chinery through the reservoir at the lunatic asylum, the plaintiffs were willing to give their consent on being paid by the county the further sum of 151. a year as rent.

On the subject, however, being reported to the court of general sessions, the defendants denied that the plaintiffs had the right to make any charge for the use of the surplus water not required for the purpose of navigation; and the defendants, without the permission of the plaintiffs, laid down pipes from the asylum to the gaol, and by the same machinery erected for pumping up the water for the purpose of supplying the asylum, obtained a supply of water taken from the river, not only for the asylum, but for the county gaol, and the defendants declined paying any rent or compensation to the plaintiffs for so doing.

The circumstance of the gaol being so supplied having come to the knowledge of the plaintiffs, certain correspondence took place between the parties; and, under a threat by the plaintiffs of cutting off the supply unless the matter were arranged, the defendants, on the 16th of March, 1859, discontinued the supply of water from the reservoir at the asylum to the gaol; but on the 18th of April, 1859, the defendants. again turned on the water from the asylum for the use of the gaol.

Further correspondence then took place between the parties, which resulted in the plaintiffs, on the 19th of May, 1859, revoking the permission given by them to take water from the river Medway.

[*581 Notwithstanding, however, this revocation, the defendants have ever since continued to use the pipe and machinery and to take water from the river for the purpose of turning the said water-wheel and working the pump, and supplying both the asylum and the gaol with water; and the asylum and gaol continue to be and still are supplied with water so taken.

The court was to be at liberty to draw any inference of fact from the facts herein stated which a jury might draw.

By the order of nisi prius, it was stipulated that this case should be settled by Mr. Archibald, if the parties should differ (which event of course happened); and it was also stipulated and agreed thereby, that, if the court should think the question of injury to the navigation material to the decision of the court, then this case should be referred back to the said Mr. Archibald, to ascertain and state therein whether the diversion of the water was injurious to the navigation of the river.

The question for the opinion of the court was, whether the plaintiffs were entitled to recover upon both or either of the counts in the declaration.

If the court should be of opinion in the affirmative, then judgment was to be entered for the plaintiffs accordingly, for the sum of 207. and costs: but, if the court should be of opinion in the negative, then judgment of nolle prosequi was to be entered for the defendants, with

costs.

Lush, Q. C. (with whom was Honyman), for the plaintiffs. (a)-Under (a) The points marked for argument on the part of the plaintiffs were as follows:"1. That, upon the true construction of the company's acts of parliament, the bed and water of the Medway are vested in the plaintiffs.

"2. That this construction of the company's acts is corroborated by the various acts of ownership and other evidence set forth in the case:

"3. That the defendants show no right to take away any of the water of the Medway: "4. That, assuming that the riparian proprietors would be justified in taking the water for C. B. N. S., VOL. IX.—22

*582] the acts of parliament referred to *in the case, the river Medway and the bed and soil thereof and the waters therein are vested in the plaintiffs, and no person can have any right without their permission to abstract any of the water within the limits over which their rights and jurisdiction extend. The acts of parliament referred to in the case, are, the 16 & 17 Car. 2, c. 11, and the 13 G. 2, c. 26. By the former, after reciting "that making the river Medway and all other rivers, streams, and watercourses falling thereinto, in the counties of Kent and Sussex, navigable, had been upon view found to be feasible, and would be of great use for the better and more easy and speedy portage of iron, ordnance, balls, timber, and other materials in places adjacent made, forged, and provided for his Majesty's service, at all times, and more especially at such times and seasons in the year as the same could not otherwise be brought out of those parts, and would be advantageous to the inhabitants and all others concerned, as well for carriage of the commodities aforesaid as of wood, corn, and grain, hay, hops, wool, leather, and all other provisions growing and accruing from thence, as also of coals, lime, stone wares, and all other necessaries and

*583] *commodities to be carried thither, whereby commerce and trade would be much increased, and the public weal advanced,"-it was enacted "that it should and might be lawful for certain persons therein named to make the said river and the streams running thereinto navigable," in such manner as by the said act is limited and directed; and commissioners were also therein appointed, with power to adjudge and determine proper satisfaction to all person and persons, bodies politic and corporate, for any loss or damage to be by them sustained, by cutting, digging, or otherwise damnifying their lands and tenements in making the said river and streams navigable, with a power to appoint new commissioners in the stead of those dying or refusing to act. By the 13 G. 2, c. 26,-after reciting that the powers by the former act created were never carried into execution, and that the several persons authorized thereby to make the said river and streams navigable, and the several commissioners therein named and appointed were all since dead, without any proper successors appointed in their stead in manner as by that act was directed; and that the making of the said river and streams navigable at this time was likely to be of great utility to the public, by reason that great quantities of timber growing on the woods of Kent and Sussex, through which the said river and streams ran, and which was allowed to be the best in this kingdom for the use of his Majesty's navy, could not be conveyed to any market but at a very large expense by reason of the badness of the roads in those parts; and that divers persons thereinafter named, and many others, were desirous to become undertakers for making the said river Medway and streams navigable, and had agreed to raise amongst themselves a sum of money sufficient for that purpose,-incorporated the undertakers by the name of "The Company of Proprietors of the Navigation *584] of the River Medway," who by s. 2 were empowered to cleanse, scour, dig, widen, and deepen the river and streams, &c., to make new

purposes such as those mentioned in the defendants' pleas, the defendants, not being riparian proprietors, had no right so to do:

