 96, 69 Pac. 719; Deadwood Cent. It. Co. v. Barker, 14 S. D. 558, 86 N. W. 619; Montecito Val. Water Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113.

— Private waters. Non-navigable streams, or bodies of water not open to the resort and use of the general public, but' entirely owned and controlled by one or more individuals.

— Public waters. Such as are adapted for the purposes of navigation, or those to which the general public have a right of access, as distinguished from artificial lakes, ponds, and other bodies of water privately owned, or similar natural bodies of water owned exclusively by one or more persons. See Lamprey v. Metcalf, 52 Minn. 181, 53 N. W. 1139, 18 L. It. A. 670, 38 Am. St. Rep. 541; Carter v. Thurston. 58 N. H. 104, 42 Am. Ren. 584 ; Cobb v. Davenport, 32 N. J. Law, 369; West Point Water-Power Co. v. State, 49 Neb. 223. 6s N. W. 507; State v. Theriault, 70 Vt. 617, 41 Atl. 1030, 43 L. R. A. 290, 67 Am. St. Rep. 648.

— Subterranean waters. Waters which lie wholly beneath the surface of the ground, and which either ooze and seep through the subsurface strata without pursuing any defined course or channel, (percolating waters.) or flow in a permanent and regular but invisible course, or lie under the earth in a more or less immovable body, as a subterranean lake.

— Surface waters. As distinguished from the waters of a natural stream, lake, or pond, surface waters are such as diffuse themselves over the surface of the ground, following no defined course or channel, and not gathering into or forming any more definite body of water than a mere bog or marsh. They generally originate in rains and melting snows, but the flood waters of a river may also be considered as surface waters if they become separated from the main current, or leave it never to return, and spread out over lower ground. See Schaefer v. Marthaler, 34 Minn. 487, 26 N. W. 726, 57 Am. Rep. 40; Crawford v. Rambo, 44 Ohio St. 279, 7 N. B. 429; New York, etc., R. Co. v. Hamlet Hay Co., 149 Ind. 344, 47 N. E. 1060; Cairo, etc., It. Co., v. Brevoort (C. C.) 62 Fed. 129, 25 L. R A. 527; Brandenburg v. Zeigler, 62 S. C. 18, 39 S. E. 790, 55 In R. A. 414. 89 Am. St Rep. 887; Jones v. Hannovan, 55 Mo. 407; Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 South. 780, 33 In R. A. 376. 53 Am. St. Rep. 262.

— Tide waters. See Tide.

— Water-bailiff. The title of an officer, in port towns in England, appointed for the searching of ships. Also of an officer belonging to the city of London. who had the supervising and search of the fish brought thither. Cowell.

— Water-bayley. In American law. An officer mentioned in the colony laws of New Plymouth, (A. D. 1671.) whose duty was to collect dues to the colony for fish taken in their waters. Probably Another form of water-bailiff. Burrill.

— Water-course. See that title infra.

— Water-gage. A sea-wall or bank to restrain the current and overflowing of the water; also an instrument to measure water. Cowell.

— Water-gang. A Saxon word for a trench or course to carry a stream of water, such as are commonly made to drain water out of marshes. Co-well.

— Water-gavel. In old records. A gavel or rent paid for fishing in or other benefit received from some river or water. Cowell; Blount.

— Water-marls. See that title infra. -Water-measure. In old statutes. A measure greater than Winchester measure by about three gallons in the bushel. Cowell.

— Water-ordeal. In Saxon and old English law. The ordeal or trial by water. The hot-water ordeal was performed by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby. 4 Bl. Comm. 343. The cold-water ordeal was performed by casting the person suspected into a river or pond of cold water, when, if he floated therein, without any action of swimming it was deemed an evidence of his guilt: but, if he sunk, he was acquitted. Id.

— Water-power. The water-power to which a riparian owner is entitled consists of the fall in the stream, when in its natural state, as it passes through his land, or along the boundary of it; or, in other words, it consists of the difference of level between the surface where the stream first touches his land, and the surface where it leaves ft. McCalmont v. Whitaker, 3 Rawle, (Pa) 90, 23 Am. Dec. 102,

— Water right. A legal right, in the nature of a corporeal hereditament, to use the water of a natural stream or water furnished through a ditch or canal, for general or specific purposes, such as irrigation, mining, power, or domestic use, either to its full capacity or to a measured extent or during a defined portion of the time. See Hill v. Newman, 5 Cal. 445, 63 Am. Dec. 140; Cary v. Daniels, 8 Mete. (Mass ) 480. 41 Am. Dec. 532; Canal Co. v. Hess, 6 Colo. App. 497, 42 Pac. 50.

— Waterscape. An aqueduct or passage for water.

