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Diseased animals not to be put in any waters.

Discharge of

able waters.

lished in the London Gazette (i). Save as aforesaid it includes rivers, streams (k), canals, lakes, and watercourses, other than watercourses at the passing of this Act mainly used as sewers, and emptying directly into the sea, or tidal waters which have not been determined to be streams within the meaning of this Act by such order as aforesaid."

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Solid matter' shall include particles of matter in suspension in water."

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Polluting' shall not include innocuous discoloration." Sections 21 and 22 provide for the application of the Act to Scotland (1) and Ireland.

By the Diseases of Animals Act, 1894 (57 & 58 Vict. c. 57), s. 52 (vii) it is an offence to throw or place or cause or suffer to be thrown or placed into or in any river, stream, canal, navigation or other water, or into or in the sea within three miles of the shore, the carcase of an animal which has died of disease, or been slaughtered as diseased or suspected.

By the Oil in Navigable Waters Act, 1922 (m), it is an offence oil into navig- to discharge or allow to escape either directly or indirectly into the territorial waters of Great Britain and Northern Ireland or the waters of harbours therein any oil (n), provided the discharge or escape if from a ship was not due to a collision or other accident to the ship or that the escape either from a ship or from premises ashore was not due to neglect to take all reasonable precautions to prevent it. A harbour authority may, however, appoint a place where the ballast water of vessels which

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(i) Under the West Riding Rivers Act, 1894 (57 & 58 Vict. c. clxii), s. 24, it is provided that nothing in this Act shall apply to any tidal waters which have not been determined by the Local Government Board to be a stream under this section." In Yorkshire (West Riding) Rivers Board v. Tadcaster District Council, 97 L. T. 436; 71 J. P. 429; 5 L. G. R. 1208, it was held that "tidal waters include those waters not merely where there is a horizontal ebb and flow, but also where there is a vertical rise and fall caused by the ordinary sea tide; see ante, p. 77.

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(k) Streams and burns which at the time of the passing of this Act were used mainly as sewers are streams and not watercourses mainly used as sewers" Airdrie Magistrates v. Lanark County Council, [1910] A. C. 286. As to the difference between streams and percolating water," see McNab v. Robertson, [1897] A. C. 129. As to what is a stream and a sewer," see West Riding of Yorkshire Rivers Board v. Preston & Son (1904), 69 J. P. 1; 3 L. G. R. 289; West Riding of Yorkshire Rivers Board v. Gaunt (1892), 67 J. P. 183; 1 L. G. R. 133; West Riding of Yorkshire Rivers Board v. Yorkshire Indigo, Scarlet and Colour Dyers (1902), 67 J. P. 80.

(1) The duties of the Secretary of State are now transferred to the Scottish Board of Health (9 & 10 Geo. 5. c. 20), s. 4, sub-s. 1 (a), Sched. 1.

(m) 12 & 13 Geo. 5. c. 39. The Act only applies to vessels which are capable of carrying in bulk for cargo or bunker purposes more than twenty-five tons of oil, or are fitted to carry more than five tons in any one space or container : ibid., s. 8, sub-s. 2.

(n) Oil means oil of any description, and includes spirit produced from oil and oil mixed with water, and any liquid from tanks or spaces which have contained oil, unless such have been cleaned of oil or the liquid has been freed from oil by means of a separating apparatus: ibid., ss. 4, 8.

have carried a cargo of petroleum spirit may be discharged subject to such conditions as that authority may determine (o).

It is also an offence to transfer during the night time oil to or from a vessel lying in a harbour unless at least three hours' notice is given to the harbour master (p). Every vessel must keep a record of all operations in connection with the transfer of oil to and from that vessel, and this record may be inspected at all reasonable times by the harbour master or by any person duly appointed by the Board of Trade, the Minister of Agriculture and Fisheries, the Fishery Board for Scotland, or the Minister of Commerce for Northern Ireland (q).

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Proceedings for offences committed in a harbour can only be taken by the harbour authority, but when committed elsewhere by any person authorised in that behalf by the Board of Trade, the Minister of Agriculture and Fisheries, or the Minister of Commerce for Northern Ireland (r).

