ALBANY,

Jesse Pierson against Lodowick Post.

August, 1805.

Sanford for the now plaintiff.

Colden contra.

Sanford in reply.

Per curiam, delivered by

Tompkins, J.

This cause comes before us on a return to a certiorari directed to one of the justices of Queen’s county.

The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pur­suit with his hounds in the manner alleged in his declara­tion, acquired such a right to, or property in the fox, as will sustain an action against Pierson for killing and taking him away?

The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice question. It is admitted, that a fox is an animal ferae naturae, and that property in such animals is acquired by oc­cupancy only. These admissions narrow the discussion to the simple question of what acts amount to occupancy, ap­plied to acquiring right to wild animals.

If we have recourse to the ancient writers upon gene­ral principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. sect. 13, and Fle­ta, lib. iii. c. ii. page 175, adopt the principle, that pursuit alone, vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally inef­fectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. ii. c. i. page 8.

Puffendorf lib. iv. c. 6. sec. 2. & 10. defines occupancy of beasts ferae naturae, to be the actual corporal possession of them, and Bynkershoek is cited as coinciding in this de­finition. It is indeed with hesitation that Puffendorf affirms, that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The forego­ing authorities are decisive to shew, that mere pursuit, gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.

It therefore only remains to inquire, whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in England relating to property in wild animals, have either been discussed and decid­ed upon the principles of their positive statute regulations, or have arisen between the huntsman, and the owner of the land upon which beasts ferae naturae have been apprehended; the former claiming them by title of occupancy, and the lat­ter ratione soli. Little satisfactory aid can, therefore, be de­rived from the English reporters.

Barbeyrac in his notes on Puffendorf, does not accede to the definition of occupancy by the latter, but, on the contra­ry, affirms, that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. He does not however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from aver­ring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his objections to Puffendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of wild beasts; but that, on the contrary, the mortal wound­ing of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since thereby, the pursuer manifests an unequivical inten­tion of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and securing such animals with nets and toils, or otherwise intercepting them, so as to deprive them of their natural liberty, and ren­der escape impossible, may justly be deemed to give pos­session of them to those persons who, by their industry and labor, have used such means of apprehending them. Barbeyrac seems to have adopted, and had in view in his notes, the more accurate opinion of Grotius, with respect to occu­pancy. That celebrated author, lib. ii. c. 8. sect. 3. page 309, speaking of occupancy, proceeds thus, “Requiritur autem corporalis quaedam possessio ad dominium adipiscendum; atque ideo, vulnerasse non sufficit." But in the following section he explains and qualifies this definition of occupan­cy: “Sed possessio illa potest non solis manibus, sed instrumentis, ut decipulis, retibus, laqueis dum quo adsint: primum ut ipsa instrumenta sint in nostra potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat." This quali­fication embraces the full extent of Barbeyrac's objection to Puffendorf's definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can bring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.

The case cited from 11 Mod. 74—130, I think clearly distinguishable from the present; inasmuch, as there the ac­tion was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise; and in the report of the same case 3 Salk. 9. Holt, Chief Justice, states, that the ducks were in the plaintiff’s decoy pond and so in his possession, from which it is obvious the court laid much stress in their opinion, upon the plaintiff’s pos­session of the ducks, ratione soli.

I am the more readily inclined to confine possession or occupancy of beasts ferae naturae, within the limits prescrib­ed by the learned authors above cited, for the sake of cer­tainty, and preserving peace and order in society. If the first seeing, starting or pursuing such animals, without hav­ing so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.

However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage, for which a legal remedy can be applied. I am of opinion the judgment below was erroneous, and ought to be reversed. 

Livingston J.

My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the con­troversy to a single question.

Whether a person, who with his own hounds, starts and hunts a fox, on waste and uninhabited ground, and is on the point of seizing his prey, acquires such an interest in the animal, as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the chase, shall kill and carry him away?

This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac or Blackstone, all of whom have been cited; they would have had no difficulty in coming to a prompt and correct conclusion. In a court, thus constituted, the skin and carcase of poor Re­nard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experi­ence of ages has sanctioned, and which must be so well known to every votary of Diana. But the parties have re­ferred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal, the correction of any mistake which we may be so unfortunate as to make. By the plead­ings it is admitted, that a fox is a “wild and noxious beast." Both parties have regarded him, as the law of nations does a pirate “hostem humani generis,” and although “de mortuis nil nisi bonum," be a maxim of our profession, the memory of the deceased has not been spared. His depre­dations on farmers and on barn-yards, have not been for­gotten; and to put him to death, wherever found, is allow­ed to be meritorious, and of public benefit. Hence it fol­lows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career. But who would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day would mount his steed, and for hours together, “sub jove frigido” or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labours of the chase, were permitted to come in at the death, and bear away In triumph the object of pursuit? What­ever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundred years ago, and it would be very hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men, who made it a business, in the language of the declaration in this cause, "with hounds and dogs to find, start, pursue, hunt, and chase,” these animals, and that too, without any other motive, than the preservation of Roman poultry; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If any thing there­fore, in the digests or pandects shall appear to militate against the defendant in error, who, on this occasion, was the foxhunter, we have only to say tempora mutantur; and if men them­selves change with the times, why should not laws also undergo an alteration?

It may be expected, however, by the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in determining, whether to acquire dominion over a thing, be­fore in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting it; or whether, in the case of wild beasts, setting a trap, or lying in wait, or starting, or pursuing, be enough; or if an actual wounding, or killing, or bodily tact and occupation be necessary. Writers on general law, who have favored us with their speculations on these points,­ differ on them all; but, great as is the diversity of senti­ment among them, some conclusion must be adopted on the question immediately before us. After mature delibe­ration, I embrace that of Barbeyrac, as the most rational, and least liable to objection. If at liberty, we might imitate the courtesy of a certain Emperor, who, to avoid giving offence to the advocates of any of these different doc­trines, adopted a middle course, and by ingenious distinc­tions, rendered it difficult to say, (as often happens after a fierce and angry contest,) to whom the palm of victory belonged. He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.

Now, as we are without any municipal regulations of our own, and the pursuit here, for aught that appears on the case, being with dogs and hounds of imperial stature, we are at liberty to adopt one of the provisions just cited, which comports also with the learned conclusion of Bar­beyrac, that property in animals ferae naturae, may be ac­quired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking, what he has thus discovered an intention of converting to his own use.

When we reflect also that the interest of our husband­men, the most useful of men in any community, will be advanced by the destruction of a beast so pernicious and incorrigible, we cannot greatly err, in saying, that a pursuit like the present, through waste and unoccupied lands, and which must inevitably and speedily have terminated in cor­poral possession, or bodily seisin, confers such a right to the object of it, as to make any one a wrong doer, who shall interfere and shoulder the spoil. The justice’s judge­ment ought therefore, in my opinion, to be affirmed.

(District Court, D. Massachusetts.

Ghen v. Rich.

April 23, 1881.)

H. M. Knowlton, for libellant.

IT. P. llarriman, for respondent.

Nelson, D. J.

