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Of Watercourses. It was held that the diversion of the water of a river by means of pipes, for

the use of a lunatic asylum and county gaol, was a user more extensive than that to which a riparian proprietor as such was entitled. (Mednay Navigation Company v. Earl of Romney, 9 C. B., N. S. 575; 9 W. R. 482.) A railway company were not allowed to take the water of a river for the purpose of supplying their locomotives. (Att.-Gen. v. Great Eastern Railway Company, L. R., 6 Ch. 572.)

Where one riparian proprietor had by means of a water-wheel raised and diverted from the premises of another proprietor, about one-fortieth part of the volume of a stream, it was held, that it was for the jury to consider whether he had thereby inflicted on the other any sensible or material injury. (Lord Norbury v. Kitchin, 3 F. & F. 292.)

By' an award made by the commissioners under an inclosure act, certain drains were set out, and it was ordered that the owners or occupiers of the land over which such drains respectively passed should make and cleanse, and keep the same of sufficient width and depth to carry off the water intended to run down such drains : it was held, that the plaintiff was not thereby authorized to make a sough or underdrain on his land, so as to cause an increased quantity of water to pass into one of the awarded drains. (Sharpe v. Hancock, 8 Scott, N. R. 46.) It was provided by an act of parliament, that it should be lawful for certain inclosure commissioners to set out and make such ditches, watercourses and bridges of such extent and form, and in such situations as they should deem necessary in the lands to be inclosed : and also to enlarge, cleanse or alter the course of, and improve any of the existing ditches, watercourses or bridges, as well in and on the same lands, as also in any ancient inclosures, or other lands in the township as they should deem necessary : held, that the act did not empower the commissioners to alter the drains in the common lands, so as to overload an ancient drain which flowed through the common lands from another township, and thereby to obstruct the drainage of the lands in such other township, to the damage and injury of the owners of such lands. (Daneson v. Parer, 5 Hare, 415; 4 Rail. C. 81; 16 L. J., Ch. 274; 11 Jur. 766; affirmed by L. C., 30th July, 1847.)

In a lease of certain premises with their appurtenances, the lessor reserved out of the demise the free running of water and soil coming from any other buildings and lands contiguous to the premises thereby demised in and through the sewers and watercourses made or to be made within, through or under the said premises : held (1), that the reservation extended to water and soil coming from contiguous lands and buildings, whether that water or soil in the first instance actually arose on or from such contiguous lands or buildings or not; and (2), that it only extended to water in its natural condition, and such matters as are the product of the ordinary use of land for habitation, and not to the refuse of tan-pits. (Chadwick v.

Marsden, L. R., 2 Ex. 285.) Extent of right Where a prescriptive right to foul a stream has been acquired, the fouling to pollute. must not be considerably enlarged to the prejudice of other people. (Cross

ley v. Lightonler, L. R., 2 Ch. 478.) Where the sewage of a town had for many years been drained by commissioners under a local act into a stream passing through the plaintiff's land, which was beyond their district, without perceptibly polluting it, but for some years before the filing of the bill, in consequence of the increase of the town, the stream became perceptibly polluted, and continued to increase in impurity; an injunction was granted, restraining the commissioners from draining the town into the stream, so as to pollute the water to the injury of the plaintiff. (Goldsmid v. Tunbridge Wells Improvement Commissioners, L. R., 1 Ch. 349.)

Defendant, the owner of an ancient paper mill, where the paper had been made from rags, introduced a new vegetable fibre, and carried on the works upon the same scale for making paper from this new material. For more than twenty years before the change the refuse from the mill had been discharged into a stream which ran past the plaintiff's house. Held, that the easement to which the defendant was entitled was to be presumed to be a right to foul the stream by discharging into it the washings produced by the manufacture of paper in the reasonable and proper course of such


manufacture, using any proper materials for the purpose, but not increasing of Watercourses. the pollution: and that the onus lay upon the plaintiffs to prove any increase of pollution. (Baxendale v. M.Murray, L. R., 2 Ch. 790.)

