Not limited by present enjoyment.

is an injury to a right actual perceptible damage is not necessary to maintain it (d).

The rights of riparian owners existing, as has been said, ex jure naturæ, and not depending on any presumed grant from the other riparian owners, are not limited by the present mode of enjoyment, and a new mode of enjoyment gives a rise at once to sue for an injury done in respect of such new uses (e).

"All persons," says Cresswell, J., "having lands on the margin of a flowing stream, have, by nature, certain rights to use the water of that stream, whether they exercise those rights. or not; and they may begin to exercise them when they will" (f).

Thus, in Mason v. Hill (g), cited above, the proprietor of a mill, having appropriated the water of a stream to the use of a mill newly erected, was held entitled to recover from a proprietor higher up the stream damages for the injury to his mill occasioned by the wrongful diversion of the stream, although before the mill was built the wrongdoer could only have been liable to nominal damages. "It is the necessary effect of every appropriation of running water to a new and beneficial use, that a wrongful diversion or abstraction entails a larger measure of liability'' (h).

Where the continuance of a wrongful act causes fresh damage, the continuance of the wrongful act which caused the damage constitutes a fresh cause of action (i). Thus, where before 1866 a stream was conveyed by a canal company under and across a canal through two wooden tunnels for which in 1866 the company substituted metal tunnels of less capacity, in consequence of which after heavy rains the stream in 1873 flooded the plaintiff's land, the Irish Court of Common Pleas held that the substitution of the smaller for the larger tunnels was in its inception an innocent act, without either injuria or damnum, and only became tortious upon the subsequent flooding, and that the Statute of

(d) Embrey v. Owen, 6 Ex. 353; White v. White [1906] A. C. 72; 75 L. J. P. C. 14; 94 L. T. 65. See also 3 Kent's Comm., s. 52, p. 430; Pennington v. Brinsop Hall Co., 5 Ch. D. 769; 46 L. J. Ch. 773; 37 L. T. 149: St. Louis v. St. Louis, 3 Moo. P. C. 298; Frankum v. Falmouth, 4 L. J. K. B. 26; 2 A. & E. 452. In Roberts v. Fellowes (1906) 94 L. T. 279, where an injunction was granted to restrain the abstraction of water by a higher riparian owner to the prejudice of a mill lower down the stream, it was held that the order must state that a riparian proprietor is not entitled to restrain absolutely another riparian proprietor from taking any water from the stream for legitimate purposes. See also McGone v. Smith, 22 L. R. Ir. 554, where an upper proprietor raised the level of the water flowing past the land of a lower proprietor.

(e) Holker v. Porrit, L. R. 10 Ex. 59; Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Pennington v. Brinsop Hall Co., 5 Ch. D. 769; Chasemore v. Richards, 7 H. L. 382; Att.-Gen. v. Birmingham, 4 De G. & J. 528.

(f) Sampson v. Hoddinot, 1 C. B. (N.s.) 590.

(g) 5 B. & A. 1; 39 R. R. 354.

(h) Per Lush, J., delivering judgment of the Exchequer Chamber in Holker v. Porrit, L. R. 10 Ex. 59; 44 L. J. Ex. 52; 33 L. T. 125; post, p. 112. (i) Devery v. Grand Canal Co., Ir. R. 8 C. L. 511.

Limitations began to run from the time of the flooding in 1873. On appeal the Exchequer Chamber affirmed this decision, but on a different ground, holding that the obstruction to the stream in 1866 was a wrongful act, and the continuance of the wrongful obstruction causing fresh damage in 1873, constituted a fresh cause of action in 1873, and that therefore the Statute of Limitations applicable to the case began to run from the time of the damage in 1873 (k).

It would seem that the rights of a riparian proprietor, with respect to a stream, are limited only by those of persons in a similar or analogous position with himself (1). Thus, where the same person is proprietor of the ground on both sides of a nonnavigable stream, he can change a channel as he pleases, provided he restores the water to the old channel before it leaves his ground, and provided that it flows out of his ground into the lands below as it was wont to do, neither increased nor diminished in quantity, quality or direction (m). In the case of Whaley v. Laing (n), it was held that the mere possession or taking of water by a person not a riparian owner is not sufficient to enable the possessor to maintain an action for polluting it. In the case of The Stockport Waterworks Co. v. Potter (o), where the plaintiffs, a water company, who had by grant a right to take water from the Mersey, for supplying the inhabitants of Stockport with water, brought an action against defendants for polluting such water; it was held by Pollock, C.B., and Channell, B.,-Bramwell B., diss., that the rights which a riparian owner has with respect to the water are entirely derived from his possession of land abutting on the stream, and that if by a deed which conveys only land not abutting on the stream he affects to grant water rights, such grant, though valid against the grantor, can create no rights for an interruption of which the grantee can sue a third party. In the subsequent case of Nuttall v. Bracewell (p), this view is confirmed by the majority of the Court of Exchequer.