This is a libel to recover the value of a fin-back whale. The libellant lives in Provincetown and the respondent in Wellfleet. The facts, as they appeared at the hearing, are as follows:

In the early spring months the easterly part of Massachusetts bay is fre­quented by the species of whale known as the fin-back whale. Fishermen from Provincetown pursue them in open boats from the shore, and shoot them with bomb-lances fired from guns made expressly for the purpose. When killed they sink at once to the bottom, but in the course of from one to three days they rise and float on the surface. Some of them are picked up by vessels and towed into Provincetown. Some float ashore at high water and are left stranded on the beach as the tide recedes. Others float out to sea and are never recovered. The person who happens to find them on the beach usually sends word to Provincetown, and the owner comes to the spot and removes the blubber. The finder usually receives a small salvage for his services. Try-works are established in Provincetown for trying out the oil. The business is of considerable extent, but, since it requires skill and experi­ence, as well as some outlay of capital, and is attended with great exposure and hardship, few persons engage in it. The average yield of oil is about 20 barrels to a whale. It swims with great swiftness, and for that reason can­not be taken by the harpoon and line. Each boat’s crew engaged in the busi­ness has its peculiar mark or device on its lances, and in this way it is known by whom a whale is killed.

The usage on Cape Cod, for many years, has been that the person who kills a whale in the manner and under the circumstances described, owns it, and this right has never been disputed until this case. The libellant has been engaged in this business for ten years past. On the morning of April 9, 1880, in Massachusetts bay, near the end of Cape Cod, he shot and instantly killed with a bomb-lance the whale in question. It sunk immediately, and on the morning of the 12th was found stranded on the beach in Brewster, within the ebb and flow of the tide, by one Ellis, 17 miles from the spot where it was killed. Instead of sending word to Princeton, as is customary, Ellis adver­tised the whale for sale at auction, and sold it to the respondent, who shipped off the blubber and tried out the oil. The libellant heard of the finding of the whale on the morning of the 15th, and immediately sent one of his boat’s crew to the place and claimed it. Neither the respondent nor Ellis knew the whale had been killed by the libellant, but they knew or might have known, if they had wished, that it had been shot and killed with a bomb-­lance, by some person engaged in this species of business.

The libellant claims title to the whale under this usage. The re­spondent insists that this usage is invalid. It was decided by Judge Sprague, in Taber v. Jenny, 1 Sprague, 315, that when a whale has been killed, and is anchored and left with marks of appropriation, it is the property of the captors; and if it is afterwards found, still anchored, by another ship, there is no usage or principle of law by which the property of the original captors is diverted, even though the whale may have dragged from its anchorage. The learned judge says:

“When the whale had been killed and taken possession of by the boat of the Hillman, (the first taker,) it became the property of the owners of that ship, and all was done which was then practicable in order to secure it. They left it anchored, with unequivocal marks of appropriation.”

In Bartlett v. Budd, 1 Low. 223, the facts were these: The first officer of the libellant’s ship killed a whale in the Okhotsk sea, anchored it, attached a waif to the body, and then left it and went ashore at some distance for the night. The next morning the boats of the respondent’s ship found the whale adrift, the anchor not holding, the cable coiled round the body, and no waif or irons attached to it. Judge Lowell held that, as the libellants had killed and taken actual possession of the whale, the ownership vested in them. In his opin­ion the learned judge says:

“A whale, being ferae naturae, does not become property until a firm posses­sion has been established by the taker. But when such possession has become firm and complete, the right of property is clear, and has all the characteris­tics of property.”

He doubted whether a usage set up but not proved by the respond­ents, that a whale found adrift in the ocean is the property of the finder, unless the first taker should appear and claim it before it is cut in, would be valid, and remarked that “there would be great diffi­culty in upholding a custom that should take the property of A. and give it to B., under so very short and uncertain a substitute for the statute of limitations, and one so open to fraud and deceit.” Both the cases cited were decided without reference to usage, upon the ground that the property had been acquired by the first taker by actual possession and appropriation.

In Swift v. Gifford, 2 Low. 110, Judge Lowell decided that a cus­tom among whalemen in the Arctic seas, that the iron holds the whale, was reasonable and valid. In that case a boat’s crew from the respondent’s ship pursued and struck a whale in the Arctic ocean, and the harpoon and the line attached to it remained in the whale, but did not remain fast to the boat. A boat’s crew from the libellant’s ship continued the pursuit and captured the whale, and the master of the respondent’s ship claimed it on the spot. It was held by the learned judge that the whale belonged to the respondents. It was said by Judge Sprague, in Bourne v. Ashley, an unprinted case referred to by Judge Lowell in Swift v. Gifford, that the usage for the first iron, whether attached to the boat or not, to hold the whale was fully established; and he added that, although local usages of a par­ticular port ought not to be allowed to set aside the general maritime law, this objection did not apply to a custom which embraced an entire business, and had been concurred in for a long time by every one engaged in the trade.

In Swift v. Gifford, Judge Lowell also said:

“The rule of law invoked in this case is one of very limited application. The whale fishery is the only branch of industry of any importance in which it is likely to be much used, and if a usage is found to prevail generally in that business, it will not be open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.”

I see no reason why the usage proved in this case is not as rea­sonable as that sustained in the cases cited. Its application must necessarily be extremely limited, and can affect but a few persons. It has been recognized and acquiesced in for many years. It requires in the first taker the only act of appropriation that is possible in the nature of the case. Unless it is sustained, this branch of industry must necessarily cease, for no person would engage in it if the fruits of his labor could be appropriated by any chance finder. It gives reasonable salvage for securing or reporting the property. That the rule works well in practice is shown by the extent of the industry which has grown up under it, and the general acquiescence of a whole community interested to dispute it. It is by no means clear that without regard to usage the common law would not reach the same result. That seems to be the effect of the decisions in Taber v. Jenny and Bartlett v. Budd. If the fisherman does all that it is possible to do to make the animal his own, that would seem to be sufficient. Such a rule might well be applied in the interest of trade, there being no usage or custom to the contrary. Holmes, Com. Law, 217. But be that as it may, I hold the usage to be valid, and that the property in the whale was in the libellant.

The rule of damages is the market value of the oil obtained from the whale, less the cost of trying it out and preparing it for the mar­ket, with interest on the amount so ascertained from the date of con­version. As the question is new and important, and the suit is con­tested on both sides, more for the purpose of having it settled than for the amount involved, I shall give no costs.

Decree for libellant for $71.05, without costs.

Mabo v. Queensland (No. 2) [“Mabo’s Case”] 

High Court of Australia, (1992) 175 C.L.R. 1 

BRENNAN J. 

The Murray Islands lie in the Torres Strait, at about 10 degrees S. Latitude and 144 degrees E. Longitude. They are the easternmost of the Eastern Islands of the Strait. Their total land area is of the order of 9 square kilometres. The biggest is Mer (known also as Murray Island), oval in shape about 2.79 kms long and about 1.65 kms across. … The people who were in occupation of these Islands before first European contact and who have continued to occupy those Islands to the present day are known as the Meriam people. … The Meriam people of today retain a strong sense of affiliation with their forbears and with the society and culture of earlier times. They have a strong sense of identity with their Islands. The plaintiffs are members of the Meriam people. In this case, the legal rights of the members of the Meriam people to the land of the Murray Islands are in question. 

… It may be assumed that on 1 August 1879 the Meriam people knew nothing of the events in Westminster and in Brisbane that effected the annexation of the Murray Islands and their incorporation into Queensland and that, had the Meriam people been told of the Proclamation [of annexation] made in Brisbane on 21 July 1879, they would not have appreciated its significance. The legal consequences of these events are in issue in this case. Oversimplified, the chief question in this case is whether these transactions had the effect on 1 August 1879 of vesting in the Crown absolute ownership of, legal possession of and exclusive power to confer title to, all land in the Murray Islands. The defendant submits that that was the legal consequence of the Letters Patent and of the events which brought them into effect. If that submission be right, the Queen took the land occupied by Meriam people on 1 August 1879 without their knowing of the expropriation; they were no longer entitled without the consent of the Crown to continue to occupy the land they had occupied for centuries past. 

