That such a way of necessity will pass where the owner of two closes, one of which can only be reached by the other, devises them to two different persons, see Pearson v. Spencer, 3 B. & S. 761; and as to the right of grantor to select one of several ways, see Bolton v. B., 11 Ch. D. 968.

As to an implied grant of a right of way, see Espley v. Wilkes, L. R. 7 Ex. 298; and see Brown v. Alabaster, 37 Ch. D. 490, where a right of way over a formed road leading to a gate, useless without the way, was held to pass; and as to the application of the doctrine of implied grant to a right of way, see Tawes v. Knowles, 39 W. R. 512.

In order to support a right of way by prescription there must have been a user raising a reasonable inference of continuous enjoyment: Hollins v. Verney, 13 Q. B. Div. 304; where the right is claimed by virtue of forty years' enjoyment under the Prescription Act, the time during which the servient tenement has been vested in a tenant for life cannot be deducted: Symons v. Leaker, 15 Q. B. D. 629; and see Laird v. Briggs, 19 Ch. Div. 22.

PUBLIC WAY.

The dedication to the public of a right of way across a field may be limited by the right of the owner of the soil to plough it up periodically in due course of farming; and any interference on behalf of the public with this right in the owner constitutes a trespass: Arnold v. Blaker, L. R. 6 Q. B. 433; Mercer v. Woodgate, L. R. 5 Q. B. 26.

Dedication of a right of way from continuous user can only be presumed in favour of the public generally, not of the inhabitants of a particular parish: Bermondsey Vestry v. Brown, 1 Eq. 204.

As to sufficiency of evidence of public user in the case of a mountain path in a thinly-populated district, see Macpherson v. Scottish Rights of Way Soc., 13 App. Čas. 744; and see Mann v. Brodie, 10 App. Cas. 978.

As to evidence of user in support of presumed dedication of a way over copyholds, see Powers v. Bathurst, 49 L. J. Ch. 294.

As to the circumstances under which a cul-de-sac may be a highway, see Bourke v. Davis, 44 Ch. D. 110.

As to the right of the public in respect of strips by the side of the highway, see Nicol v. Beaumont, 53 L. J. Ch. 853; Curtis v. Westeven County Council,. 45 Ch. D. 504.

As to the presumption that the soil of a highway passes to the grantee of adjoining land ad medium filum vice, and that such presumption does not apply to land intended to be used as a highway, but never dedicated to the public, see Leigh v. Jack, 5 Ex. Div. 264; whether it applies to a lease, qu.: Landrock v. Met. Dist. Ry. Co., W. N. (86) 195.

An injunction to restrain the obstruction of a public way may be obtained in respect of the particular private injury to the Plt without making the A. G. a party: Cook v. Mayor of Bath, 6 Eq. 177; Spencer v. L. & B. Ry. Co., 8 Sim. 193.

The vestry of a parish could not maintain a suit to restrain the infringement of a public right of way, except as relators on information by the A. G.: Bermondsey Vestry v. Brown, 1 Eq. 204. The A. G. may sue to restrain such interference without proof of public injury: A. G. v. Shrewsbury Bridge Co.,

21 Ch. D. 752.

Surveyors of highways will not be restrained by injunction from removing that which has been decided to be an obstruction to a public highway: Bagshaw v. Buxton Board, 1 Ch. D. 220; and see Turner v. Ringwood Board, 9 Eq. 418.

A local authority having only a limited statutory property in a street so far as necessary for their control of it and its safe and convenient user (see Coverdale v. Charlton, 4 Q. B. Div. 104), could not maintain an action for an injunction to restrain the carrying of telephone wires across the street: Wandsworth Board of Works v. United Telephone Co., 13 Q. B. Div. 904.

Under 18 & 19 V. c. 120, s. 96, streets in the metropolis are vested in the vestry only so long as they are highways, and if they are legally stopped up or diverted, the interest of the vestry determines: Rolls v. Vestry of St. George's, 14 Ch. Div. 785.

