Of Watercourses. & W. 203. See observations on this case in Magor v. Chadwick, 11 Ad. & Ell. 571.) The right of a party to an artificial watercourse, as against the party creating it, must depend upon the character of the watercourse, and the circumstances under which it was created. The flow of water from a drain, made for the purpose of agricultural improvements, does not give a right to the neighbour so as to preclude the proprietor from altering the level of his drain for the improvement of his land. (Greatrex v. Hayward, 8 Exch. 291; 22 L. J., Ex. 137.)

nor against a superior pro

prietor.

Right to purity of water in artificial

watercourse.

Where the owners of a colliery had suffered the water pumped out of their colliery to flow along an artificial channel, it was held, that in the absence of any grant or prescriptive title, no action lay by the owner of land through which the water had been so accustomed to flow against an owner of land above, and through whose land the sough likewise passed, for diverting such water; for the owners of a colliery thus getting rid of a nuisance to their works, by discharging the water into such sough, could not be considered as giving it to one more than to others of the proprietors of the land through which such sough had been constructed, but that each might take and use what passed through his land, and the proprietor of the land below had no right to any part of that water until it had reached his own land, nor had he any right to compel the owners aboye to permit the water to flow through their land for his benefit. (Wood v. Waud, 3 Exch. 748; 18 L. J., Ex. 305; 13 Jur. 472. See Wardle v. Brocklehurst, Ell. & Ell. 1058.) "In Wood v. Waud there were several questions brought before the court. One was, whether the plaintiffs had a cause of action against the defendants for diverting the waters of two artificial watercourses. The facts appear to be that those watercourses had been formed for the purpose of draining some coal pits. The water had continued to flow for more than sixty years across part of the defendants' land and then across the plaintiffs'; and there seems no doubt that the colliery owners had acquired a right to discharge the water on the defendants' land as long as they pleased, and the defendants had also acquired a right to discharge the water thus brought on their own land on to the plaintiffs'. But the Court of Exchequer decided, following their previous decision in Arkwright v. Gell, that inasmuch as it was obvious that the coal-owners only discharged the water for the purpose of getting rid of it, and therefore only for a temporary purpose, there was no enjoyment as a matter of right in that water as against the coal-owners. And they followed this up much further, for they held that, inasmuch as the proprietor of land below had acquired no right to require the coal-owners to continue to allow the water to flow for his benefit, so he had acquired no right as against the owners of the intermediate land to continue to allow the water which in fact flowed from the coal pits to flow as it had done. He has no right,' they say, 'to compel the owners above to permit the water to flow through their land for his benefit; and consequently has no right of action if they refuse to do so.'" (Per Blackburn, J., Mason v. Shrewsbury and Hereford Railway Company, L. R., 6 Q. B. 584.)

Where mine owners made an adit through their lands to drain the mine, which they afterwards ceased to work, and the owner of a brewery, through whose premises the water flowed for twenty years after the working had ceased, had during that time used it for brewing; it was held, that he thereby gained a right to the enjoyment of the water in an unpolluted state, and that the owners of other mines who were not connected with, and did not claim under the makers of the adit, could not work their mines so as to pollute the water. (Magor v. Chadwick, 11 Ad. & El. 586.)

As to whether a person having a mere permission from a riparian owner to take water out of a stream can maintain an action against a wrongdoer for diverting or fouling the stream higher up, see Whaley v. Laing (3 H. & N. 675). The Stockport Waterworks Company sued Potter for fouling the water of the river Mersey coming to their works through a tunnel which they had made under a grant from a riparian proprietor. It was held, that they were not entitled to sue. (Stockport Waterworks Company v. Potter, 3 H. & C. 300.)

Acquisition of

Before the statute 2 & 3 Will. 4, c. 71, twenty years' exclusive enjoy- Of Watercourses. ment 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. rights with regard (Bealey v. Shaw, 6 East, 208.) The long enjoyment of a watercourse is to water. the best evidence of right and raises a presumption of an agreement: and Acquisition by proof of a special licence, or that it was limited in point of time, must enjoyment. come from the party who opposes the right. (Finch v. Resbridger, 2 Vern. 390; Gill. Eq. C. 3.) The enjoyment of water drawn from a brook along an artificial channel, and acts done by the owner of the dominant tenement upon the servient tenement, which, without the existence of an easement, would be tortious and actionable, may be evidence of a right in the owner of the dominant tenement to the use of the water. (Beeston v. Weate, 5 El. & Bl. 986; 25 L. J., Q. B. 115; 2 Jur., N. S. 540.)

