The improvements authorised were (inter alia) the drainage of land, and the straightening, widening, deepening, or otherwise improving the drains, streams, and watercourses of any land; irrigation and warping of land; the embanking and weiring of land from the sea or tidal waters, or from lakes, rivers or streams in a permanent manner; the making of permanent navigable canals for all purposes connected with the improvement of the estate; the construction or erecting of any engine house, waterwheels, saw and other mills, wells, ponds, tanks, reservoirs, dams, leads, pipes, conduits, watercourse, bridges, weirs, sluices, floodgates or hatches which will increase the value of any land for agricultural purposes; the construction or improvement of jetties or landing-places on the sea-coast or on the banks of navigable rivers or lakes for the transport of cattle, sheep and other articles and things for agricultural purposes, provided the works will add to the permanent value of the lands to an extent equal to the expense thereof; the execution of all such works as the Commissioners consider necessary for carrying into effect any of the above-mentioned improvements or for deriving the full benefits thereof (e).

Applications made after December 31, 1882, may be in respect of any of the improvements authorised by the Settled Land Act, 1882 (f). These are drainage, including the straightening, widening or deepening of drains, streams and watercourses; irrigation, warping, embanking or weiring from a river or lake, or from the sea or a tidal water; groynes, sea-walls, defences against water; saw-mills, scutch-mills and other mills, waterwheels, engine houses and kilns, which will increase the value of the land for agricultural purposes, or as woodland or otherwise (g); reservoirs, banks, conduits, watercourses, pipes, wells, ponds, shafts, dams, weirs, sluices and other works and machinery for supply and distribution of water for agricultural, manufacturing or other purposes, or for domestic or other consumption; canals, docks; jetties, piers, landing-places on rivers, lakes, the sea or tidal. waters, for facilitating transport of persons and of agricultural stock and other things required for agricultural purposes, and of minerals, and of things required for mining purposes; sewers, drains, watercourses and other works necessary or proper in connection with any of the improvements allowed by the Settled Land Act, 1882, and the reconstruction, enlargement or improve

(e) 27 & 28 Vict. c. 114, s. 9.

(f) 45 & 46 Vict. c. 38, ss. 25, 30.

(g) The words or otherwise are limited to purposes ejusdem generis, and will not include an engine house for an engine to supply electric light to the mansion house. In re Lord Leconfield's Settled Estates, [1907] 2 Ch. 340; 76 L. J. Ch. 562.

Powers under
Settled Land

Acts.

ment of any of these works (h). The Land Drainage Act, 1864 (i), prescribes the procedure that a landowner has to follow to obtain an order from the Minister of Agriculture and Fisheries by which the cost of the work and the expenses of obtaining the Order may be charged on the land by way of rentcharge. The Minister of Agriculture and Fisheries may compel the maintenance of improvements authorised by the Order and in default may cause the necessary work to be done at the expense of the person whose duty it was to maintain the improvements. The Minister can also grant relief if he considers it inexpedient or unnecessary that the works should be maintained (k).

By the Settled Land Act, 1882, a tenant for life is empowered to execute any of the improvements mentioned above on the settled land and capital money can be applied in or towards payment thereof, notwithstanding that a scheme was not, before the execution of improvements, submitted to the trustees or the Court for approval (1). He may also join or concur with any other person interested in executing any such improvement or in contributing to the cost thereof (m).

By the Agricultural Holdings Act, 1908 (8 Edw. 7, c. 28) (n), capital money arising under the Settled Lands Act, 1882-1890, may be applied in payment of any money and costs incurred by a landlord in or about the execution of improvements authorised by the Agricultural Holdings Act or in the discharge of any charge in respect of any such improvements. The improvements include the making of water-meadows or works of irrigation, making or improvement of watercourses, ponds, wells or reservoirs, or of works for the application of water power or for the supply of water for agriculture or domestic purposes, warping and weiring of land, embankments and sluices against floods and drainage (o). In the case of drainage the tenant must give the landlord from two to three month's notice in writing of his intention to do the work, and if they do not agree how the work is to be done and on the compensation to be paid, the landlord may execute the work himself and recover by way of rent or annual sum the cost from the tenant.

(h) This refers to the works previously mentioned as authorised by section 25 of the Settled Land Act, 1882, however and whenever made: In re Earl of Dunraven's Settled Estates, [1907] 2 Ch. 417; 76 L. J. Ch. 59.

(i) 27 & 28 Vict. c. 114. Since 1899 the charge must not be for more than forty years, but may be charged on the land improved or other lands of the landowner, and is recoverable by the like remedies as a rentcharge by section 44 of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41): see Improvement of Land Act, 1899 (62 & 63 Vict. c. 46), ss. 1, 3.

(k) Ibid., ss. 75, 76.

(1) Settled Land Act, 1882 (45 & 46 Vict. c. 38), ss. 21, 25, 29; Settled Land Act, 1890 (53 & 54 Vict. c. 69), s. 15.

(m) Settled Land Act, 1882, s. 27.

(n) Section 20.

(0) Ibid., Sched. I., Parts I., II.

If the landlord fails to execute in a reasonable time the tenant may do it and obtain compensation (p). In the case of the other improvements mentioned the tenant may do them with the consent of the landlord, which may be unconditional or upon terms (q).

Commissioners of Sewers and all other bodies entrusted with Negligence in executing the drainage of land are liable to pay damages caused by negligence works. in the execution of their duties unless they be specially exempted therefrom by the Act of Parliament under which they are constituted (r).