"5. That the mere abstraction of the water is in itself a violation of the plaintiffs' rights, and that the question of actual injury to the navigation is wholly immaterial."

channels, &c., to remove all impediments, to erect locks, &c., and by those and other means to make the same navigable, and to make wharves and other necessary erections both on the said river and streams and lands adjoining, in such manner as the proprietors in and by the said former act were empowered to do: and the section then proceeded to enact that "the said river or streams so to be made navigable, and all lands, tenements, and hereditaments to be by them (the company) made use of for the benefit of the said navigation by virtue of the former and this present act, shall be and are hereby vested in the said company, their successors, heirs, and assigns for ever.' And by s. 4, upon payment of compensation, the company were empowered to use lands, and thereupon erect works, and do anything for carrying on and maintaining the said navigation and works, and to have, use, and enjoy the same for their own use and benefit. Whether or not the soil passes to the company by these words, it is clear that the river does. [WILLES, J.Is that so clear? I remember the question arising upon the River Lea acts; and it was treated as a very grave one.] The case of the Rochdale Canal Company v. King, 14 Q. B. 122 (E. C. L. R. vol. 68), goes even further than is necessary for the decision of this case. There, the statute 34 G. 3, c. 78, empowered a company to purchase lands for making and maintaining a navigable canal, and contained provisions with respect to the conveyance of the land and its vesting in the company on payment of the price assessed by compensation juries. It was also provided by the same act (explained by the 46 G. 3, c. xx., s. 23), that manufacturers within a certain distance of the canal might, after notice to the proprietors of the canal, lay down pipes to supply their *steam-engines with water for the sole purpose of condensing the [*585 steam used for working such engines. A declaration in case by the company stated that the canal had been made and maintained by them in pursuance of the act; that the defendants, having steam-engines within the prescribed distance of the canal, had, after notice to the company, laid down pipes communicating with the canal; and that they had used the water drawn off by such pipes for other purposes than condensing the steam of their engines. It was objected in arrest of judgment, and afterwards on writ of error, that the declaration did not show any conveyance or ownership of the canal or water, nor any invasion of a private right, or damage to such a right, inasmuch as the act complained of, if wrongful, was clearly prohibited by statute, so that a repetition of the act could never be used as evidence that it was rightful and it was held by the Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that the declaration was good,—that it must be taken that the company was in possession of the canal; and that, without an averment of special damage, the wrongful act appeared to be a damage to the company's right. [WILLES, J.-There was a subsequent case of the Rochdale Canal Company v. Radcliffe, 18 Q. B. 287 (E. C. L. R. vol. 83).] Lord Denman in the former case says: "The company is invested by the legislature with certain rights, and may maintain an action for an invasion of them. The use of the canal water by the millowner for any other purpose than the condensation of the steam in his steam-engine, is distinctly treated as an abuse by stat. 46 G. 3, c. xx., s. 23, and is consequently an invasion of the company's rights." The Crown was the riparian proprietor of part of the lands

adjoining the river. The compensation for those lands would include *586] compensation for the soil of the bed of the river. It is no *forced construction of the words of the statute, therefore, to hold that they carry the soil. Assuming, however, that the words are not sufficient to carry the soil of the river, they at all events convey to the company an interest in the water such as will enable them to maintain an action against any person interfering with their rights. [ERLE, C. J. -All that a riparian proprietor is entitled to, is flumen aquæ; but no atom of the water belongs exclusively to him.] The company here, for a purpose beneficial to the public, possess rights far beyond those which the common law gives to every riparian proprietor. It may be that they have only a qualified property; but it is at the least sufficient to enable them to protect it against the invasion of wrongdoers. [ERLE, C. J.— There is a manifest difference between water in a canal and the waters of a navigable river. In the Rochdale Canal Company v. Radcliffe, all the water was appropriated by the act of parliament.] If any one riparian proprietor might take water from the Medway in the manner and for the purposes that these defendants have done so, a number of persons might take it, and to an extent which might seriously affect the navigation. The court will put such a construction upon these acts of parliament as will prevent the important public objects with which they were passed being frustrated.

