ground water for these purposes (whatever they may be), he must first establish his own right to have it pass freely to his mill, subject only to the qualified and restricted use of it to which each owner may be entitled, through whose land it may make its way. It seems to me that both principle and authority are opposed to such a right. The law as to water flowing in a certain and definite channel has been conclusively settled by a series of decisions, in which the whole subject has been very fully and satisfactorily considered, and the relative rights and duties of riparian proprietors have been carefully adjusted and established. The principle of these decisions appears to me to be applicable to all water flowing in a certain and defined course, whether in an open visible stream or in a known subterranean channel; and I agree with the observation of Pollock, C.B., in Dickenson v. Grand Junction Canal Co. (k), that, 'If the course of a subterranean stream were well known, as is the case with many which sink underground, pursue for a short space a subterranean course, and then emerge again, it never could be contended that the owner of the soil, under which the stream flowed, could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover had the stream been wholly above ground' (l). But it appears to me that the principles which apply to flowing water 'in streams or rivers, the right to the flow of which, in its natural state, is incident to the property through which it passes, are wholly inapplicable to water percolating through underground strata, which has no certain course, no defined limits, but which oozes through the soil in every direction in which the rain penetrates. difficulty in determining the rights of the different proprietors to the usufruct of the water in a running stream. Whether it has been increased by floods, or diminished by drought, it flows on in the same ascertained course, and the use which every owner may claim is only of the water which has entered into and become a part of the stream. percolating underground water is necessarily of description. When does this right commence? There is no But the right to a very uncertain Before or after the rain has found its way to the ground? If the owner of land, through which the water filters, cannot intercept it in its progress, can he prevent its descending to the earth at all, by catching it in tanks or cisterns? And how far will the right to this water supply extend? In this case the water, which ultimately finds its way to the river Wandle, is strained through the soil of several V. (k) 7 Ex. 300, 301. Belfast Guardians, 9 L. R. Ir. 172, post, p. 229. (1) See observations on this case by Palles, C.B., in the Irish case of Ewart Reg. v. Metropolitan Board of Works. thousand acres-are the most distant landowners, as well as the adjacent ones, to be bound at their peril to take care to use their lands so as not to interrupt the oozing of the water through the soil to a greater extent than shall be necessary for their own actual wants? For with Mr. Justice Coleridge I do not see here 'how the ignorance' which the landowner has of the course of the springs below the surface, of the changes they undergo, and of the date of their commencement, is material in respect of a right which does not grow out of the assent or acquiescence of the landowner, as in the case of a servitude, but of the nature of the thing itself' (m). This distinction between water flowing in a definite channel, and water, whether above or underground, not flowing in a stream at all, but either draining off the surface of the land, or oozing through the underground soil in varying quantities, and in uncertain directions, depending on the variations of the atmosphere, appears to be well settled by the cases cited in argument." The learned lord goes on to cite Broadbent v. Ramsbotham (n), Rawstron v. Taylor (o), and Acton v. Blundell (p), and continues: Against this concurrence of authority, what is there to be offered in favour of the plaintiff but the nisi prius case of Balston v. Bensted (q), and the case of Dickenson v. Grand Junction Canal? (r). With respect to Balston v. Bensted, it does not appear that the question of the right to water percolating through the strata, as contradistinguished from water flowing in a visible stream, was ever presented to Lord Ellenborough's mind. With respect to the case of Dickenson v. Grand Junction Canal, upon which the plaintiff also relied, after the observations made upon it by Mr. Justice Cresswell in the Exchequer Chamber (s), and by Mr. Justice Wightman in delivering the opinion of the judges to this House (t), it is unnecessary for me to say more, than that I entirely agree with them, and think that it can hardly be regarded as a satisfactory decision upon the point under consideration. It appears to me that reason and principle, as well as authority, are opposed to the claim of the plaintiff to maintain an action for the interception of the underground water, which would have ultimately found its way into the river Wandle; and that, therefore, the judgment of the Exchequer Chamber ought to be affirmed." Following this decision, it has been held in Reg. v. Metropolitan Board of Works (u), that a landowner was not entitled to compensation under the Metropolitan Sewers Act (11 & 12 Vict. e. 112) for the abstraction of water from underground springs, which rose in his lands and fed his ponds, by a sewer made under the provisions of the Act, in neighbouring lands. The judgment of the Court was founded on the principle that where compensation is given for damages done from works authorised by an Act of Parliament, such compensation can only be claimed where the damage would have been ground of action if arising from the act of a private individual, and that as the abstraction of underground percolating water was not actionable, compensation could not be claimed. Cockburn, C.J., dissented from this judgment on the ground that under the 50th section of the Act, which provided that compensation should be given "where any work shall interfere with or prejudicially affect any ancient mill or any right connected therewith, or other right to the use of water," the plaintiff was entitled to compensation; for though he might have no legal right to the water till it had risen into the pond, the defendants, by