RICHARDS. great individual cost and trouble, they should pay one of their CHASEMORE number to supply them with water, the result would be precisely the same. * THE LORD CHANCELLOR (Lord CHELMSFORD) proposed for the opinion of the Judges the following question: Whether, under the circumstances stated in the printed case, the Croydon local board of health is legally liable to the action of the appellant for the abstraction of the water in the manner described ?" MR. JUSTICE WIGHTMAN delivered the opinion of the Judges who had been present at the argument: My Lords, in this case the Judges agree in opinion. I have, therefore, to deliver their unanimous opinion to your *Lordships. It appears by the facts that are found in this case, that the plaintiff is the 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 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 represents 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 is, whether the plaintiff can maintain an action against the defendant for this diversion, abstraction, and interception of the underground water. The law respecting the right to water flowing in definite, R.R.-VOL. CXV. 13 [365] June 11. [ *366 ] RICHARDS. [ *367 ] CHASEMORE Visible channels may be considered as pretty well settled by several modern decisions, and is very clearly enunciated *in the judgment of the Court of Exchequer in the case of Embrey v. Owen (1). But the law, as laid down in those cases, is inapplicable to the case of subterranean water not flowing in any definite channel, nor indeed at all, in the ordinary sense, but percolating or oozing through the soil, more or less, according to the quantity of rain that may chance to fall. The inapplicability of the general law, respecting rights to water, to such a case, has been recognised and observed upon by many Judges whose opinions are of the greatest weight and authority. In the case of Rawstron v. Taylor (2), Baron PARKE, in the course of delivering judgment, says, This is the case of common surface water flowing in no definite channel, though contributing to the supply of the plaintiff's mill. The water having no definite course, and the supply not being constant, the plaintiff is not entitled to it. The right to have a stream running in its natural direction does not depend upon a supposed grant, but is jure naturæ." [ *368] In delivering the judgment of the Court of Exchequer in the subsequent case of Broadbent v. Ramsbotham (3), Baron ALDerSON observes, that "all the water falling from heaven, and shed upon the surface of a hill, at the foot of which a brook runs, must, by the natural force of gravity find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which it falls from dealing with it as he may please, and appropriating it. He cannot do so if the water has arrived at and is flowing in some definite channel. There is here no watercourse at all." In the earlier case of Acton v. Blundell (4), the Court of Exchequer was of opinion that the owner of the surface might apply subterranean water as he pleased, and that *any inconvenience to his neighbour from so doing was damnum absque injuriâ, and gave no ground of action. There is no case or authority of which I am aware that can be cited in support of the position contended for by the plaintiff, or in which the right to subterranean percolating water adverse to that of the owner of the soil came in question, except the Nisi Prius case of Balston v. Bensted (5), and Dickinson v. The Grand Junction Canal Company (6). In the first of these cases, Lord ELLENBOROUGH is reported to have expressed an opinion that twenty years' enjoyment of the use of water in any manner afforded an exclusive presump (1) 86 R. R. 331 (6 Ex. 353). (4) 67 R. R. 361 (12 M. & W. 324). (5) 1 Camp. 463. (6) 7 Ex. 282. tion of right. This opinion amounted only to the dictum of CHASEMORe an eminent Judge, followed by no decision upon the point, RICHARDS. for the case ended in the withdrawal of a juror, and is directly at variance with the judgment of the Court of Exchequer in the other case, upon which the plaintiff relies, of Dickinson v. The Grand Junction Canal Company, in which the COURT declared (1) "that the right to have a stream running in its natural course is not by a presumed grant from long acquiescence on the part of the riparian proprietors above and below, but is ex jure naturæ, and an incident of property as much as the right to have the soil itself in its natural state, unaltered by the acts of a neighbouring proprietor, who cannot dig so as to deprive it of the support of his land." In the case of Dickinson v. The Grand Junction Canal Company, the very question now before your Lordships' House arose, and that case is relied upon by the plaintiff as a decisive authority in his favour. The Court of Exchequer was of opinion that the Company, by digging a *well and pumping out the water, and so intercepting and diverting underground and percolating water which would otherwise have gone into a stream which flowed to the plaintiff's mill, and was applied to the working of it, had become liable to an action for the infringement of a right at common law. In the same judgment, however, the COURT refers (2), to the case of Acton v. Blundell apparently with approbation, and observes, "that the existence