that he should have great difficulty in establishing the right under Lord Tenterden's Act. This Court, as then constituted, much considered that subject in the case of Arkwright v. Gell. We have again considered it, and are satisfied that the principles laid down, as governing that case, are correct, and were properly acted upon in it, by deciding that no action lay for an injury by the diversion of an artificial watercourse, where, from the nature of the case, it was obvious that the enjoyment of it depended upon temporary circumstances, and was not of a permanent character, and where the interruption was by the party who stood in the situation of the grantor. The Court of Queen's Bench in the subsequent case of Magor v. Chadwick, supported a verdict for the plaintiff, for the disturbance of a right to the enjoyment of a stream, under circumstances somewhat similar; but in that case the action was not brought against the party in whose land the artificial watercourse commenced, nor any one claiming under him; and he had not put an end to it by altering the mode of working of his mines, but what is more important, the action was not brought for abstracting, but for fouling-a species of injury which does not stand on the same footing; for though the possessor of the mine might stop the stream, it does not follow that he or any other could pollute it whilst it continued to run; and besides, from the course which the cause took at Nisi Prius, the precise question which we have now to consider does not appear to have called for decision. The two cases are therefore distinguishable, and the expressions used by the learned judges in that case, as to the similarity of natural and artificial streams, are to be understood as applicable to that particular case. We entirely agree with Lord Denman, C.J. (in Magor v. Chadwick), that the proposition that a watercourse, of whatever antiquity, and in whatever degree enjoyed by numerous persons, cannot be enjoyed so as to confer a right to the use of the water, if proved to have been originally artificial, is quite indefensible; (r) but, on the other hand, the general proposition, that, under all circumstances, the right to watercourses arising from enjoyment is the same, whether they be natural or artificial, cannot possibly be sustained. The right to artificial watercourses against the party creating them, surely must depend upon the character of the watercourse, whether it be of a permanent or temporary nature, and upon the circumstances under which it was created. The enjoyment for twenty years of a stream diverted or penned up by permanent embankments, clearly stands upon a different footing from the enjoyment of a flow of water originating in the

(r) See Greatrex v. Hayward, 8 Ex. 291; Sutcliffe v. Booth, 9 Jur. (N.s.) 1037; 32 L. J. Q. B. 136.

mode of occupation or alteration of a person's property, and presumably of a temporary character, and liable to variation.

"The flow of water for twenty years from the eaves of a house could not give a right to the neighbour to insist that the house should not be pulled down or altered, so as to diminish the quantity of water flowing from the roof. The flow of water from a drain for the purposes of agricultural improvements for twenty years could not give a right to the neighbour, so as to preclude the proprietor from altering the level of his drains for the greater improvement of his land. The state of circumstances in such cases shews that one party never intended to give, nor the other to enjoy, the use of the stream as a matter of right” (8). In Burrows v. Lang (t) it has been held by Farwell, J., Burrows v. Lang. following Arkwright v. Gell (u), that a watercourse constructed solely for the purposes of a mill was for a temporary purpose, and that where the owner of an ancient mill and a farm the cattle whereof were to some extent watered at an ancient watercouse diverted from a natural stream, and running on the mill property alongside the farm, but constructed and maintained solely for the purpose of the mill, conveyed the farm to a purchaser without mentioning any water right, having regard to the special temporary purpose for which the watercourse was constructed, the expense of maintaining it, and the fact that it lay entirely on the mill property, the purchaser had acquired no right, either by implied grant or under the general words of the Conveyancing Act, 1881, 8. 6, to have it continued for his benefit, and the watercourse being therefore precarious, he could have no right to the use of the water (if any) therein. But when the user of an artificial watercourse by several tenants is such as to raise the inference that it was originally constructed for their common benefit, the quasi-easements enjoyed by such tenants will pass by a conveyance of the tenements under the general words of the Conveyancing Act, 1881 (x).

Referring to Watts v. Kelson (y), Farwell, J., says (2): "Watts v. Kelson, on which the plaintiff relied, is not really in point, because the whole of the basis on which I rest my judgment was absent in that case. There was no question of an artificial watercourse having been made for one property only. The

(8) See Greatrex v. Hayward, 8 Ex. 291; Sutcliffe v. Booth, 9 Jur. (N.S.) 1037; 32 L. J. Q. B. 136.