The power of a railway co. to divert a road, under sect. 16 of the Railways Clauses Act, 1845, is exerciseable only when the road presents an actual

obstacle to the line, and not merely for the purpose of saving the co. expense: Pugh v. Golden Valley Ry. Co., 15 Ch. Div. 330; and that sect. 53 (providing for substitution of roads previous to interference with existing roads) applies to a permanent as well as a temporary diversion, see A. G. v. Barry Docks and Rail. Co., 35 Ch. D. 573.

(v.)—WATER RIGHTS.

1. Injunction against Diverting or Diminishing Flow of Water. LET the Deft &c., be restrained by injunction from diverting the water in the ponds or springs situated &c., so as to prevent the same from flowing into the river P.; and from employing any steam engines, pumps, or any other means of using the water in the said ponds or springs so as to diminish the quantity of the said water which flows into the said river; And also from diverting the course of the water which flows from surface springs on the south side &c., so as to prevent the same from flowing in its natural course towards and into the said river. (Parties agreeing that the legal right should be decided by the Court), Declare that the Plt is not entitled to the use of the water in the reservoir, nor to the use of the water in the pond called P. pond. -Ennor v. Barwell, V.-C. S., 12 July, 1860, A. 2331.-Leave was afterwards given to bring an action, S. C., 1 D. F. & J. 530.

2. Mandatory Injunction-Flow of Water-Inquiry as to Damages -Operation of Injunction suspended.

his

"DECLARE that the Plts and the Defts B. &c., are entitled, according to their respective interests in the messuage called &c., now in the Plts' occupation, and situate &c., to the free and uninterrupted enjoyment of the supply of water to the said messuage for the use of the occupiers thereof, from the Deft H.'s land, called &c., and all ancient wells, springs, troughs, and drains therein as such supply of water has heretofore, and up to the interruption thereof by the Deft H., been enjoyed as in the (bill) mentioned; And Let the said Deft H., servants &c., be perpetually restrained by injunction from interrupting or interfering with the said supply of water as so heretofore enjoyed, and from permitting the same to continue unrestored, and from permitting to continue on his said land any drains or works whereby the same is or may be, wholly or partially, diverted or interfered with; and from in any wise infringing, or permitting to continue infringed, the Plts' said right to the said supply; But the operation of the said injunction is hereby suspended for the period of three months from this date;-And Let an inquiry be made what sum or sums the said Deft H. ought to pay, and to whom, by way of compensation in damages for any temporary or permanent injury occasioned, or to be occasioned, to the Plts and the other persons interested in the said messuage, according to their respective interests therein by his interruption of, or interference with, the said supply of water thereto;— And Let the said Deft H. pay any sum or sums so certified to the Plts (names) and such other persons (if any) as may be named in the

chief clerk's certificate as entitled to the same."-Deft H. to pay all costs of the suit.-Harrop v. Hirst, V.-C. B., 13 Mar. 1872, A. 705.

For the like decree against diverting a watercourse, with inquiry as to damages, see Ivimey v. Stocker, 1 Ch. 396.

to restrain a local board from drawing off, by their drainage works, subterranean waters, and thus diverting water from a running surface stream, see G. Junction Canal v. Shugar, 6 Ch. 483.

-to restrain grantees of a watercourse from altering the level of the watercourse so as to encroach upon the grantor's land, and from causing any diminution in the overflow of water at the weirs, with order on them to restore it to its original state, see Taylor v. St. Helen's Corp., 6 Ch. D. 26.

-to restrain riparian owners from continuing the erection of a weir, and from obstructing the rights of the Plts to the flow of the water, according to its usual course and volume to a part of their lands, see Belfast Ropeworks Co. v. Boyd, 21 L. R. Ir. 560.