An ancient watercourse which had supplied D.'s mill, had been in 1824, Presumption of and thence until 1826, obstructed by a new road which was made across it, grant. and the supply of water having been thus cut off, a new watercourse was constructed by D. to supply his mill through the lands of A. (through which the original watercourse had passed), and L., in 1853, obstructed the new watercourse. The lands of L. had been in the occupation of tenants from 1827 to 1853. The reversioner did not reside upon them, and the rents were received by a barrister living in Dublin, but who occasionally came to Cork (where the lands were situate) and lodged in the neighbourhood. An action having been brought by L. against D., for removing the obstruction to the watercourse, the latter claiming a title to the flow of the water, and the judge having left to the jury the presumption of a grant to D., and having also told them that they should be satisfied that such grant had been actually executed in fact: it was held, by the majority of the Court of Exchequer Chamber, that there was sufficient evidence to leave to the jury a question of presumption of a grant to D. (Deeble v. Linehan, 12 Ir. Com. Law Rep., N. S. 1, Exch. Cham.) It was held also, by the majority of the court, that the jury should not have been required to find that, as a matter of fact, a deed of grant had been actually executed. (Ib). Where the defendant had for many years past penned back a stream for the purposes of irrigation, in consequence of which the water had percolated through a porous and gravelly soil into the plaintiff's land; but this percolation had been insensible and unknown by the plaintiff until the land was applied for building purposes, the court held that no right to cause such percolation was acquired by the user, and that the adjoining owner, on receiving injury from it upon erecting a house, might bring an action for it. (Cooper v. Barber, 3 Taunt. 99.) Under a canal act, mill owners within a specified distance of the canal were entitled to use the water for the purpose of condensing the steam used for working their engines. In an action against such a mill owner, the declaration charged that he abstracted more water than was sufficient to supply the engine with cold water for the purpose of condensing the steam, and that he applied the water to other and different purposes than condensing steam. The plea alleged an user by him, as occupier of the mill, of the water, as of right, and without interruption for twenty years for other purposes than condensing steam; to wit, for the purpose of supplying the boiler of the engine, and of generating steam for working the engine, and of supplying a certain cistern, to wit, a cistern on the roof of a certain engine house. It was held, that the plea was bad, as the company had no right to grant the water for other purposes than for condensing steam, and that no such right could consequently be inferred from a twenty years' user by the defendant. (Rochdale Canal Company v. Radcliffe, 18 Q. B. 287; 18 L. J., Q. B. 297.) For the nature of the enjoyment requisite for obtaining under the Prescription Act acquired rights with regard to water, see the note to 2 & 3 Will. 4, c. 71, s. 2, ante, p. 9.

By a deed between A., the owner of Greenacre, and B., the owner of By express grant. Blackacre, it was agreed that A. should have, during the first ten days of every month, for the purpose of irrigation, all the water of a stream which flowed through Greenacre into Blackacre, and that at all other times the

Of Watercourses. water should be under the control and at the disposal of B. and his assigns, and should be allowed to flow in a free and uninterrupted course towards and into Blackacre, through a channel therein partially described, and that the owner of Greenacre should cleanse and repair the said channel, with liberty for B., his heirs, &c., to do so on his default. It was held, that this deed operated as a grant to B. of an easement of the watercourse therein described at all times except the first ten days of each month, and that he thereby acquired a right in respect of that channel, and that an alteration of this channel was an injury to his right, in respect of which B. might maintain an action, although no actual damage had occurred. (Northam v. Hurley, 1 Ell. & Bl. 665; 17 Jur. 672; 22 Law J., Q. B. 183.)

By implied grant upon severance of

tenements.

For upwards of twenty years water had flowed through an old drain on the defendant's land, and along an ancient watercourse, and thence along a close of the defendant, called G. B., and had thence contributed to supply the plaintiff's mills, after their erection in 1845. In that year the defendant by deed conveyed to the plaintiff the close G. B., "together with all ways, watercourses, liberties, privileges, rights, members, and appurtenances to the same close belonging or appertaining," subject to the proviso, that it should be lawful for the defendant to use for manufacturing, domestic, or agricultural purposes, any water flowing from or through the contiguous lands of the defendant unto and into the close G. B., returning the surplus, or so much as remained after being used for the purposes aforesaid, into its usual channel at a certain point, so that the water should not be diverted from its then course, but be allowed to flow into the close G. B. The defendant erected a lock-up tank upon his land, and caused the water which arose on his land, near to the close G. B., and which had previously been accustomed to flow along the old drain and ancient watercourse into the close G. B., and he caused the water to be conveyed from the tank to a lower part of his land, to be used by his tenants. This water was used by them for the purposes mentioned in the proviso to the deed, but the surplus could not be returned to the close G. B.: it was held, that, by the deed, the defendant granted to the plaintiff the use of the water, subject only to the use by himself of it as specified in the proviso, and that by locking it up he had diverted it, and was liable to an action for a breach of his covenant by reason of such diversion. (Rawstron v. Taylor, 11 Exch. 369.)

A conveyance of land from the defendant to the plaintiff contained the following clause: "Save and except, and always reserved unto the plaintiff, his heirs and assigns, the power to enter upon the land, and to dig and make a covered sewer or watercourse through the land, in order to convey the waste water from the premises of the plaintiff into the river W., on making reasonable compensation to the defendant for any damage or injury which might be occasioned thereby, either to the surface of the ground or the buildings under which the same might be made." The plaintiff having constructed a covered drain or sewer in pursuance of the power, the defendant made an opening in it and drained his premises through it: it was held, that the reservation gave the plaintiff a right to the exclusive use of the sewer. (Lee v. Stevenson, 4 Jur., N. S. 950; 27 L. J., Q. B. 263.)

