130 BINNEY'S CASE.—2 BLAND.

respects, precisely similar, which Act, after constituting certain
persons a body politic, by the name of The Proprietors of the Sus-
quehanna Canal, for the purpose of constructing a canal as de-
scribed, declares, that "it is necessary for the making the said ca
nal, and erecting grist-mills and other water-works thereon, that
provision should be made for condemning a quantity of land not
exceeding two hundred acres." Audit then proceeds to enact ac-
cordingly. 1783, eh. 23, s. 6. But in this Act incorporating The
Potomac Company, no such provision had been made in any form.
And it is also worthy of remark, that the eleventh section of the
Act incorporating The Pocomoke Company, 1796, ch. 17, appears
to have been copied verbatim from the thirteenth section of the
Act incorporating The Potomac Company, neither of which con-
tains any provision for erecting water-works similar to that of the
Act incorporating the Proprietors of the Susquehanna Canal.

Much has been, said about the surplus water and the waste
water of the canals of The Potomac Company, as evidence of its
being the intention of this law, that the adjacent and riparian
owners of the land should be allowed to draw such a quantity of
water from it as might be necessary for any mill they might wish
to erect; and of * the right to such waters, which the owners
138 of the land over which they have been suffered to flow, have
acquired by a kind of prescription. _ It must be recollected, how-
ever, that the phrases "surplus water" and "waste water" are no
where to be found in the Act incorporating The Potomac Company;
and that, in using those expressions, facts are referred to, which
are not mentioned at all in that law.

It appears, among the circumstances of this case, that the canal
winch this plaintiff has claimed the right so seriously to incumber,
if not to destroy as a navigable passage, by drawing off its waters
to mills, has not been in any manner protected at its upper entrance
from the wild, ungovernable river, with which it is connected; the
freshets of which rise from fifteen to thirty feet above its low sum-
mer level. In consequence of which, the canal, like its fountain,
the river, has its seasons of bursting fullness and of comparatively
low, small volume. Left so exposed to the violences of the river,
it is by no means extraordinary that there should be in the canal
a multitude of leaks, cracks, and rents, from which great sluices of
water are continually gushing out. These escapes from the canal
may well enough be called "waste water;" and they afford very
satisfactory evidence of the improper exposure and imperfect struc-
ture of the canal; but it seems to be a mistake to summon them up
as proofs of there being a regular amount of "surplus water" in it,
sufficient for mills. They are facts, which prove, that the canal
has been very rudely and injuriously intruded upon by the river,
for want of guard-locks at its upper entrance, and nothing more.
Indeed, so far from affording any evidence that the canal has a