If one has anciently pits which are supplied by a rivulet, he may cleanse Alteration in them, but cannot change or enlarge them (Brórn v. Best, 1 Wils. 174), mode of enjoynor change the channels from a river to the prejudice of another owner. (Duncombe v. Randall, Hetl. 32.) It is not necessary that the mode of enjoying a watercourse should always have been precisely the same; for where, in an action for a nuisance to a watercourse, the plaintiff declared on his possession, and stated the mill to be an ancient one, it was held to be no defence, that he had within twenty years somewhat altered the wheels. (Saunders v. Nerman, 1 B. & Ald. 258.) In which case it was said by Abbott, J., “that the owner is not bound to use the water in the same precise manner, or to apply it at the same mill; if he were, it would stop all improvement in machinery. If indeed the alterations made from time to time prejudiced the right of the lower mill, the case would be different; but here the alteration is by no means injurious, the old wheel drew more water than the new one." (Ib. See Luttrell's case, 4 Rep. 87 a.)

A right to a watercourse is not destroyed by the owners altering the Extinction by course of the stream, and the owner may establish his claim, notwith- alteration. standing an interruption within twenty years of his action brought to enforce the right. Where the plaintiff had a right to water flowing from the defendant's land across a lane to his own land, and it appeared that “ formerly the stream meandered a little down the lane before it flowed into the plaintiff's land, and that in the year 1835 the plaintiff, in order to render its enjoyment more commodious to himself, a little varied the course, by making a straight cut direct from the opening or spout under the defendant's hedge across the lane to his own premises,” and this, it was contended, negatived the right claimed in the declaration, Tindal, C. J., said, “If such an objection as this were allowed to prevail, any right, however ancient, might be lost by the most minute alteration in the mode of enjoyment; the making straight a crooked bank or footpath would have this result. No authority has been cited, nor am I aware of any principle of law or common sense upon which such an argument could base itself.” (Hall’y. Srift, 6 Scott, 167; 4 Bing., N. R. 381. See ante, p. 20.) Where a person who had a right to send down clean water through a gutter, sent down foul water, so that it was impossible to stop the nuisance without altogether interfering with his enjoyment, it was held that the whole enjoyment might be obstructed. (Cawkwell v. Russell, 26 L. J., Ex. 34; see Fill v. Cock, 26 L. T., N. S. 185.) A right to a watercourse which had been used to supply cattle sheds was held not to be lost by the erection of cottages in the place of cattle sheds. (Watts v. Kelson, L. R., 6 Ch. 166.)

If an ancient ditch has at one end anciently opened into a stream, and Extinction by the owner of a mill on the stream has kept the opening at the end of the abandonment. ditch closed for twenty years and more, without interruption, that would give the mill-owner such a right to keep it shut up, that the owner of the land adjoining the ditch would not be justified in reopening the communication, although it might appear that the communication between the ditch and stream was ancient. (Drewett v. Sheard, 7 Car. & P. 465.) If the owner of a water-mill worked by a ground-shot wheel at a low head of water alter the wheel to a breast-shot wheel, which requires a high head of water, and after that for twenty years and more discontinue the use of the breast-shot wheel, and resume the use of the ground-shot wheel, his discontinuance will cause the mill-owner to lose his right to the high head of water. (16.) The right to the overflow of water into an old pond is not lost by discontinuing the use of such pond, and obtaining the same or a greater advantage from the use of three new ponds; a substitution of such a nature, and the exercise of the right in a different spot, not being an abandonment of the right. (Hale v. Oldroyd, 14 Mees. & W.789.). The mere suspension of the exercise of a prescriptive right is not sufficient to destroy the right without some evidence of an intention to abandon it : but where dye-works had not been used for more than twenty years, and had been allowed to go to ruin, it was held that any right of fouling a

Remedies for dig.


Of Watercourses. 'stream attached to them was lost. (Crossley v. Lightonler, L. R., 2 Ch.

