plaintiff's premises. After his death in 1850, the sinking of the shaft (which is 138 yards deep) was completed by the defendant. The defendant set the engine to work at the engine-pit in August 1850, and continued to work the coal mines up to the present time. All the water is pumped from the mine at the engine-pit, and the water so pumped is delivered on to the land of the plaintiff by means of a tunnel, at a point two feet eleven inches above the flow of the bleach-works. The water so delivered is About the end of the year strongly impregnated with iron. The arbitrator found that the defendant, by sinking the shaft and working the coal mine as above stated, did divert and withdraw the water of and from the said springs numbered respectively 2, 3, 4, 5, 6, 7, and did thereby prevent the water of the said springs respectively from coming and flowing to the said Lower Lodge in the manner hereinbefore described, and caused the water in the said lodge to fail as before stated. The question for the opinion of the Court is, whether, upon the facts above stated, the plaintiff is in law entitled to maintain this action. Monk (Manisty with him), for the plaintiff.-It is found as a fact that at the time the lease of the 7th April, 1827, was granted, these springs were on the demised premises and had been for more than twenty years used for bleaching purposes. The plaintiff claims them under that lease: the 1858. WHITEHEAD v. PARKS. 1858. WHITEHEAD v. PARKS. defendants justify the abstraction of the water under a demise to them of coal mines, by the same lessor, in 1829. It is necessary, therefore, to see what right to water was granted by the lease of the 7th April, 1827, in order to ascertain what was left in the lessor. That lease granted "all streams of water that may be found" in the four closes of land therein named. That means all the streams which may be found during the subsistence of the lease. The language of the reservation, if doubtful, must be construed against the lessor. The lease would have passed all the then existing water without express words for that purpose. A demise of land for a term of years includes everything which is necessary for its enjoyment. The right to water is limited to that found in the four closes; and but for the exception the whole of the water would have passed. The intention was to grant the water of those closes for bleaching purposes, and to reserve to the lessor the water in the other closes. It is true that the lease contains a power for the lessor "to divert or alter the course of any river, brook, spring, or water;" but if that power be construed literally it is void as repugnant to the grant. If the lessor has power to divert the water in any manner he pleases, he may remove it altogether, or return it in a condition unfit for any use. The diversion must be such as to leave the subject-matter of the grant capable of enjoyment: Harris v. Ryding (a). The case finds that the water was abstracted by the defendants, and returned in a state unfit for the purposes of bleaching; therefore, even if the power of diverting is not confined to the excepted streams, it does not justify the abstraction.— Then, as to springs No. 6 and 7: assuming that the words in the lease, "all streams that may be found," do not extend to streams not in existence at the time the lease was (e) 5 M. & W. 60. granted, nevertheless, without those words, the plaintiff is entitled to all the water which comes to the surface of the four closes during the term, either by the operation of nature or the act of man: it is the same as if there had only been an exception of the water in certain specified closes. T. Jones (with whom were Knowles and Atherton), for the defendant. The first point is, whether, by virtue of the lease of 1827, the plaintiff is entitled to the waters of the springs in the closes in question against the Earl of Derby, under whom the defendant claims. At the time of the granting of the lease some of the springs in question were known and used as springs. Others have since been discovered. There were also the brook and the lodges. The lease does not in terms grant the springs. There was a stream at the time of the lease to satisfy the words of the demise. The grant of "all streams that may be found" is a grant of the superficial streams, and may include all streams that might thereafter be formed and made to flow into the brook. But the defendant has not diverted any stream from the surface. The lease expressly reserves mines and all streams of water, except those above mentioned and specifically granted, with power to the lessor and his assigns to enter upon the premises and get the minerals and to divert any spring. The lessee therefore took the lease subject to the risk of boring the springs by mining operations. That is the true construction of this lease. Were it otherwise, the interpretation would be contrary to the express words of the reservation. The plaintiff is in the same position as any other persons having water rights which are or may be affected by subterraneous operations. The rights of such persons were defined in Chasemore v. Richards (a). [Martin, B., referred to Northam v. Hurley (b).] (a) Antè, p. 168. (b) 1 E. & B. 665. 1858. WHITEHEAD 0. PARKS. 1858. WHITEHEAD ". PARKS. It is unreasonable to suppose that Lord Derby intended to exclude himself from mining under these premises, as practically he has if the plaintiff's contention is well founded. Harris v. Ryding (a) has no application, because it is not found that the mines were not worked in a reasonable manner. POLLOCK, C. B.-In the case of Northam v. Hurley (b) it was settled that, where rights to water are created under a deed, the Court cannot take into consideration what are the rights which the parties would have had as riparian proprietors or otherwise; but the nature and extent of their interest must be regulated wholly by the deed. Here the defendant is in the same position as Lord Derby, and, as his lessee, could not derogate from that which he had granted. It appears to me that if Lord Derby intended to reserve that which is claimed, he should have done so by expressions shewing that he intended to interfere with the springs under the closes in question. The defendant, however, says that Lord Derby, having granted a certain farm "and all streams of water that may be found" in four closes part thereof, "except out of this demise all mines, minerals, &c., and all streams of water, except those above granted, now being or hereafter to be found in or upon the premises," with power "to divert or alter the course of any river, brook, spring, or water," must be understood to have reserved a power of working the mines reserved, notwithstanding the streams should be interfered with by the mining operations; and that for such interference he and his tenants should not be responsible. If we could collect that, with the reservation of the mines, he reserved all that was necessary or convenient for working the mines, we might so construe the deed. But, here, the terms of (a) 5 M. & W. 60. (b) 1 E. & B. 665. the deed are plain, and Lord Derby could have had no right, after having granted the springs in question to Woodcock and his assigns, to take away such springs in order that his mines might be effectually worked. The arbitrator has found that the defendant has taken water which was within the range of the premises demised, and within which all springs were granted. The plaintiff therefore is entitled to our judgment. MARTIN, B.-I am of the same opinion. Lord Derby granted to Woodcock all the water which might be found on the closes in question. Lord Derby cannot derogate from his grant, and the defendant, his lessee, is in the same position. Northam v. Hurley (a) decided for the first time. what appears to me to be clear, viz., that if, upon a question of water rights, there is an agreement by deed, such deed will regulate the rights of the parties. Now, at the time of the execution of this lease, there was only one stream in the four closes to which I am about to refer. There were several places where water collected, but only one stream in the ordinary acceptation of the term. The Earl demises to Woodcock about fifteen closes of land with "all streams of water that may be found in the closes of land called the Clough, the Moorin Clough, the Brow and the Marleds." Looking at the surrounding circumstances, I should say that the words do not refer to surface streams, because there were none except Elton Brook on the property. "All streams" means "all water in the closes in question." The demise is really a demise of the springs. The water to which Woodcock was to be entitled was of the same character as that to which Lord Derby was to be entitled in other parts of the premises in which he reserves to himself "all streams of water except those above granted, now (a) 1 E. & B. 665. 1858. WHITEHEAD v. PARKS. VOL. II.-N. S. 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