water of the stream, and any user by a non-riparian proprietor, even under a grant from a riparian owner, is wrongful if it sensibly affects the flow of the water by the lands of other riparian proprietors, the foregoing cases were fully discussed, and the judgment of Brett, M.R., in the Court of Appeal is instructive as to riparian rights in artificial channels.

In this case the plaintiffs, who were riparian owners on the Burnley river, from which they for many years had conducted water to their mill, complained that their rights were injuriously affected by the defendants, who were not riparian owners, but conducted water by means of a pipe laid through the land of a riparian owner about fifty yards above the plaintiffs' intake to their works, where some of it was used or lost, and the remainder returned to the river in a heated condition, thus sensibly diminishing its quantity and deteriorating its quality when it arrived at the plaintiffs' land.

Cave, J., gave judgment for the plaintiffs with costs and an injunction restraining defendants, and judgment was affirmed by the Court of Appeal (Brett, M.R., and Lindley and Bowen, L.JJ.).

The question whether the defendants are or are not riparian owners depends," says Brett, M.R., "on Nuttall v. Bracewell (b) and Holker v. Porrit (c), rather than upon Stockport Waterworks Co. v. Potter (d). In those two cases the questions between the parties depended upon riparian ownership; at least this was the view of some of the judges who took part in the decisions. It was contended in Nuttall v. Bracewell (b) that a riparian owner could not confer his own rights upon another person; but Pollock, C.B., and Channell, B., held that by the construction of the goit the course of the river was altered, a new channel was created, and thenceforward the stream ran in two channels or branches; and these judges held that because the stream flowed in two branches, the owner of the land along which the new branch passed was a riparian owner. The case was decided on the ground that the new stream was a branch of the river. That was not a case where a mere easement had been created, where a mere pipe had been laid in the ground. In Holker v. Porrit (e) the judges of the Court of Exchequer appear to have acted upon somewhat similar reasonings, although in the Exchequer Chamber the judgment was affirmed on a different ground. Neither of these two cases fully defines what is a riparian owner: in the present case the question depends to some extent upon the facts of the case. . . . The defendants have taken

(b) L. R. 2 Ex. 1. (d) 3 H. & C. 300.

(c) L. R. 8 Ex. 107; L. R. 10 Ex. 59 (e) L. R. 8 Ex. 107; L. R. 10 Ex. 59.

nothing in the soil which abuts upon the river; they do not own a single inch of the bank, they are not riparian owners: then are they entitled to the rights of riparian owners? The answer depends upon whether the decision of the majority of the Court of Exchequer in Stockport Waterworks Co. v. Potter (f) can be . supported; we must take the ground of the decision to be that which is stated. The question there was whether the rights of a riparian proprietor can be assigned; and the following doctrine was laid down in the judgment (g): There seems to be no authority for contending that a riparian proprietor can keep the land abutting on the river, the possession of which gives him his water rights, and at the same time transfer those rights, or any of them, and thus create a right in gross by assigning a portion of his rights appurtenant. It seems to us clear that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor, and has similar rights. But if he grants away a portion of his estate not abutting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is that he can have them against the grantor, but not so far as to sue other persons in his own name for an infringement of them.' This passage contains the reason of the decision of the majority. The grantee has his rights as against the grantor, but not as against any one besides. Bramwell, B., dissented; and no doubt we ought carefully to consider any objection coming from him. In Nuttall v. Bracewell it was held that the plaintiff was a riparian proprietor in respect of a goit; but Pollock, C.B., and Channell, B., did not alter the opinion which they had formed in Stockport Waterworks Co. v. Potter; they adhered to the ground of their judgment in that case. They pointed out that the rights of a riparian proprietor can be easily ascertained, but that one riparian proprietor may have no means of ascertaining who are the grantees of another riparian proprietor: they repeated that the grantee of a riparian proprietor can sue only the grantor for any interference with him. I am prepared to say that for the reasons given by Pollock, C.B., and Channell, B., I agree with the judgment of the majority of the Court in Stockport Waterworks Co. v. Potter; the grant of a right to flowing water by a riparian owner is valid only against himself, and cannot confer rights as against others. The law as to flowing water is part of the common law of England; but it only exists as between (f) 3 H. & C. 300. (g) 3 H. & C., pp. 326, 327.