3. Declaration of Water Rights of Canal Proprietors, and Injunction to restrain Interference therewith.

DECLARE that the Plts, as the owners of the tenement called W. Mill, are entitled to the W. stream, and to the waters flowing in a defined and natural channel into and forming part of the same, as such stream and waters have been accustomed (before the interference therewith &c.) to flow down to the said tenement, subject to the ordinary and reasonable use of the said stream and waters by the riparian owners higher up on the said stream; And Declare that the diversion by Defts of the said stream and waters into their reservoir &c., for the purpose of supplying water to the town of S., is not within such ordinary or reasonable use; And Declare that the Plts, under and by virtue of the powers contained in the Acts of Parliament in the pleadings mentioned, are entitled to use the said stream and waters as the same have been accustomed (before such interference as aforesaid) to flow down to and into their canal, so far as the said stream and waters are required for the supply and navigation of their canal, and subject to such ordinary and reasonable use by upper riparian owners as herein before mentioned; And Let the Defts &c., their servants &c., be restrained by injunction from diverting into their reservoir or otherwise the said stream and waters, so as to interfere with the supply of water required for the navigation of the said canal.-Order of L. JJ., subject to the above-mentioned variations, affirmed.-Appellants to pay to respondents their costs of appeal.-Cause remitted back to (Court of Chancery) to do therein as shall be just and consistent with this variation and judgment.-Wilts and Berks Canal Co. v. Swindon Waterworks Co., Lords' Journals, 15 June, 1875; L. R. 7 H. L. 697, 715; 9 Ch. 451.

4. Obstruction of Navigable Stream restrained.

LET the Deft, his servants &c., be restrained by injunction from erecting or constructing, or causing or allowing to remain, any platform, piles, or other erections or works in or above the river S.,,

beyond the line of his quay, and from otherwise obstructing the navigation of the river [or the public use of his quay for the purpose of mooring vessels along the same].-A. G. v. Terry, as varied on appeal by omitting the words in brackets, L. C., 3 Mar. 1874, A. 612; 9 Ch. 423.

5. Obstruction of Wharfinger's Right of Access to the Thames

restrained.

LET the Defts, the wardens, &c., of the Fishmongers of the city of London, their servants, contractors, and agents, be perpetually restrained by injunction from making or putting up any embankment facing their property on the south side, and facing the Plt's property on the west side thereof, or constructing any other works or doing any other thing whereby the Plt's right of access to the river Thames on the west side of his wharf in the (bill) mentioned, or the privilege heretofore enjoyed by the Plt of laying and mooring craft, and loading and unloading, embarking and disembarking goods on the west side of his said wharf, directly from the river, may be defeated, destroyed, or prejudiced; and also from continuing any works or creating or continuing any obstructions so as to interfere with the Plt's right of access to the river, and privilege as aforesaid; And Let the Defts, the Conservators of the river Thames, be in like manner restrained from selling any part of the shore or granting or continuing any authority or licence to the other Defts, whereby the Defts, the Fishmongers' Co., their servants, contractors, or agents, may be authorized or empowered to make or put up any embankment on the south side of their premises, and from creating or continuing any obstructions whereby the Plt may be stayed, impeded, or prejudiced in the right or privilege heretofore enjoyed by him of free access to and from his said wharf from and to the river on the west side of his wharf, and of mooring or laying craft on the river, or loading or unloading goods directly into or from his said wharf into or from the river.-Directions as to costs.Lyon v. Fishmongers' Co., V.-C. M., 3 May, 1875, B. 1002. Reversed by C. A., 30 July, 1875, B. 2112; 10 Ch. 679; but restored H. L. 27 July, 1876, 1 App. Ca. 662.

For an injunction to restrain a railway co. from taking water from the River Cam for the supply of the Cambridge station so as to impede or injure the navigation of the river, see A. G. v. G. E. Ry. Co., 6 Ch. 572.

For injunction to restrain owner of a servient tenement from building a small house over a line of underground pipes which supplied the dominant tenement with water, see Goodhart v. Hyett, 25 Ch. D. 182.

NOTES.

The diversion or obstruction of the flow of water in a stream will be restrained by injunction at the suit of the riparian owner thereby affected: Robinson v. L. Byron, 1 Bro. C. C. 588; Elwell v. Crowther, 31 Beav. 163.

Although the riparian owner's right is not limited by the actual damage sustained (Bickett v. Morris, L. R. 1 H. L. Sc. 47; E. Norbury v. Kitchin, 15 L. T. N.S. 501), a diversion of water by licence from an upper riparian owner will not, when the water has been returned to the stream undiminished

and uninjured, give a lower riparian owner any right of action: Kensit v. G. E. Ry. Co., 27 Ch. Div. 126; 23 Ib. 566; and see W. Cumberland Iron Co. v. Kenyon, 11 Ch. Div. 782.