In the case of Ormerod v. The Todmorden Mill Co. (q) the

(k) Ir. R. 9 C. L. 194.

(1) Per Channell, B., in Nuttall v. Bracewell, L. R. 2 Ex. 13; 36 L. J. Ex. 1; 15 L. T. 313. Mere possession of rights corporeal and incorporeal, however, is sufficient to maintain an action against a wrongdoer: Pullan v. Roughfort Bleaching Co., 21 L. R. Ir. 73; Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Nuttall v. Bracewell, L. R. 2 Ex. 1.

(m) Per Lord Blackburn, Orr Ewing v. Colquhoun, 2 A. C. 839.

(n) 3 H. & N. 675. Ex. Ch. ; 2 H. & N. 476. See per Bramwell, B., in Stockport v. Potter, 3 H. & C. 300, and Fergusson v. Malvern Urban Council, 73 J. P. 273, C. A. [1908] K. B. D.; Dickinson v. Shepley Sewerage Board (1904) 68 J. P. 363; Foster v. Warblington Urban Council [1906] 1 K. B. 648; 75 L. J. K. B. 514; and cf. post, pp. 132 et seq.

(0) 3 H. & C. 300; 10 L. T. 748.

(p) L. R. 2 Ex. 1. See also Crossley v. Lightowler, L. R. 2 Ch. 478. (q) 11 Q. B. D. 155.

Sole right to water.

question raised in Stockport Waterworks Co. v. Potter was again considered, and the Court of Appeal held that a riparian owner cannot except as against himself confer on one who is not a riparian owner any right to use the water of a stream, and that any user by a non-riparian proprietor, even under a grant from a riparian proprietor, is wrongful if it sensibly affects the flow of the water by the land of other riparian proprietors.

In the case of Kensit v. Great Eastern Rly. Co. (r), where the owner of land not abutting on a river with the licence of a lower riparian owner took water from the river, and after using it for cooling certain apparatus returned it to the river unpolluted and undiminished, the Court of Appeal held, affirming Pollock, B., that the lower riparian owner could not obtain an injunction against the higher riparian owner or his licensee. Remarking on the cases cited in argument, Lindley, L.J., says, at p. 136: Stockport Waterworks Co. v. Potter (s) simply decides that the grantee of a riparian proprietor must take the water as he finds it. . . . In Ormerod v. Todmorden Joint Stock Mill Co. (t) the decision was that the grantee of a riparian proprietor could not take water and return it in a state so as to do injury to those below him. ... Neither of these cases decides that a licensee or grantee of a riparian proprietor cannot take any water from the stream; they decide nothing of the sort, nor do they warrant any such inference."

In certain exceptional cases there may exist an absolute right to the whole of the water of a stream, so as to entitle a man to sue for the diversion of any part of it (u). Thus in Holker v. Porrit (x), where a natural stream had been divided immemorially, and one branch ran into a farmyard where it supplied a trough, and the overflow from the trough was formerly diffused and discharged itself by percolation, and the owner connected the trough with reservoirs, and used the surplus water for a mill; it was held that this grantee could maintain an action against an upper riparian proprietor on the stream above the diversion for obstructing the flow of the water. Lush, J., delivering the judg

(r) 27 Ch. D. 122; 54 L. J. Ch. 19; 51 L. T. 862.
(s) 3 H. & C. 200; 10 L. T. 748.

(t) 11 Q. B. D. 155.

(u) As by Act of Parliament. See post, p. 138. As to sole rights to water under the Roman-Dutch Law of Cape Colony, see French Hoek Commissioners v. Hugo, 10 App. Cas. 336; 54 L. T. 92; and Breda v. Silberbauer, L. R. 3 P. C. 84. A Crown charter granting a mill cum stagnis.. aquæductis aliisque integris privilegiis et pertinentibus ejusdem quibuscunque cannot be construed as conferring rights beyond those of ordinary dams or stagna and gives no exclusive property in running water: White v. White [1906] A. C. 72; 75 L. J. P. C. 14; 94 L. T. 65; see also Roberts v. Fellowes (1906) 94 L. T. 279.

