Definition of

a watercourse.

CHAPTER II.

OF INLAND WATERCOURSES; THE OWNERSHIP OF THE
SOIL THEREOF, AND OTHER MATTERS.

A WATERCOURSE may be defined as a body of water issuing ex jure naturæ from the earth, and by the same law pursuing a certain direction in a defined channel, till it forms a confluence with tide water (a). A spring of water, both in law and in ordinary language, is, as I understand it," says Jessel, M.R. (b), "a natural source of water, of a definite and well-marked extent. A stream of water is water which runs in a defined course, so as to be capable of diversion; and it has been held that the term. does not include the percolation of water underground." "A spring," says Brett, L.J. (c), "is not an artificial space, but a natural chasm in which water has collected, and from which it either is lost by percolation, or rises in a defined channel.

A watercourse, flumen vel cursus aquæ, has been defined by Lord Tenterden, C.J., as water flowing in a channel between banks more or less defined (d).

Woolrych defines a river as a running stream pent in on either side with walls and banks, and it bears that name as well where the waters flow and reflow, as where they have their current one way (e). Lord Sumner says (f): “A river may be fed by the rains directly without any intermediate collection of the water in the bowels of the earth, and still be a river, and a river which naturally runs during a great part of the year does not cease to be a river merely because at times it is accustomed to become dry." This definition includes, therefore, all natural streams, however small,

(a) Angell on Watercourses, 2. It should be remembered that this learned book only relates to non-tidal waters; see ibid. s. 1; Phear, Rights of Water, 31. (b) Taylor v. St. Helen's, 6 Ch. D. 264, C. A.; 46 L. J. Ch. 857; 37 L. T. 253.

(c) Brain v. Marfell, 41 L. T. (N.s.) 457.

(d) Rex v. Inhabitants of Oxfordshire, 1 B. & A. 301; 35 R. R. 302; Callis on Sewers, 77. The river Parrett at Bridgwater, though an arm of the sea, was assumed to be a watercourse within the meaning of a drainage Act by Lord Macnaghten: Somerset Drainage Commissioners v. Bridgwater Corporation (1900) 81 L. T. 729, H. L., at p. 730. For definition of a drain or watercourse under the Highways Act, 1835 (5 & 6 Will. 4. c. 50), see cases, post, p. 270.

(e) Woolrych on Waters, 31; Callis on Sewers, 77; Houck on Navigable Rivers, 1; Phear on Rights of Water, 31.

(f) Stollmeyer v. Trinidad Lake Petroleum Co. [1918] A. C. 485, at p. 491; 47 L. J. P. C. 77.

which have a definite and permanent course, and excludes all bodies of water, however large, which are of a temporary character, i.e., which are dependent on the will or convenience of individuals for their volume or duration (g).

streams.

A subterranean stream may flow in such a known and defined Subterranean channel (h) as to give rise to similar rights as would exist above ground. "If," says Pollock, C.B., the course of a subterranean stream were well known, as is the case with many which sink underground, pursue for a short space a subterraneous course, and then emerge again, it could never 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, if the stream had been wholly above ground" (i). "According to my apprehension," says Lord Watson in a late case in the House of Lords, "the word stream' in its primary sense denotes a body of water having, as such body, a continuous flow in one direction. It is frequently used to signify running water at places where its flow is rapid, as distinguished from its sluggish current in other places. I see no reason to doubt that a subterraneous flow of water may in some circumstances possess the very same characteristics as a body of water running on the surface; but in my opinion, water, whether falling from the sky or escaping from a spring which does not flow onward with any continuity of parts, but becomes dissipated in the earth's strata, and simply percolates through or along those strata, until it issues from them at a lower level, through dislocation of the strata or otherwise, cannot with any propriety be described as a stream, and I may add that the insertion of a common rubble or other agricultural drain in these strata, whilst it tends to accelerate percolation, does not constitute & stream as I understand the expression" (k).

