said: "The object of the judgment in Mason v. Hill, was to set right the mistaken notion which had got abroad in consequence of certain dicta in Williams v. Morland (2 B. & C. 910), that flowing water is publici juris, and that the first occupant of it for a beneficial purpose may appropriate it." And in Sampson v. Hoddinott (1 C. B. N. S. 590), it was said: "It appears to us that all persons having land on the margin of a flowing stream have by nature certain rights to use the water of the stream, whether they exercise their rights or not" (adopted by Wood, V.-C., in Crossley v. Lightowler, 3 Eq. 296; see Orr-Ewing v. Colquhoun, 2 App. Cas. 854). Of Watercourses. The right of a riparian owner to the lateral tributaries or feeders of Channel must the main stream applies only to water flowing in a defined and natural be defined. channel or watercourse, and does not extend to water flowing over or soaking through land previous to its arrival at such watercourse (Broadbent v. Ramsbottom, 11 Ex. 602). The owner of land has an unqualified right to drain it for agricultural purposes in order to get rid of mere surface water, the supply of the water being casual and its flow following no regular definite course (Rawstron v. Taylor, 11 Exch. 369; see Van Breda v. Silberbauer, L. R. 3 P. C. 84). As to what is a defined channel, see Briscoe v. Drought (11 Ir. C. L. R. N. S. 250; Ennor v. Barwell, 2 Giff. 410). On the other hand, where a natural defined stream issued from Springs. a springhead, it was held that the "stream" began at the springhead, and that the owner of the land could only take such water from either as was incident to his right as riparian owner (Dudden v. Clutton Union, 1 H. & N. 627; Bunting v. Hicks, 70 L. T. 458; Ewart v. Belfast, 9 L. R. Ir. 172). The same principle applied even where at some remote period the springhead had been built round (Mostyn v. Atherton, 1899, 2 Ch. 360). In the case of a natural stream flowing through an artificial channel, Artificial the riparian proprietors may possess rights similar to those which they channel. would have possessed if the channel had been a natural one (Holker v. Parritt, L. R. 8 Ex. 116; Roberts v. Richards, 44 L. T. 271; Sutcliffe v. Booth, 32 L. J. Q. B. 136; Baily v. Clark, 1902, 1 Ch. 649; see also Nield v. L. & N. W. R. Co., L. R. 10 Ex. 4; and post, p. 76). In a case where a stream had from time to time changed its course, it Stream was laid down that the accustomed course of a natural stream which a changing its riparian owner is entitled to have preserved is the natural and apparently course. permanent course existing when the right is asserted or called in question (Withers v. Purchase, 60 L. T. 819). (2) If the course of a subterranean stream be well known, as is the case Natural with many, which sink underground, pursue for a short space a sub- rights with terraneous course and then emerge again, the owner of the soil under regard to which the stream flowed could maintain an action for the diversion of it, subterranean if it took place under such circumstances as would have enabled him to recover if the stream had been wholly above ground (Dickenson v. Grand where course Junction Co., 7 Ex. 300; Chasemore v. Richards, 7 H. L. C. 349; see also is known and Dudden v. Clutton Union, 1 H. & N. 630). defined: water: The owner of land, through which underground water flows with no where course certain course or defined limits, has no natural right in it which will is undefined. enable him to maintain an action against a landowner, who, in mining on his own land in the usual manner, drains away the water from the land of the first-mentioned owner, and lays his well dry (Acton v. Blundell, 12 M. & W. 353; Chasemore v. Richards, 7 H. L. C. 374; Jordeson v. Sutton Co., 1899, 2 Ch. 248). And 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 Co. v. Johnson, 6 Jur. N. S. 374; 7 W. R. 179; see also South Shields Co. v. Cookson, 15 L. J. Ex. 315; R. v. Metropolitan Board, 3 B. & S. 710; Ballacorkish Co. v. Harrison, L. R. 5 P. C. 60; Bradford v. (4) Acquired rights with regard to water; in natural stream; in subter Pickles, 1895, A. C. 587). The ultimate decision in Dickenson v. Grand Junction Co. (7 Exch. 