Messinger's Appeal

Chief Justice Mercur

delivered the opinion of the court,

This is an attempt to enjoin the appellees against the use of the water of a small stream, which flows through their lands. It unites with another stream of about the same size, in forming the larger one on which the appellants own lands and mills some six miles below the junction of the two smaller streams. The complaint is that the appellees so use the water of the stream on their lands, as to greatly lessen the flow thereof, during a portion of the year, to the mills of the appellants, to their injury. That such is now the effect of the appellees’ use,of the water, in a dry season, when the streams are low, is undoubtedly correct.

It is a well recognized rule that a riparian proprietor may, jure naturae, divert water from a stream for domestic purposes, and for the irrigation of his land; but to what extent he may do the latter in any particular case, depends on whether it is reasonable, having due regard to the condition and circumstances of other proprietors on the stream; he should not so divert it as to destroy or materially diminish or impair the application of the water by other proprietors:' Washb. on Easements *240 ; Miner v. Gilmour, 12 Moore, P. C., 155; Elliot v. Fitchburg R. R. Co., 10 Cush., 191; Embrey v. Owen, 6 Exch., 353.

The present case involves not only the question of the right of the riparian owner to divert the water at the time it was first done, but if it was then wrong, the further question whether the right so to do, lias not been exercised and enjoyed so long as to make valid the continued exercise thereof?

What then are the controlling facts found by the Master? They are, that about forty years before this bill was filed, the predecessors in title of the appellees built a low dam across the stream, and cut a sluice or ditch therefrom by which the waters were led into their meadows adjoining. A gate was put at the entrance of the ditch by which the quantity allowed to flow could be checked or shut off when desired; this use of the waters under a claim of right, has continued for about forty years, whenever the owners of the meadows thought they needed watering. It did not flow constantly over the meadows, as there were times when for several months, they did not need the water, yet during that portion of each and every year, when the growth of the grass would be promoted by irrigation the water was so used. Such use of the water was continuous and uninterrupted except when they did not want it, and closed the gates. He further found that the dam is no higher, the ditches no larger, nor the quantity of water diverted any greater than when the dam was originally constructed. On the contrary that three acres less of meadow land are now irrigated than while it was in possession of the former owners; that a number of ditches through which the water formerly flowed for irrigating purposes are now abandoned and closed; that the water now taken from the creek is less than was formerly taken, but it has not decreased proportionately with the diminution of water in the creek.

At the time the water was first diverted from the stream, and for many years thereafter it does not appear to have caused any ip jury to the property now owned by the complainants. The injury results from the gradual diminution of the volumé of water flowing in the stream, which has been tlie ease for several years. While the dam which diverts the water remains no higher, and the ditches which led the water from the stream, and returned it thereto, are unchanged, and the appellees use less water than formerly, yet the appellants claim in consequence of the diminished flow of water in the stream, the effect of the diversion, at first harmless, has now become injurious, and therefore the use of the water should be enjoined against. In support of this view the general rule as declared in Washb. on Easements, § 49 is invoked that tlie time from which the period is to be reckoned in computing the duration of a continuous enjoyment is when the injury or invasion of right begins, and not the time when the party causing it began that which finally creates the injury.

The correctness of this rule ma]*- be conceded yet it is not applicable to the facts of the present case. If the injury here was caused, by a change of the dam or of the ditches, or by suffering the latter to become filled up or clogged: Poll}’ v. McCall, 37 Ala., 20, or by applying the water to a different use, or if the injury was caused by any late act, either of omission or of commission on the part of the appellees, it might be said they had previously only begun the work which caused the injury; but such is not this case. Here the whole action and work of the appellees is a continuance only of that which was done on the ground foily years ago, and the water continues to be used for the same purpose now as then.

It is held in Stricklerv. Todd, 10 S. & R., 63, to be welt settled law, if there has been an uninterrupted and exclusive enjoyment for more than twenty-one years of water in any particular way, it affords a conclusive presumption of right in the party so enjoying it, equal to a right by prescription. The same rule is substantially declared in Hoy v. Sterrett, 2 Watts, 327; Darlington v. Painter, 7 Barr, 473; Wheatley v. Chrisman, 12 Harris, 303. The law presumes a grant of the easement, the extent of which is measured not by the actual or average depth of the water at any given point, but by the nature and extent of the obstruction itself: Gehman v. Erdman, 15 W. N.C. 278. When one uses an easement whenever he sees fit without asking leave or without objection, the use is adverse; and an adverse enjoyment for twenty-one years gives an indisputable title to the enjoyment: Garrett v. Jackson, 8 Harris, 331.

The work on the ground was not only under a claim of right, but it was open, visible, and notorious. The parties who owned the property below could foresee and anticipate the ultimate effect of the diversion of the water as well as the parties who caused it. The fact that they may not have foreseen the probable diminution of the quantity of water which would flow iri the stream, cannot deprive the appellees of any of their rights arising from their possession and enjoyment of the water for nearly twice the number of years necessary to give a right thereto by prescription.

Judgment affirmed.