Definition
"Diverting and turning a stream of" is a term of art from common law pleading, describing the specific wrongful act alleged in a declaration or complaint where a defendant has interfered with a watercourse to the plaintiff's detriment. The phrase appeared as a formal averment in actions on the case brought by riparian landowners or mill operators against upstream or neighboring parties who altered the natural flow of a stream, river, or watercourse — whether by damming, channeling, draining, or otherwise deflecting the water away from the plaintiff's land or use.
The phrase is not a standalone cause of action but rather the operative factual allegation within a pleading. A declaration charging this wrong typically named the watercourse, described the plaintiff's lawful right to its flow, and then averred that the defendant, wrongfully and injuriously, "diverted and turned" the stream so that it no longer ran in its natural channel to the plaintiff's benefit. Damages alleged commonly included loss of use of a mill, loss of irrigation, flooding of adjacent land, or deprivation of a water supply.
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Common Language
Modern common usage (Wiktionary): "Divert" means to turn aside from a course or purpose; "stream" refers to a body of flowing water or any continuous flow.
Historical common usage (Webster's 1913): "To divert" — to turn aside; to deflect from a course. "Stream" — a current of water or other fluid flowing continuously.
The ordinary sense of diverting a stream is physically accurate as far as it goes, but the legal phrase carried additional weight: it signaled a specific pleading convention with procedural consequences. In common speech one might divert a stream for entirely lawful purposes; in the legal formula, the word "wrongfully" or the surrounding pleading context imported the element of unlawfulness. Researchers should not read the phrase as merely descriptive — it was a term of art that triggered particular rules about sufficiency of declaration and what evidence was admissible.
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Why It Matters in Research
This phrase is primarily encountered in pre-twentieth-century common law pleading records — reported cases involving mills, irrigation, drainage disputes, and early industrial water use. Researchers working in English reports from the seventeenth through nineteenth centuries and in early American state court decisions will find the phrase used as a stock allegation. Its presence in a declaration signals an action on the case for interference with a watercourse, as distinct from trespass quare clausum fregit or trespass vi et armis.
Several research traps apply. First, the phrase appears in indexed digests under "Water" or "Watercourse" rather than under the word "divert," so searching by the phrase itself in older digest systems may yield incomplete results. Second, the pleading sufficiency of the averment varied by jurisdiction and period: some courts required the plaintiff to name the specific watercourse; others permitted a general description. Third, the underlying substantive right — riparian entitlement to natural flow — was itself contested throughout the nineteenth century, particularly in American western states adopting prior appropriation doctrines. A declaration using this formula in an eastern riparian jurisdiction carried different legal freight than the same words used (anachronistically or imprecisely) in an appropriation-doctrine context.
Researchers should also note that this phrase frequently co-occurs in the reports with related pleading terms such as "divers days and times," "divers other days and times," and water-related submissions — all of which appear in the same section of Rapalje & Lawrence. This clustering reflects how common law pleaders assembled standard averments, and those companion phrases are worth tracking when reconstructing the full structure of a historical declaration.
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Historical Dictionary Support
Rapalje & Lawrence treat this phrase in their water and pleading entries with characteristic brevity, offering a citation to 6 Price 1 as authority for its use in a declaration concerning water. The entry appears alongside a cluster of pleading-formula terms ("divers days and times," "divers months," "divers other days and times"), reflecting the editors' organization of stock declaration phrases as a distinct category of legal vocabulary.
The citation to 6 Price (English Exchequer reports) roots the phrase firmly in early nineteenth-century English pleading practice. The historical dictionaries do not elaborate on the substantive water law underlying the pleading formula, which is a meaningful gap: the phrase is defined procedurally, but its legal force depended entirely on the substantive riparian rights doctrine that the dictionaries leave unaddressed. Researchers relying solely on Rapalje & Lawrence for this entry will understand what the phrase does in a declaration but not why the underlying right existed or how it was contested.
No significant divergence among historical sources is traceable here, given the single-source record available. The phrase appears to have been stable in form across the period of common law pleading's dominance.
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Jurisdictional Note
This phrase belongs to the era of common law pleading and has no operative role in modern code pleading jurisdictions. Its historical significance is concentrated in English common law courts and early American state courts (particularly eastern states following riparian doctrine). Western American jurisdictions adopting prior appropriation largely displaced the riparian framework within which this pleading formula made sense.
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