…In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies…. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning. 

… International law [at the time of colonization of Australia by Britain] recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty…. Various justifications for the acquisition of sovereignty over the territory of “backward peoples” were advanced. The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times. Another justification for the application of the theory of terra nullius to inhabited territory—a justification first advanced by Vattel at the end of the 18th century—was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants. 

… The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country…. Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted.… It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. It was such a rule which evoked from Deane J.[, in] Gerhardy v. Brown (1985) 159 CLR 70, at p. 149[,] the criticism that— 

“the common law of this land has still not reached the stage of retreat from injustice which the law of Illinois and Virginia had reached in 1823 when Marshall C.J., in Johnson v. McIntosh, accepted that, subject to the assertion of ultimate dominion (including the power to convey title by grant) by the State, the ‘original inhabitants’ should be recognized as having ‘a legal as well as just claim’ to retain the occupancy of their traditional lands”. 

However, recognition by our common law of the rights and interests in land of the indigenous inhabitants of a settled colony would be precluded if the recognition were to fracture a skeletal principle of our legal system.… 

The land law of England is based on the doctrine of tenure. In English legal theory, every parcel of land in England is held either mediately or immediately of the King who is the Lord Paramount; the term “tenure” is used to signify the relationship between tenant and lord, not the relationship between tenant and land…. When the Crown acquired territory outside England which was to be subject to the common law, there was a natural assumption that the doctrine of tenure should be the basis of the land law. Perhaps the assumption did not have to be made…. 

By attributing to the Crown a radical title** to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown’s demesne. … But it is not a corollary of the Crown’s acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants.… Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants…. 

Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown’s territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crown’s territory should not continue to be subject to native title. It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty. 

…. The ownership of land within a territory in the exclusive occupation of a people must be vested in that people: land is susceptible of ownership, and there are no other owners.… Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. … Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown. 

It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people. Such a right or interest can be acquired outside those laws and customs only by the Crown. 

… Sovereignty carries the power to create and to extinguish private rights and interests in land within the Sovereign’s territory. It follows that, on a change of sovereignty, rights and interests in land that may have been indefeasible under the old regime become liable to extinction by exercise of the new sovereign power. The sovereign power may or may not be exercised with solicitude for the welfare of indigenous inhabitants but, in the case of common law countries, the courts cannot review the merits, as distinct from the legality, of the exercise of sovereign power. … However, the exercise of a power to extinguish native title must reveal a clear and plain intention to do so, whether the action be taken by the Legislature or by the Executive…. A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title…. Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose—at least for a time—and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. … [W]here the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable. 

[The Court declared that the Murray Islands are not crown lands, that the Meriam people were entitled to “possession, occupation, use and enjoyment” of the island of Mer (excluding certain parcels leased or physically used by the Australian, provincial, or local governments), and that the Meriam people’s right to Mer is subject to the power of the Queensland government to extinguish it by law.] 

MASON C.J. and McHUGH J. 

We agree with the reasons for judgment of Brennan J. and with the declaration which he proposes. 

In the result, six [out of seven] members of the Court (Dawson J. dissenting) are in agreement that the common law of this country recognizes a form of native title which, in the cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands and that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland. The main difference between those members of the Court who constitute the majority is that, … neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages. We note that the judgment of Dawson J. supports the conclusion of Brennan J. and ourselves on that aspect of the case since his Honour considers that native title, where it exists, is a form of permissive occupancy at the will of the Crown. 

We are authorized to say that the other members of the Court agree with what is said in the preceding paragraph about the outcome of the case. 

[Opinions of Toohey and Gaudron JJ. and Dawson J. omitted.] 

Footnote **: * [Eds.—“Radical title” is a subtle and unsettled concept; it may refer here to the common-law principle that the government—i.e., the crown—is the ultimate source of property rights in land within the territory subject to its jurisdiction.]  

Keeble v. Hickeringill 

(1707) 103 Eng. Rep. 1127, 11 East 574 (Q.B.) 

Action upon the case. Plaintiff declares that he was, 8th November in the second year of the Queen, lawfully possessed of a close of land called Minott’s Meadow, [where he maintained] a decoy pond, to which divers wildfowl used to resort and come: and the plaintiff had at his own costs and charges prepared and procured divers decoy ducks, nets, machines and other engines for the decoying and taking of the wildfowl, and enjoyed the benefit in taking them: the defendant, knowing which, and intending to damnify the plaintiff in his vivary, and to fright and drive away the wildfowl used to resort thither, and deprive him of his profit, did, on the 8th of November, resort to the head of the said pond and vivary, and did discharge six guns laden with gunpowder, and with the noise and stink of the gunpowder did drive away the wildfowl then being in the pond: and on the 11th and 12th days of November the defendant, with design to damnify the plaintiff, and fright away the wildfowl, did place himself with a gun near the vivary, and there did discharge the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wildfowl were frighted away, and did forsake the said pond. Upon not guilty pleaded, a verdict was found for the plaintiff and 20£ damages. 

HOLT C.J. 

I am of opinion that this action doth lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, 1st, this using or making a decoy is lawful. 2dly, this employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment. As to the first, every man that hath a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. … Then when a man useth his art or his skill to take them, to sell and dispose of for his profit; this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him.… 

[W]here a violent or malicious act is done to a man’s occupation, profession, or way of getting a livelihood; there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff’s, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47. One schoolmaster sets up a new school to the damage of an ancient school, and thereby the scholars are allured from the old school to come to his new. (The action was held there not to lie.) But suppose Mr. Hickeringill should lie in the way with his guns, and fright the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars. ... 

There was an objection that did occur to me, though I do not remember it to be made at the Bar; which is, that it is not mentioned in the declaration what number or nature of wildfowl were frighted away by the defendant’s shooting. … Where a man brings trespass for taking his goods, he must declare of the quantity, because he, by having had the possession, may know what he had, and therefore must know what he lost. … The plaintiff in this case brings his action for the apparent injury done him in the use of that employment of his freehold, his art, and skill, that he uses thereby. … And when we do know that of long time in the kingdom these artificial contrivances of decoy ponds and decoy ducks have been used for enticing into those ponds wildfowl, in order to be taken for the profit of the owner of the pond, who is at the expence of servants, engines, and other management, whereby the markets of the nation may be furnished; there is great reason to give encouragement thereunto; that the people who are so instrumental by their skill and industry so to furnish the markets should reap the benefit and have their action. But, in short, that which is the true reason is that this action is not brought to recover damage for the loss of the fowl, but for the disturbance. 

Circuit Court, D. Rhode Island.

[4 Mason, 397.] 1

TYLER et al. v. WILKINSON et al.

June Term, 1827.

1

[Reported by William P. Mason, Esq.]

STORY, Circuit Justice.

This is a very im­portant case, complicated in facts, and volu­minous in testimony. It will not, however, be necessary to go over the details of the proofs, or even of the arguments, urged at the bar, further than may serve to explain the opin­ion of the court, and give a clear understand­ing of the points in controversy.