282), and the dictum of Lord Ellenborough in Balston v. Benstead (1 Camp. 463), have been overruled by Chasemore v. Richards, 7 H. L. C. 349. On the other hand, a landowner will be restrained from making a drain in his own land by which water flowing in a defined surface channel through adjoining land is withdrawn (Grand Junction Co. v. Shugar, 6 Ch. 483). A proprietor of land adjoining a river has a right to raise the banks upon his own land, so as to prevent the water from overflowing his land, with this restriction, that he does not occasion injury to the property of others (R. v. Trafford, 1 B. & Ad. 874; 8 Bing. 204; 2 Cr. & Jerv. 265; Menzies v. Breadalbane, 3 Bligh, N. S. 414, 418; A. G. v. Lonsdale, 7 Eq. 377). Compare the easement of opening locks acquired by a corporation for the protection of their land (Simpson v. Godmanchester, 1897, A. C. 696). If, however, an extraordinary flood is seen to be coming on land, the owner may protect his land from it without being responsible for consequences, although his neighbour may be injured (Nield v. L. & N. W. R. Co., L. R. 10 Ex. 4; see Whalley v. Lancashire R. Co., 13 Q. B. Div. 136, 140. Compare the similar right on the sea-shore: R. v. Pagham, 8 B. & C. 355). But if the flood has already come, the owner must not, for the purpose of getting rid of the mischief, injure his neighbour (Whalley v. Lancashire R. Co., sup.). As to the duties in respect of a river-wall incumbent on the owner of land on a tidal navigable river, see NitroPhosphate Co. v. London and S. Katharine's Docks, 9 Ch. Div. 524; Burt v. Victoria Co., 47 L. T. 378. 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 proprietor higher up the stream so as to occasion damage in law, though 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; see Weeks v. Heward, 10 W. R. 557). The same rule applies, if the character of the water be altered (Young v. Bankier Co., 1893, A. C. 691). The natural right to purity extends to subterranean water when appropriated (Hodgkinson v. Ennor, 4 B. & S. 229; Turner v. Mirfield, 34 Beav. 390; Ballard v. Tomlinson, 29 Ch. Div. 115). 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. 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 or lower down the stream, unless the user by which it was acquired affects the use such landowner 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 or below a servient tenement (Sampson v. Hoddinott, 1 C. B. N. S. 590; Bealey v. Shaw, 6 East, 208). Before the Prescription Act, 1832, 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. 113b; see Dewhirst v. Wrigley, 1 C. P. Coop. 329). No right to the uninterrupted flow of subterranean water which percoranean water. lates in an undefined course can be acquired by prescription, for no grant can be presumed in the case of such water (Chasemore v. Richards, 7 H. L. C. 349). The owner of land containing such water may divert or appropriate the same, even from a malicious motive (Bradford v. Pickles, 1895, A. C. 587; see ante, p. 73). Where, however, a grant was made of all streams of water that might be found in certain closes, it was held that the grantor and those claiming under him could not work mines under adjoining land so as to divert underground water from wells in the closes (Whitehead v. Parkes, 2 H. & N. 870). Of Water courses. by user; In Prescott v. Phillips (cited Bealey v. Shaw, 6 East, 213; Mason v. Hill, 5 B. & Ad. 23) it was ruled, "that nothing short of twenty years' undis- Prescriptive turbed possession of water diverted from the natural channel, or raised by right acquired a weir, could give a party an adverse right against those whose lands lay to divert; 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 Cox v. Matthews, 1 Ventr. 237, cited Mason v. Hill, 5 B. & Ad. 25). 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 R. Co., L. R. 6 Q. B. 587). "Previously to the Prescription Act, 1832, the acquiescence of lessees would not bind the landlord; similarly, the uninterrupted possession of the water for over fifty years, with the acquiescence of tenants for life, did not affect the reversioner (Bradbury v. Grinsell, 2 Wms. Saund. 