478.) By unity of It seems that nothing of necessity to a building, e. 9. a gutter in alieno wnership. solo, to carry off water, &c., is extinguished by unity of ownership. (Pheysey

v. Vicary, 16 Mees. & W. 484.) In Shury v. Piggott (3 Bulstr. 339;
Poph. 166; W. Jones, 145), which was an action on the case for stopping
a watercourse, the court held, that the right to the flow of water is not ex-
tinguished by unity of ownership, in which respect it is distinguished from
a way. Whitlock, J., says (3 Bulstr. 340), “There is a difference between
a way, a common and a watercourse. Bracton (lib. 4, fol. 221-2) calls
them servitutes prædiales; those which begin by private right, by pre-
scription, by assent, as a way or common, being a particular benefit to take
part of the profits of the land. This is extinct by unity, because the
greater benefit shall drown the less. A watercourse does not begin by
prescription, nor yet by assent, but the same doth begin ex jure nature,
having taken this course naturally and cannot be averted.” (See Pyer v.
Carter, 1 H. & N. 916.)

A party entitled to a watercourse may legally enter the land of a person turbance of rights who has occasioned a nuisance to a watercourse, to abate it. (2 Smith's R. with regard to

9; Com. Dig. Pleader, 3 M. 41.) An individual cannot abate a nuisance if

he be not otherwise injured by it than as one of the public. (Colchester Abatement.

(Mayor, fo. of) v. Brooke, 1 Q. B. 339.). In an action for breaking the plaintiff's close, and destroying a hatch, the defendant pleaded that the water of the stream ought to have flowed to his mill, and because the hatch prevented its so doing, he pulled it down; evidence may be given as to what a former tenant said as to asking permission to have the water, as this is an act done, and may be proof of an exercise of a right by one side, and of an acquiescence in it by the other. (Wakeman v. West, 8 Car. & P. 105.) Plaintiffs by parol licence from L. and the defendant constructed a watercourse, and thereby discharged the water from their own mines across the land of L. and thence across the land of the defendant. Defendant having revoked his licence, upon the plaintiffs' refusal to discontinue using the watercourse, entered upon the land of L. at a spot near the boundary between it and the land of the plaintiffs, and obstructed the watercourse. Defendant, by stopping the watercourse on his own land, would have done less damage to the plaintiffs than was actually done, but more damage to L., and possibly some damage to the public. Held, that the watercourse was obstructed in a reasonable manner, inasmuch as the convenience of the plaintiffs, who after revocation of the licence were wrongdoers, was subordinate to the convenience of innocent third persons and the public. (Roberts v. Rose, L. R., 1 Ex. 82.) Where there is excessive user by the owner of the dominant tenement, the owner of the servient tenement, if he abates the nuisance, is bound to do so in the

most reasonable manner. (Hill v. Cock, 26 L. T., N. S. 185.). Remedy by Indict. When the injury from a nuisance in respect of water is an injury to all

the Queen's subjects the remedy is by indictment. (Rex v. Bristol Dock Company, 12 East, 429.) And where an indictment can be maintained there is no remedy by action without proof of individual damage. But the same principle does not apply where the injury complained of is not one affecting the public generally, but only a particular class or section of persons.

(Harrop v. Hirst, L. R., 4 Ex. 47.) Remedy by action. It has been said, that the mere obstruction of the water, which has been Proof of actual

accustomed to flow through the plaintiff's lands, does not per se afford any damage not neces- ground of action: some benefit must be shown to have arisen from the water

going to his lands; or at least it is necessary to show that some deterioration was occasioned to the premises by the subtraction of the water. (Williams v. Morland, 2 B. & C. 915; S. C., 4 Dowl. & Ryl. 583.) It is not clear that an occupier of land may not recover for the loss of the general benefit of water flowing through his land, without a special use or damage shown. (Palmer v. Keblethwaite, 1 Show. 64; S.° C., Skinn. 65; Glynne v. Nicholas, 2 Show. 507; S. C., Comb. 43; Mason v. Hill, 5 B. & Ad. 26, 27.) Whenever an injury is done to a right, actual perceptible damage is not indispensable as the foundation of an action, but it is sufficient to show the


sary in actions for diversion and obstruction.

violation of the right, and the law will presume damage. (Embrey v. of Watercourses. Owen, 6 Exch. 353.) It seems that actual damage is not now necessary to enable a riparian proprietor to maintain an action for the obstruction or diversion of a natural stream. (Sampson v. Hoddinott, 1 C. B., N. S. 590; 5 W. R. 230; 26 L. J., C. P. 148; Harrop v. Hirst, L. R., 4 Ex. 43.)

