throw down my own Fence; tho’ my Neighbour’s Land be thereby overflowed, l. 21. ff. de aqua pluvia. And therefore, seeing the Ground doth belong toHaining, and that the Fishers of Tweed have no Servitude upon him, he may use his own as he pleases, especially seeing he doth not immediately send hisWater into Tweed. But into another Rivulet, which carries it very far before it doth disgorge there. So that if the Fishers uponTweed did prevail against Haining, they might likewise prevail against all from whose Ground any Moss-water runs into Tweed, tho’ at Fifty Miles distance; and they may forbid all the Towns from which anyWater runs intoTweed, to throw in any Excrements, or any Water employ’d in Dying, lest it prejudge their Salmon-fishing; whereas, Alteri prodesse, ad liberalitatem, non ad justitiam pertinent [sic]. It is (My Lords) referr’d to your Consideration, that public Rivers have been very wisely by Providence, spread up and down theWorld, to be easie, and natural Vehicles for conveying away to the Sea, (that great Receptacle of all Things that are unnecessary) Excrements, and other noxiousThings, which would otherwise have very much prejudged Mankind; and that they may the better perform this Office, Providence has bestow’d upon Rivers a purifying and cleansing Quality, so that after a littleTime, and a very short Course, all that is thrown in there, doth happily lose their noxious Nature, which is wash’d off by the Streams by which they are carried. Rivers are Nature’s High-ways byWater, and we may as well forbid to carry anyThing that smells ill, upon our High-ways by Land, as we may forbid to throw in stinking Waters into our Rivers. The proper Use of Rivers is, that they should be portable, and fit for Navigation, or for transporting Things from one Place into another; and Salmonfishing is but an accidental Casuality, and therefore the only Interdicts or Prohibitions propon’d by the Law, relating to public Rivers are, ne quid in flumine ripave ejus fiat, quo pejus navigetur, tit. 12 lib. 53, and, ut in flumine publico navigare liceat, tit. 14. ff. eod. lib. But in Rivers that are not navigable, the Law has forbidden nothing, but that their Course and natural Current be not alter’d,Ne quid in flumine publico fiat, quo aliter fluat aqua, atque uti priore estate fluxit, tit. 13, ibidem. So that since the Law doth not forbid the throwing in any Thing into public Rivers, it doth allow it; for it is free for every Man to do what the Law hath not prohibited:And if upon such capricious Suggestions as these.Men were to be restrain’d from using their own, no Man should ever adventure to drain his Land, to open Coal-sinks, or Lead-mines,or to seek out any alan wat s on 341
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