take care that they do not get on to his neighbour's land, he is primâ facie answerable for all damage which is the natural consequence of its escape: Fletcher v. Rylands, 3 H. & C. 774; L. R. 1 Ex. 265; 3 H. L. 330; Crompton v. Lea, 19 Eq. 128; Baird v. Williamson, 15 C. B. N.S. 376; and see Smith v. Fletcher, L. R. 9 Ex. 64; Westminster Brymbo Co. v. Clayton, 36 L. J. Ch. 476, sup. p. 498; Evans v. Manchester, &c. Ry. Co., 36 Ch. D. 626; Ballard v. Tomlinson, 29 Ch. Div. 115.

But when the escape of water has been caused by vis major, or the act of God, or by percolation and gravitation, the Deft will not be liable: Nichols v. Marsland, L. R. 10 Ex. 255; 2 Ex. D. 1; Box v. Jubb, 4 Ex. D. 76; Wilson v. Waddell, 2 App. Ca. 95; Dixon v. Met. Board of Works, 7 Q. B. D. 418.

And it seems that a distinction will be taken between water trespassing by natural overflow, and by the diversion of the watercourse: Smith v. Fletcher, L. R. 9 Ex. 64; Smith v. Kenrick, 7 C. B. 515; and see West Cumberland Co. v. Kenyon, 11 Ch. D. 783 (reversing 6 Ch. D. 773), that if the escape of water is only the result of the proper use of the land, whether for mining or other operations, and throws no new burden on the neighbour's land, such neighbour has no right of action.

A canal co. being bound to keep the water in their canal were held liable for the preventible consequences of a leakage caused by third parties: Evans v. M. S. and L. Ry. Co., 36 Ch. D. 626.

An owner whose land is flooded has no right to protect himself by transferring the mischief to the land of his neighbour: Whalley v. Lancashire and Yorkshire Ry. Co., 13 Q. B. Div. 131.

A reversioner whose land is flooded cannot recover damages for a mere temporary injury, though the selling value of his reversion is thereby diminished: Rust v. Victoria Graving Dock Co., 36 Ch. D. 113.

Although the owner of the foreshore is not bound to maintain a natural barrier of shingle on the foreshore against the inroads of the sea, he will be restrained from removing the barrier or using his land so as to cause an inroad of the sea to the injury of the adjoining land: A. G. v. Tomline, 14 Ch. D. 58; 12 Ib. 214.

(VI.)-RIGHTS OF COMMON.

1. Decree establishing Rights of Common over the Waste Lands of Epping Forest, and restraining further Inclosure.

DECLARE that the Plts and the other owners and occupiers of lands and tenements lying within that part of the forest of Essex, in the county of Essex, now known by the name of Epping Forest, other than the waste lands of the said E. Forest, are entitled in right of, and as appurtenant to, their several lands and tenements within the said E. Forest to a right of common of pasture upon all the waste lands of the said E. Forest, for all manner of cattle (that is to say, neat beasts and horses) commonable within the forest, levant and couchant upon their respective lands within the said E. Forest, according to the assize and customs of the said E. Forest; And Let the Plts be quieted in the possession and enjoyment of their said rights.

And the Plts &c., by their counsel, not asking for any injunction as regards lands which on the 14th of August, 1871, were actually covered with buildings, or actually inclosed and used as the gardens belonging to or curtilages of buildings, or as regards lands which were actually inclosed on or before the 14th August, 1851; Declare that the Plts are entitled to an injunction to restrain the Defts respectively, other than H. M.'s A. G. and the Deft H., and their respective servants and agents, from permitting or suffering to be or to remain inclosed or

built upon any of the waste lands of the said E. Forest, other than and except lands which on the 14th of August, 1871, were actually covered with buildings, or actually inclosed and used as the gardens belonging to or curtilages of buildings or lands actually inclosed on or before the 14th of August, 1851.

And Let an inquiry be made what waste lands of the said E. Forest in the possession of or belonging to the Defts respectively, other than H. M.'s A. G. and the Deft H., for any and what estate or interest, are inclosed or built upon other than and except as aforesaid; and the Plts are to be at liberty to apply for an injunction or injunctions in pursuance of the declaration of right herein before contained.