The principles which regulate the rights to water flowing in known and defined channels (h), whether upon or below the surface of the ground, do not apply to water, whether under or above ground, having no certain course or defined limits, such as that merely percolating through the strata of the earth, or that diffused over its surface, such water not being subject to the law of watercourses (1).

(g) Briscoe v.

Drought, Ir. R. 11 C. L. 264; Arkwright v. Gell, 5 M. & W. 203; 8 L. J. Ex. 201.

(h) For the meaning of these terms, see post, pp. 209 et seq.

(i) Dickenson v. Grand Junction Canal, 7 Ex. 300; 21 L. J. Ex. 201; Chasemore v. Richards, 7 H. L. 374, per Lord Chelmsford; Dudden v. Clutton Union, 11 Ex. 627; 26 L. J. Ex. 146.

(k) M'Nab v. Robertson [1897] A. C., H. L. Sc. 129.

Acton v. Blundell, 7 M. & W. 324; M'Nab v. Robertson [1897] A. C. H. L. Sc. 129; Bradford Corporation v. Pickles [1895] A. C. 587, and cases post, pp. 202 et seq.

Surface and percolating water.

Limits of a watercourse.

A watercourse
must flow in
a regular
channel, but

may be

occasionally

dry.

A stream begins at the point where the water palpably rises to the surface and forms a channel (m).

In a case in the Exchequer it appeared that the water from a spring flowed in a gully or natural channel to a stream on which was a mill. The spring was cut off at its source, and the water was received into a tank as it rose from the earth, by the licence of the owner of the soil on which the spring rose. The action was for diversion by the mill-owner. The judge at the trial told the jury that the questions for them were, whether there was a natural or defined watercourse from the spring-head to the stream, and, if so, whether the defendant had diverted water from this watercourse. Pollock, C.B., said: The real question is, whether there is a natural watercourse which, but for the acts done by the defendant, would have conveyed water to the stream, and from thence to the mill of the plaintiff. If there is a natural spring, the waters of which flow in a natural channel, it cannot be lawfully diverted by any one to the injury of the riparian proprietors. The law of the case is clear and undoubted. This was a natural spring, the waters of which had acquired a natural channel from its source to the river. It is absurd to say that a man might take the water of such a stream, four feet from the surface." Martin, B.: "A river begins at its source when it comes to the surface, and the owner of the land on which it rises cannot monopolise all the water at the source, so as to prevent its reaching the lands of other proprietors lower down" (n).

In the case of Mostyn v. Atherton (o) it was held that the principle laid down in Dudden v. Clutton Union, that one is not entitled to divert or interfere with the natural flow of water at its source, was not affected by the fact that the source of the spring had been built round and formed into a well, thus making an artificial channel for a short distance.

It is not, however, necessary to constitute a watercourse that the water should flow continually, as a channel may be occasionally dry (p), but it must appear that the water flows usually in a regular channel, and has a well-defined and substantial existence (q), the law making a distinction between a regular flowing

(m) Dudden v. Clutton Union, 26 L. J. Ex. 146, 11 Ex. 627; Phear, 33. (n) Dudden v. Clutton Union, 11 Ex. 627; Rawstron v. Tayler, 11 Ex. 369; 25 L. J. Ex. 33; Wood v. Waud, 3 Ex. 748, 779; 18 L. J. Ex. 305; Angell on Watercourses, 5, 6; see also Reg. v. Metropolitan Board of Works, 3 B. & S. 710; 32 L. J. Q. B. 105; 8 L. T. 238.

(0) [1899] 2 Ch. 360; 68 L. J. Ch. 629; 81 L. T. 356; 48 W. R. 168. See as to percolating water, post, pp. 201 et seq.

at p. 491;

(p) See Stollmeyer v. Trinidad Lake Petroleum Co. [1918] A. C., Drewett v. Sheard, 7 Car. & P. 465; 48 R. R. 797; Trafford v. Reg., 8 Bing. 204; 34 R. R. 680.