The privilege of a watercourse is not confined to private individuals; it may be vested in a corporation, as where there was a grant to the corporation of Carlisle of water, for the purpose of turning the city mills. (8 East, 487.)

Where the owner of two or more adjoining houses sells one of them, the purchaser of such house is, without any express reservation or grant, entitled to the benefit of all the drains from his house; and is, on the other hand, subject to all the drains necessary for the enjoyment of the adjoining house. Such necessity is to be considered with reference to the time of the conveyance, and without reference to whether any other outlet could be made for the drainage. An owner of two adjoining properties, consisting of a tan-yard and a house and garden, made a cesspool in a corner of the garden, and a drain to carry the water into it from the tan-yard, which

gradually sloped down towards the garden. Afterwards he sold the two of Watercourses. properties to different persons. The conveyances made no allusion to the existence of the drain and cesspool: it was held, that the easement passed by an implied grant with the tan-yard. (Pyer v. Carter, 1 H. & N. 916; 26 L. J., Ex. 258. See Ewart v. Cochrane, 4 Macq. H. L. C. 117; 10 W. R. 3.) This decision has been questioned by Lord Westbury, who (speaking of the doctrine of implied grant or reservation upon the disposition of one of two adjoining tenements by the owner of both) said that it was correct to state that on the grant by the owner of an entire heritage of part of that heritage, as it was then used and enjoyed, there would pass to the grantee all those continuous and apparent easements which had been and were at the time of the grant used by the owners of the entirety for the benefit of the parcel granted. But he could not agree that the grantor could derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement, which remained the property of the grantor. His lordship confined his remarks to cases where the easement claimed had no legal existence anterior to the unity of possession. (Suffield v. Brown, 33 L. J., Ch. 249; 12 W. R. 356. See, however, Watts v. Kelson, L. R., 6 Ch. 166.) In 1860 the owner of closes A. and B. made a drain from a tank on B. to a lower tank on B., and laid pipes from the lower tank to cattle sheds on A. for the purpose of supplying them with water: and they were so supplied when the owner sold A. to the plaintiff with all waters, watercourses, &c., to the same hereditaments and premises belonging or appertaining, or with the same or any part thereof, held, used, enjoyed or reputed as part thereof, or as appurtenant thereto. The plaintiff had the use of the water after his conveyance until the defendant, a subsequent purchaser of B., stopped it. Held, that the watercourse was a continuous easement necessary for the use of A., and would have passed by implication on the conveyance of A. without any words of grant and that supposing the easement to be only convenient and not necessary, the general words were sufficient to pass it. (Watts v. Kelson, L. R., 6 Ch. 166.)

A grant of the right to pollute a stream was implied in Hall v. Lund (1 H. & C. 676; 11 W. R. 271).

As a general rule, it requires a deed to create a right and title to have a By licence. passage for water. (4 East, 107; 5 B. & Cr. 233.) As to creating rights

with regard to water by parol licence, see Liggins v. Inge (7 Bing. 682),

and the note on licences, p. 59, ante.

As to the acquisition by custom of a right to divert water in Devonshire, By custom. see Bastard v. Smith (2 M. & Rob. 129); and in Cornwall, Gared v. Martyn (19 C. B., N. S. 732; 14 W. R. 62). For a customary right to pollute water, see Carlyon v. Lovering (1 H. & N. 784; 26 L. J., Ex. 251; 5 W. R. 347); and for a customary right to the use of water, see Harrop v. Hirst, (L. R., 4 Ex. 43).

to water.

Whether a riparian proprietor may use the water of a stream for the pur- Extent and mode pose of irrigation, if he again return it into the river with no other dimi- of enjoyment of nution than that caused by the absorption and evaporation attendant on the rights with regard irrigation, depends on the circumstances of each particular case. The right of taking of water for such a purpose is a question of degree, and it is impossible to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application. If the irrigation Irrigation. take place not continuously but only at intermittent periods, when the river is full, and no damage is done thereby to the working of a mill on the stream, and the diminution of water is not perceptible to the eye, it is such a reasonable use of the water as is not prohibited by law. (Embrey v. Owen, 6 Exch. 372; see Sampson v. Hoddinott, 1 C. B., N. S. 603.) The water of a natural watercourse having been used by a mill owner, whose mills were situated above the plaintiff's mills, for manufacturing purposes, and returned again to the stream, except about five per cent. of that used, which had been lost by evaporation it was held, that this was a sufficient amount of injury to entitle the plaintiffs to a verdict upon the issue of not guilty. (Wood v. Waud, 3 Exch. 748; 18 L. J., Ex. 305.)

S.

H

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. (Medway 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.)

Extent of right to pollute.

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. (Dawson v. Paver, 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.)

Where a prescriptive right to foul a stream has been acquired, the fouling must not be considerably enlarged to the prejudice of other people. (Crossley v. Lightowler, 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