tice, quoting from City of Philadelphia v. Collins, supra, says:

"Every individual residing upon the banks of a stream has a right to the use of the water to drink and for the ordinary uses of domestic life; and where large bodies of the people live upon the banks of a stream, as they do in large cities, the collective body of the citizens has the same right, but, of course, in a greatly exaggerated degree."

And again quoting from City of Philadelphia v. Com'rs of Spring Garden, 7 Pa. 348:

"The inhabitants of the district might have lawfully dipped, from the margin of the pool, water enough for their several necessities; but instead of drawing it by hand they have combined their funds to produce a cheaper and better transportation."

Continuing, he says:

"There can be no such thing as ownership in flowing water; the riparian owner may use it as it flows; he may dip it up and become the owner by confining it in barrels or tanks, but, so long as it flows, it is as free to all as the light and the air. It follows, from what has been said, that dwellers in towns and villages watered by a stream may use the water as well as the riparian owner, provided they have access to the stream by means of a public highway."

In the early case of Evans v. Merriweather, 3 Scam. (4 Ill.) 492, at page 495 (38 Am. Dec. 106), a case cited in nearly all the later authorities, we find the following language:

"It is proper to consider the wants of man in regard to the element of water. These wants are either natural or artificial. Natural are such as are absolutely necessary to be supplied, in order to his existence. Artificial, such only, as by supplying them, his comfort and prosperity are increased. quench thirst, and for household purposes, water is absolutely indispensable. In civilized life, water for cattle is also necessary. These wants must be supplied, or both man and beast will perish. The supply

To

of man's artificial wants is not essential to his existence; it is not indispensable; he could live if water was not employed in irrigating lands, or in propelling his machinery.”

In Barre Water Co. v. Carnes, 65 Vt. 626, at page 629 (27 Atl. 609, at page 610, 21 L. R. A. 769, 36 Am. St. Rep. 891), it is said:

"Dwellers in towns and villages watered by a stream may use the water for domestic purposes to the same extent that a riparian owner can, provided they can reach the stream by a public highway or secure a right of way over the lands of others. It is immaterial how the dwellers on the stream take the water for the purposes for which they may lawfully use it. They can drive their cattle to the stream and allow them to quench their thirst, and can carry water in pails to their homes; or each individual can carry the water in a pipe to his dwelling for such use, provided he can secure a right of way for that purpose; or the dwellers on the stream may combine their funds to procure cheaper and better transportation by means of a pipe, and may use the water for their several necessities to the same extent that they could if it flowed past their dwellings in a natural channel."

The case of City of Elgin v. Hydraulic Co., 85 Ill. App. 182, is in point. There it is said, at page 193 of 85 Ill. App., quoting from City of Auburn v. Power Co., 90 Me. 576 (38 Atl. 561, 38 L. R. A. 188):

"Health is of more importance than wealth, and cleanliness is next to godliness; and we hold that the right of the people to an abundant supply of pure water, by which their health and cleanliness may be secured, is paramount to the right of millowners to have the water for propelling their machinery, and that, to the extent that the two rights conflict, the latter must yield."

Continuing, the court said:

"We are therefore of opinion that the right of the public residing along Fox river to take water out of the same for domestic, sanitary, and fire purposes is

paramount to the right of the owners of said water power to use the same for the purpose of propelling the machinery of their mills."

See, also, Watuppa Reservoir Co. v. City of Fall River, 147 Mass. 548 (18 N. E. 465, 1 L. R. A. 466).

In 1902 the supreme court of the State of Ohio passed upon the question in City of Canton v. Shock, 66 Ohio St. 19, at page 31 (63 N. E. 600, at page 603; 58 L. R. A. 637, 90 Am. St. Rep. 557), where the court said:

"From the earliest dawn of history to the present time, the primary use of water has been for domestic purposes, and its secondary use for the purposes of power. People on the upper stream have the right to quench their thirst, and the thirst of their flocks and herds, even though by so doing the wheels of every mill on the lower stream should stand still. Pennsylvania R. Co. v. Miller, 112 Pa. 34, 41 [3 Atl. 780]. And the same right in the use of water as to quenching thirst extends to all uses for domestic purposes; and the rights of a lower proprietor to the use of the waters of a stream for power purposes is subject to the superior right of all upper proprietors for domestic purposes, and must yield thereto. All water powers of a stream are established subject to the superior right of all upper proprietors to use water out of the stream for domestic purposes; and if the upper proprietors have grown so large, or become so numerous, as to consume most or all of the water, the lower proprietors have no cause of complaint, because it is only what they should have reasonably expected in the growth and development of the country, and subject to which contingency they established their water powers."

