surface and

able.

where a man, by an artificial channel or otherwise, discharges directly on to his neighbour's premises polluted water to his injury, he is liable to an action for nuisance (s). For no man can have a right to send dirty water on to another's land, unless he can prove a prescriptive right so to send dirty water (t). It has been further decided that there is no difference with regard to the Pollution of natural right to purity of water between the cases of water flowing percolating openly on the surface of land in a defined channel, and water water actiontrickling over the ground without any defined course, or water percolating through the soil in unknown or undefined channels (u). This is established by the case of Hodgkinson v. Ennor (x), where it was urged that the principles of law relating to the diversion or obstruction of percolating water established in Chasemore v. Richards (y) applied equally to pollution of such water; and that, therefore, no action would lie for injury to a landowner by the pollution of percolating water, by washing lead on his land in the ordinary way. The Court, however, held, that though the person polluting the water might have a right to use it for lead-washing, yet according to the maxim sic utere tuo ut alienum non lædas, he could not so use it as to injure and cause a nuisance to his Leighbour (z).

The rights of owners on artificial channels and of grantees of Pollution of artificial water have been fully discussed in an earlier part of this chapter, watercourses. pp. 126 et seq. It remains to be considered whether the pollution of the water in such artificial channels is placed on the same footing as the diversion and obstruction of it. The result of the cases seems to be that though neither the owner of land on an artificial watercourse which is not a branch or division of a natural stream (a), nor the grantee or licensee of a riparian owner, can sue a higher riparian owner for polluting the water in the natural stream (b), a non-riparian owner who has legally appropriated part of the water is not debarred by the fact that he has no property in the water from suing a wrongdoer who discharges foul

(s) Herdman v. N. E. Rly. Co., 3 C. P. D. 168, C. A.; Humphries v. Cousins, 2 C. P. D. 239; Broder v. Saillard, 2 Ch. D. 692; Bell v. Twentyman, 1 Q. B. 768.

(t) See Cawkwell v. Russell, 26 L. J. Ex. 34.

(u) Ballard v. Tomlinson, 29 Ch. D. 115, post, p. 216. See Goddard on Easements (6th ed.), pp. 102, 531.

(r) 4 B. & S. 229; 32 L. J. Q. B. 231; 8 L. T. 451; Womersley v. Church, 17 L. T. (N.S.) 190; see also Manchester and Sheffield Rly. Co. v. Worksop, 23 Beav. 198.

(y) 7 H. L. 349; 29 L. J. Ex. 81; see post, p. 204.

(z) As to the pollution of percolating water, see Ballard v. Tomlinson, 29 Ch. D. 115; 54 L. J. Ch. 404; 52 L. T. 942, post, p. 216.

(a) The ordinary law as to riparian rights may apply to ancient artificial watercourses; see Baily v. Clark & Morland, [1902] 1 Ch. 649; 71 L. J. Ch. 306, post, p. 268.

(b) Nuttall v. Bracewell, L. R. 2 Ex. 1; Stockport v. Potter, 1 H. & C. 300; Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155.

Rights of non-riparian

owners.

Whaley v.
Laing.

water directly upon his premises (c). In Ballard v. Tomlinson (d) the Court of Appeal have held, affirming Womersley v. Church (e), Hodgkinson v. Ennor (f), and Tenant v. Goldwin (g), that no one has a right to use his own land in such a way as to be a nuisance to his neighbour, and, therefore, if a man puts filth or poisonous matter on his land he must take care that it does not escape so as to poison water which his neighbour has a right to use, although his neighbour may have no property in such water at the time it is fouled (h). Whether such a nuisance caused not directly or deliberately by the act of the defendant, but merely by misfeasance, would be actionable seems perhaps doubtful (i).

In the case of Wood v. Waud (k), which was the case of an artificial watercourse made for the purpose of draining certain mines, the Court held, that as the watercourse was of a temporary and uncertain nature, no rights existed or could be acquired on it so as to prevent its diversion or osbtruction, but expressed an opinion that the injury caused by fouling water did not stand on the same footing as abstraction or diversion; and that though a mine owner might stop a stream of water which flowed artificially from his mines, it did not follow that he or any other could pollute it whilst it continued to run-and again, "If they polluted the water, so as to be injurious to the tenant below, the case would be different" (l).

The later cases hardly support this view of the law; and after much difference of opinion among the learned judges who have considered the question, it would seem that the injury by pollution is placed on the same footing as other injuries to riparian rights, and that though actual injury caused by the direct discharge of foul water on the premises of another is actionable as a nuisance, the pollution of the water in a stream by a riparian owner can only be complained of by those entitled to the water as of right (1). In the case of Whaley v. Laing (m), it appeared that a canal had been formed through land belonging to one Anderton; and the plaintiff, by leave of Anderton and of the canal company, made a cut through the land to the canal, for the purpose of taking water from

(c) Ballard v. Tomlinson, 29 Ch. D. 115; 54 L. J. Ch. 404; 52 L. T. 942. (d) 29 Ch. D. 115; 54 L. J. Ch. 404; 52 L. T. 942, post, p. 216.

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

(f) 4 B. & S. 229.

(g) 1 Salk. 21, 360.

(h) See Foster v. Warblington Urban Council (1905), 21 T. L. R. 214; 69 J. P. 42; 3 L. G. R. 605.

(i) See Dickenson v. Shepley Sewage Board (1904), 68 J. P. 363; Foster v. Warblington Urban Council, [1906] 1 K. B. 648; 75 L. J. K. B. 514.

(k) 3 Ex. 748; 18 L. J. Ex. 305.

