into it had no sensibie effect upon the quantity of water in the river which of Watercourses. ran to the plaintiff's mill, no action would be maintainable; but if many landowners sank wells upon their own lands, and thereby absorbed so much of the percolating water by the united effect of all the wells as would sensibly and injuriously diminish the quantity of water in the river, though no one well alone would have that effect, could an action be maintained against any of them, and, if any, which? for it is clear that no action could be maintained against them jointly. (Chasemore v. Richards, 7 H. L. C. 349; see also Hammond v. Hall, 10 Sim. 551.) In such a case as Acton v. Blundell, the existence and state of the underground water is generally unknown before the well is made; and after it is made there is a difficulty in knowing certainly how much, if any indeed, of the water of the well, when the ground was in its natural state, belonged to the owner in right of his property in the soil, and how much belonged to that of his neighbour, who, in digging a mine or another well, may possibly be only taking back his own. These practical uncertainties make it very reasonable not to apply the rules which regulate the enjoyment of streams and waters above ground to subterraneous waters, especially when the result would be to prevent the full enjoyment of the rights of property in the neighbouring owner, and to prevent him from extracting metals or minerals from his own soil, or making some other beneficial use of it. (Dickenson v. Grand Junction Canal Company, 7 Ex. 282.) It is now settled by several authorities that no action will lie against a man who, by digging or cutting drains in his own land, thereby drains his neighbour's land either by intercepting the flow of the water percolating through the pores of the soil, and which but for such digging or draining would have reached his neighbour's land, or by causing the water already collected, in fact, on his neighbour's soil to percolate away from and out of it. (New River Company v. Johnson, 6 Ĵur., N. S. 374, Q. B.; 7 W. R. 179.)

In Dickenson v. Grand Junction Canal Company (7 Exch. 282), the Court of Exchequer laid down that an action would lie against a landowner for digging a well, and so preventing subterraneous water from reaching a natural surface stream which it would otherwise have reached, and this whether the water was part of an underground watercourse, or would have reached the stream by percolation through the intervening strata; but this opinion, and the dictum of Lord Ellenborough in Balston v. Benstead (1 Camp. 463), have been overruled by the decision of the House of Lords in Chasemore v. Richards (7 H. L. C. 349), affirming the judgment of the Court of Exchequer Chamber, 2 H. & N. 168.

A local act authorized a company to enter upon lands within a certain manor, and to dig and search for any spring of water, and to convey the water from such springs into the town of South Shields for the use of the inhabitants of the town and the shipping in the harbour. It provided that the company should not take the water from any spring, streams or ponds, so as to deprive the occupiers of lands of water for their own necessary uses and for the cattle depasturing therein. The company had the power to lay down pipes, &c., and the inhabitants with the consent of the company might obtain the water by pipes, &c., to communicate with the company's pipes, at certain charges according to the bore of the pipes. It was held, that the owners or occupiers of lands within the manor were not prevented by the act from sinking wells in such lands, though the effect might be to draw off the water from the company's springs. (South Shields Waterworks Company v. Cookson, 15 L. J., Ex. 315.)

The claimant was owner of an estate upon which was a pond fed by natural springs, and the defendants, under the authority of an act of parliament giving rights to compensation under the Lands Clauses Act, made an excavation in adjoining land, the immediate effect of which was to divert the springs and dry up the pond. It was held, that had the act been that of an adjoining proprietor, there would be no right of action, and that there was no right to compensation under section 69 of the Lands Clauses Act. (Reg. v. Metropolitan Board of Works, 3 B. & S. 710; 11 W. R. 492.) A landowner, however, will be restrained from making a drain in his own land by which water flowing in a defined surface channel through adjoining land

Of Watercourses. is withdrawn. (Grand Junction Canal Company v. Shugar, L. R., 6 Ch. 483.)

Natural right of riparian proprietors to divert flood water.