The river Pawtucket forms a boundary line between the states of Massachusetts and Rhode Island, in that part of its course where it separates the town of North Providence from the town of Seekonk. It is a fresh water river, above the lower falls between these towns, and is there unaffected by the ebb or flow of the tide. At these falls there is an ancient dam, called the lower dam, extend­ing quite across the river, and several mills are built near it, as well on the eastern as on the western side of the river. The plaintiffs, together with some of the defendants, are the proprietors in fee of the mills and adjacent land on the eastern bank, and either by them­selves or their lessees are occupants of the same. The mills and land adjacent, on the western bank, are owned by some of the de­fendants. The lower dam was built as early as the year 1718, by the proprietors on both sides of the river, and is indispensable for the use of their mills respectively. There was previously an old dam on the western side, extending about three quarters of the way across the river, and a separate dam for a saw-mill on the east side. The lower dam was a substitute for both. About the year 1714 a canal was dug, or an old channel widened and cleared on the western side of the river, beginning at the river a few rods above the lower dam, and running round the west end thereof, until it emptied into the river about ten rods below the same dam. It has been long known by the name of “Ser­geant’s Trench,” and was originally cut for the passage of fish up and down the river; but having wholly failed for this purpose, about the year 1730 an anchor-mill and dam were built across it by the then proprietors of the land; and between that period and the year 1790, several other dams and mills were built over the same; and since that period more expensive mills have been built there, which are all owned by some of the defend­ants. About thirty years before the filing of the bill, to wit, in 1792, another dam was built across the river at a place above the head of the trench, and about 20 rods above the lower dam; and the mills on the upper dam, as well as those on Sergeant’s trench, are now supplied with water by proper flumes, &c. from the pond formed by the up­per dam. The proprietors of this last dam are also made defendants.

Without going into the particulars of the bill (for in consequence of intervening deaths and devises, the cause is now before the court upon a supplemental bill, in the nature of a bill of revivor), it is necessary to state, that the bill charges, that the owners of Sergeant's trench are entitled, as against the owners of the lower dam, only to what is called a waste-­water privilege, that is, to a right to use only such surplus water, as is not wanted by the owners of the lower dam and lands for any purposes whatever. In other words, that the right of the owners of Sergeant’s trench is a subservient right to that of the plaintiffs, and takes place only as to any water which the plaintiffs may not, from time to time, have any occasion to use for any mills erected, or to be erected, by them. It charges a fraud­ulent combination between the owners of the upper dam and Sergeant’s trench, injuriously to appropriate and use the water, and that the latter appropriate a great deal more water than they are entitled to by ancient usage, and waste the water to the injury of the plaintiffs. The object of the bill is to estab­lish the right of the plaintiffs, and to obtain an injunction and for general relief.

The principal points, which have been dis­cussed at the bar, are, first, what is the na­ture and extent of the right of the owners of Sergeant’s trench; and, secondly, whether that right has been exceeded by them to the injury of the plaintiffs.

Before proceeding to an examination of these points, it may be proper to ascertain the nature and extent of the right, which ripa­rian proprietors generally possess, to the waters of rivers flowing through their lands. Unless I am mistaken, this will relieve us from a great portion of the difficulties which incumber this cause, and lead us to a satis­factory conclusion upon its merits. I shall not attempt to examine the cases at large, or to reconcile the various dicta, which may be found in some of them. The task would be very onerous; and I am not aware that it would be very instructive. I have, however, read over all the cases on this subject, which were cited at the bar, or which are to be found in Mr. Angell’s valuable work on water courses, or which my own auxiliary re­searches have enabled me to reach. The gen­eral principles, which they contain and sup­port, I do not say in every particular instance, but with a very strong and controlling cur­rent of authority, appear to me to be the fol­lowing.

Prima facie every proprietor upon each bank of a river is entitled to the land, covered with water, in front of his bank, to the middle thread of the stream, or, as it is commonly ex­pressed, usque ad filum aquae. In virtue of this ownership he has a right to the use of the water flowing over it in its natural cur­rent, without diminution or obstruction. But, strictly speaking, he has no property in the water itself; but a simple use of it, while it passes along. The consequence of this prin­ciple is, that no proprietor has a right to use the water to the prejudice of another. It is wholly immaterial, whether the party be a pro­prietor above or below, in the course of the river; the right being common to all the pro­prietors on the river, no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor be­low, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the pro­prietors of that, which is common to all. The natural stream, existing by the bounty of Providence for the benefit of the land through which it flows, is an incident annexed, by op­eration of law, to the land itself. When I speak of this common right, I do not mean to be understood, as holding the doctrine, that there can be no diminution whatsoever, and no obstruction or impediment whatsoever, by a riparian proprietor, in the use of the water as it flows; for that would be to deny any valuable use of it. There may be, and there must be allowed of that, which is common to all, a reasonable use. The true test of the principle and extent of the use is, whether it is to the injury of the other, proprietors or not. There may be a diminution in quantity, or a retardation or acceleration of the natural current indispensable for the general and val­uable use of the water, perfectly consistent with the existence of the common right. The diminution, retardation, or acceleration, not positively and sensibly injurious by diminish­ing the value of the common right, is an im­plied element in the right of using the stream at all. The law here, as in many other cases, acts with a reasonable reference to public con­venience and general good, and it is not be­trayed into a narrow strictness, subversive of common sense, nor into an extravagant loose­ness, which would destroy private rights. The maxim is applied, “Sic utere tuo, ut non alienum laedas.”

But of a thing, common by nature, there may be an appropriation by general consent or grant. Mere priority of appropriation of running water, without such consent or grant, confers no exclusive right. It is not like the case of mere occupancy, where the first oc­cupant takes by force of his priority of oc­cupancy. That supposes no ownership already existing, and no right to the use already ac­quired. But our law annexes to the riparian proprietors the right to the use in common, as an incident to the land; and whoever seeks to found an exclusive use, must estab­lish a rightful appropriation in some manner known and admitted by the law. Now, this may be, either by a grant from all the pro­prietors, whose interest is affected by the particular appropriation, or by a long exclu­sive enjoyment, without interruption, which affords a just presumption of right. By our law, upon principles of public convenience, the term of twenty years of exclusive unin­terrupted enjoyment has been held a conclu­sive presumption of a grant or right. I say of a grant or right; for I very much doubt, whether the principle now acted upon, how­ever in its origin it may have been confined to presumptions of a grant, is now neces­sarily limited to considerations of this na­ture. The presumption is applied as a pre­sumption juris et de jure, wherever by pos­sibility a right may be acquired in any man­ner known to the law. Its operation has nev­er yet been denied in cases where personal disabilities of particular proprietors might have intervened, such as infancy, coverture, and insanity, and where, by the ordinary course of proceeding, grants would not be presumed. In these, and in like cases, there may be an extinguishment of right by posi­tive limitations of time, by estoppels, by stat­utable compensations and authorities, by elections of other beneficial bequests, by con­flicting equities, and by other means. The presumption would be just as operative as to these modes of extinguishment of a com­mon right as to the mode of extinguishment by grant.

These are the general principles, which ap­pear to me applicable to the present case. They will be found recognised in many cases; but are in none more fully and accurately weighed and discussed than in Bealey v. Shaw, 6 East, 208; Williams v. Morland, 2 Barn. & C. 910; and Wright v. Howard, 1 Sim. & S. 190,—in England; and in Ingra­ham v. Hutchinson, 2 Conn. 584; Merritt v. Parker, 1 Coxe [1 N. J. Law], 460; Palmer v. Mulligan. 3 Caines, 307; Platt v. Johnson, 15 Johns. 213; and Merritt v. Brinkerhoff, 17 Johns. 306,—in America.