(1) See also Magor v. Chadwick, 11 A. & E. 571; Sutcliffe v. Booth, 9 Jur. (N.s.) 1037; 32 L. J. Q. B. 136.

(m) 2 H. & N. 476; 3 H. & N. 675, Ex. Chamb. See remarks on this case, ante, p. 133.

the canal to supply his engines. Chemical works were afterwards erected by the defendants, and they commenced pouring muriatic acid into the canal, which mixed with the water and passed to the plaintiff's boilers, which were thereby injured. 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 defendants for the damage. The declaration stated that the plaintiff used and had and 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 defendants 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 defendants 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 defendants 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 an action 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 judgment should be arrested; but that the plaintiff was entitled to the verdict. Wightman, J., thought the defendants entitled to judgment, as the plaintiff had no legal right to the water, and that, as against him, the defendants could not be considered wrongdoers. The result was that the verdict for the plaintiff was directed to stand, but judgment was arrested (p).

In the case of Stockport Waterworks Co. v. Potter (q), the majority of the Court of Exchequer-Pollock, C.B., Channell

(n) 2 H. & N. 476.

(0) 3 H. & N. 675.

(p) 3 I. & N. 901.

(q) 3 H. & C. 300; 10 L. T. 748; see Nuttall v. Bracewell, L. R. 2 Ex. 1.

and Wilde, B.B.-held that where a landowner on a natural stream conveyed to the plaintiffs, a water company, land not on riparian lands, and also the use of certain conduits and tunnels through the riparian lands the grantees had no natural rights with regard to the stream, and, therefore, could not sue a higher riparian owner on the natural stream for the pollution of the stream, whereby the water flowing through their conduits was also polluted. Bramwell, B., dissented from this view, holding that the 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. "In this case, he says, 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."

In Crossley v. Lightowler (r), cited above, Chelmsford, L.C., held that the pollution of the water of a natural stream, which was conveyed to a mill by means of an artificial goit, was not an injury to the riparian rights of the owner of the mill, as the mill owner was not a riparian owner on the goit.

In the case of Ormerod v. Todmorden Mill Co. (8), in which the judgment of Lord Esher, M.R., is set out at p. 130, ante, the case of Stockport Waterworks Co. v. Potter was approved and followed, by the Court of Appeal, on the ground that the grant of a right to flowing water by a riparian owner is valid only against himself and cannot confer rights as against others. In Dickenson v. Shepley Sewerage Board (t), the plaintiff's water supply was obtained from a rubble drain in the fields of X. and Y. through a syphon under a brook dividing the plaintiff's land from the said fields to a cistern on the plaintiff's land. The water was used for drinking purposes. The defendants, by the licence of X. and Y., opened the rubble drain to examine it, and left it open for ten weeks whereby mud and dirt got into the drain, and the plaintiff's supply was fouled. In an action in the county court for wrongful interference and damage to the plaintiff's water supply by the defendants, the plaintiff, although producing evidence that the water supply had been used by her for many years, expressly disclaimed any easement or right to the water

(r) L. R. 2 Ch. 476; 36 L. J. Ch. 584; 16 L. T. 638, ante, p. 163. (s) 11 Q. B. D. 155; see also Baily v. Clark, [1902] 1 Ch. 649; 71 L. J. Ch. 396. (t) (1904), 68 J. P. 363.

supply that the case might be within the jurisdiction of the county court. The county court judge gave judgment for the defendants, and it was held, on appeal, that as the plaintiff had disclaimed any easement or right to the water supply, and the defendants did not appear to have deliberately fouled the drain, but had merely done something which led to the water being fouled, the plaintiff had no right of action, and the decision of the county court judge was right.

In Fergusson v. Malvern Urban Council (u), owing to an escape of sewage from a sewer vested in an urban district council, the supply of drinking water used by an adjacent hydropathic establishment became polluted, and an outbreak of typhoid fever occurred in the establishment. In an action by the proprietor of the establishment against the urban district council for damages for the pollution of the water supply, the jury found that the pollution was due to negligence on the part of the defendant council, and there was no contributory negligence on the part of the plaintiff and awarded damages to the plaintiff. The plaintiff had no proprietary title to the water coming to his establishment through the supply which was polluted, nor any leave or licence to use the said water. It was held by Lawrence, J. (x), that the plaintiff had a good cause of action and was entitled to judg ment on the findings of the jury, but on appeal, the Court-Sir Gorell Barnes, P., Fletcher Moulton and Farwell, L.JJ.-arrived at the conclusion from the facts and findings of the jury that the plaintiff was taking water which belonged to the defendants without any right to do so; that the water was collected and polluted on the defendants' land; that the defendants did not know that the plaintiff was taking such water; and that there was no evidence of any damage to the plaintiff except that which was brought about by his own act in thus taking the water. They found that, under these circumstances, the plaintiff had not established any breach of duty on the part of the defendants towards him, and entered judgment for the defendants (y).

pollution.

Where an action for damages by a riparian owner lies for Injunction pollution of a stream, the Courts will interfere by injunction to to restrain restrain the nuisance, even where no actual damage is proved, to prevent the inconvenience of repeated actions for damages (z); and also where the act done is claimed as of right, on the ground that the repetition of the act would, at the end of twenty years, establish a right in the claimant in derogation of the prior

(u) (1908), 72 J. P. 101, K. B. D.

(y) 72 J. P. 273, C. A.

(x) 72 J. P. 101.

(z) Clowes v. Staffordshire Water Co., L. R. 8 Ch. 125, 143; 42 L. J. Ch. 107; 27 L. T. 521; Pennington v. Brinsop Hall Co., 5 Ch. D. 769; see also 24 & 25 Vict. c. 42; Anon., 2 Eq. Abr. 522.