Bovill, Q. C. (with whom was Deedes), for the defendants. (a) The *587] defendants assert their right to take *this water from a public river for public purposes, doing no injury to the navigation. If all the water which flows in the Medway were necessary to render it navigable, the plaintiffs had no right to sell any portion of it, as they have been doing for several years. It hardly lies in their mouths, therefore, to say, that the navigation is affected by what the defendants have done. At common law, no person could have a property in running water, but only a qualified right to the use of it as it flowed past his land. In Callis on Sewers,-which has always been held to be a high authority upon these matters,-p. 78 (orig. edit.), the learned author says: "It may here, as I take it, be moved for an apt question, in whom the property of running waters was; for, in Natura Brevium, fol. 123, there is a quod permittat habere liberam piscariam in aqua ipsius L., whereby it appears that the plaintiff had property in those waters; and in Pl. Com. 154, one granted aquam suam in L., and the piscary passeth thereby, and so did the soil also, in my opinion; for, in 12 H. 7, fo. 4, a præcipe quod reddat is brought de una acra terræ cu' aqua cooperta. In my conceit, the civil law makes prettier and neater distinctions of (a) The points marked for argument on the part of the defendants were as follows:"1. That, upon the true construction of the company's acts of parliament, the bed and water of the Medway are not vested in the plaintiffs ::

"2. That if upon such construction of the said acts of parliament, the water of the Medway is vested in the plaintiffs, it is vested in them for the purposes of navigation only:

"3. That the facts and statements in the case show no acts of ownership on the part of the plaintiffs, but only acts done by them for the purposes of navigation :

"4. That the defendants, although not riparian proprietors, have the right as members of the public to take water from the river for the purposes stated in the case, provided the navigation is not interfered with, of which there is no evidence:

"5. That the mere abstraction of the water from the river is not in itself a violation of any right in the plaintiffs, unless it appears that the navigation is interfered with, and actual damage sustained by the plaintiffs, of which there is no evidence."

[*588

these than our common law doth: for, there it is said that naturali ratione quædam sunt communia, ut aer, aqua profluens, mare, et littora maris. I concur in opinion with them, that the air is common to all; and I hold my former definitions touching the properties of the sea and the sea-shores. But that there should be a property fixed in running waters, I cannot be drawn to that opinion; for, the civil law saith farther, quod aqua profluens non manet in certo loco, sed procul fuit extra ditionem ejus quod flumen est ut ad mare tandem perveniat; for, in my opinion, it should be strange the law of property should be fixed upon such uncertainties as to be altered into meum, tuum, suum, before these words can be spoken, and to be changed in every twinkling of an eye, and to be more uncertain in the proprietor than a cameleon of his colours." In Liggins v. Inge, 7 Bingh. 682, 692 (E. C. L. R. vol. 20), 5 M. & P. 712, 728, Tindal, C. J., says: "Water flowing in a stream, it is well settled, by the law of England, is publici juris. By the Roman law, running water, light, and air were considered as some of those things which had the name of res communes, and which were defined things the property of which belongs to no person, but the use to all.' And, by the law of England, the person who first appropriates any part of the water flowing through his land to his own use, has the right to the use of so much as he thus appropriates, against any other: Bealey v. Shaw, 6 East 208. And it seems consistent with the same principle, that the water, after it has been so made subservient to private uses by appropriation, should again become publici juris by the mere act of relinquishment. There is nothing unreasonable in holding that the right which is gained by occupancy should be lost by abandonment." The Rochdale Canal v. King, 14 Q. B. 122 (E. C. L. R. vol. 68), is a totally different case from the present. There, the whole of the water of the *canal was necessarily vested in the proprietors. Parlia[*589 ment, however, never could have intended to give these plaintiffs a property in a thing so changeable as the waters of a natural stream: and, if they had intended to vest in them the soil of the river, it would have been easy to say so. It is not usual to convey the right to the soil unless the actual ownership of it is necessary to the carrying out the purposes of the undertaking. In The King v. The Aire and Calder Navigation, 9 B. & C. 820 (E. C. L. R. vol. 17), 4 M. & R. 728, an act of parliament of the 9 & 10 W. 3 gave to certain undertakers authority to make navigable the river Aire, and for that purpose to cleanse and scour the same, and dig and cut the banks. By a subsequent act, reciting that the legal estate and interest in the navigation of the said river, and divers messuages, mills, warehouses, buildings, lands, tenements, and hereditaments were vested in trustees, they were authorized by deed to sell and convey in fee such messuages, mills, lands, or tenements belonging to the undertakers, or to convey in fee, by way of mortgage, as well the said navigation as also all or any messuages, mills, lands, tenements, and hereditaments, being the property of the undertakers and it was held that the word "navigation" in that act imported an incorporeal hereditament, and that it authorized the trustees to mortgage in fee that incorporeal hereditament; and, the first act having given the undertakers an incorporeal hereditament only in the bed of the river, they were not rateable to the poor as occupiers or owners of the river Aire. [WILLES, J., referred to Badger v. The South Yorkshire Rail