(x) L. R. 10 Ex. 59 (Ex. Ch.); L. R. 8 Ex. 107; 44 L. J. Ex. 52; 33 L. T. 125.

ment of the Court, said: "The water which came down to him at the farm was his own, to use it how he pleased. There was no one entitled to share with him in its use, and no one who could call him to account for any use he chose to make of it. In this respect his position was different from that of a riparian owner, who only shares the use of the water with other riparian owners. In collecting the overflow at the trough and conveying it to the mill he clearly did nothing in derogation of the rights of any other person, or which he was not entitled to do in the lawful use and enjoyment of his own property; nor did he thereby lose any right which he then before had. While the water overflowed the trough and ran to waste, he had a right to complain of any undue diversion or obstruction of the stream which diminished the accustomed supply to the trough, and he acquired no greater right by conveying it to the mill. No doubt the consequences to a wrongdoer became more serious after the drain was made than they were before, because the wrongful act was more injurious, and larger damages would have been paid for it; but it is a fallacy to say that a man's rights are abridged, if, when he abuses them, he has to make larger compensation" (y).

In the case of Medway Navigation Co. v. Earl of Romney (z), the plaintiffs were incorporated by Act of Parliament for the purpose of making the Medway navigable; and the said river and streams so as to be made navigable, and all lands, &c., to be used for the benefit of the navigation were vested in the company for ever." The defendants constructed works on the river, and raised water from the river to supply a county lunatic asylum and gaol not on riparian lands. On action brought for this diversion, the Court held that the action would lie. Mr. Justice Willes says, delivering the judgment of the Court: "Looking to the objects which were contemplated by the Acts of Parliament, to which our attention has been directed, we cannot construe the statute 13 Geo. 2. c. 26, s. 2, as giving the plaintiffs any such a limited right in the river as a private grant of the said river and stream might have conveyed, but as creating a new species of statutory property and interest in the water, which, in our opinion, was interfered with by the abstraction of it for the purposes to which it was applied by the defendant; which purposes were more extensive than those for which a riparian proprietor, as such, could insist upon appropriating the stream as it passed by his land. In our view of the true construction of the Act of Parliament, it is not necessary that there should be an actual

(y) Holker v. Porrit, L. R. 10 Ex. 59; and see Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Orr Ewing v. Colquhoun, 2 A. C. 584.

(z) 9 C. B. (N.s.) 575; see Rochdale Canal v. King, 14 Q. B. 122.

Special statutory property

in water.

Right of

access.

damage to the navigation; because we think that the legislature intended to give the company such an interest in all the water of the river for the purposes of the navigation as is interfered with by the abstraction of any part thereof. Whether or not the riparian proprietors can exercise, for the benefit of their land adjoining the river, the rights which ordinarily belong to such proprietors, it is unnecessary to express an opinion." The question as to whether a navigation company have or have not a special property in the water would seem to depend on the wording of their Acts of Parliament (a).

It is proposed now to consider the natural rights of riparian owners, and the injuries which may be sustained by them by a wrongful interference with their rights-(1) The right of access; (2) The natural quantity of the water, its diversion and abstraction; (3) The natural quality of the water, its pollution.

Right of Access.

The most important right, however, belonging to an owner on the banks of a navigable river is the right of access from his land to the river for the purposes of exercising the public right of navigation; and it may be well here to consider this right more. fully.

66

66

A public navigable river is a public highway; and where there is a public highway the owners of land bounded by it have a right to go on the highway from any spot on their own land (b). Unquestionably," says Lord Cairns, the owner of a wharf on the bank of a public navigable river has, like every other subject of the realm, the right of navigating the river as one of the public. This, however, is not a right coming to him quá owner or occupier of any lands on the bank, nor is it a right which, per se, he enjoys in a manner different from any other member of the public. But where the right of navigation is connected with an exclusive right of access to and from a particular wharf, it assumes a very different character. It ceases to be a right held in common with the rest of the public, and it becomes a form of enjoyment of the land, and of the river in connection with the land, the disturbance of which may be vindicated in damages or restrained by an injunction " (c).

In the above case of Lyon v. Fishmongers' Co., a suit was

(a) Att.-Gen. v. Great Northern Rly. Co. [1909] 1 Ch. 775; 78 L. J. Ch. 577; and post, p. 494.

(b) Blackburn, J., in Marshall v. Ulleswater, L. R. 7 Q. B. 116; Mellor v. Walmsley, 74 L. J. Ch. 475; [1905] 2 Ch. 164, C. A.; Coppinger v. Shehan [1906] 1 Ir. R. 519; see ante, p. 49.

(c) Per Lord Cairns, L.C., in Lyon v. Fishmongers' Co., 1 A. C. 662; 45 L. J. Ch. 68; 35 L. T. 569.