Domestic purposes.

Extraordinary use

mills, irriga

tion;

must be reasonable;

riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality. Any invasion of this right causing actual damage or calculated to form a claim which may ripen into an adverse right entitles the party injured to the intervention of the Court" (f).

With regard to what is meant by "domestic purposes," Lord Romilly, M.R., says, in Att.-Gen. v. Great Eastern Rly. (g) that the term unquestionably would extend to culinary purposes; to the purposes of cleansing and washing, feeding and supplying the ordinary quantity of cattle, and so on "; but he held that a railway company, as riparian, owners, were not entitled to take water for the purpose of watering their engines so as injuriously to affect the navigation of a stream, such use not being a "domestic use," and, moreover, that the fact that the railway company did not require the water for domestic uses did not entitle them to take it for other purposes of a different character (h). The washing of carriages has been held to be a domestic use under a local Act of Parliament regulating a water company (i). Brewing" would also appear to be a domestic

use (k).

"But every riparian proprietor has also a further right to the use of the water for any purpose, or what may be deemed the extraordinary use of it, provided he does not interfere thereby with the rights of other proprietors either above or below. Subject to this condition he may dam it up for the purpose of a mill (1), or divert the water for the purpose of irrigation. But he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury" (m).

Such extraordinary use," in order to be justifiable, however, must be a reasonable use, and one for which a riparian proprietor

(f) Per Lord Sumner in Stollmeyer v. Trinidad Lake Petroleum Co. [1918] A. C. 485, 491. (g) 23 L. T. (N.S.) 344; affirmed L. R. 6 Ch. 572.

(h) See McCartney v. Londonderry and Lough Swilly Rly. Co., post,

p. 123.

uses

66

(i) Busby v. Chesterfield Water Co., E. B. & E. 176. As to 'domestic under the Waterworks Clauses Acts, see post, p. 335, n. (y).

(k) Per James, L.J., in Wilts and Berks Canal v. Swindon Water Co., L. R. 9 Ch. 457.

(1) See Belfast Rope Works v. Boyd, 21 L. R. Ir. 560; Ward v. Robbins, 15 M. & W. 237.

(m) Miner v. Gilmour, 12 Moo. P. C. C. 131; 3 L. T. 98; White v. White [1906] A. C. 72; 94 L. T. 65; 75 L. J. P. C. 14; French Hoek Commissioners v. Hugo, 10 A. C. 336; 54 L. T. 92. See also Chasemore v. Richards, 7 H. L. 349; Embrey v. Owen, 6 Ex. 353; 3 Kent's Comm., s. 52, pp. 439-445, cited in Embrey v. Owen, supra, at p. 369; and Tyler v. Wilkinson, 4 Mason's U. S. Rep. 400, per Story, J.

is entitled to take the water from its natural course (n); for where an unreasonable use is made of the water by one riparian proprietor, the others are entitled to have it restrained, even though they prove no actual damage, on the ground that it is an interference with a right which, unless restrained, would in the course of twenty years confer on the claimant a right by prescription in derogation of the prior right (o). The law on this point is very clearly stated by Cairns, L.C., in the case of The Swindon Water Co. v. Wilts and Berks Canal (p). In this case the directors of a waterworks company purchased a mill on the upper part of a stream, and so became riparian owners. They not only used the water for the purposes and in the manner allowed by the law to every riparian owner, but collected it into a permanent reservoir for the supply of an adjacent town, and claimed, as their legal right, such user of it. The House of Lords held that the use of the water was not a reasonable use such as could justifiably be made by an upper riparian owner, and that a canal company. who were riparian owners below, were entitled to an injunction to restrain this use of the water. Undoubtedly," says Lord Cairns, the lower riparian owner is entitled to the accustomed flow of the water for the ordinary purposes for which he can use it; that is quite consistent with the right of the upper owners also to use the water for all ordinary purposes, viz., as has been said, ad lavandum et ad potandum, whatever portion of the water may be thereby exhausted and may cease to come down by means of that use. But further, there are uses, no doubt, to which the water may be put by the upper owner, e.g., uses connected with and conthe tenement of that upper owner (q). Under certain circumstances, and provided no material injury is done, the water may the upper be used and may be diverted for a time by the upper owner for the purpose of irrigation. This may well be done, and the exhaustion of the water which may thereby take place may be so inconsiderable as not to form a subject of complaint by the lower owner; and the water may be restored, after the object of irrigation is answered, in a volume substantially equal to that in which it passed before. Again, it may well be, that there may be a use of the water by the upper owner for, I will say, manufacturing purposes, so reasonable that no just complaint can be made on

(n) Per James, L.J., in Wilts and Berks Canal v. Swindon Water Co., L. R. 9 Ch. 457; Sharp v. Wilson, Rotherhay & Co. (1905) 93 L. T. 155; 21 T. L. R. 671.