— Waters of the United States. All waters within the United States which are navigable for the purposes of commerce, or whose navigation successfully aids commerce, are included in this term. The Daniel Ball. 6 Fed. Cas. 1161.

Banishment by an order that no man should supply the person banished with fire or water, the two necessaries of life.

Being a movable, wandering thing, of necessity continues common by the law of nature; so that one can only have a temporary, transient, usufructuary property in it.^ The grantee of land has a usufruct in the water. The limitation is, the use must not interfere with public navigation, nor, in a substantial degree, diminish and impair private rights of use in other proprietors.' ' Hamilton 11. Austin, 36 Hun, 143 (1886). ' 4 Kent, T7-86. s Ehrardt v. Boaro, 113 V. S. 639 (1885), cases. 4 United States v. Bostwick, 94 U. S. 65-66 (1876), cases; Calif oi'nia Dry-Dock Co. v. Armstrong, 17 F. K. 216 (1883), cases. " Drown v. Smith, 55 Me. 143-44 (1862), cases; Keeler V. Eastman, 11 Yt. 294 (1839); Lynn's Appeal, 31 Pa. 46 (1857;; 66 id. 119. ' Eley's Appeal, 103 Pa. 307 (1883), eases. ' Sierra Company v. Hartford Fire Ins. Co., Sup. Ct. Col. (1888): 27 Cent. Law J, 452-54 (1888), cases. S2B1. Com. 14, 18; 5 Conn. *518-19. ' Washington Ice Co. v. Shortall, 101 111. 54 (1881), A grant of land carries title to the center of an unnavigable boundary stream, and includes bed, islands, water, and ice.' Water companies. See Monopoly. Water-course. A stream of water, usually flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. 2 A living stream with defined banlfs and channel, not necessarily running all the time, but fed from other and more permanent sources than mere surface water.^ Consists ot bed, banks, and water. The water need not flow continually; many water-courses are sometimes dry.* The term does not include occasional bodies of surface water at certain seasons descending from the hills down ravines without any definite channel.' - The size of the stream is not material. There must he a stream in fact, as distinguished from surface drainage occasioned by freshets. Where water has a definite source, as, a spring, and takes a definite channel, it is a water-course, and no person through whose land it flows has a right to divert it from its natural channel so as to injure another land-owner.* See Spring. • ' ^ A natural water-course may be created by the flow of surface water.' Mere surface drainage over one tract of land to another, through a ditch, does not constitute a watercourse.8 Water-mark. High and low watei-marks, referred to as boundaries, mean the place to which the water ordinarily ascends or descends.' Where the tide ebbs and flows, the line of high water is marked by the periodical flow of the tide, excluding the advance of waters above this mark by winds and storms, and by freshets or floods; and the line of low water-mark is the furthest receding point of ebb and flow.w 1 3 Kent, 427-^2; Angell, Water-Cour. § 5; 13 R. I. 614. ' Luther v. Winnisunmet Co., 9 Cush. 174 (1851), Bigelow, J. » Jeflers v. Jef Eers, 107 N. Y. 651 (1887). » Angell, Water-Cour. § 4; 26 Cent. Law J. 26-^1 1 ' Weis V. City of Madi Son, 75 Ind. 253 (1881), cases; 27 id. 556; 37 id. 228; 41 id. 320; 30 Conn. 180; 75 Ind. 263; 25 Kan. SlO; 07 Me. 356; 12 N. J. B. 280; 16 Nev. 317; 10 Oreg. 76; 37 Wis. 226. • Pyle V. Richards, 17 Neb. 182 (1885), cases. 'Kelly V. Dunning, 39 N. J. B. 483 (1886), cases. 6 Stanchfleld v. Newton, 142 Mass. 110, 116 (1886)., • Gerrish v. Proprietors, 86 Me. 39.')-96 (1847), cases, Shepley, J.j 1,13 Mass. 238; 60 Pa. 339, Where streets had been dedicated as terminating at the Hudson River, and, afterward, the bed in front below high water-mark was fl Ued in by legislative authority and the land so made conveyed by the State to the defendants, who had also succeeded to the title of the original owner and dedicator, it was held that the title to the fi Ued-in land was not affected by the dedication, that the streets terminated at the former high water-mark.' See Beach. Water-power. The fall in a stream when in its natural state, as it passes through one's land, or along the boundary of it; the difference of level between the surface where the stream first touches his land, and the surface where it leaves it.^ See further Aqua; Boundary; Commerce; Drain; Mill; Navigable; Property, Qualified; Riparian; ErvER; Surface; Take, 8; Vessel; Well, 1.

That liquid substance lof which the sea, the rivers, and creeks are composed. A pool of water, or a stream or water course is considered as part of the Jand, hence « pool of twenty acres, would paes by the grant of twenty acres of land, without mentioning the water. 2 BI. Com.18. Vide River; Water course.