The supreme court of Minnesota has reached the same conclusion in Minneapolis Mill Co. v. Water Com'rs, 56 Minn. 485. At pages 489, 490 (58 N. W. 33, at page 34), the court there said:

"The plaintiffs are riparian owners on a navigable or public stream, and their rights as such owners are subordinate to public uses of the water in the stream.

And their rights under their charters are, equally with their rights as riparian owners, subordinate to these public uses. There can be no doubt but that the public, through their representatives, have the right to apply these waters to such public uses without providing for or making compensation to riparian owners. The navigation of the stream is not the only public use to which these public waters may be thus applied. The right to draw from them a supply of water for the ordinary use of cities in their vicinity is such a public use, and has always been so recognized. At the present time it is one of the most important public rights, and is daily growing in importance as population increases. The fact that the cities, through boards of commissioners or officers whose functions are to manage this branch of the municipal government, charge consumers for water used by them, as a means for paying the cost and expenses of maintaining and operating the plant, or that such consumers use the water for their domestic and such other purposes as water is ordinarily furnished by city waterworks, does not affect the real character of the use, or deprive it of its public nature. In thus taking water from navigable streams or lakes for such ordinary public uses, the power of the State is not limited or controlled by the rules which obtain between riparian owners as to the diversion from, and its return to, its natural channels. Once conceding that the taking is for a public use, and the above proposition naturally follows."

This case was affirmed on appeal to the Supreme Court of the United States. See St. Anthony Falls Power Co. v. Water Com'rs, 168 U. S. 349, at page 371 (18 Sup. Ct. 157, at page 166). Mr. Justice Peckham, writing the opinion of the court, says:

"We are of opinion that the true construction of these territorial charters does not give such contract rights as are claimed by the plaintiffs in error. They were grants of power to the respective companies, under which they were licensed to build their dams out into the river for the purpose of utilizing the power, and of using the water that flowed down the river. These grants were in legal effect subject at

all times to the paramount right of the State as trustee for the public to divert a portion of the waters for public uses, and they were also subject to the rights in regard to navigation and commerce existing in the general government under the Constitution of the United States. * * There was no contract, by virtue of these charters, that the companies should always and for all time be entitled to all the natural flow of the water in the river, without regard to the right of the State, as above mentioned. The claim made by the companies seems to us most extravagant. The State or any particular subdivision thereof, acting under its authority, would, if these claims were valid, be forever thereafter prevented from using any portion of the waters of the river for any public purpose, unless compensation for such use were first made these plaintiffs. This construction of the meaning of the charters assumes the power of a territorial or State legislature to bind future legislatures in dealing with these public rights, and it prevents the latter from providing for the use of any portion of the waters for public purposes of the most important character without first making compensation to the plaintiffs for that use. If we should assume the validity of an act of the legislature of such a character (which, under the decision of this court in Illinois Central Railroad v. Illinois, 146 U. S. 387 [13 Sup. Ct. 110], is at least doubtful), it is clear that we ought not to adopt a construction leading to that result, unless the legislative act be plain and beyond all doubt. We are of opinion that these particular charters of the plaintiffs are not to be thus construed. The sections of the acts which are material upon this point simply authorize the companies to maintain their dams and sluices, and permit them to construct and maintain other dams, etc., for the purpose of manufacturing, or for improving any water power owned or possessed by the companies, in such manner or to such extent as shall be authorized by the directors. But there is no language in the acts providing that the companies shall thereafter and always have the right to the use of all the natural flow of the water down the river. Nor is such right a necessary and legal consequence of the language used. They may

185 Mich.-30.