With these principles in view, the general rights of the plaintiffs cannot admit of much controversy. They are riparian proprietors, and, as such, are entitled to the natural flow of the river without diminution to their in­jury. As owners of the lower dam, and the mills connected therewith, they have no rights beyond those of any other persons, who might have appropriated that portion of the stream to the use of their mills. That is, their rights are to be measured by the extent of their actual appropriation and use of the water for a period, which the law deems a conclusive presumption in favor of rights of this nature. In their character as mill-own­ers, they have no title to the flow of the stream beyond the water actually and legally appropriated to the mills; but in their char­acter as riparian proprietors, they have an­nexed to their lands the general flow of the river, so far as it has not been already ac­quired by some prior and legally operative ap­propriation. No doubt, then, can exist as to the right of the plaintiffs to the surplus of the natural flow of the stream not yet appro­priated. Their rights, as riparian proprie­tors, are general; and it is incumbent on the parties, who seek to narrow these rights, to establish by competent proofs their own title to divert and use the stream.

And this leads me to the consideration of the nature and extent of the rights of the trench owners. There is no doubt, that in point of law or fact, there may be a right to water of a very limited nature, and subservi­ent to the more general right of the riparian proprietors. It may arise from grant, and be affected by any considerations, conditions, and modifications, which the assent of the par­ties may impose; and where no such grant is established by written instruments, it may be inferred, like other grants, from long usage, and be governed by the limitations of that usage. The case of Bateson v. Green, 5 Term R. 411, is certainly good law; but it introduces no new principle. The doctrine of subservient rights and uses is probably as old as the common law itself. But in ques­tions of usage, the fact, how much water has been actually used, is not always decisive of the nature and extent of the right. Nor are occasional interruptions of the use, under pe­culiar circumstances, conclusive of a superior right to control and limit the entire use, to suspend it at pleasure, or destroy it at dis­cretion. The nature and object and value of the use are very material ingredients to ex­plain and qualify the effect of such interrup­tions. It is not, for instance, to be presum­ed that valuable mills will be erected to be fed by an artificial canal from a river, and the stream be indispensable for the support of such mills, and yet, that the right to the stream is so completely lodged in another, that it may be cut off or diminished, or sus­pended at pleasure; but, if there should not be water enough for the progressive wants of all, the riparian proprietor should reserve to himself the power of future appropriation for his own exclusive use. In such cases, reasonable presumption must be made from acts in their own nature somewhat equivocal and susceptible of different interpretations. The interruptions may arise from resistance to an attempt by the canal-owner to extend the reach of his dam farther into the river or the purpose of appropriating more water, or from a desire to prevent undue waste, in dry seasons, to the injury of the riparian proprietor. But the presumption of an absolute and controlling power over the whole flow, a continuing power of exclusive appropriation from time to time, in the riparian proprietor, as his wants or will may influence his choice, would require the most irresistible facts to support it. Men who build mills, and invest valuable capital in them, cannot be presum­ed, without the most conclusive evidence, to give their deliberate assent to the acceptance of such ruinous conditions. The general pre­sumption appears to me to be that which is laid down by Mr. Justice Abbott in Saunders v. Newman, 1 Barn. & Ald. 258: “When a mill has been erected upon a stream for a long period of time, it gives to the owner a right, that the water shall continue to flow to and from the mill in the manner in which it has been accustomed to flow during all that time. The owner is not bound to use the water in the same precise manner, or to apply it to the same mill; if he were, that would stop all improvements in machin­ery. If, indeed, the alterations made from time to time prejudice the right of the lower mill (i.e. by requiring more water), the case would be different.”

In this view of the matter, the proprietors of Sergeant’s trench are entitled to the use of so much of the water of the river as has been accustomed to flow through that trench to and from their mills (whether actually used or necessary for the same mills or not), during the twenty years last before the in­stitution of this suit, subject only to such qualifications and limitations, as have been acknowledged or rightfully exercised by the plaintiffs as riparian proprietors, or as own­ers of the lower mill-dam, during that period. But here their right stops; they have no right farther to appropriate any surplus water not already used by the riparian pro­prietors, upon the notion, that such water is open to the first occupiers. That surplus is the inheritance of the riparian proprietors, and not open to occupancy.

The question, then, resolves itself into a matter of fact:—What has been the quantity accustomed to flow in the trench, and what the qualifications and limitations accompany­ing the flow during this period? It appears to me most manifest from the general cur­rent of the evidence, that the trench pro­prietors do not hold a mere waste-water priv­ilege in the sense which the plaintiffs at­tribute to those terms. It would be almost incredible, that a priority of right should be reserved to the plaintiffs, as riparian pro­prietors, to use the water of the stream for any new mills to be erected from time to time by them, so as to entitle them, at their choice, to divert the whole from the trench. Nothing but the clearest proofs could estab­lish such a right, going, in the event, to the complete destruction of the mills erected on the trench. So far from such a pre-eminent right, as it is called, being justified by the evidence, it appears to me to be encountered by it at almost every step. The acts of the parties, at the different periods of their own­ership, are irreconcilable with such a sup­position. The answers of the defendants positively deny it. The most that can be pretended from any portion of the evidence is, that the proprietors of the mills on the lower dam did in dry seasons, when the wa­ter was scant, remove the temporary dams erected by the trench proprietors, to gain at those periods an additional supply of water. But these acts of interruption seem confined to the temporary dam so erected, and not designed as interruptions of the ordinary flow of the water by means of the permanent dam, or otherwise, into the trench. And what is very material, they were interrup­tions for the purpose of supplying their mills, then existing on the lower dam, with wa­ter. If, therefore, we give the fullest effect to this assertion of pre-eminent right, it must be limited, as it was exercised, to the uses of the mills then in existence, that is, to the usual priority of supply, which, in a conflict of right and a deficiency of water, they were accustomed to take and require. Such a pre-eminent right, founded merely in usage, for particular mills, must be confined to those mills, and cannot be admitted as proof of a general unlimited right over all the wa­ter for all future mills. If the trench own­ers could only claim a waste-water privilege, it was of waste-water not then appropriated or used by existing mills. In this view of the case, it would not help the plaintiffs; for it is not shown that the old mills would have sustained any injurious loss of water if no new mills had been built by the plaintiffs, requiring a further supply. But it cannot be disguised, that even this claim of right, so limited, has many difficulties to encounter. There is no uniform, clear, decisive evidence to support it. The evidence is contradictory, or inconclusive. There has been no acqui­escence in the acts of interruption of such an unequivocal nature and for such a pe­riod, as would justify the court to infer any admission of right by the trench owners, or any original reservation on the part of the plaintiffs. On the contrary, the matter of right seems always to have been in contestation. The most that the court can say is, that the claim of pre-eminent right is sus­pended in doubt; and that it ought not, un­der such circumstances, to give relief against the positive denials of the owners.

My opinion accordingly is that the trench owners have an absolute right to the quantity of water which has usually flowed there­in, without any adverse right on the plain­tiffs to interrupt that flow in dry seasons, when there is a deficiency of water. But the trench owners have no right to increase that flow; and whatever may be the mills or uses, to which they may apply it, they are limited to the accustomed quantity, and may not exceed it.