As to the right of a riparian owner to the ordinary use of water flowing past his land, and also, provided he does not thereby interfere with the rights of other proprietors above and below, to the extraordinary use, see Miner v. Gilmour, 12 Moo. P. C. 156; Belfast Ropeworks Co. v. Boyd, 21 L. R. Ir. 560 (C. A.).

Though every owner is entitled to appropriate water which percolates under his own land (Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. C. 349), any pollution by him of the common source, so as to interfere with the beneficial use by a neighbour of the water which reaches his well, will be restrained: Ballard v. Tomlinson, 29 Ch. Div. 115 (reversing 26 Ch. D. 194); and see Snow v. Whitehead, 27 Ch. D. 588.

A railway co., being riparian proprietors, were entitled to take a reasonable quantity of water for supplying locomotives, and the general purposes of a railway station: Earl of Sandwich v. G. N. Ry. Co., 49 L. J. Ch. 225. Turning the natural gravitation of the water into water power is a reasonable use: Belfast Ropeworks Co. v. Boyd, 21 L. R. Ir. 560.

A riparian owner cannot, except as against himself, confer on one who is not a riparian owner any right to use the stream: Ormerod v. Todmorden Mills Co., 11 Q. B. D. 155.

The rights of riparian owners on a tidal navigable river and on an inland stream do not differ; and the right of a wharfinger to bring an action in respect of an obstruction which deprives him of, or renders less easy, access to his wharf, is not limited by the extent to which his interest in the public right of navigation has been affected, but extends to interference with his private right as a riparian owner: Lyon v. Fishmongers' Co., 1 App. Ca. 662 (reversing 10 Ch. 679), sup. Form 5; North Shore Railway v. Pion, 14 App. Cas. 612; and see A. G. v. E. Lonsdale, 7 Eq. 377; Exeter Corporation v. E. Devon, 10 Eq. 234; A. G. v. Thames Conservators, 1 H. & M: 1; Kearns v. Cordwainers' Co., 6 C. B. N.S. 388; Reg. v. G. N. Ry. Co., 9 Q. B. 315.

As to the distinction between the prima facie right of a riparian owner in respect of a natural watercourse, and his right in respect of an artificial watercourse, which must rest on some grant, either proved or presumed, or on some other legal origin, see Rameshur v. Koonj, 14 App. Cas. 121; and as to the acquisition of riparian rights in artificial streams, see Blackburne v. Somers, 5 L. R. Ir. 1; Kensit v. G. E. Ry. Co., 27 Ch. Div. 122; Roberts v. Richards, 50 L. J. Ch. 297; 44 L. T. N.S. 271; following Sutcliffe v. Booth, 32 L. J. Q. B. 136.

In order to give rise to riparian rights, the land must be in actual daily contact with the stream: North Shore Railway v. Pion, sup.

"

Whether riparian owners can establish a private right of way over a stream, or a right of boating for recreation for themselves and their friends by custom, qu.: Bourke v. Davis, 44 Ch. D. 110.

As establishing the right of a riparian owner on the Thames to compensation for the loss of his water frontage by the construction of the Embankment, see D. Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418; Metropolitan Board of Works v. M Carthy, L. R. 7 H. L. 243.

An enjoyment by virtue of a lease is not an "enjoyment as of right" which can confer a prescriptive right to a watercourse after expiration of the. lease Chamber Colliery Co. v. Hopwood, 32 Ch. Div. 549; and as to evidence of unity of possession negativing such enjoyment, see Outram v. Maude, 17 Ch. D. 391.

The presumption that a grant of land (of any tenure: see Tilbury v. Silva, 45 Ch. D. 98) passes the adjoining half of the bed of a river may be rebutted by circumstances showing a contrary intention at the time, but not by circumstances arising subsequently: Micklethwait v. Newlay Bridge Co., 33 Ch. Div. 133.

For forms of orders and notes relating to the interference with the rights of riparian owners by fouling the stream, v. inf. Sect. V., “NUISANCE” (II.).

ESCAPE OF WATER.

On the principle that a man who, for his own purposes, brings on his land things which have a tendency to escape and cause mischief (e.g., water) must

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