And Let the Defts G. &c. respectively, and their respective servants, agents, and workmen, be perpetually restrained by injunction, (1) from building upon any part of the waste lands of the said E. Forest, which have been inclosed since the 14th of August, 1851, except such parts thereof as were on the 14th of August, 1871, actually covered with buildings, or actually inclosed and used as the gardens belonging to or curtilages of buildings, and from carrying away or destroying the loam or soil of any part of such waste land, except as aforesaid, and from destroying or injuring the pasture, turf, or herbage being or growing thereon, so as in any manner to prevent, disturb, or interfere with the exercise by the Plts, or the other persons entitled as aforesaid, or any of them, of their said rights hereinbefore declared over the said lands when the same shall become uninclosed; (2) from inclosing or building upon any part of the waste lands of the said E. Forest now uninclosed, or which shall for the time being be uninclosed, and from carrying away or otherwise destroying the loam or soil of the said waste lands now uninclosed, or which shall for the time being be uninclosed, or the pasture, turf, or herbage being or growing thereon, so as in any manner to prevent, disturb, or interfere with the exercise by the Plts, or the other persons entitled as aforesaid, or any of them, of their said right hereinbefore declared in and over the waste lands of the said E. Forest now uninclosed, or which shall for the time being be uninclosed; (3) from otherwise preventing, disturbing, or interfering with the exercise by the Plts, or the other persons entitled as aforesaid, or any of them, of their said right in and over the waste lands of the said E. Forest now uninclosed, or which shall for the time being be uninclosed.—Defts G. &c. to pay Plts' costs of the cause, to be taxed. Adjourn &c.—Liberty to apply.-Commrs. of Sewers, &c. v. Glasse, M. R., 24 Nov. 1874, B. 552; S. C., 19 Eq. 134; for a like order, see Hall v. Byron, V.-C. H., 15 Feb. 1877, A. 386; 4 Ch. D.

667.

2. Like Decree establishing Commonable Rights—and Injunction.

DECLARE that the Plt and the other freehold tenants of the manor of Tooting Graveney, in the county of Surrey, are entitled to a right of common of pasture upon the common and waste land generally known as Tooting Common, delineated in the plan

annexed to the Plt's bill, and thereon coloured &c., for all manner of commonable beasts and animals levant and couchant upon their tenements holden of the lord of the said manor, and also to the right to cut from the said common and waste lands so much heath, gorse, fern, and furze, as may be required for fodder and litter for cattle levant and couchant upon their said tenements; also to a right to dig in convenient places on the said common and waste lands, and carry away sufficient gravel and sand for necessary use and consumption on their said lands and houses; And Let the Deft be restrained by injunction from permitting so much of the fence erected as in the Plt's bill mentioned as lies between the parts of T. G. Common, coloured &c. on the said plan, to remain after the day of -; And Let the Deft, his servants &c., be perpetually restrained by injunction from inclosing any part of the said common and waste lands, and from erecting, replacing, restoring, or repairing, or causing to be erected, replaced, restored or repaired, any fences or inclosures upon the said common or waste lands or any part thereof, and also from digging up and destroying, or causing to be dug up and destroyed, any of the pasture, heath, gorse, and heather growing on the said common or waste lands, so as in any manner to disturb or interfere with the exercise or enjoyment by the Plt and the other freehold tenants of their rights herein before declared, without prejudice to the lord's right to dig and take away the soil for his own benefit--no costs on either side. Liberty to apply.-Betts v. Thompson, L. C., 2 Aug. 1871, A. 2701; 6 Ch. 732.

For like decree, except as to gravel and sand, and restraining Defts from erecting, or commencing to erect, any houses, buildings, or fences upon any part of Plumstead, &c. commons, and from allowing any roads or paths in or over the same, or any part thereof, which have been stopped up, at any time in or since the year to remain so stopped up, see Warrick v. Provost, &c., of Queen's Coll., Oxford, L. C., 2 Aug. 1871, B. 2537; 6 Ch. 716.

For a similar decree restraining the inclosure of Berkhampstead Common in a suit by a freehold and copyhold tenant of the manor on behalf of himself and all other copyhold and freehold tenants, see Smith v. Brownlow, M. R., 14 Jan. 1870, B. 324; 9 Eq. 241.