What that quantity is, has not been ascer­tained by any precise admeasurement. The trench owners in their answer do not pre­tend, that they have acquired any new rights by an additional uninterrupted use within the last twenty years. On the contrary, they assert, that the quantity which now flows, is in conformity to the ancient usage, and does not exceed it. They assert, “that the pres­ent gate-hole, which leads the water from the said great flume [of the upper dam] into said trench, is about four feet wide, and fif­teen or sixteen inches deep; that the said gate-hole was made about one year after said upper dam was built, and that the di­versions thereof have never been altered from the time the same was first made, as aforesaid, to the present time.” If the fact be so, it furnishes some elements for a very correct admeasurement of their rights. The principal difficulty in applying it as an abso­lute measure, arises from the fact of there having been a gate in this gate-hole, put there at the time of the hole itself being made. This gate was removed at least ten years, and more probably from fifteen to twenty years, before the filing, of the bill. The plaintiffs insist, that this gate was de­signed to regulate the quantity of water to which the trench owners were entitled, and was adjusted accordingly. The latter ad­mit the fact of its existence, but assert its removal twenty years ago, and that “it was placed in said gate-hole by the owners of the shops and mills on said trench, and used by them to shut the water out of said trench, while they were repairing the same or the works thereon.” It is very difficult to as­certain, from the evidence, whether any posi­tive limitation of right can be deemed to have been originally intended by it. It was hoisted and lowered by the trench owners, as well as by others, occasionally, while it existed, and its removal for a number of years affords some presumption, that it was not deemed a fixed regulator of right. Its height varied at different times according to circumstances; and it is not easy to infer that to be a positive gauge of quantity, agreed on by the parties, which was not im­movable in its position.

There was an agreement entered into in the year 1796 between the owners of the upper dam, of the trench, and of the mills on the west side of the river (which is set out in the bill, and admitted by the owners), which has been relied upon by both parties as explanatory of the rights of all concerned. The plaintiffs, and those under whom they claim, were not parties to it; but as matter of evidence, they have themselves relied on it, and complain of it, not on account of its incorrect statement of the matter of right, but of the intentional omission, fairly to car­ry it into effect. It begins as follows: “Whereas the ancient privilege of Sergeant’s trench or the shops thereon, has not been precisely ascertained, and whereas the own­ers thereof, the owners of the new upper dam, and the owners of the ancient mills at the falls are all interested therein, and in order to make each party right, and make the same as conveniently managed as may be, we, the subscribers, covenant and agree as follows: The owners of the upper dam hereby convey to the owners of the shops below a full and free liberty of passing and repassing on their land to the gate, when they think proper, for the regulating the water according to their right in the same. And the owners of the works below the falls have the same liberty to shut or hoist said gate for the same purpose, in as full man­ner as ever heretofore, by custom, usage, or contracts. And to prevent any difficulty about ascertaining the proportion of water fully due and belonging to said trench works, it is mutually agreed, that Benjamin Coz­zens, Jr. and Stephen Jenks, Jr. be and are hereby chosen to regulate and ascertain the same; and that the owners of the upper dam keep a suitable gate on their flume, suitable for conveying and regulating the said water, at their own expense. And that it is further agreed, that in case the said B. C. and S. J. do not agree, they have power to appoint a third person, two of whom agreeing, to settle the same. And that the ancient usage or quantity of water, which has been accustomed to pass the said trench, be the rule for them to aim at as near as they can, and the mode of settlement, and the quantity they agree upon, be hereafter the mode and quantity for ever. And that the said persons, within one year from the date, ascertain the same; and that they in­form the parties, who now agree to make such other writings, as may then appear more descriptive of the mode and quantity, and the same be then recorded, and that the regu­lating gate be made at the expense of the privilege." Now, the gravamen of the bill is, that this agreement was never carried in­to effect by any award whatsoever, though the plaintiffs have requested it; but that it was entered into to defraud the plaintiffs, by deluding them into the belief, that the parties intended to secure the ancient priv­ilege of the trench owners, and no more; whereas, under pretence of it, the trench owners have, within twenty years last past, used much more water.

We are then at liberty, as I think, to con­sider, that the agreement of 1796, in its terms and statements, is adopted by the plaintiffs. In this view it has a most im­portant bearing on the whole case, not only as a document of considerable antiquity, but as one intended to settle rights between par­ties, all having different interests. Unfor­tunately, no award was ever made by the arbitrators, they differing in opinion (the one being an owner on the trench and the other an owner on the lower dam) as to the height which the gate ought to be raised in a dry time. The difference seems to have been between one inch and three quarters, and two inches and a half, in the height.

The agreement itself, however, deserves great consideration. In the first place, it states the right of the trench owners in a very strong manner. It admits, and indeed, requires, the arbitrators to allow them “the quantity of water, which has been accus­tomed to pass to the trench;” and of course it fixes the right by the quantity flowing in the trench, and not by the quantity, which the mills then existing actually re­quired. In the next place, it contains no qualification or limitation of this right, by the slightest allusion to any pre-eminent right or priority of the lower dam mills, in case of a deficiency of water, or otherwise. Yet such an omission, if such a qualifica­tion or limitation as is now contended for by the plaintiffs existed, would be almost incredible. The presumption against its ex­istence, connected with the subsequent lapse of time, during which it has not been ad­mitted or acquiesced in, is of itself abun­dantly cogent and pressing. In the next place, it goes strongly to repel any inference, that the gate, erected in 1794 at the gate hole of the swift flume, was understood by the parties as an absolute measure of the quantity, or had a fixed position to limit the right of the trench proprietors. If it was a fixed gauge, there could have been no rea­son for an arbitration to ascertain it in 1796, much less would it have been recited in the agreement that it had “not been precisely ascertained.” The most that can be proper­ly said, is, that the parties placed it there for their convenience, but not as a posi­tive limitation of right, which neither party was at liberty to alter, if it affected his ac­knowledged rights injuriously. In the next place, the agreement ascertains, that the right of the trench owners was not, if I may so say, an expanding right, increasing with the uses to which they might choose to appropriate the water of the river; and that, therefore, they had no right to extend their prior appropriation of the water. Their use of the water since that period ought to be referred back to their rights as recognized in 1796, and if any additional quantity has been appropriated in the in­tervening time (which they deny), that ex­cess is to be deemed, not a matter of ad­verse claim, but of mere indulgence. In the next place, it is a fair inference from the agreement, that the water, which thus flow­ed into the trench of right, was ordinarily adequate to the use of all the mills then erected on it. At least, the existing state of things at that period may be taken to be rightful and adequate to the wants of the parties, or some exception would naturally have found its way into the agreement. And this inference is fortified by the depo­sition of Benjamin Cozzens, Jr. (one of the arbitrators) as well as by the subsequent user by the trench owners. The agreement of 1797, between the owners of the upper dam and the owners of the mills on the west side of the lower dam, for regulating the flumes of the upper dam, so as to secure a proper quantity of water to the lower dam, does not in the slightest degree impugn these conclusions. The trench owners were not parties to it; but it has an implied refer­ence to the agreement of 1796, and manifest­ly contemplated a ratification of its stipu­lations.