and state of underground water is generally unknown. before a well is made; and after it is made there is a difficulty in knowing, certainly, how much, if any, 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 his neighbour. These practical uncertainties. make it very reasonable not to apply the rules which regulate the enjoyment of streams and waters above ground to subterranean waters." But the COURT, without at all adverting to this distinction which it had adopted, treated the case of underground percolating water as governed by the same rules as would obtain in the case of visible streams and watercourses above ground; and no remark or comment was made or reason assigned by the Court for arriving at a conclusion which not only does not seem warranted by the premises previously adopted, but is in effect hardly consistent with them. The plaintiff in that case was held to have a cause of action, independently of any infringement of a right at common law, by reason of the breach of an agreement between the parties and of an (2) 7 Ex. 300. (1) 7 Ex. 299. [ *369 ] v. RICHARDS. [370] CHASEMORE Act of Parliament; and a decision upon the right at common law seems not to have been necessary for determining the suit between the parties. These considerations greatly weaken the effect of the case of Dickinson v. The Grand Junction Canal Company, as an authority against the defendant upon the point now in question, but it is an authority in his favour to show that a right to water is not by a presumed grant from long acquiescence, but, if it exists at all, is jure naturæ, and that the rules of law that regulate the rights of parties to the use of water are hardly, or rather not at all, applicable to the case of waters percolating underground. [ *371 ] 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? The Court of Exchequer, indeed, in the case of Dickinson v. The Grand Junction Canal Company, expressly repudiates the notion that such a right as that in question can be founded on a presumed grant, but declares that with respect to running water it is jure naturæ. If so, à fortiori, the right, if it exists at all, in the case of subterranean percolating water, is jure naturæ, and not by presumed grant, and the circumstance of the mill being ancient would in that case make no difference. The question then is, whether the plaintiff has such a *right as he claims jure natura to prevent the defendant sinking a well in his own ground at a distance from the mill, and so absorbing the water percolating in and into his own ground beneath the surface, if such absorption has the effect of diminishing the quantity of water which would otherwise find its way into the river Wandle, and by such diminution affects the working of the plaintiff's mill. It is impossible to reconcile such a right with the natural and ordinary rights of land owners, or to fix any reasonable limits to the exercise of such a right. Such a right as that contended for by the plaintiff would interfere with, if not prevent, the draining of land by the owner. Suppose, as it was put at the Bar in argument, a man sank a well upon his own land, and the amount of percolating water which found a way into it, had no sensible effect upon the quantity of water in the river which ran to the plaintiff's mill, no action would be maintainable; but if many land-owners 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 one of them, and if any, which, for it is clear that no action could be maintained against them jointly. In the course of the argument one of your Lordships (Lord BROUGHAM) adverted to the French artesian well at the Abattoir de Grenelle, which was said to draw part of its supplies from a distance of forty miles, but underground, and, as far as is known, from percolating water. In the present case the water which finds its way into the defendant's well is drained from, and percolates through, an extensive district, but it is impossible to say how much from any part. If the rain which has fallen may not be *intercepted whilst it is merely percolating through the soil, no man could safely collect the rain water as it fell into a pond; nor would he have a right to intercept its fall, before it reached the ground, by extensive roofing, from which it might be conveyed to tanks, to the sensible diminution of water which had, before the erection of such impediments, reached the ground, and flowed to the plaintiff's mill. In the present case the defendant's well is only a quarter of a mile from the river Wandle; but the question would have been the same if the distance had been ten or twenty or more miles distant, provided the effect had been to prevent underground percolating water from finding its way into the river, and increasing its quantity, to the detriment of the plaintiff's mill. Such a right as that claimed by the plaintiff is so indefinite and unlimited that, unsupported as it is by any weight of authority, we do not think that it can be well founded, or that the present action is maintainable; and we therefore answer your Lordships' question in the negative. LORD CHELMSFORD: My Lords, the question in this case is, whether the plaintiff in error is entitled to claim against the defendant the right to have the benefit of the rain water which falls upon a district |