If the puisance be of a permanent nature, and injurious to the reversion, Actions by rean action may be brought by the reversioner as well as by the tenant in pos

versioner. session, each of them being entitled to recover his respective loss. (Biddlesford v. Onslor, 3 Lev. 209; Queen's College v. Hallett, 14 East, 489; 1 Wms. Saund. 567, ed. 1871; Jesser v. Gifford, 4 Burr. 2141; Com. Dig. Action on the Case for Nuisance (B). See Brown v. Mallett, 5 C. B. 599.)

It is no defence to an action by a reversioner, for an injury to the reversion, in not repairing a gutter for the conveyance of water through the plaintiff's land to the defendant's mill, whereby the water oozed through the gutter, and carried away the soil of the close, that the defect in the gutter was occasioned by the plaintiff's tenant; for the owner of the reversion was suing for a permanent injury to his estate, and he could not be met with the answer that the injury arose out of wrongful act

the tenant, for which the defendant might have maintained an action against him. (Lord Egremont v. Pulman, 1 Moo. & Malk. 403.)

In case of an injury to the plaintiff's reversionary interest, by the defendant's obstruction of a watercourse on his land, and thereby sending water upon and under the house and land in the occupation of the plaintiff's tenant, the defendant pleaded, that the obstruction was caused by the neglect of the plaintiff's tenant to repair a wall on the demised land; that, in consequence it fell into the watercourse, and caused the damage; and that within a reasonable time after the defendant had notice, he removed it: the plea was held to be bad, it not appearing by whom, or under what circumstances, the wall which fell into the watercourse was built, or that it was connected with any benefit to be derived from it to any persons claiming reversionary interests in the property. If the defendant was liable, on general principles, to cleanse and open the watercourse, it was no defence for an antecedent injury, that he did so as soon as he had notice of such injury. (Bell v. Treentyman, 1 Gale & D. 223; 1 Q. B. 766; and see Peter v. Daniel, 5 Dowl. & L. 501; 5 C. B. 568.)

It has been held that an action will lie for the continuance of a nuisance, Action for con(Todd v. Flight, 9 C. B., N. S. 377 ; Reg. v. Bradford Navigation, 6 B. tinuance of & S. 631; 13 W. R. 892.) The defendants were owners of the soil of a stream which supplied water to two print-works. A., whilst occupier of both print-works, erected a weir across the stream and thereby diverted the water from one of the works. The plaintiff becoming lessee of the last-mentioned work, and entitled to the water of the stream, removed the weir. A. afterwards, without any authority from the defendants and against their will, replaced the weir. Held, that the defendants were not responsible for the act of A. or for the continuance of the nuisance. (Saxby v. Manchester and Sheffield Railway Company, L. R., 4 C. P. 198.)

A right to take water from a well, by reason of the occupation of a dwelling-bonse, and for the more convenient occupation thereof, is an interest in land; therefore, where nominal damages had been recovered in an action for disturbing such a right (on an issue traversing that the plaintiff was entitled to the use of the well in manner, &c.), and the judge at Nisi Prius certified that the damages were under forty shillings, it was held, that the plaintiff was entitled to his full costs, under stat. 43 Eliz. c. 6, s. 2. (Tyler 1. Bennett, 4 Ad. & El. 377. See stat. 3 & 4 Vict. c. 24; Shuttleworth v. Cocker, 2 Scott, N. R. 47; Thompson v. Gibson, 5 Jur. 390.)

The following form is given in the schedule to the Common Law Procedure Act, 1852: “ That the plaintiff was possessed of a mill, and by reason thereof was entitled to the flow of a stream for working the same, and the defendant, by cutting the bank of the said stream, diverted the water thereof away from the said mill.”