(t) [1901] 2 Ch. 503; Whitmores (Edenbridge) v. Stanford, [1901] 1 Ch. 427; and see also Birmingham, Dudley and District Banking Co. v. Ross, 38 Ch. D. 295.

(u) Ante, p. 274.

(r) Lewis v. Meredith, [1913] 1 Ch. 572.

(y) L. R. 6 Ch. 166; ante, p. 237.

(z) [1901] 2 Ch., at p. 512.

Duty of dominant

owner as

to repairs.

artificial watercourse in that case was made for the express purpose of providing both the properties with water. The question raised in the present case was not argued; the point did not arise; the only point was whether a quasi-easement, which would by its nature have been an easement if there had not been common ownership, passed by the grant, and it was held that it did. In the present case that is entirely excluded, because I hold that there was no quasi-easement which could pass by the grant, by reason of its precarious nature. The result is that the plaintiff's case wholly fails, and I can do nothing but dismiss it with costs.' His Lordship also cites the judgment of Sir Montague Smith, in Rameshur Pershad Singh v. Koonj Behari Pattuk (a): "There is no doubt that the right to the water of a river flowing in a natural channel through a man's land, and the right to water flowing to it through an artificial watercourse constructed on his neighbour's land, do not rest on the same principle "; and he adds, "I venture to add to that the right to water flowing through an artificial watercourse constructed on a man's own land passing by his neighbour's land does not rest on the same principle as that of water flowing in a natural channel by his neighbour's land. Regarded as a question of prescription," he continues, "I should have to consider whether the artificial watercourse was made for a temporary purpose or not. The plaintiff contends that this was not a temporary purpose. That depends on the meaning of the word 'temporary.' In Arkwright v. Gell (b) the fact that' water pumped from mines had flowed over a man's land for upwards of sixty years gave him no right to a continuance of the flow. The meaning of temporary purpose,' is, therefore, not confined to a purpose that happens to last in fact for a few years only, but includes a purpose which is temporary in the sense that it may within the reasonable contemplation of the parties come to an end."

In Brymbo Water Co. v. Lester's Lime Co. (c), it was held that the fact that an embankment is occasionally out of repair during a term of years, or too low when the water is high (e.g., in a flood), and so allows water to overflow into other land, gives the owner of that other land no prescriptive right to the overflow. In Pomfret v. Riecroft (d) it was held that if a lease be made of a house and piece of land except the land on which a pump stands, with the use of the pump, the lessee may repair the pump, but no action of covenant lies against the lessor for not repairing it; but in Buckley v. Buckley (e), where Pomfret v. Riecroft is dis

(a) 4 A. C. 126; ante, p. 266.

(c) [1894] 8 R. 329.

(e) [1895] 2 Q. B. 608; 67 L. J. Q. B. 953.

(b) 5 M. & W. 203, 232.
(d) 1 Wms. Saund. 321.

cussed, it was held that an action for non-repair of a sluice on an artificial stream, whereby the lands of the owner of the land through which the stream ran were damaged, can be maintained, as the right which the dominant owner had to repair the sluice in no way limited his liability to prevent the water becoming a source of danger to adjoining landowners.

artificial watercourses.

With regard to the question of pollution, the law would appear Pollution of to be somewhat different from that with regard to diversion. In the cases of Magor v. Chadwick (f) and Wood v. Waud (g), the Courts were of opinion that even in cases where from the circumstances a riparian owner may have no right to compel the continuance of an artificial watercourse, he may have a right to prevent the pollution of it while it continues to run, on the ground that no man can have a right to send dirty water on another's land, unless he can prove a prescriptive right so to send dirty water (h).

These opinions have been fully confirmed by the Court of Appeal in the case of Ballard v. Tomlinson (i), where the Court, in an action by a landowner for the pollution of percolating water, laid down broadly 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 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 this neighbour may have no property in such water at the time it is fouled (k).

The right to discharge rain-water from the roof of a house, Easement of drip. either by means of a spout, or by drip, which is a nuisance in the absence of a prescriptive right, may be acquired by user, and is not destroyed by a mere alteration in the height of the eaves not increasing the burthen on the servient tenenment (l). No corresponding right to the flow of rain-water from the roof of a house can be acquired by prescription (m).