(p) Settled Land Act, 1882, s. 3. As to the necessity of notice, see Barbour v. M'Douall, [1914] S. C. 844; 51 Sc. L. R. 720; In re Earl of Derby and Fergusson's Contract, [1912] 1 Ch. 479; 81 L. J. Ch. 567.

(q) Cf. ibid., s. 2. If no terms are agreed, then compensation to the tenant is ascertained according to the provisions of the Act: see section 1.

(r) Boynton v. Andcholme Drainage and Navigation Commissioners, [1921] 2 K. B. 213; 90 L. J. K. B. 75, and cases there cited. The Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61) s. 1, affords no defence when the injury and damages are continuing.

All infringements of rights of water either trespass or nuisance.

CHAPTER XI.

OF THE REMEDIES FOR THE INFRINGEMENT OF RIGHTS
OF WATER.

THE remedies for the infringement of the various rights of water have been noticed incidentally in the previous chapters in connection with cases therein considered. A short summary of the procedure for the enforcement of such remedies is given in the following pages.

All infringements of rights of water, natural or acquired, come under one or other of two classes-trespass or nuisance. Where the act complained of is a wrongful disturbance of another in the exclusive possession of property, it is a trespess; where the infringement of the right is the consequence of an act which is not in itself an invasion of property, the cause from which the injury flows is termed a nuisance (a). The distinction between nuisance and trespass," says Mr. Angell (b)," is that the former is only a consequence or result of what is not directly or immediately injurious, but its effect is injurious. A person who digs a channel or erects a dam on his own land, does no more than what is, in itself, lawful; but as the effect of his so doing is to divert the water from a natural watercourse to the loss of a riparian owner below, or to turn it back to the injury of a riparian owner above, such acts become unlawful,-'the law in such instances taking care,' says Blackstone, to enforce the precept of gospel morality of doing to others as we would that they should do unto ourselves.' Trespass, on the other hand. is a direct and immediate invasion of property,-as treading down grass in a neighbour's field, or destroying his enclosures."

This distinction between trespass and nuisance, so far as the form of action is concerned, is now of little value, as by The Common Law Procedure Act, 1852, and The Judicature Acts, 1873 and 1875, all forms of action are abolished.

(a) Phear, Rights of Water, p. 100; Reynolds v. Clarke, 2 Ld. Raymond, 1399; Smith v. Milles, 1 T. R. 475; Courtney v. Collett, 12 Mod. 164; 1 Ld. Raymond, 274; Leveridge v. Hoskins, 11 Mod. 257; 1 Str. 636. See Foster V. Warblington Urban Council, [1906] 1 K. B. 645; 75 L. J. K. B. 514; ante, p. 135.

(b) On Watercourses, p. 575,

nuisance.

Where the act complained of is an invasion of a public right Public -such as the obstruction of the public right of navigation or fishery, or the pollution of a river to the public prejudice-it is termed a public or common nuisance (c).

Remedy by Act of Party.

nuisances.

A private nuisance may be removed or abated by the party Abatement of aggrieved, if it can be peaceably done and without a riot (d). private Thus if a ditch is dug, by means of which the water is diverted from the land of a riparian proprietor, through whose land it would otherwise flow in its natural course, he may go upon the land of the wrongdoer and fill it up (e); even though at the time it causes him only nominal damage (f). A thing, however, cannot be abated until it actually becomes a nuisance; so that if one see his neighbour erecting that which it is probable will ultimately be such, it cannot be abated as long as it continues in an inoffensive state (g).

be done than

If a person injured abate no more than is necessary, any No more damage resulting from the act will not be laid to his charge; but damage must he must act reasonably and take reasonable care that no more absolutely damage be done than is positively necessary for effecting his necessary. purpose. Thus, where one erected a mill-dam partly on his own land and partly on the land adjoining, upon which the owner of the adjoining land pulled down the part on his land, and the whole dam fell down and the water ran out, it was held that the owner was justified (h). But where the plaintiff had a right to irrigate his meadow by placing a dam of loose stones across the stream, and occasionally a board or fender, and he fastened the board with two stakes, which he had no right to do, the defendant was held liable to an action for pulling down the board as well as the stakes, although, as owner of the adjoining land, he had lawful power to abate the latter (i).

So in Cawkwell v. Russell (k), where the plaintiff had a prescriptive right to send waste water down the defendant's drain, and he sent down also the foul water from his privies, it was held

(c) Woolrych on Waters, p. 192. See Stephen's Blackstone, p. 402.

(d) Blackstone's Com. 5; Batten's Case, 9 Rep. 54 b. ; 2 Roll. Abr.; Nuisance, 8; Angell, p. 576; Woolrych, p. 281.

(e) Vin. Abr., Nuisance. See 9 Edw. 4. c. 35; 8 Edw. 4. c. 5; Grey v. Brown, Mo. 644; Raikes v. Townshend, 2 Smith's Rep. 9; 7 R. R. 776. See McCartney v. Londonderry and Lough Swilly Rly. Co., [1904] A. C. 301; 73 L. J. P. C. 73; 91 L. T. 105; ante, p. 123.

(f) Penruddock's Case, 5 Co. 101 b.

(g) 12 Mod. 510; Holt's Cases, 499.
(h) Wickford v. Bill, Cro. Eliz. 269.

(i) Greenslade v. Halliday, 6 Bing. 379; 53 R. R. 241; see also Ward v. Robbins, 15 M. & W. 237.

(k) 26 L. J. Ex. 314.

See Hill v. Cock, post.