Percolating Water and Water having no defined Course.

of, not

The principles of law which regulate the rights of owners of Abstraction land in respect of water flowing in known and defined channels, and diversion whether upon or below the surface of the ground, do not apply actionable. to water which runs in no defined channel, or merely percolates through the strata, and no action will, therefore, lie for the abstraction or diversion of such water (8).

drain surface

water for

Thus in the case of Rawstron v. Taylor (t), it has been held Right to that the owner of land has an unqualified right to drain it for agricultural purposes in order to get rid of mere surface water, agricultural the supply of the water being casual, and its flow following no purposes. regular or definite course; and a neighbouring proprietor cannot complain that he is thereby deprived of such water which otherwise would have come to his land. So in Broadbent v. Ramsbotham (u), where the plaintiff's mill for more than fifty years

(0) Ibid., s. 2.

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Harbour means any harbour whether natural or artificial, and includes any port, dock, estuary, or arm of the sea, any river or canal navigable by sea-going vessels, and any waters in which sea-going vessels can obtain shelter or ship or unship goods or passengers: ibid., s. 8.

(p) Ibid., s. 2. A transfer may be made for fire brigade purposes without notice, and a twelve months' notice will suffice where the operation is performed at a place where such operations are frequently and regularly carried on: ibid., sub-s. 3.

(q) Ibid., ss. 3, 6.

(7) Ibid., s. 7. The penalty for discharging oil is a fine not exceeding £100; for transfer at night, £20; for neglect to keep a record, £50; for a false entry or for wilfully failing to make an entry, £100 : ibid., ss. 1, 2, 3. The whole or any part of the fine may be used to meet the expenses of the removal of the oil discharged: ibid., s. 5.

(8) For definition of a stream or watercourse, see ante, pp. 70 et seq. As to pollution of percolating water, see post, pp. 215 et seq.

(t) 11 Ex. 353; 25 L. J. Ex. 33.

(u) 11 Ex. 602; 25 L. J. Ex. 115.

Subterranean

water.

Wells.

Acton v.
Blundell.

had been worked by the stream of a brook which was supplied by the water of a pond filled with rain, a shallow well supplied by subterraneous water, a swamp and a well formed by a stream springing out of the side of a hill, the waters of all of which occasionally overflowed and ran down the defendant's land in no definite channel into the brook, it was held that the plaintiff had no right as against the defendant to the natural flow of any of the waters. So in Greatrex v. Hayward (x), it was held, following Wood v. Waud (y), that the flow of water from a drain made for agricultural purposes for twenty-one years does not give a right to the person, through whose land it flows, to the continuance of the flow so as to preclude the proprietor of the land drained from altering the level of his drains for the improvement of his land, and so cutting off the supply (z).

The same rules of law have, after some difference of opinion, been established in a series of cases to apply to subterranean water percolating through the strata of the earth in no definite or known course, it being now established on the highest authority that the owner of land containing underground water which percolates by undefined channels and flows to the land of a neighbour has the right to divert or appropriate the percolating water within his own land so as to deprive his neighbour of it; and his right is the same whatever his motive may be, whether bona fide to improve his own land, or maliciously to injure his neighbour, or to induce his neighbour to buy him out (a). Where the course of a stream is definite and notorious, the same rules of law will govern it, whether it be above or below ground (b). In the case of Acton v. Blundell (c), it was decided that the owner of land through which water flows in a subterraneous course has no right or interest in it which will enable him to maintain an action against a landowner who, in carrying on mining operations in his own land in the usual manner, drains away water from the land of the first-mentioned owner and lays his well dry. "The question argued before us," says Tindal, C.J., delivering the

(x) 8 Ex. 291; 22 L. J. Ex. 137.
(y) 3 Ex. 748; 18 L. J. Ex. 305.

(z) See also Young v. Bankier Distillery Co., [1893] A. C. 691; 69 L. T. 838; 58 J. P. 100, H. L. Sc.; Hanna v. Pollock, [1906] 2 Ir. R. 664, C. A.

(a) Bradford Corporation v. Pickles, [1895] A. C. 587. In the above case it was held that the prohibition in section 49 of the Bradford Waterworks Act, 1854, against the illegal diversion, detention or appropriation of the flow of water applies only to the waters when collected, and not to the springs or sources from which the water proceeds; see also M'Nab v. Robertson, [1897] A. C., H. L. Sc. 129.

(b) Chasemore v. Richards, 7 H. L. 349; Dickenson v. Grand Junction Canal, 7 Ex. 282; 21 L. J. Ex. 241; Dudden v. Clutton Union, 1 H. & N. 627, 630; Wood v. Waud, 3 Ex. 748; Ewart v. Belfast Guardians, 9 L. R. Ir. 172, C. A.; see Phear, p. 33; Angell, p. 152.

