Easement of water.

An easement is an incorporeal right.

The tenement in respect of which an easement is used is termed the dominant tenement; and the tenement upon, over, or from which it is used is termed the servient tenement. Considered with reference to the servient tenement, an easement is frequently termed a servitude.

The easements relating to water may be classified thus (f): 1. The right to affect or use the water of a natural stream in any manner not justified by natural right—

(a) In quantity;

(b) In quality.

2. The right to conduct water across a neighbour's land by an artificial watercourse, and to go on his land for the purposes of clearing it.

3. The right to discharge water or other matter on a neighbour's land.

4. The right to go on a neighbour's land to draw water from a well (g).

It is proposed to consider, first, how these easements may be acquired; and, secondly, the nature, extent, and mode of enjoyment of the above-named particular easements of water.

Easements of Water, how acquired.

The origin of rights of this kind is referred either to express contract between the parties or to a similar contract implied from the peculiar relation of the parties at the time they became possessed of their respective tenements, or from the long-continued exercise of the right from which a previous contract between them may be inferred (h); or to the provisions of an Act of the legislature (i).

A watercourse," says Woolrych (k), may be either a real or an incorporeal hereditament. If by grant, prescription, or otherwise, one should have an easement of this kind in the land of another person, it would partake of the latter quality; but if the water flow over the party's own land, although, indeed, it cannot be claimed as water, yet it is, in effect, identified with the realty, becuse it passes over the soil, and cujus est solum ejus est usque ad cœlum."

(f) The rights of fishery and navigation are fully treated of elsewhere; see Chaps. VI. and VII.

(g) As to what evidence is necessary to maintain such a claim, see Macnaghten v. Baird, [1903] 2 Ir. R. 731; Gardner v. Hodgson's Brewery Co., [1901] 2 Ch. 198; 84 L. T. 373; 49 W. R. 421, C. A.

(h) Gale on Easements (8th ed.), by R. R. Reeve, 1908, p. 28.

(i) Per Cockburn C.J., in Mason v. Shrewsbury Rly., L. R. 6 Q. B. 537 ; 40 L. J. Q. B. 293; 25 L. T. 239.

(k) Woolrych, p. 117.

agreement.

The ceremony required by law for the creation of easements By express and all other incorporeal hereditaments, is a deed, devise, or record; and as the same ceremonies are requisite in the transfer of a right as are requisite in its original formation, a water right as an incorporeal hereditament can only be assigned by deed, devise or record (1).

This point was decided in Hewlins v. Shippam (m), where the question was, whether a right to a drain running through the adjoining land could be conferred by a parol licence, and under the Statute of Frauds; and the Court held that such an interest could only be created, by deed.

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Bayley, J., in delivering the judgment of the Court, says: A right of way or a right of passage for water (where it does not. create an interest in land) is an incorporeal right, and stands on the same footing with other incorporeal rights, such as rights of common, rents, advowsons, &c. It lies not in livery, but in grant, and a freehold interest in it cannot be created or passed (even if a chattel interest may, which I think it cannot) otherwise than by deed" (n).

After citing other cases (o) in support of his opinion, the learned judge continues: "And in Fentiman v. Smith (p), where

(1) Angell on Watercourses, p. 324; Gale on Easements, p. 29. An easement could not, until recently, be created by a grant under the Statute of Uses, but now the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 62, provides as follows:

(1) A conveyance of freehold land to the use that any person may have, for an estate or interest not exceeding in duration the estate conveyed in the land, any easement, right, liberty or privilege in, or over or with respect to that land, or any part thereof, shall operate to vest in possession in that person that easement, right, liberty, or privileges for the estate or interest expressed to be limited to him; and he, and the persons deriving title under him, shall have, use, and enjoy the same accordingly.

(2) This section applies only to conveyances made after the commencement of this Act.'

"It is conceived that this section is intended to alter the mode of conveyance only, and does not authorize the creation of easements of a novel kind, such as easements in gross or not connected with the enjoyment of a tenement. By virtue of this section, an easement may now be reserved, or may be granted under a power.

It should be noted that the Settled Land Act, 1882 (45 & 46 Vict. c. 88, s. 3 (1)—and cf. s. 24 (7))-empowers a tenant for life to sell the settled land or any easement, right, or privilege over or in relation to the same,' i.e., to subject the settled land to any such easement.' See Sutherland v. Sutherland. L. R. 3 Ch. 169; see Gale on Easements (7th ed.), p. 71. By the Law of Property Act, 1922 (12 & 13 Geo. 5. c. 16), s. 23, where an easement for a legal estate is created, it shall enure for the benefit of the land to which it is intended to be annexed, and by section 41 a tenant for life may grant water rights to statutory bodies for nominal consideration.