preventing the water from rising and becoming the subject of legal right, had prejudicially affected the plaintiff's right to it. Following this case, the Irish Court of Appeal has held that underground water not flowing in a known channel is not the subject of property or capable of being granted (x). So in Brain v. Marfell (y), where defendant sold to plaintiff a well, and the right of conveying water therefrom through defendant's land without interruption or disturbance, the Court of Appeal held that defendant had only conveyed the flow of the water after it had risen in the well, and that no action would lie for the interception of percolating water before it reached the well. So the Privy Council (z) has held that where a landowner has granted the surface to another, retaining the mines beneath it, the mine-owner is not responsible, in the absence of express agreement (a) if in working the mines he drains the water from the surface. In the case of Bradford Corporation v. Pickles (b), the House of Lords, agreeing with Chasemore v. Richards, decided that where a statute provides that it shall be unlawful for a person other than a company authorised to supply water to a town to "divert, alter, or appropriate in any manner other than by law (1) Ewart v. Belfast Poor Law Guardians, 9 L. R. Ir. 172, post, p. 229. (y) 41 L. T. (N.S.) 455. (2) Ballacorkish Co. v. Harrison, L. R. 5 P. C. 49; 43 L. J. P. C. 19; 29 L. T. 658. (a) As to effect of express agreement, see post, pp. 223 et seq. (b) [1895] A. C. 587. Abstraction of water actually in a a well. they may be legally entitled," water flowing from particular springs, the object of the statute is to give protection to the supply of water acquired by the company, and not to prevent a neighbouring landowner from making a legitimate use of water running from or percolating through his land before it reaches. the company's supply and becomes part of their undertaking. If the neighbouring landowner's act is a lawful act, however ill the motive may be, he has a right to do it. So if he has a lawful right to divert water from his neighbour's land, he may do so, although he does it for the purpose of forcing him to purchase his interest in the water. In the case of M'Nab v. Robertson (c), a lessor demised by lease a distillery, cottages, thirteen and a half acres of land, with two ponds, "together with right to the water in the said ponds and in the streams leading thereto." The lease also contained the usual warrandice clause. The lessor sank a tank on ground outside but adjoining the demised subjects, and drew off from marshy ground percolating water which would have found its way eventually into one of the ponds. The House of Lords held (Lord Halsbury, L.C., dissenting), affirming the decision of the Second Division of the Court of Session, that water percolating through the ground towards the pond was not water in any stream leading to the pond: it was held secondly, by the whole House, that assuming an implied obligation on the part of the lessor not to diminish the water supply to the ponds, there had been no breach (d). It has, moreover, been decided that where water which has actually percolated into, and is in a well, has been abstracted by operations in the adjoining land, no action will lie (e). Thus, in the New River Co. v. Johnson (f), where a well of the respondent was drained by a sewer constructed by the appellants under a local Act incorporating the Waterworks Clauses Act (10 & 11 Vict. c. 17), the Court of Queen's Bench held that, as on the authority of Acton v. Blundell (g), and Chasemore v. Richards (h), no action would have lain for what was done, the statute gave the respondent no right to compensation. Crompton, J., says: The only matter about which there could reasonably be any doubt is whether, but for the Act of Parliament giving the appellants (c) [1897] A. C. 129. (d) For Lord Watson's definition of a "stream in this case, see ante, p. 71. (e) A local authority has no right to authorise a stranger to take water from a public well for commercial purposes: per Byrne, J., in Mostyn v. Atherton, [1899] 2 Ch. 360; 68 L. J. Ch. 629. (f) 2 El. & Bl. 435; 29 L. J. M. C. 93; 1 L. T. 295. (g) 12 M. & W. 324. (h) 7 H. L. 349; 29 L. J. Ex. 81. There may be some present one, of water power to construct their works, the respondent would have had a defined sur face channel. In conformity with the doubt expressed by Crompton, J., it Actually in a has been held by Lord Hatherley, L.C., in Grand Junction Canal V. Shugar (m), that although a landowner will not, in general, be restrained from drawing off the subterranean waters in the adjoining land, yet he will be restrained if, in so doing, he draws off water flowing in a defined surface channel through the adjoining land. Lord Hatherley says: "The point most closely pressed on me by Mr. Eddis and Mr. Lindley was this-how can you distinguish the case of a well where the water has been secured, from the case of running water? That is answered at once by the decision in the case of Chasemore v. Richards, and the distinction is plain. If you are simply using what you have a right to use, and leaving your neighbour to use the rest of the water as it flows on, you are entitled to do so; but you must not appropriate that which you have no right to appropriate to yourself. In this case there is, ex concessis, a defined channel in which this water was flowing, and I think the evidence is clear that some of it is withdrawn by the drain which the local board have made. As far as regards the support (n) of the water, all (i) 12 M. & W. 324. (k) 7 Ex. 282. (1) 7 H. L. 349; 29 L. J. Ex. 81. (m) L. R. 6 Ch. 483; 24 L. T. 402. (n) In Jordeson v. Sutton, Southcoates, and Drypool Gas Co., [1899] 2 Ch. at p. 251, Vaughan-Williams, L.J., referring to Shugar's Case, said: "It seems tolerably clear from the longer report of this case in the Law Times. 24 L. T. 402) that Lord Hatherley treated the case as one in which there was a distinct tapping of an overground stream flowing in a defined channel, and not merely a withdrawal of percolating underground water indirectly affecting the underground stream. I doubt whether Lord Hatherley really used the expression support of water.' I observe that the word which in the Law Times report he is reported as using is supply' and not support.' L.W. 14 |