Natural right of

riparian pro

prietor to purity

At common law a proprietor of land adjoining a river has a right to raise the banks, from time to time as occasion may require, upon his own land, so as to confine the flood-water within the banks, and to prevent it from overflowing his land, with this single restriction, that he does not thereby occasion any injury to the lands or property of other persons. (Rex v. Trafford, 1 B. & Ad. 874; S. C., in error, 8 Bing. 204; 1 M. & Scott, 401; 2 Cromp. & Jerv. 265; 2 Tyrw. 201.) The proprietor of lands along which there is a flood stream cannot obstruct its old course by a new waterway, to the prejudice of the proprietor of lands on the opposite side. Thus, a proprietor of land on the bank of a river, who had commenced the building of a mound, which, if completed, would, in times of ordinary flood, have thrown the waters of the river on the grounds of a proprietor on the opposite bank, so as to overflow and injure them, was restrained by a perpetual interdict, in Scotland, from the further erection of any bulwark, or other work, which might have the effect of diverting the stream of the river, in time of flood, from its accustomed course, and throwing the same on the lands of the other proprietor; Lord Chancellor Lyndhurst observing, that it was clear, beyond the possibility of a doubt, that by the law of England, such an operation could not be carried on. (Menzies v. Breadalbane, 3 Bligh, N. S. 414, 418.) A proprietor of land on the seashore has a right to erect any works he thinks proper, for the purpose of protecting it against the inroads of the sea, though such works may be injurious to a neighbouring proprietor. (Rex v. Pagham Commissioners of Sewers, 8 B. & C. 355.) But this principle is not applicable to a riparian proprietor on a tidal river. (Att.-Gen. v. Lonsdale, L. R., 7 Eq. 377.)

A riparian proprietor has a right to the natural stream of water flowing through the land in its natural state; and if the water is polluted by a

of water of natural proprietor higher up the stream so as to occasion damage in law, though

stream.

Alienation of natural (or riparian) rights.

Acquired rights

with regard to water in natural stream,

not in fact, to the inferior proprietor, it gives him a good cause of action against the superior proprietor, unless the latter has gained by long enjoyment or grant a right to pollute. (Wood v. Waud, 3 Ex. 748; but see Weeks v. Heward, 10 W. R. 557.) The natural right to purity extends to subterranean water. (Hodgkinson v. Ennor, 4 B. & S. 229; 11 W. R. 775; Turner v. Mirfield, 34 Beav. 390.)

If land with a run of water upon it be sold, the water passes with the land. (Canham v. Fisk, 2 Cr. & Jer. 126; 2 Tyrw. 155.) It was laid down by Channell, B. and Pollock, C. B., that if a riparian proprietor grants to some one, not such a proprietor, a right to abstract water from the stream, the grantee can sue only the grantor for interference. Bramwell, B., said, that in his opinion riparian rights were presumably grantable like other rights of property. (Nuttall v. Bracewell, L. R., 2 Ex. 1.)

An allegation that the plaintiff was possessed of mines, lands and premises, and of right ought to have had and enjoy, and still of right ought to have and enjoy, the water of a stream which had been used to flow alongside the lands and premises, is not supported by proof that the plaintiff was a lessee of mines under lands adjoining the stream, with a grant from the surface owner of the use of the water for colliery purposes. (Insole v. James, 1 H. & N. 243.)

Every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream, and may begin to exercise that right whenever he will. (Sampson v. Hoddinott, 1 C. B., N. S. 590; 3 Jur., N. S. 243; 26 L. J., C. P. 148.) By usage he may acquire a right to use the water in a manner not justified by his natural rights; but such acquired right has no operation against the natural rights of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tenement. (Ib.) Independently of any particular enjoyment which another has been accustomed to have, every person is entitled to the benefit of a flow of water in his own lands, without diminu

tion or alteration; but an adverse right may exist, founded on the occupa- of Watercourses. tion of another; and although the stream be either diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it hath existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right. Before the stat. 2 & 3 Will. 4, c. 71, twenty years' exclusive enjoyment of water in any particular manner afforded a strong presumption of right in the party so enjoying it, derived from grant or act of parliament. (Bealey v. Shaw, 6 East, 208; Cox v. Matthews, 1 Vent. 237; 2 Wms. Saund. 113 b. See Dewhirst v. Wrigley, 1 C. P. Coop. 329.)

to divert acquired

by user for twenty years.