516). Evidence of user to pen back; 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). As to enjoyment since the Prescription Act during a life tenancy, see Bright v. Walker, 1 C. M. & R. 211, ante, p. 8. As between absolute owners, the right to pen back a stream may be acquired by prescription (Cooper v. Barber, 3 Taunt. 99). Again, the right to a fishing weir may be acquired in non-navigable rivers to obstruct; 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; see Barker v. Faulkner, 1898, W. N. 69); and even in a navigable river a riparian proprietor can acquire an interest in its water power as derived from a reservoir artificially formed by a dam across its channel (Hamelin v. Bannerman, 1895, A. C. 237). An action may be maintained for the erection of a roof with eaves pro- to discharge jecting over another's land, and discharging rain water on to it, without water upon proof that rain has actually fallen (Fay v. Prentice, 1 C. B. 828). The adjoining reversioner may sue (Tucker v. Newman, 11 Ad. & Éll. 40). Although, land; however, 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 recognised (Thomas v. Thomas, 2 C. M. & R. 34; see Wright v. Williams, 1 M. & 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)). Such a right will not be lost by raising the house (Harvey v. Walters, L. R. 8 C. P. 162). 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. Baym. 1399). If one had a right to enter into the yard of another, and he fixed a spout there to discharge water upon the plaintiff's land, trespass would not lie, but case (Reynolds v. Clarke, 1 Str. 634; 8 Mod. 272; Fort. 212). The flow of water for twenty years from the eaves of a house will not give a right to the neighbour to insist that the house shall not be pulled down or altered so as to diminish the quantity of water flowing from the roof courses. Of Water- (Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Exch. 293, 294; Arkwright v. Gell, 5 M. & W. 233). A legal origin was presumed for the right of discharging water from a highway through a pipe on to adjoining land (4. G. v. Copeland, 1902, 1 K. B. 690). to pollute water; to discharge sewage. A right to pollute a stream can be acquired by prescription (Baxendale v. McMurray, 2 Ch. 790; see Eastwood v. Henley Council, 1901, 1 Ch. 645), but only through the continuance of perceptible injury for twenty years (Goldsmid v. Tunbridge Commrs., 1 Ch. 349; see Millington v. Griffiths, 30 L. T. 65; Murgatroyd v. Robinson, 7 E. & B. 391; Sampson v. Hoddinott, 1 C. B. N. S. 611; O'Brien v. Enright, I. R. 1 Ch. 718). And there can be no prescriptive right to justify a public nuisance (A. G. v. Barnsley, 1874, W. N. 37). A right to discharge sewage through a drain can be acquired by prescription (A. G. v. Dorking, 20 Ch. Div. 601; Brown v. Dunstable, 1899, 2 Ch. 378; see Wright v. Williams, 1 M. & W. 77). As to such a right being binding on a local authority, see R. v. Staines, 60 L. T. 261; Ogilvie v. Blything, 65 L. T. 338. Artificial The natural rights of a riparian proprietor are limited to natural streams, watercourses: and do not attach in the case of artificial watercourses (Sampson v. Hodof a perman- dinott, 1 C. B. N. S. 590). Prescriptive rights, however, may be acquired ent character; in artificial watercourses of a permanent character (Rameshur v. Koonj, of a temporary nor against a superior proprietor. 4 App. Cas. 121; Wood v. Waud, 3 Exch. 777; Blackburne v. Somers, 5 L. R. Ir. 1; see Bunting v. Hicks, 70 L. T. 455; Baily v. Clark, 1902, 1 Ch. 648). The enjoyment must be as of right (Chamber v. Hopwood, 32 Ch. Div. 549; see also Beeston v. Weate, 5 El. & Bl. 986; Gaved v. Martyn, 19 C. B. N.S. 732; Ivimey v. Stocker, 1 Ch. 396; Powell v. Butler, I. R. 5 C. L. 309, and ante, p. 9; and compare Bankart v. Tennant, 10 Eq. 141). Where the enjoyment of an artificial watercourse depends on temporary circumstances, no right to the uninterrupted flow of water can be acquired by prescription against the creator of the stream. Thus, a party receiving water drained from a mine had no right to compel the owners of the mine to continue such discharge (Arkwright v. Gell, 5 M. & W. 203; see Magor v. Chadwick, 11 Ad. & Ell. 571). So in the case of a watercourse constructed for the purpose of a mill (Burrows v. Lang, 1901, 2 Ch. 502). A watercourse is constructed for a temporary purpose when it is constructed for a purpose which may within the reasonable contemplation of the parties come to an end (Ib. 508). 