(m) 5 B. & C. 221; 31 R. R. 757; see as to this subject, Gale on Easements, pp. 30, 63.

(n) Hewlins v. Shippam, 5 B. & C. 221; 31 R. R. 757; see also Fentiman v. Smith, 4 East, 107; 7 R. R. 533; see also Corker v. Payne, 18 W. R. 436; Cocker v. Cowper, 1 C. M. & R. 418; 40 R. R. 626; Gale, pp. 29. 53.

(0) Co. Litt. 9a, 42a, 169; 2 Roll. Abr. 62; Shep. Touch. 231; Monk v. Butler, Cro. Jac. 574; Rumsey v. Rawson, 1 Vent. 18-25; Hoskins v. Robins, 1 Vent. 123-163; Harrison v. Parker, 6 East, 154; 8 R. R. 434.

(p) 4 East, 107; 7 R. R. 533.

An easement can only be assigned at law by deed.

created or

the plaintiff claimed to have passage for water by a tunnel over defendant's land, Lord Ellenborough lays it down distinctlyThe title to have the water flowing in the tunnel over defendant's land could not pass by parol licence without deed.' Upon these authorities, we are of opinion, that, although a parol licence might be an excuse for a trespass till such licence were countermanded, that a right and title to have passage for water, for a freehold interest, required a deed to create it; and that, as there has been no deed in this case, the present action, which is founded on a right and title, cannot be supported" (q).

The doctrine laid down in this case was fully recognised in Cocker v. Cowper (r), where an action was brought for stopping a watercourse. It appears from the award of the arbitrator that the channel in question consisted of a drain and tunnel which had been constructed in defendant's land by the plaintiff with the verbal consent of the then tenant and the defendant, and that the water had flowed through it up to the year 1833, when upon the plaintiff's refusal to pay for the use of the water the defendant diverted the channel. The Court of Exchequer were clearly of the opinion that the plaintiff was not entitled to recover. 'With regard to the question of licence," says the Court, "the case of Hewlins v. Shippam is decisive to show that an easement like this cannot be conferred unless by deed." With regard to the effect of a licence, Mr. Phear (s) thus expresses himself : "It is very important in considering the subject of easements to distinguish as early as possible between a right (t) to do an act in alieno solo and a licence to commit an act of trespass. The right involves a certain continuing element, and has an incorporeal existence, whether any act be done under it or not: the possessor of the land over which it extends is, so far as it is capable of being exercised, deprived of an incident of territorial property, and the possessor of the right acquires. by it, just to the same extent, an interest in the land itself. Whether the possessor of a right avails himself of it or not, he is entitled, while it continues, to treat it as something having an abstract existence, and to protect it from any infringement-i.e., from anything, the effect of which would be to prevent his free exercise of it when

(q) See also the remarks of the learned judge on the cases of Winter v. Brockwell, 8 East, 309; Webb v. Paternoster, Palm. 71; Wood v. Lake, Sayer, 3; and Taylor v. Waters, 7 Taunt. 374; 18 R. R. 499.

(r) 1 C. M. & R. 418; 40 R. R. 626; see also Wood v. Leadbitter, 13 M. & W. 838; Wood v. Manley, 11 A. & E. 30; Bird v. Higginson, 6 A. & E. 824; Perry v. Fitzhowe, 8 Q. B. 757; Bryan v. Whistler, 2 B. & C. 288; 32 R. R. 389; Brown v. Windsor, 1 Cr. & J. 20; Wallis v. Harrison, 4 M. & W. 538.

(s) Phear's Rights of Water, p. 58.

(t) See judgment of Bayley, J., in Hewlins v. Shippam, 5 B. & C. 232; 31 R. R. 757.

he chose. On the other hand, a licence (u) merely excuses the act when done, is retrospective and not prospective in its operation; it begets no obligation on the part of the licensor to keep it in force, and may, therefore, be revoked by him at any moment."