The memorandum, indorsed on the deed of Gideon Tenks to Eleazer Jenks in 1781, cannot be admitted as proof of the anterior pre-eminent right contended for by the plaintiffs. In the first place, however oper­ative between the parties, it could not bind the rights of the other trench owners, who were not parties to it. In the next place, it is not in its terms a recognition of any antecedent existing right, but a reservation of a future right. Its effect, in this view, is equivocal; for the reservation of a pre­eminent right may have been a part of the bargain between these particular parties. But what is still more material, the reserva­tion is not to the plaintiffs, or to the owners of the lower dam generally, or to the ripa­rian proprietors, but simply a reservation in favor of the forge mill, then existing on the west side of the river. Its bearing, there­fore, on the present case, must be very slight, if in truth it ought to have any bear­ing at all. The acts of particular owners respecting their own rights cannot be per­mitted to bind the rights of others, unless they are adopted and acquiesced in, with full knowledge by the other parties in in­terest. The agreement of 1796 repels any such inference. The fact of the actual flow and use of the water, for a considerable length of time, is proof of a general right; and no limitations are to be presumed, un­less such limitations have constantly accom­panied the use, and been acquiesced in by those, whose interests were adverse. For a period of forty or fifty years the water did flow into the trench without any known lim­itation upon it by grant or usage. The acts of interruption, since that time, were either such as referred to the removal of tempo­rary dams, intended to increase the supply, or were under circumstances so question­able, as to leave behind them no clear traces of any admission of right, or uniform acquiescence in them, as just exercises of superior adverse interests.

I pass over any particular examination of the testimony of witnesses on this point, because it is extremely difficult to reconcile it throughout; and it is, in many respects, so loose and uncertain, that the judgment cannot repose upon it with entire confidence. It fails of establishing any solid ground, on which to rest a decree in favour of the plaintiffs of a pre-eminent light to the use of the water.

The conclusion, to which my mind has ar­rived on this point, is that the owners on Sergeant’s trench have a right to the flow of the quantity of water which was accus­tomed to flow therein antecedent to 1796; that this right is general, and not qualified by any pre-eminent right in the plaintiffs or the other owners of the lower dam, either as riparian proprietors or otherwise, to the use of the water, in case of a deficiency; that if there be a deficiency, it must be borne by all parties, as a common loss, wherever it may fall, according to existing rights; that the trench proprietors have no right to appropriate more water than belonged to them in 1796, and ought to be restrained from any further appropriation; and that the plain­tiffs to this extent are entitled to have their general right established, and an injunction granted.

It is impracticable for the court to do more, in this posture of the case, than to re­fer it to a master to ascertain, as near as may be, and in conformity with the sug­gestions in the opinion of the court, the quantity to which the trench owners are entitled, and to report a suitable mode and arrangement permanently to regulate and adjust the flow of the water, so as to pre­serve the rights of all parties.

In respect to the question of damages for any excess of the use of the water by the trench owners, beyond their right, within six years next before the filing of the bill, I have not thought it my duty to go into a consideration of the evidence. It is a fit subject, either for reference to a master, or for an issue of quantum damnifieatus, if either party shall desire it.

The decree of the court is to be drawn up accordingly; and all further directions are reserved to the further hearing upon the master’s report, &c. Decree accordingly.

Coffin et al. v. The Left Hand Ditch Company.

Messrs. Carr and Kime, for appellants.

Mr. Bichard H. Whiteley, for appellee.

Helm, J.

Appellee, who was plaintiff below, claimed to be the owner of certain water by virtue of an appro­priation thereof from the south fork of the St. Vrain creek. It appears that such water, after its diversion, is carried by means of a ditch to the James creek, and thence along the bed of the same to Left Hand creek, where it is again diverted by lateral ditches and used to irrigate lands adjacent to the last named stream. Ap­pellants are the owners of lands lying on the margin and in the neighborhood of the St. Vrain below the mouth of said south fork thereof, and naturally irrigated therefrom.

In 1879 there was not a sufficient quantity of water in the St. Vrain to supply the ditch of appellee and also ir­rigate the said lands of appellant. A portion of appellee’s dam was torn out, and its diversion of water thereby seriously interfered with by appellants. The action is brought for damages arising from the trespass, and for injunctive relief to prevent repetitions thereof in the future.

The answer of appellants, who were defendants, below, is separated into six divisions.

First. A specific denial of all the material allegations of the complaint.

Second. Allegations concerning an agreement made at the date of the construction of appellee’s ditch; by this agreement the parties constructing such ditch were to refrain from the diversion of water therethrough when the quantity in the St. Vrain was only sufficient to sup­ply the settlers thereon.

Third, fourth, fifth and sixth are separate answers by individual defendants, setting up a right to the water di­verted, by virtue of ownership of lands along the St. Vrain, and in some instances also by appropriations of water therefrom. But it nowhere appears by sufficient averment that such appropriations of defendants making the same were actually made prior to the diversion of water through appellee’s ditch.

Demurrers were sustained to all of the above defenses or answers except the first, and exceptions to the rulings duly preserved; trial was had before a jury upon the issues made by the complaint and answer as it then re­mained, and verdict and judgment given for appellee. Such recovery was confined, however, to damages for in­jury to the dam alone, and did not extend to those, if any there were, resulting from the loss of water.

We do not think the court erred in its ruling upon the demurrers, and we believe the verdict and judgment sus­tained by the pleadings and evidence.

Were we to accept appellants’ views upon the subject of water rights in this state, it would yet be doubtful if we could justify the trepass. And if the agreement were actually made, as stated in the second defense, that fact would not excuse their act in forcibly destroying appellee’s dam without notice or warning. It is sufficient upon this subject for us to say, that even if such agreement were legal and binding, and included subsequent settlers on the St. Vrain, yet appellee was entitled to notice of the insuf­ficiency of water to supply the demands of appellants; it it might then, perhaps, have complied with the agree­ment without serious injury to its property.

But two important questions upon the subject of water rights are fairly presented by the record, and we cannot well avoid resting our decision upon them.

It is contended by counsel for appellants that the com­mon law principles of riparian proprietorship prevailed in Colorado until 1876, and that the doctrine of priority of right to water by priority of appropriation thereof was first recognized and adopted in the constitution. But we think the latter doctrine has existed from the date of the earliest appropriations of water within the boundaries of the state. The climate is dry, and the soil, when moist­ened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the vari­ous streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate, or right of property. It has always been the policy of the national, as well as the territorial and state governments, to encourage the diversion and use of water in this country for agriculture; and vast ex­penditures of time and money have been made in re­claiming and fertilizing by irrigation portions of our unproductive territory. Houses have been built, and permanent improvements made; the soil has been culti­vated, and thousands of acres have been rendered immensely valuable, with the understanding that appro­priations of water would be protected. Deny the doc­trine of priority or superiority of right by priority of appropriation, and a great part of the value of all this property is at once destroyed.

The right to water in this country, by priority of ap­propriation thereof, we think it is, and has always been, the duty of the national and state governments to protect. The right itself, and the obligation to protect it, existed prior to legislation on the subject of irrigation. It is en­titled to protection as well after patent to a third party of the land over which the natural stream flows, as when such land is a part of the public domain; and it is imma­terial whether or not it be mentioned in the patent and expressly excluded from the grant.

The act of congress protecting in patents such right in water appropriated, when recognized by local customs and laws, “was rather a voluntary recognition of a pre­existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.” Broder v. Notoma W. & M. Co. 11 Otto, 274.

We conclude, then, that the common law doctrine giv­ing the riparian owner a right to the flow of water in its natural channel upon and over his lands, even though he makes no beneficial use thereof, is inapplicable to Colo­rado. Imperative necessity, unknown to the countries which gave it birth, compels the recognition of another doctrine in conflict therewith. And we hold that, in the absence of express statutes to the contrary, the first ap­propriator of water from a natural stream for a beneficial purpose has, with the qualifications contained in the constitution, a prior right thereto, to the extent of such appropriation. See Schilling v. Rominger, 4 Col. 103.