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; see Hanna v. Pollock, 1900, 2 Ir. R. 664). Further, it is more difficult to presume an agreement as to enjoyment when a watercourse is constructed entirely over the land of the creator than in the case of water pumped over another's land (Burrow's v. Lang, 1901, 2 Ch. 508; see M'Evoy v. G. N. R., 1900, 2 Ir. R. 325). 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 above to permit the water to flow through their land for his benefit (Wood v. Waud, 3 Exch. 748; see Wardle v. Brocklehurst, Ell. & Ell. 1058; Mason v. Shrewsbury R. Co., 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 (Magor v. Chadwick, 11 Ad. & El. 586; Blackburne v. Somers, 5 L. R. Ir. 1). Before the Prescription Act, 1832, 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). The long enjoyment of a watercourse is the best evidence of right and raises a presumption of an agreement: and proof of a special licence, or that it was limited in point of time, must come from the party who opposes the right (Finch v. Resbridger, 2 Vern. 390; Gilb. Eq. C. 3). In Deeble v. Lineham, 12 Ir. C. L. N. S. 1, there was sufficient evidence of enjoyment to support the presumption of a grant. If, however, such a grant would be void by statute, it cannot be presumed (Rochdale Co. v. Radcliffe, 18 Q. B. 287; where the supposed grantor was a canal company incorporated by statute). 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). The owner of a house can acquire (as an easement) the right to bring water thereto through pipes over the adjoining land (Goodhart v. Hyett, 25 Ch. D. 182). Of Water courses. Right to purity of water in artificial watercourse. (5) Modes of acquisition of rights with regard to water. Grant presumed from enjoyment. For the nature of the enjoyment requisite for obtaining under the Pre- Acquisition scription Act acquired rights with regard to water, see the note to the under PrePrescription Act, 1832, s. 2, ante, p. 7. scription Act. As to the acquisition by custom of a right to divert water in Devon- Acquisition shire, see Bastard v. Smith (2 M. & Rob. 129); and in Cornwall, Gaved by custom. 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); and for a customary right to the use of water, see Harrop v. Hirst (L. R. 4 Ex. 43). Water rights may be acquired by express grant. The grant of a Acquisition 66 'watercourse may mean (1) the right to the running of water; or by express (2) the drain which contains the water; or (3) the land over which the grant; water flows (Taylor v. S. Helens, 6 Ch. Div. 271; where the effect of the grant of an artificial watercourse was considered). The reservation of right to make a watercourse included the right to divert water and to use the water diverted (Remfry v. Natal Surveyor-General, 1896, A. C. 558). A "spring of water" means a natural source of water of a definite and well-marked extent (Taylor v. S. Helens, 6 Ch. Div. 273). A "stream is water which runs in a defined course, so as to be capable of diversion (Ib.). The word did not include either the spring or water soaking through marshy ground (M'Nab v. Robertson, 1897, A. C. 129). In Northam v. Hurley (1 El. & Bl. 665), it was held on the construction of the grant of a watercourse from the land of the grantor to the land of the grantee, that the grantor could not alter the channel on his own land although no damage had occurred to the grantee. The effect of special words in an express grant or reservation of water was also considered in Rawstron v. Taylor, 11 Exch. 369; Lee v. Stevenson, 27 L. J. Q. B. 263; Finlinson v. Porter, L. R. 10 Q. B. 188. The privilege of a watercourse 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). As to conveyances of land since 1881 carrying rights of water and watercourses, see Conv. Act, 1881, s. 6, post. If land with a run of water upon it be sold, the water passes with the land (Canham v. Fisk, 2 Cr. & Jer. 126; see Hamelin v. Bannerman, 1895, A. C. 237). The rights, however, of a riparian proprietor cannot |