Judgments affirmed
reversed
Venire de novo
Struck out

On the 9th November the customary ceremony takes Appeals: place of the presentation of the lord mayor of London to the barons of the Court of Exchequer; and on the morrow of St. Martin (12th November), on the assembling of the council in the Court of Exchequer, the nomination of the sheriffs for England and Wales takes place.

Returns of the proceedings into the court of error, Exchequer Chamber, have been made by the Masters of each of the three superior courts of common law, in the same form as the returns furnished by them for each of the last three years, and shew the proceedings from each court to have been as follows for 1865:

Remanets and standing for judg

ment

8

8

22

5

5

The statements furnished by the Masters, shewing the receipts to the Suitors' Fund and the amount of fees levied, prove an increase in 1865, as compared with the preceding year, amounting with regard to the former to 214 per cent., and with regard to the latter to 7 per cent., following an increase of 416 per cent. in the receipts to the fund, and of 8.1 per cent. in the amount of fees levied in 1864, as compared with the amounts in 1863.

The following are the amounts for each of the courts, shewing the receipts and payments and the balances for 1865, with the totals, and the totals for the preceding year :

and CHARLES EDWARD POLLOCK, Esqrs., of the Inner Temple, A TREATISE on MARTIAL LAW, as allowed

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15

THE JURIST.

LONDON, SEPTEMBER 15, 1866.

OCCASION was recently taken in this journal to call attention to a branch of the law of watercourses, relating to the persons in whom the right to the use of a stream does or may reside. It is now proposed to examine another branch of the same subject, relating to the kind and mode of enjoyment which is permitted to a riparian owner; and it will, we think, be found that the judicial statements on this subject, though apparently clear and positive, cannot be considered as an adequate exposition of the law.

It will be convenient first to state what has been said in some cases as to riparian rights in general. In the case of Bealey v. Shaw (6 East, 214) it was laid down by Lord Ellenborough, that "the general rule of law as applied to this subject is, that (independent of any particular enjoyment used to be had by another) every man has a right to have the advantage of a flow of water in his own land without diminution or alteration."

. . if the user by the defendant has been beyond his natural right, it matters not how much the plaintiff has used the water, or whether he has used it at all; in either case his right has been equally invaded, and the action is maintainable. The question between the parties is thus reduced to this single point— has the defendant used the water as any riparian owner may use it, or has he gone beyond that?" Here, the fact of the plaintiff's artificial use of the stream is taken into consideration, and this right of use is made the basis of his right to have the flow unaltered; but the question is made to turn not on the actual, but the potential use, or the right to use. The stream is treated as something which the landowner, though he has no property in it, has a right to use as part of his interest in the land, and he has a right of action against any person who diminishes the value of his property by taking away the power of having this benefit in so ample a manner as he otherwise could. As against a higher owner, in fact, the lower owner is entitled to have the use of the stream for all possible purposes, though unlawful towards those having land still further down its course.

For although in the case cited the plaintiff, in fact, appeared to have acquired, by immemorial usage, the right as against the lower owner to irrigate from the stream (which is a right that, it is conceded, does not, without special title, belong to a riparian owner), and it was of the interruption of this irrigation that he complained; yet in an action against the higher owner, this right was treated as immaterial with

by the user, he was not a person against whom it could create a prescriptive right in the lower owner to have the water for irrigation. The plaintiff's claim, therefore, depended on the general right to have the water for all purposes whatever, and the defendant's corresponding duty not to interfere with his use or capacity to use it; and it would equally have prevailed had his own act of irrigation been wrongful.

It is to be observed that this states, in general terms, the right of every owner of land traversed by a watercourse to have the stream flow to his land in an unaltered condition; and from this it would strictly follow, that if, by the act of a higher owner, the condition of the stream as it enters the land of the lower owner is in any respect altered, a cause of action has arisen. It is further to be observed, that the state-reference to him; for, since he was unaffected, in fact, ment takes no account of the mode of use of the stream by the lower owner; it is enough if the stream is altered by his neighbour above; and although, by turning the stream to artificial purposes, it may be rendered more valuable, and its use to the same extent more liable to interruption, yet it is conceivable that its utility merely in its natural condition, acting in and through its customary bed, may, by any mode of altering the stream, be in some degree affected. The conclusion above noticed as following from the dictum in the case of Bealey v. Shaw was stated, but with some hesitation, in Mason v. Hill (5 B. & Ad. 27), in these words:-"It must not be considered as clear that an occupier of land may not recover for the loss of the general benefit of the water, without a special use or special damage shewn." Here, the fact which was not taken account of in the citation from Bealey V. Shaw is noticed and referred to; the fact, namely, of the use to which the water is put by the acts of the landowner, as distinct from the natural benefits conferred by it; and the case intimates, contradicting the view acted upon in Liggins v. Inge (7 B. & Cr. 682), that the use to which the plaintiff may have put the water is immaterial, and that his right of action is founded on his right to have the flow unaltered. In Sampson v. Hoddinott (1 C. B., N. S., 590) it is laid down as follows:-"It appears to us, that all persons having land on the margin of a flowing stream have, by nature, certain rights to use the water of the stream, whether they exercise those rights or not; and that they may begin to exercise them whenever they will;

Having arrived at this point, let us return and notice that there are two things to be considered—the restraint and the enjoyment. The duty imposed on the higher owner not to interrupt or alter the stream in its passage to the lower land is not imposed for no purpose, but is founded on the fact, that it is useful to the lower owner to have the stream flow in its usual manner. The duty, therefore, might be expected to vary according to the use on which it is founded; that is, according to whether it is founded on the benefit conferred on the land by the mere flow of the stream in its natural condition, or on the benefit which may be obtained by an artificial use of it; for the right of enjoyment, that is, the legally protected use, ought to be the measure of the duty, that is, of the restraint, imposed by law for the purpose of this protection. If, then, any particular alteration would affect the artificial, but not the natural, use, it would or would not be an injury, according as the natural or the artificial use, or capability of use, was taken as the protected enjoyment. The case just cited makes the latter the test and measure of the duty, and treats every act as wrongful by which it is rendered impos