Where, however, the owner of a servient tenement has by Equitable express consent, or by such acquiescence as would make it a doctrine of acquiescence. fraud to insist upon the legal right, induced others to incur expense in the execution of permanent works or the like, the High Court of Justice (x), administering equity, will, in many cases restrain him from the benefit of this rule. "The Court," says Lord Eldon (y), I will not permit a man knowingly, though passively, to encourage another to lay out money under an erroneous opinion of title (and the circumstance of looking on is in many cases as strong as using terms of encouragement)— a lessor knowing and permitting those acts which the lessee would not have done, and the other must conceive that he would not have done, but upon an expectation that the lessor would not have thrown any obstacle in the way of the enjoyment." Thus in Duke of Devonshire v. Eglin (2) where expense had been incurred in constructing a watercourse through defendant's lands, with his consent, but without any grant under seal, and after a user of nine years defendant attempted to interfere, he was restrained, upon terms, by perpetual injunction from interfering with the further user of the watercourse (a). In Att.-Gen. v. Grand Junction Canal Co. (b), a canal company by an Act of 1810 was incorporated and empowered to make a canal through certain counties, and for that purpose to take water for such canal from all brooks, rivers, and watercourses within 1,000 yards, but the Act prohibited the company from taking water from the river Avon or its tributary streams except in times of flood and when there should be a surplus of water in the river or watercourses flowing into the same, and from diminishing the water of the river below a certain average flow. Certain works were directed by the Act to be constructed for the purpose of ascertain

(u) Brooke's Abridg. title "License"; Shep. Touch. 239; Wood v. Leadbitter, 13 M. & W. 842.

(z) See 36 & 37 Vict. c. 66, s. 24.

(y) Dann v. Spurrier, 7 Ves. 235; 6 R. R. 119; Ramsden v. Dyson, L. R. 1 H. L. 140; Watercourse Case, 2 Eq. Abr. 522, pl. 3; Short v. Tayler, cited bid. Powell v. Thomas, 6 Hare, 300; Laird v. Birkenhead, 1 John. 500; Duke of Beaufort v. Patrick, 17 Beav. 60; Williams v. Earl of Jersey, 1 Cr. & Ph. 91; Somerset Canal v. Harcourt, 24 Beav. 271; Rochdale Canal v. King, 2 Sim. (N.s.) 28; Cotching v. Bassett, 32 Beav. 101.

(z) 14 Beav. 530. As to what acquiescence is not sufficient, see Blanchard V. Bridges, 4 A. & E. 194; 53 R. R. 26; Bankart v. Houghton, 27 Beav. 425; Bankart v. Tennant, L. R. 10 Eq. 141; 39 L. J. Ch. 809; 23 L. T. 137. (a) See Owen v. Davies, W. N. (1874) 175.

(b) 78 L. J. Ch. 681; [1909] 2 Ch. 505.

ing the average quantity of water flowing into the river. These works were duly executed and completed about the year 1837. By an Act of 1894, the undertaking of the canal company was transferred to the defendants. The Attorney-General, on behalf of the public and the urban district council of Rugby as riparian owners, now sought an injunction to restrain the defendants from taking more water from the river than they were entitled to under the Act of 1810, and from permitting the works constructed under the Act of 1810 to remain so constructed. The Court of Appeal, affirming Joyce, J., held that the defendants had acquired by lapse of time an absolute and indefeasible right as against the plaintiff council to the water taken from the river, and the council were not entitled to the right claimed, and, further, that the action failed as far as the public represented by the AttorneyGeneral were concerned; that delay was a circumstance to be taken into consideration in determining whether the Court should interfere by injunction, and especially, as here, by mandatory injunction, though the application was by the Attorney-General; and, in such a case as this, the Court had a discretion and ought to have regard to the very long period of time which had elapsed without objection being taken (c).

So where a licence to take water which is essential to the enjoyment of property is acted upon, and expense incurred to the knowledge of the licensor, the Courts will grant relief. In Bankart v. Tennant (d), the defendant, being the owner of a canal of which plaintiffs were customers, gave the plaintiffs to understand that as long as they were customers they should have the use of the waste water of the canal for certain furnaces and smelting works which they had erected on the banks. James, V.-C., held that this did not give them any equitable right to the water; though he said that if it had been made out to his satisfaction that the water was essential, or anything like essential, to the enjoyment of the plaintiffs' property, he should have found his way to give them the relief they asked. He cited in his judgment what Lord Loughborough says in Clavering's Case (e): There was a case (I do not know whether it came to a decree) against Mr. George Clavering, in which some person was carrying on the project of a colliery, and had sunk a shaft at a considerable expense. Mr. Clavering saw the thing going on; and in the execution of that plan it was very clear the colliery was not worth a farthing without a road over his ground; and when the work was begun he said he would not give the road.

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(c) See also Att.-Gen. v. Sheffield Gas Consumers Co., 3 De G. M. & G. 304; Countess of Rothes v. Kirkcaldy Waterworks, 7 A. C. 694.

(d) L. R. 10 Eq. 141.

(e) 5 Vesey, 690; 5 R. R. 146.