In Prescott v. Phillips (cited 6 East, 213; 5 B. & Ad. 23; 2 Nev. & Prescriptive right Man. 747), it was ruled, "that nothing short of twenty years' undisturbed possession of water diverted from the natural channel, or raised by a weir, could give a party an adverse right against those whose lands lay lower down the stream, and to whom it was injurious; and that a possession of above nineteen years, which was shown in that case, was not sufficient." (See Cor v. Matthews, 1 Ventr. 237, cited 5 B. & Ad. 25.)

Previously to the stat. 2 & 3 Will. 4, c. 71 (ante, p. 1-28), the acquiescence of lessees would not bind the landlord, nor that of tenants the reversioner. Thus where A., who was tenant for life with a power of jointuring, which he afterwards executed, and in 1747 gave a licence to B. to erect a weir on a river in A.'s soil, for the purpose of watering B.'s meadow, then A. died and the jointress entered, and continued seised till 1799, when the tenant of A.'s farm diverted the water from the weir, upon which the tenant of B.'s farm brought an action on the case for diverting the water; the court were of opinion that the uninterrupted possession of the water for so many years, with the acquiescence of the particular tenants for life, would not affect the reversioner, although they refused to disturb a verdict which had passed for the plaintiff, inasmuch as it would not conclude the rights of the parties. (Bradbury v. Grinsell, 2 Wms. Saund. 516.) Evidence of user for twenty years of a head stock to pen up a rivulet was held insufficient evidence for raising the presumption of a grant to warrant its continuance to the injury of church land; for if the preceding vicar had made such a grant, it would not have bound his successor. (Wall v. Nixon, 3 Smith's R. 316. See Barker v. Richardson, 11 East, 372.)

The right of diverting water, which in its natural course would flow over or along the land of a riparian owner, and of conveying it to the land of the party diverting it, can be created according to the law of England only by grant, or by long-continued enjoyment from which the existence of a former grant may be reasonably presumed, or by statute. Such an easement exists for the benefit of the dominant owner alone, and the servient owner acquires no right to insist on its continuance, or to ask for damages on its abandonment. (Per Cockburn, C. J., Mason v. Shrewsbury and Hereford Railway Company, L. R., 6 Q. B. 587.)

The right to a fishing weir may be acquired in non-navigable rivers by grant from other riparian owners, or by enjoyment, or by any means by which such rights may be constituted. (Rolle v. Whyte, L. R., 3 Q. B. 286; Leconfield v. Lonsdale, L. R., 5 C. P. 657.)

A right to pollute the water of a stream may be acquired by prescrip- Right to pollute. tion. (Baxendale v. M'Murray, L. R., 2 Ch. 790.) If a prescriptive right can be acquired of draining the sewage of a town into a stream to the injury of a riparian proprietor, it can only be acquired by the continuance of a perceptible amount of injury for twenty years. (Goldsmid v. Tunbridge Wells Improvement Commissioners, L. R., 1 Ch. 349.)

water cannot be

No right to the uninterrupted flow of subterranean water which percolates Right to uninterin an undefined course can be acquired by prescription. (Chasemore v. rupted flow of Richards, 7 H. L. C. 349.) The facts of that case appear from the follow- subterranean ing opinion of the judges, which was acted on by the House of Lords. It acquired by preappears by the facts that are found in this case, that the plaintiff is the scription; occupier of an ancient mill on the river Wandle, and that for more than sixty years before the present action he and all the preceding occupiers of