The expenses of surveying and taking levels, in order to ascertain whether a weir had been improperly raised to the prejudice of the plaintiff's



of Watercourses. water-mill, will not be allowed him on taxation. (Ormerod v. Thompson, 16

Mees. & W. 860.) Action for pol- A riparian proprietor has a right of action for pollution of the water of

a stream, except a right to pollute has been acquired by user. (Wood v. Waud, 3 Exch. 748; Magor v. Chadwick, 11 Ad. & El. 571.)

To an action for polluting a stream and impregnating it with noxious substances, whereby the plaintiff's cattle were unable to drink the water, the defendant pleaded an immemorial right to use the water of the stream for the purposes of his trade of a tanner and fellmonger, and returning it polluted to the stream so used, and also prescriptive rights for twenty and forty years. At the trial it appeared that the defendant and his father and grandfather had for a long series of years carried on the business of tanners at the place in question, using the water of the stream as they wanted it, but that within the last twelve years the tannery business had been considerably enlarged and the business (and consequently the pollution of the stream ) increased fourfold. Without leaving anything to the jury, the judge ruled that the defendant was entitled to a verdict on all the issues, except the first and second: it was held, that, whether the pleas were to be understood as claiming an immemorial or a prescriptive right to use the water for the purposes of the tannery, or the more limited right to use the water for the purposes of the business as carried on more than twenty years ago, the verdict was not warranted by the evidence. (Moore v. Webb, 1 C. B., N. S. 673.)

A declaration alleged that the plaintiff was possessed of steam-engines and boilers, and used, had and enjoyed the benefit and advantage of the waters of a branch canal to supply the same, and which waters ought to have flowed and been without the fouling or pollution thereafter mentioned; yet the defendant wrongfully discharged into the water of the canal foul materials, and thereby rendered the waters foul, whereby the plaintiff's engines and boilers were injured. The defendant pleaded not guilty, and that the waters of the canal ought not to have flowed and been without the fouling mentioned. An arbitrator, to whom the cause was referred, found that the plaintiff, by permission of a canal company, made a cut from the canal to his own premises, by which water got to those premises, and with which water he fed the boilers of his engines. The defendant, without any right or permission from the company, fouled the water in the canal, whereby the water, as it came into the plaintiff's premises, was fouled, and by the use of it the plaintiff's boilers were injured. Judgment having been given for the plaintiff: it was held, in the Exchequer Chamber, by Williams, Crowder and Willes, Js., that the verdict upon the issue joined on the second plea ought to be found for the plaintiff; by Wightman, Erle and Crompton, Js., that the verdict on that issue ought to be found for the defendant. (Laing v. Whaley, 3 H. & N. 675; 4 Jur., N. S. 930; 27 L. J., Ex. 422.) It was held, also, by Erle, Crowder, Crompton and Willes, Js., that the declaration was good after verdict; by Wightman and Williams, Js., that the judgment ought to be arrested. (Ib. See Whaley v. Laing, 2 H. & N. 476; 26 L. J., Ex. 327.)

Where to an action for carrying on a trade in such a manner as to cause injury to plaintiff by polluting water, defendant relies for defence upon the fact of the trade being carried on in a reasonable and proper manner, the onus of proving that it is so carried on is on defendant, and not on plaintiff, of showing that it is not so carried on. The carrying on of a lawful trade in the usual manner is not necessarily the carrying it on in a reasonable and proper manner. (Stockport Waterworks Company v. Potter, 7 H. & N. 160. See Bamford v. Turnley, 3 B. & S. 66.)

Where an action had been brought by a person who owned mills situate on a natural stream against the defendants for polluting the water, and the facts were that the defendants had polluted the water by pouring soap-suds, &c., but that such pollution had done no damage to the plaintiff, because the stream was already so polluted by similar acts of mill-owners above the •defendants' mills, that the wrongful act of the defendants made no sort of practical difference: it was held, nevertheless, that upon the issue of not guilty the plaintiff was entitled to have that issue found for him. (Wood v. Waud, 3 Ex. 748.)

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