The territorial legislature in 1864 expressly recognizes the doctrine. It says: “Nor shall the water of any stream be diverted from its original channel to the detri­ment of any miner, millmen or others along the line of said stream, who may have a priority of right, and there shall be at all times left sufficient water in said stream for the use of miners and agriculturists along said stream.” Session Laws of 1864, p. 68, § 32.

The priority of right mentioned in this section is ac­quired by priority of appropriation, and the provision declares that appropriations of water shall be subordinate to the use thereof by prior appropriators. This provision remained in force until the adoption of the constitution; it was repealed in 1868, but the repealing act re-enacted it verbatim.

But the rights of appellee were acquired, in the first instance, under the acts of 1861 and 1862, and counsel for appellants urge, with no little skill and plausibility, that these statutes are in conflict with our conclusion that priority of right is acquired by priority of appropria­tion. The only provision, however, which can be con­strued as referring to this subject is § 4 on page 68, Session Laws of 1861. This section provides for the appointment of commissioners, in times of scarcity, to apportion the stream “in a just and equitable propor­tion,” to the best interests of all parties, “with a due regard to the legal rights of all.” What is meant by the concluding phrases of the foregoing statute? What are the legal rights for which the commissioners are enjoined to have a “due regard?” Why this additional limitation upon the powers of such commissioners?

It seems to us a reasonable inference that these phrases had reference to the rights acquired by priority of appro­priation. This view is sustained by the universal respect shown at the time said statute was adopted, and subse­quently by each person, for the prior appropriations of others, and the corresponding customs existing among settlers with reference thereto. This construction does not, in our judgment, detract from the force or effect of the statute. It was the duty of the commissioners under it to guard against extravagance and waste, and to so divide and distribute the water as most economically to supply all of the earlier appropriately thereof according to their respective appropriations and necessities, to the extent of the amount remaining in the stream.

It appears from the record that the patent under which appellant George W. Coffin holds title was issued prior to the act of congress of 1866, hereinbefore mentioned. That it contained no reservation or exception of vested water rights, and conveyed to Coffin through his grantor the absolute title in fee simple to his land, together with all incidents and appurtenances thereunto belonging; and it is claimed that therefore the doctrine of priority of right by appropriation cannot, at least, apply to him. We have already declared that water appropriated and diverted for a beneficial purpose is, in this country, not necessarily an appurtenance to the soil through which the stream supplying the same naturally flows. If ap­propriated by one prior to the patenting of such soil by another, it is a vested right entitled to protection, though not mentioned in the patent. But we are relieved from any extended consideration of this subject by the decision in Broder v. Notoma W. & M. Co., supra.

It is urged, however, that even if the doctrine of pri­ority or superiority of right by priority of appropriation be conceded, appellee in this case is not benefited thereby. Appellants claim that they have a better right to the water because their lands lie along the margin and in the neighborhood of the St. Vrain. They assert that, as against them, appellee’s diversion of said water to irrigate lands adjacent to Left Hand creek, though prior in time, is unlawful.

In the absence of legislation to the contrary, we think that the right to water acquired by priority of appropria­tion thereof is not in any way dependent upon the locus of its application to the beneficial use designed. And the disastrous consequences of our adoption of the rule con­tended for, forbid our giving such a construction to the statutes as will concede the same, if they will properly bear a more reasonable and equitable one.

The doctrine of priority of right by priority of appro­priation for agriculture is evoked, as we have seen, by the imperative necessity for artificial irrigation of the soil. And it would be an ungenerous and inequitable rule that would deprive one of its benefit simply because he has, by large expenditure of time and money, carried the water from one stream over an intervening watershed and cul­tivated land in the valley of another. It might be utterly impossible, owing to the topography of the country, to get water upon his farm from the adjacent stream; or if possible, it might be impracticable on account of the dis­tance from the point where the diversion must take place and the attendant expense; or the quantity of water in such stream might be entirely insufficient to supply his wants. It sometimes happens that the most fertile soil is found along the margin or in the neighborhood of the small rivulet, and sandy and barren land beside the larger stream. To apply the rule contended for would prevent the useful and profitable cultivation of the productive soil, and sanction the waste of water upon the more ster­ile lands. It would have enabled a party to locate upon a stream in 1875, and destroy the value of thousands of acres, and the improvements thereon, in adjoining val­leys, possessed and cultivated for the preceding decade. Under the principle contended for, a party owning land ten miles from the stream, but in the valley thereof, might deprive a prior appropriator of the water diverted there­from whose lands are within a thousand yards, but just beyond an intervening divide.

We cannot believe that any legislative body within the territory or state of Colorado ever intended these conse­quences to flow from a statute enacted. Yet two sections are relied upon by counsel as practically producing them. These sections are as follows:

“All persons who claim, own or hold a possessory right or title to any land or parcel of land within the boundary of Colorado territory, * * * when those claims are on the bank, margin or neighborhood of any stream of water, creek or river, shall be entitled to the use of the water of said stream, creek or river for the purposes of irrigation, and making said claims available to the full extent of the soil, for agricultural purposes.” Session Laws 1861, p. 67, § 1.

“Nor shall the water of any stream be diverted from its original channel to the detriment of any miner, millmen or others along the line of said stream, and there shall be at all times left sufficient water in said stream for the use of miners and farmers along said stream.” Latter part of § 13, p. 48, Session Laws 1863.

The two statutory provisions above quoted must, for the purpose of this discussion, be construed together. The phrase “along said stream,” in the latter, is equally comprehensive, as to the extent of territory, with the ex­pression “on the bank, margin or neighborhood,” used in the former, and both include all lands in the immediate valley of the stream. The latter provision sanctions the diversion of water from one stream to irrigate lands ad­jacent to another, provided such diversion is not to the “detriment” of parties along the line of the stream from which the water is taken. If there is any conflict be­tween the statutes in this respect, the latter, of course, must prevail. We think that the “use” and “detri­ment” spoken of are a use existing at the time of the diversion, and a detriment immediately resulting there­from. We do not believe that the legislature intended to prohibit the diversion of water to the “detriment” of parties who might at some future period conclude to settle upon the stream; nor do we think that they were legislating with a view to preserving in such stream suffi­cient water for the “use” of settlers who might never come, and consequently never have use therefor.

But “detriment” at the time of diversion could only exist where the water diverted had been previously ap­propriated or used; if there had been no previous appro­priation or use thereof, there could be no present injury or “detriment.”

Our conclusion above as to the intent of the legislature is supported by the fact that the succeeding assembly, in 1864, hastened to insert into the latter statute, without other change or amendment, the clause, “who have a priority of right,” in connection with the idea of “detri­ment” to adjacent owners. This amendment of the statute was simply the acknowledgment by the legisla­ture of a doctrine already existing, under which rights had accrued that were entitled to protection. In the language of Mr. Justice Miller, above quoted, upon a different branch of the same subject, it “was rather a voluntary recognition of a pre-existing right constituting a valid claim, than the creation of a new one.”

Error is assigned upon alleged defects in the proof of appellee’s incorporation.

But this is an action of trespass; the defendants below were, according to the verdict of the jury, and according to the views herein expressed, wrong-doers; and, con­sidering the nature of the action, we think the proof of incorporation sufficient.

The judgment of the court below will be affirmed.

Affirmed.