44

Extinguishment of Easements of Water.

The modes by which easements may be lost,

says

Gale (n), correspond with those already laid down for their acquisition. 1. Corresponding to the express grant is the express

(f) 11 A. & E. 571; ante, p. 274.

(g) 3 Ex. 748; see also Sutcliffe v. Booth, 32 L. J. Q. B. 136.

(h) As to this, see Cawkwell v. Russell, 26 L. J. Ex. 34.

(1) 29 Ch. D. 115; 54 L. J. Ch. 404; 52 L. T. 942; ante, p. 216.

(k) See ante, pp. 165 et seq., where this question is discussed.

Harvey v. Walters, L. R. 8 C. P. 162; Thomas v. Thomas, 2 C. M. &

R. 34; 41 R. R. 678; see Gale on Easements (8th ed.), pp. 275, 276, 536, 537, 574; and ante, Chap. III., p. 141.

(m) Wood v. Waud, supra; Greatrex v. Hayward, 8 Ex. 291.

(n) Gale on Easements, p. 512.

By express release.

By merger.

By licence.

Abandon

ment of enjoyment.

renunciation. 2. To the disposition by the owner of two tenements, the merger by the union of them. 3. To the easement of necessity, the permission to do some act which of necessity destroys it. 4. And to the acquisition by prescription, abandonment of user." (0)

An express release at law to be effectual must be by deed, but in equity an easement may be lost by agreement or acquiescence (p).

Easements are also extinguished by operation of law if the seisin of the dominant and servient tenements are united in one and the same person (q). Unity of possession only suspends an easement-it requires unity of seisin to destroy it (r).

66

A natural right to water coming from another tenement is not destroyed by unity. There is a difference," says Whitelock, J., in Sury v. Piggott (8), "between a way or common and a watercourse. These begin by private right, by prescription, by assent as a way or common, being a particular benefit to take part of the profits of the land. This is extinct by unity; because the greater benefit shall drown the less. A watercourse doth begin ex jure naturæ, having taken this course naturally, and cannot be averted." (t)

It has already been stated, that a licence by the dominant owner to do an act incompatible with the existence of an easement, may work its extinguishment, even when the licence is by parol (u).

When a prescriptive right is once acquired it cannot be lost by any subsequent act not amounting to a surrender, even though such act would have, previous to the acquisition of such right, rendered the user precarious (x).

(0) Where an easement is granted for a particular purpose by Act of Parliament, the easement ceases when the particular purpose is accomplished. Thus, where a canal company, who had a right to take water from a canal, were reconstituted a railway company by Act of Parliament, it was held that they could not grant away their right to the water, for as they had ceased to require it for their canal, the right to take it ceased: National Manure Co. v. Donald, 4 H. & N. 8; 28 L. J. Ex. 185.

(p) Gale on Easements, p. 512; Goddard on Easements (6th ed., 1904), pp. 555 et seq.; see Fisher v. Moon, 11 L. T. (N.s.) 623; Waterlow v. Bacon, L. R. 2 Eq. 514; Johnson v. Wyatt, 9 Jur. (N.S.) 1334; Davies v. Marshall, 10 C. B. (N.s.) 697; Soloman v. Glover, 10 W. N. 117; and ante, pp. 221 et seq. (q) Goddard on Easements, pp. 552, 567; Gale, pp. 18, 156, 180, 516; see ante, pp. 232 et seq.

(r) Thomas v. Thomas, 2 C. M. & R. 34; 41 R. R. 678; Simper v. Foley, 2 John. & H. 555; James v. Plant, 4 A. & E. 761; 43 R. R. 465; Co. Litt. 313 a.

(s) 3 Bulst. 339; Poph. Rep. 166.

(t) See Bright v. Walker, 1 C. M. & R. 219; 40 R. R. 536; and Goddard on Easements, p. 524.

(u) Ante, p. 225.

(x) French Hoek Commissioners v. Hugo, 10 App. Cas. 336; 54 L. T. 92; see also Breda v. Silberbauer, L. R. 3 P. C. 84.