(0) L. R. 7 H. L. 697.

(p) Swindon Water Co. v. Wilts Canal, L. R. 7 H. L. 697; 45 L. J. Ch. 638: 33 L. T. 513; Grand Junction Canal v. Shugar, L. R. 6 Ch. 577: Embrey V. Owen, 6 Ex. 353, per Parke, B.; Elwell v. Crowther, 31 Beav. 163; Robinson V. Lord Byron, 1 Bro. C. C. 588; Rochdale Canal v. King. 2 Sim. (N.s.) 79. (q) See McCartney v. Londonderry and Lough Swilly Rly. Co. [1904] A. C. 301; 73 L. J. P. C. 73, H. L. Ir.; post, p. 123.

nected with tenement of

owner.

the subject by the lower owner. Whether such a use in any particular case could be made for manufacturing purposes, connected with the upper tenement, would, I apprehend, depend upon whether the use was a reasonable use. Whether it was a reasonable use would depend, at all events, in some degree, on the magnitude of the stream from which the deduction was made for this purpose over and above the ordinary use of the water. But my Lords and your Lordships will find that in the present case you have no difficulty in saying whether the use which has been made of the water by the upper owner comes under the range of these authorities, which deal with cases such as I have supposed-cases of irrigation and cases of manufacture. Those were cases where the use made of the stream by the upper owner has been for purposes connected with the tenement of the upper owner. But the use which has here been made by the appellants, and the use which they claim the right to make of it, is not for the purpose of their tenements at all, but is a use which virtually amounts to a complete diversion of the stream-as great a diversion as if they had changed the watershed of the country, and in place of allowing a stream to flow towards the south, had altered it near its source so as to make it flow towards the north. My Lords, that is not a user of the stream that could be called a reasonable user by the upper owner; it is a confiscation of the rights of the lower owner; it is an annihilation, so far as he is concerned, of that portion of the stream which is used for those purposes, and is done not for the sake of the tenement of the upper owner, but that the upper owner may make gains by alienating the water to other parties who have no connection with any part of the stream. It is a matter quite immaterial whether, as riparian owner of Wayte's tenement, any injury has now been sustained, or has not been sustained, by the respondents. If the appellants are right, they would at the end of twenty years, by the exercise of this claim of diversion, entirely defeat the incident of the property-the riparian right of Wayte's tenement. That is a consequence which the owner of Wayte's tenement has a right to come into the Court of Chancery to get restrained at once by injunction or declaration, as the case may be."

From this case it would seem that an extraordinary use,' as well as being reasonable, must be for the use of the riparian tenement (r). This point does not appear to have been pressed in the case of Earl of Norbury v. Kitchin (8), where it was held that a riparian owner had a right by means of water-wheels and

(r) As to this see Nuttall v. Bracewell, L. R. 2 Ex. 1; Stockport Water Co. v. Potter, 3 H. & C. 300; and ante, pp. 111, 112.

(s) 3 F. & F. 292; 9 Jur. (N.s.) 132; 7 L. T. 685.

machinery to pump water from a stream flowing past his land to a reservoir, and to convey it thence to his dwelling-house on another estate, and there to apply it to his domestic use and other purposes of utility, provided he took only a reasonable quantity with reference to the size of the stream-but that he had no right to take by means of machinery more water than he would have a right to otherwise.

In McCartney v. Londonderry and Lough Swilly Rly. Co. (t), the House of Lords have held, overruling Earl of Sandwich v. Great Northern Rly. Co. (u), that a railway company, owners of a small strip of land adjoining a stream, are not entitled to insert a pipe into the stream for the purpose of carrying the water into a tank at some distance, and using it for the service of their engines along the whole of their line. This is a purpose foreign to and unconnected with such a tenement, and an adjacent owner who used the stream for working a corn-mill was held entitled to stop the pipe.