For a similar decree, see Hall v. Byron, V.-C. H., 15 Feb. 1877, A. 386, 4 Ch. D. 667.

For decree where the right was partially established, but no infringement proved, see Robinson v. Dhuleep Singh, Fry, J., 27 May, 1879, 11 Ch. D. 837.

NOTES.

COMMONABLE RIGHTS.

A freehold tenant of a manor claiming by prescription on a presumed grant, is entitled to sue on behalf of himself and all others who are freeholders to establish and protect their rights of common as against the lord: Warrick v. Queen's College, Oxford, 6 Ch. 716; 10 Eq. 105; Mayor of York v. Pilkington, 1 Atk. 282.

And see Betts v. Thompson, 6 Ch. 732, where the necessity of joining the copyholders as Plts in a suit by the freeholders against their common invader is discussed: Smith v. Brownlow, 9 Eq. 241.

In Commissioners of Sewers v. Glasse, 19 Eq. 134 (Epping Forest case), the bill was, on behalf of Plts and all others the owners and occupiers of lands and tenements lying within the forest, other than the waste lands of the said

forest, to establish a general right of common of pasture upon all the waste lands, and to restrain the Defts from inclosing or building upon the waste. And see the frame of suit discussed on demurrer, S. C., 7 Ch. 456.

To obtain against a purchaser of a portion of the waste the benefit of the former decree in this case establishing rights of common, and restraining interference therewith, leave of the commissioners must be obtained under the Epping Forest Act, 1872 (35 & 36 V. c. 95), s. 3: Commissioners of Sewers V. Gellatly, 24 W. R. 1059.

As to the effect of an enfranchisement deed in preventing the lord from again granting rights of fishing on the expiration of the existing lives for which the copyholds were held, see Tilbury v. Silva, 45 Ch. Div. 98.

To establish a right of common, under the Prescription Act, actual enjoyment and possibility of legal origin by custom, prescription or grant must be shown, but the ground on which the claimant rests his alleged right is not material: Earl de la Warr v. Miles, 17 Ch. Div. 535; q. v. as to the object and effect of the Act generally; and see Tilbury v. Silva, 45 Ch. Div. 98. And that "common without stint" cannot be claimed by prescription, see Morley v. Clifford, 20 Ch. D. 753.

A right of fishing, being in the nature of a profit à prendre, cannot be claimed by prescription on behalf of a large and indefinite class, such as owners and occupiers: Tilbury v. Silva, 45 Ch. Div. 98 (per Kay, J.), distinguishing Goodman v. Mayor of Saltash, 17 App. Cas. 633, as to presumption of a legal origin for an immemorial usage.

And as to prescription for common of pasture, and that a copyholder cannot prescribe in excess of the custom of his manor, see Morley v. Clifford, 20 Ch. D. 753.

A demise of "all the warren of conies" in L. was held, under special circumstances, to pass a right to the soil: Robinson v. Duleep Singh, 11 Ch. Div. 798.

The rule of English law, that a right to an incorporeal hereditament can only be conveyed by deed, is part of the lex loci, not of the lex fori; so that an English lease of sporting rights over land in Scotland can be enforced in England, though not under seal: Adams v. Clutterbuck, 10 Q. B. D. 403. A fold course is not a several right to the herbage, but a right of common appurtenant of pasture for sheep: Robinson v. Duleep Singh, sup.

Under "common pasturage and herbage," in a decree in 1653, commoners could only take by the mouth or bite of cattle, and could not cut or carry away the growth of the soil: Earl de la Warr v. Miles, 17 Ch. Div. 754.

Evidence of subsequent usage was not admitted to affect the construction of the decree, which was plain and unambiguous: S. C.

Under the Statute of Merton, the lord can (upon issuing advertisements under the Commons Act, 1876 (39 & 40 V. c. 56, s. 31)) approve against common appurtenant of pasture; the proviso in 13 Edw. 1, and 1 Will. 4, c. 46, only prevents derogation from an express grant: Robinson v. Dhuleep Singh, sup.

In the case of approvement, the onus probandi is on the lord, his right to inclose being treated as conditional upon his showing that he has left sufficient waste for the tenants to enjoy their right of common: Hall v. Byron, 4 Ch. D. 667.