(c) 12 M. & W. 324; 13 L. J. Ex. 289.

judgment of the Court, "has been in substance this,-whether the right to the enjoyment of an underground spring, or of a well supplied by such underground spring, is governed by the same rule of law as that which applies to and regulates a watercourse flowing on the surface. In the case of a running stream, the owner of the soil merely transmits the water over its surface: he receives as much from his higher neighbour as he sends down to his neighbour below: he is neither better nor worse,-the level of the water remains the same. But if the man who sinks the

well in his own land can acquire by that act an absolute and indefeasible right to the water that collects in it, he has the power of preventing his neighbour from making any use of the spring in his own soil which shall interfere with the enjoyment of the well (d). He has the power still further of debarring the owner of the land in which the spring is first found, or through which it is transmitted, from draining his land for the proper cultivation of the soil; and thus by an act which is voluntary on his part and which may be entirely unsuspected by his neighbour, he may impose on such a neighbour the necessity of bearing a heavy expense, if the latter has erected machinery for the purpose of mining, and discovers, when too late, that the appropriation of the water has already been made. Further, the advantage on one side, and the detriment to the other, may bear no proportion. The well may be sunk to supply a cottage, or a drinking place for cattle; whilst the owner of the adjoining land may be prevented from winning metals and minerals of inestimable value. And, lastly, there is no limit of space within which the claim of right to an underground spring can be confined. In the present case the nearest coal-pit is at a distance of half a mile from the well. It is obvious the law must equally apply if there is an interval of many miles. Considering, therefore, the state of circumstances upon which the law is grounded in the one case is entirely dissimilar from those which exist in the other, and that the application of the same rule to both would lead, in many cases, to consequences at once unreasonable and unjust, we feel ourselves warranted in holding upon principle that the case now under discussion does not fall within the rule which obtains as to surface streams, nor is it to be governed by analogy therewith."

tion Canal.

In Dickenson v. The Grand Junction Canal (e), the Court of Dickenson v. Exchequer held that an action would lie against a landowner for Grand Juncdigging a well and so preventing subterraneous water from reaching a natural surface stream, which it would otherwise

(d) See Galgay v. G. S. & W. Rly. Co., 4 Ir. C. L. R. 456.
(e).7 Ex. 282; 21 L. J. Ex. 241.

Long user gives no further right of action.

Chasemore v.
Richards.

have reached; and this, whether the water was part of an underground watercourse, or would have reached the stream by percolating through the strata; but this opinion has been overruled by the decision of the House of Lords in Chasemore v. Richards.

In the case of Acton v. Blundell, cited above, the questions before the Court were two-viz., whether a landowner by sinking a shaft on his own ground, first, might lawfully intercept water and prevent it from percolating into another landowner's well; cr, secondly, might so actually abstract or withdraw water from the well. Tindal, C.J., decides both in the affirmative; for says he "If in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque injuriâ, which cannot become the ground of action."

The first of these two propositions has been re-asserted in the case of Chasemore v. Richards (f) by the House of Lords, affirming the judgment of the Court of Exchequer Chamber. This case, moreover, decides a point not raised in Acton v. Blundell, viz., that a prescriptive right by long user to the water of the well or surface stream, with which the sinking of the shaft interfered, would give no further right of action (g).

In Chasemore v. Richards (h), the plaintiff, who owned an ancient mill on the river Wandle, and had for more than sixty years enjoyed the use of the stream, which was chiefly supplied by percolating and underground water, lost the use of the stream after an adjoining landowner had dug on his ground an extensive well for the purpose of supplying water to the inhabitants of the district, many of whom had no title as landowners. It was urged on behalf of the plaintiff that, even granting that the defendant had a right to dig a well and appropriate the water for the use of his own property, yet he had no right to such an unreasonable use of it, as to abstract it for the use of persons unconnected with his estates. This view seems to have been taken by Lord Wensleydale (i), but the other learned Lords, Lords Chelmsford, Cranworth, Kingsdown, and Brougham, held that the plaintiff had no right of action: for, said Lord Chelmsford, "Before the plaintiff can question the act of the defendant, or discuss with him the reasonableness of the claim to appropriate this under

(f) 7 H. L. 349; 29 L. J. Ex. 81.

(g) See also per Maule, J., in Smith v. Kenrick, 7 C. B. 546; 18 L. J. C. P. 172.

(h) 7 H. L. 349; 29 L. J. Ex. 81.

(i) See remarks on Lord Wensleydale's judgment in this case per Lord Watson in Bradford Corporation v. Pickles, [1895] A. C. 589, at p. 597.

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