Of Watercourses. the mill used and enjoyed, as of right, the flow of the river for the purpose

of working their mill. It also appears that the river Wandle is, and always has been, supplied above the plaintiff's mill in part by the water produced by the rainfall on a district of many thousand acres in extent, comprising the town of Croydon and its vicinity. The water of the rainfall sinks into the ground to various depths, and then flows and percolates through the strata to the river Wandle, part rising to the surface and part finding its way underground in courses which continually vary. The defendant represented the members of the Local Board of Health of Croydon, who, for the purpose of supplying the town of Croydon with water, and for other sanitary purposes, sank a well in their own land in the town of Croydon, and about a quarter of a mile from the river Wandle, and pumped up large quantities of water from their well for the supply of the town of Croydon, and by means of the well and the pumping the Local Board of Health did divert, abstract and intercept underground water, but underground water only, that otherwise would have flowed and found its way into the river Wandle, and so to the plaintiff's mill; and the quantity so diverted, abstracted and intercepted, was sufficient to be of sensible value towards the working of the plaintiff's mill. The question was, whether the plaintiff could maintain an action against the defendant for this diversion, abstraction and interception of the underground water. In such a case as the present, is any right derived from the use of the water of the river Wandle for upwards of twenty years for working the plaintiff's mill? Any such right against another, founded upon length of enjoyment, is supposed to have originated in some grant which is presumed from the owner of what is sometimes called the servient tenement. But what grant can be presumed in the case of percolating waters depending upon the quantity of rain falling, or the natural moisture of the soil, and in the absence of any visible means of knowing to what extent, if at all, the enjoyment of the plaintiff's mill would be affected by any water percolating in and out of the defendant's or any other land? The presumption of a grant only arises where the person against whom it is to be raised might have prevented the exercise of the subject of the presumed grant; but how could he prevent or stop the percolation of water? (Chasemore v. Richards, 7 H. L. C. 349.) Where, however, a grant was made of all streams of water that might quired by express be found in certain closes, it was held that the grantor and those claiming under him could not work mines so as to divert underground water from wells in the closes. (Whitehead v. Parks, 2 H. & N. 870.)

but may be ac

grant.

Prescriptive right to discharge water upon adjoining land.

Although every one in building is bound so to construct his house as not to overhang his neighbour's property, and to construct his roof in such a manner as not to throw the rain water upon the neighbouring land (11 Hen. 7, f. 257); yet a right by user for twenty years and upwards for the owner to project his wall or eaves over the boundary line of his property, or to discharge the rain running from the roof of his house upon the adjoining land, has been recognized. (Thomas v. Thomas, 2 Cr. M. & R. 34. See Wright v. Williams, 1 Mees. & W. 77; Lady Browne's case, cited in Slaney v. Pigott, Palm. 446; Com. Dig. Action on Case for Nuisance (A.); Baten's case, 9 Rep. 50, n. (b); Vin. Abr. Nuisance (G. 5).) The occupier of a house who has a right to have the rain fall from the eaves of it upon another man's land, cannot put up spouts to collect that rain and discharge it upon such land in a body. (Reynolds v. Clarke, Ld. Raym. 1399.) If one has a right to enter into the yard of another, and he fixes a spout there to discharge water upon the plaintiff's land, trespass will not lie, but case. (Reynolds v. Clarke, 1 Str. 634; 8 Mod. 272; Fort. 212.)

Building a roof with eaves, which discharge rain water by a spout into adjoining premises, is an injury for which the landlord of such premises may recover as reversioner, while they are under demise, if the jury think there is a damage to the reversion. (Tucker v. Newman, 11 Ad. & Ell. 40.) It was said by Lord Abinger, C. B., "that if water from the spout of the eaves of a row of houses has flowed into an adjoining yard, and been there used for twenty years by its occupiers, that the owners of the houses had not contracted an obligation not to alter the construction so as to impair the flow of water." (Arkwright v. Gell, 5 Mees. & W. 233.)