Rights as against mere trespassers or wrongdoers.

riparian owners; it does not extend to those whose lands do not abut on streams and rivers.'

So far as these cases go the following principles seem clear, viz., that no person but a riparian owner can sue a riparian owner for injury to the flow of water in a stream; that where the stream is artificial no owner on it can be called a riparian owner unless the artificial stream amounts to a branch or division of the natural stream; and that the mere grantee of a riparian owner has no right to sue any riparian owner at all except his own grantor, and is not entitled to use the water as a riparian owner if his use thereof sensibly affects the flow of the water by the lands of other riparian owners. A non-riparian owner, however, who under licence from a riparian owner takes water from a stream and returns it unpolluted and undiminished is not liable to be restrained by injunction at the suit of a lower riparian owner (h). It must, however, be kept in mind that it has been laid down by the highest authority that permanent artificial channels may be so enjoyed as to confer rights to the use of the water, especially in cases where from the antiquity of such channels there is a doubt as to whether they were not part of a natural stream, or made on terms that the riparian proprietors should have at least the same rights as if it were a natural stream (i). Such rights are, however, not properly called natural rights, but are acquired by prescription, and as such are fully considered in another chapter (k).

The above cases have all been decided as between persons claiming rights on artificial watercourses and riparian owners on the natural streams from which the water in the artificial watercourses originally came, and would not, it is submitted, though the language of some of the judgments is very comprehensive, affect the right which a person enjoying the benefit of water in an artificial channel which he has legally appropriated would have to sue a mere trespasser or wrongdoer for a direct interference with his enjoyment. No one," says Brett, M.R. (1), is justified in injuring the right of appropriation which everybody else has." "Mere possession of rights corporeal and incorporeal is sufficient to maintain an action against a wrongdoer" (m). The only case which seems to be directly against

66

(h) Kensit v. G. E. Rly. Co., 27 Ch. D. 122; 54 L. J. Ch. 19; 51 L. T. 862. (i) Rameshur Pershad Singh v. Koonj Behari Pattuck, 4 A. C. 121; Wood v. Waud, 3 Ex. 748; 18 L. J. Ex. 305; Roberts v. Richards, 51 L. J. Ch. 944, C. A.; 50 L. J. Ch. 297: 44 L. T. 271; Blackburn v. Somers, 5 L. R. Ir. 1; Baily v. Clark, [1902] 1 Ch. 649.

(k) Post, Chap. IV., pp. 219 et seq.

(1) Ballard v. Tomlinson, 29 Ch. D. 115, at p. 122. See post, p. 216. (m) Pullan v. Roughfort Bleaching Co., 21 L. R. Ir. 73. See Mason v. Hill, 5 B. & A. 1; 39 R. R. 354; Nuttall v. Bracewell, L. R. 2 Ex. 1; Foster v. Warblington Urban Council, [1906] 1 K. B. 646; 75 L. J. K. B. 514.

this contention is that of Whaley v. Laing, where the Court of Exchequer Chamber held, reversing the Court of Exchequer, that the licensee of a canal company who took water from the canal for his engines could not sue the defendant, who polluted the water of the canal, which passed to and injured the boilers of the plaintiff. The question was, whether the plaintiff, as he had no legal right to the water, but merely a licence to use it, could sue the defendant for the damage. The declaration stated that the plaintiff used and had enjoyed the benefit of the water, which water had been used, and then ought to have run and flowed without pollution. The Court of Exchequer (n) held, without deciding whether the plaintiff had any possessory title in the water of the canal-so that if the defendant had stopped the flow of it to the plaintiff, or if the plaintiff, in order to get the water, had to go to the canal and draw it with a bucket, any action could have been maintained—that he was entitled to judgment on the ground that the defendant caused foul water to flow on to the plaintiff's premises without justification. They held, further, that the declaration did not mean an assertion of title in the plaintiff, but that the defendant had no right to foul the water. On appeal the Court of Exchequer Chamber (0) were divided in opinion: Willes and Crowder, JJ., held that the judgment of the Court below ought to be affirmed, on the ground that the plaintiff was in possession of the water, and the defendant was a wrongdoer. Crompton and Erle, JJ., held that the declaration was bad, as it claimed indirectly a right to the flow of the water which was not supported by evidence of any legal right; but they added that they did not say that an action might not lie if a man had permission from the owner of a pond to get water for his cattle, and if a stranger, knowing the probable and natural effect of his act, poisoned the water so that the cattle were injured, that probably in such a case would lie; but that the right of action would be founded, not on the title or right to the water, but on the injury to the property of the plaintiff. Williams, J., held the declaration bad in substance, and that the judgment should be arrested; but that the plaintiff was entitled to the verdict. Wightman, J., thought the defendant was entitled to judgment, as the plaintiff had no legal right to the water, and that, as against him, the defendant could not be considered a wrongdoer. The result was that the verdict for the plaintiff was directed to stand, but judgment was arrested.

