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Show 694 TENNESSEE owner unless he has legally acquired the right to do so.25 But the right to maintain a dam on a stream does include the right to pass floodwaters through the dam in the same quantities as flow into it.26 With respect to the use of dams in conjunction with the construction of mills, the Tennessee court has stated that it is the policy of the State to encourage mills,27 and to aid in the construction of a public mill, an individual who has land on one side of a stream is, by act of the legislature, entitled to condemn 1 acre of land on the other side of the stream for an abutement for a milldam.28 As noted above, the right of a riparian owner extends to quality as well as quantity, and the owner of a mine has been held liable for damages for dump- ing water from his mine into the stream and rendering the stream unfit for the domestic and manufacturing use of a lower riparian owner.29 B. NATURE Or THE EIGHT The Tennessee Supreme Court has said that while the riparian landowner is entitled to make a reasonable use of the water, he acquires no property in the corpus of the water itself. Rather, the nature of the property right in the flowing water is the right to use the flowing water, known as a usufructuary right. The rights of all riparian landowners in a stream are generally coequal, but, while the first landowner gains no "priority" by being first in time, the court has said that the first landowner using the stream for a bene- ficial purpose in a reasonable manner has the continued right to do so, even though such use forecloses certain uses to lower landowners.30 Balanced against this is language to the effect that one riparian land- owner cannot use the water of a lake or stream in such a manner that it will deprive another riparian landowner of his coequal use of the water in its natural condition.31 C. DAMS AND OBSTRUCTIONS The lower landowner has no right to dam or otherwise retard the stream in such a manner that it will overflow upstream lands without acquiring a right for this purpose.32 However, rights to flood an upper landowner may be acquired, not only with the consent of the upper landowner, but also where past usage and the conduct of the parties justify it, under principles of prescription or estoppel. Thus, maintenance of a dam across a stream which floods the lands of an- other for a period of 20 years, where the use was open, notorious, and under a claim of right, will result in prescriptive easement in favor of the owner of the dam.33 Also, where a landowner verally agrees that the dam of another may flood his property and further 25 Tennessee Electric Power Go v. Robinson, 8 Tenn, App. 396 (1928). ^DeKalb County v. Tennessee Electric Power Co., 17 Tenn. app. 343, 67 S.W. 2d 555 (1933). 27 Irwin v. Brown, 3 Tenn. 309 (Shannon 1889). 28 Tenn. Code Ann. sees. 43-2201 to 43-2226. 29 H. B. Bowling Coal Co. v. Ruffner, 117 Tenn. 180, 100 S.W. 116 (1907) ; Summer v. O'Dell, 12 Tenn. app. 496 (1930). so Cow v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901) ; Webster v. Harris, 111 Tenn. 668, 69 S.W. 782 (1902). « Webster v. Harris, 111 Tenn. 668, 69 S.W. 782 (1902) ; Cox v. Howell, 108 Tenn. 130, 65 S.W. 868 (1901). 32 Harmon v. Carter, 59 S.W. 656 (1900); Neal v. Henry, 19 Tenn. 17 (1838); Webster v. Fleming, 21 Tenn. 518 (1841). 33 Smelcer v. Rippetoe, 24 Tenn. app. 516, 147 S.W. 2d 109 (1941). |