The flow of water for twenty years from the eaves of a house will not of Watercourses. give a right to the neighbour to insist that the houses shall not be pulled down or altered so as to diminish the quantity of water flowing from the roof. (Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Exch. 293, 294.)

A declaration in case stated that the defendant, being possessed of a messuage adjoining a garden of the plaintiff, erected a cornice upon his messuage, projecting over the garden, by means whereof rain water flowed from the cornice into the garden and damaged the same, and the plaintiff had been incommoded in the possession and enjoyment of his garden. It was held, that the erection of the cornice was a nuisance, from which the law would infer injury to the plaintiff; and that he was entitled to maintain an action in respect thereof, without proof that rain had fallen between the period of the erection of the cornice and the commencement of the action. (Fay v. Prentice, 1 C. B. 828.) It was held, also, that the declaration was not to be construed as alleging a trespass. (Ib.)

The natural rights of a riparian proprietor are limited to natural streams, and do not attach in the case of artificial watercourses. (Sampson v. Hoddinott, 1 C. B., N. S. 590.) Prescriptive rights, however, may be acquired in artificial watercourses of a permanent character. Thus it has been laid down that a watercourse, though artificial, may have been originally made under such circumstances, and have been so used, as to give all the rights that the riparian proprietors would have had if it had been a natural stream; and therefore an action will lie, by one riparian proprietor against another, for the pollution and diversion of a watercourse, although it is artificial, and was made by the hand of man. (Sutcliffe v. Booth, 32 L. J.. Q. B. 136. See also Beeston v. Weate, 5 El. & Bl. 986; Gaved v. Martyn, 19 C. B., N. S. 732; 14 W. R. 62; Ivimey v. Stocker, L. R., 1 Ch. 396; Powell v. Butler, I. R., 5 C. L. 309.)

Artificial watercourses of a per

manent character.

can be acquired by

Where the enjoyment of an artificial watercourse depends on temporary of a temporary circumstances, no right to the uninterrupted flow of water can be acquired character. by prescription against the creator of the stream. Thus it was held in No right to unArkwright v. Gell (5 M. & W. 203), that a party receiving water drained interrupted flow from a mine has no right to compel the owners of the mine to continue such prescription discharge. The right or interest which the proprietor of the surface where against creator the stream issued forth, or his grantees, would have in such a watercourse, of stream; at common law, independently of the effect of user under the stat. 2 & 3 Will. 4, c. 71, was to use it for any purpose to which it was applicable so long as it continued there. An user for twenty years, or a longer time, would be no presumption of the right to the water in perpetuity; for such a grant would in truth be neither more nor less than an obligation on the mine owner not to work his mines by the ordinary mode of getting minerals below the bed drained by that watercourse, and to keep the mines flooded up to that level, in order to make the flow of water constant for the benefit of those who had used it for some profitable purposes. Lord Abinger, C. B., said, "The whole purview of the stat. 2 & 3 Will. 4, c. 71, shows, that it applies only to such rights as would before the act have been acquired by the presumption of a grant from long user. The act expressly requires enjoyment for different periods, without interruption,' and therefore necessarily imports such an user as could be interrupted by some one 'capable of resisting the claim,' and it also requires it to be of right. But the use of the water in this case could not be the subject of an action at the suit of the proprietors of the mineral field lying below the level of the Cromford Sough, and was incapable of interruption by them at any time during the whole period, by any reasonable mode; and as against them it was not 'of right,' they had no interest to prevent it; and until it became necessary to drain the lower part of the field, indeed at all times, it was wholly immaterial to them what became of the water, so long as their mines were freed from it. We therefore think, that the plaintiffs never acquired any right to have the stream of water continued in its former channel, either by the presumption of a grant, or by the recent statute, as against the owners of the lower level of the mineral field, or the defendants acting by their authority, and therefore our judgment must be for the defendants." (Arkwright v. Gell, 5 Mecs.