The question whether there is a sufficiency of common of pasture for sheep must be determined not according to the average number of sheep turned out during a long course of years, but the aggregate number which the commoners are entitled to turn out: Robertson v. Hartopp, 43 Ch. Div. 484 (considering Lake v. Plaxton, 10 Ex. 196; Lascelles v. Onslow, 2 Q. B. D. 433), where the lord was restrained from doing any acts which would diminish the amount of pasturage, v. sup. Form 2. Whether, in ascertaining the sufficiency, the modern system of farming, whereby the sheep do not get all their sustenance from the common, ought to be considered, quære: S. C. That the Act of 29 Geo. 2, c. 36, applies only to agreements entered into by persons entitled to common of pasture, and does not legalize agreements affecting the rights of freehold tenants to bushes and underwood, see Nicholls v. Mitford, 20 Ch. D. 380.

A right of shooting over freehold allotments, under an Inclosure Act, cannot be reserved to the lord unless in express terms, or by necessary implication: Duke of Devonshire v. O'Connor, 24 Q. B. Div. 468.

Where upon inclosure, under 8 & 9 V. c. 118, rights of common have been extinguished, allotments awarded in lieu of them are not to be deemed parts of the lands of the commoners, so as to pass by general words in a lease of such lands: Williams v. Phillips, 8 Q. B. Div. 437.

A right of recreation by custom upon the land of another cannot exist in the public generally, but must be confined to the inhabitants of a particular district: Bourke v. Davis, 44 Ch. D. 110.

The presumption which the Court makes in favour of a legal origin of a right long exercised depends on the circumstances of the enjoyment, and a legal origin cannot be presumed in favour of a body of copyholders on the assumption of a long series of lost grants: Tilbury v. Silva, 45 Ch. Div. 98. By the Commons Act, 1876 (39 & 40 V. c. 56), which contains provisions for the regulation or inclosure of commons, jurisdiction is given by sect. 30 to the county court within whose jurisdiction any common is situate to hear any case relating to any illegal inclosure or encroachment of or upon such common made after the passing of the Act, or to any nuisance impeding the exercise of any right of common arising after the passing of the Act, and to grant an injunction against such inclosure, encroachment, or nuisance, or to make an order for the removal or abatement of such inclosure, encroachment, or nuisance, with right of appeal to the High Court of Justice in a summary manner, or by special case or otherwise, as may be prescribed by rules of the Supreme Court, against any order, &c., by a county court under this section. Pending an appeal from the county court, the order directing the removal or abatement of any inclosure, encroachment, or nuisance, shall be suspended. Nothing in the Act contained is to abridge or interfere with any existing right of abating or otherwise preventing any illegal inclosure of, or encroachment on, any common, or any nuisance interfering with any right of common.

Inclosure Commrs will not be restrained from affixing their seal or applying to Parliament for its sanction to a scheme approved by them for inclosure of a common: Queen's College, Oxon v. Darby, Ŵ. N. (76) 301.

(VII.)—MARKET.

1. Injunction against establishing a Market.

UPON the appeal &c., by counsel for the Defts, and upon hearing counsel for the Plts, This Court doth declare that the Plts and others claiming under the charter of the 34 Chas. II., in the statement of claim mentioned, are entitled to two markets every week, namely, on Thursday and Saturday, for the sale of fruit and vegetables, to be held in or next to the place described in the said charter as the Spittle Square, in the parish of Stepney, in the county of Middlesex ; And it is ordered that the Defts, their directors, servants, agents, and workmen, be, from and after the 18th January, 1884, perpetually restrained from establishing a fruit and vegetable market at Bishopsgate, and from using or permitting to be used any portion of their station or property there in any such manner as to interfere with or prejudicially affect the rights of the Plts in the said markets as hereinbefore declared; And it is ordered that the Defts, their directors, servants, agents, and workmen, be perpetually restrained from advertising, or causing to be advertised, any portion of the said station or property at Bishopsgate as a market, or as a place used or to be used in any such manner as to interfere with or prejudicially affect the rights of the Plts as herein before declared.-Goldsmid v. The Gt. Eastern Ry. Co., C. A., 18 Dec. 1883, A. 1935; S. C., 25 Ch. Div. 511; 9 App. Ca. 927.