an action

In the case of Stockport Waterworks Co. v. Potter (p), Bram

(n) 2 H. & N. 476.

(0) 3 H. & N. 675.

(p) 3 H. & C. 300. See Nuttall v. Bracewell, L. R. 2 Ex. 1.

Liability to receive flood water.

well, B., who dissented from the judgment of the Court, holding that grantees could recover, on the general principle that where a man has property, he may grant to others rights in it, for which the grantees can sue, says: "In this case, however, the plaintiffs cannot rely on their mere possession of the water they take, or perhaps, I ought to say, on their mere taking of it. For whatever Whaley v. Laing may have decided, it certainly decided this, that such possession was not enough to enable the possessor to maintain an action. For that case decides that the plaintiff had not alleged, or having alleged had not proved, a right to the water, and so could not recover."

The case of Whaley v. Laing (q) was therefore decided by a bare majority of the judges, and was clearly against the opinion of the late Lord Bramwell (r). It was, moreover, a claim by a mere licensee, whose interest in the water was possibly less than that of a grantee, who could sue his grantor for interfering with the subject of his grant. It seems also against the principles stated in Ballard v. Tomlinson (s) and Womersley v. Church (t), viz., that the right to sue a wrongdoer for a direct injury done to water which has been appropriated does not depend on property in that water (u). In the case of Foster v. Warblington Urban Council (x), it was held by the Court of Appeal that, irrespective of the question of title to the soil or to a several fishery, the plaintiff, as occupier of oyster ponds on the foreshore of an arm of the sea, was entitled to maintain an action for trespass to the same by wrongdoers, and that the defendants, an urban council, not having any right to discharge sewage into the sea so as to cause a nuisance, were wrongdoers, and that the action was maintainable, and an injunction ought to be granted (y).

A riparian owner is not only entitled to have the water of a stream passing through his lands flow to him in its natural state so far as it is a benefit to him, but he is also bound to submit to receive it so far as it is a nuisance to him by its tendency to flood his lands (z). Unless, therefore, the flow of the stream is increased or diverted to his prejudice by some unauthorised act,

(q) 3 H. & N. 675.

(r) The opinion of Bramwell, B., in Stockport Waterworks Co. v. Potter, that a grantee can sue another riparian owner, is overruled in Ormerod v. Todmorden Co., 11 Q. B. D. 155, ante, p. 129.

(s) 29 Ch. D. 115; 54 L. J. Ch. 404; post, p. 216.

(t) 17 L. T. (N.s.) 190.

(u) See Rochdale Canal v. King, 14 Q. B. 122, 136, post, p. 315; Cockburn v. Erewash Canal, 11 W. R. 34; Shand v. Henderson, 2 Dow, H. L. C. 519; 14 R. R. 202.

(x) [1906] 1 K. B. 648; 75 L. J. K. B. 514.

(y) See also Owen v. Faversham Corporation (1909), 73 J. P. 33, C. A. (z) Per Blackburn, J., in Mason v. Shrewsbury Rly. Co., L. R. 6 Q. B. 582. See also Wilson v. Waddell, 2 App. Cas. 95; 35 L. T. 639.