In Owen v. Davies (x) it was held, following the Swindon Case, that a local board of health who had purchased a piece of land adjoining a brook for the purpose of obtaining water for their reservoir had only the ordinary rights of a riparian proprietor, and could not divert the water so as injuriously to affect the land of another riparian owner. In the case of Roberts v. Gwyrfai District Council (y), the Court of Appeal held, affirming Kekewich, J., that under section 51 of the Public Health Act, 1875, a local authority have no power, for the purpose of supplying water to their district, to alter the flow of water in a stream without the consent in writing of the riparian proprietors lower down the stream as required by section 332 of the Act, and that by so altering the flow of water the local authority are, within the meaning of section 332," injuriously affecting" the common law right of such a riparian proprietor, and they will be restrained from so doing without any proof of sensible damage caused to him.

A riparian owner is therefore at liberty to pen back and divert (2) temporarily the waters of a stream flowing through his lands in a reasonable way, and for reasonable purposes connected

(t) [1904] A. C. 301; 73 L. J. P. C. 73; see also Att.-Gen, v. Great Northern Rly.. 72 J. P. 442, post, p. 494. As to a claim to divert water for a fishbreeding establishment, see Roberts v. Fellowes, (1906) 94 L. T. 279.

(u) 10 C. D. 707; 49 L. J. Ch. 225.

(r) W. N. (1874), 175.

(y) [1899] 2 Ch. 608; 68 L. J. Ch. 757.

(2) See also McGone v. Smith 22 L. R. Ir. 554, causing water opposite the land of a lower proprietor to rise. A count for diverting and turning a stream held not to be supported. by proof of penning back and checking its course whereby the water was made to overflow plaintiff's meadow Griffiths v. Mann, 6 Price, 1.

Irrigation.

Mills.

with his tenement, provided he does not thereby injure his neighbours, and no action will lie for such obstruction unless the complainant can prove actual damage (a). Where, however, the purpose for which the water is taken is not reasonable, or not a use connected with the riparian tenement, the taking it is an invasion of a right of property; and whenever an injury is done to a right, actual perceptible damage is not indispensable as the foundation of an action, but it is sufficient to show the violation of the right, and the law will presume damage (b).

Whether a riparian proprietor may use the water of a stream for the purposes of irrigation, if he again return it to the stream with no other diminution than that caused by the evaporation and absorption attendant on irrigation, appears to depend on the circumstances of each particular case. Thus in Embrey v. Owen (c), where it was proved that the diversion was not continuous, and that it caused no diminution cognisant to the senses, the Court held that this was not under the circumstances such an unreasonable use as to be prohibited by law. Where the defendant diverted water from a river for the purposes of irrigation, and the amount of water was not thereby diminished, but the water arrived so late at the plaintiff's land below that he could not use it fully for irrigation purposes, it was held that this detention of the water by the defendant was a use of it which was in its character necessarily injurious to the natural rights of the plaintiff as a riparian owner, and therefore a ground of action (d).

The owner of a mill on the banks of a running stream may, as has been stated, divert and use the water for the purposes of his mill, provided he does not thereby interfere with the rights of other riparian owners above or below him. He cannot, however, unless he has gained a prescriptive right to do so, interfere, by his user of the water, with the rights of other riparian owners (e). A riparian proprietor, even in a navigable river, can acquire an interest in its water power, and sell the same along with, and as appurtenant to, his land. Though the sale may not be

(a) Williams v. Morland, 2 B. & C. 910; 26 R. R. 579; Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Eddleston v. Crossley, 18 L. T. 15.

(b) Embrey v. Owen, 6 Ex. 353, per Parke, B., at p. 363; 20 L. J. Ex. 212; Swindon Water Co. v. Wilts and Berks Canal, L. R. 7 H. L. 697; 45 L. J. Ch. 638; 33 L. T. 513; Sharp v. Wilson, Rotherhay & Co. (1905), 93 L. T. 155; 21 T. L. R. 671.

(c) 6 Ex. 353.

(d) Sampson v. Hoddinot, 1 C. B. (N.s.) 590. See per Cairns, L.C., in Swindon Water Co. v. Wilts and Berks Canal, ante, p. 121.

(e) See per Martin, B., in Nuttall v. Bracewell, L. R. 2 Ex. 1. See post, Chap. IV. as to the rights of seigneurs in Lower Canada, see St. Louis v. St Louis, 3 Moo. P. C. 398.