(q) Angell on Watercourses, 3.

stream which at certain seasons is dried up and those occasional bursts of water which in times of freshets and melting of snows descend from the hills and inundate the country (r). So also the waste water from a canal, allowed to pass out of the canal, is not a watercourse to which any of the doctrines either as to natural or artificial streams will apply (8). "The water passing from the Wolverhampton Level to the Atherly Junction," says Lord Cranworth, "is not a natural, nor even an artificial, stream in the sense in which these words are understood in the many cases in which the law relating to flowing water has been considered. The water in this canal is not flowing water. It is water accumulated under the authority of the legislature in what is in fact only a tank or reservoir, which the respondents are bound to economise, and use in a particular manner for the convenience of the public. It never flows. It is let down artificially, for the convenience of persons wishing to pass with boats, by what may be called steps, till it reaches the Atherly Level, and so enables the boats to pass into appellant's canal. To such water none of the doctrines either as to natural or artificial streams is applicable.'

Every watercourse, says Mr. Angell (t), consists of-1. The A water

66

course con

bed; 2. The bank or shore; 3. The water. The bed is covered by sists of bed, the water, and is the space subjacent to the water through which bank and it flows, and is that which contains the water at its fullest when water. it does not overflow its banks. It is, generally speaking, all the soil below the high water mark either of the ordinary daily tides or of the ordinary floods (u). The bed of a river is the alveus, as distinguished from the shore, and from places where flood waters occasionally collect"(x). The bank is the outermost part of the bed in which the river naturally flows. The bed and the water may be said to be correlative terms, as one cannot be owned without touching the other. The bed of the river is that portion of its soil which is alternately covered and left bare as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the

66

(r) Angell on Watercourses, 3; see also Drewett v. Sheard, 7 Car. & P. 465; 43 R. R. 797.

(3) Staffordshire Canal v. Birmingham Canal, L. R. 1 H. L. 254, 272; 35 L. J. Ch. 757; Rochdale Canal v. Radcliffe, 18 Q. B. 287, 21 L. J. Q. B. 297; McEvoy v. Great Northern Rly. [1900] 3 Ir. R. 325. See post, pp. 252 et seq., and also Chap. V.

(t) Angell on Watercourses, 40; Grotius de Jur. Belli, 2, 8, 9.

(u) As to this, see Menzies v. Breadalbane, 3 Wils. & Shaw, 243; 32 R. R. 103.

(r) Per Lord Campbell, C.J., in Abraham v. Great Northern Rly., 16 Q. B. 592. See R. v. Oxfordshire, 1 B. & A. 289; 35 R. R. 302; Reg. v. Derbyshire, 2 Q. B. 745, 755.

The right to

water of a watercourse

summer or autumn (y). This has been held in Thames Conservators v. Smeed, when applied to a tidal river, to mean without reference to extraordinary tides at any time of the year-and to include, therefore, the portion of the bed between high and low water mark of ordinary tides, or, in other words the soil between ordinary high water mark on one side and ordinary high water mark on the other side (z).

It is generally laid down in the text-books and in the earlier the use of the reported cases that the right of private property in a watercourse is derived as a corporeal right and hereditament from or is embraced in the ownership of the soil over which it naturally passes, according to the well-known maxim, cujus est solum, ejus est usque ad cœlum (a). A watercourse," says Woolrych (b),

does not arise ownership of

from the

the soil thereof.

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, because it passes over the soil, and cujus est solum, ejus est usque ad cœlum." "An action cannot," says Blackstone (c), "be brought to recover the possession of water by the name of water only, but it must be brought in respect of the land which lies at the bottom, and the description of it must be so much land covered with water." From this identification of the land with the water a grant of a field or meadow will carry all the timber and water standing and being thereupon (d). This doctrine is supported by modern authority with regard to standing and percolating water, and also, it would appear, with regard to running water which rises and remains for the whole of its course on the land of a single owner, for in such cases the water is the absolute property of such owner, and no one is entitled to share the use of it with him (e); but with

(y) State of Alabama v. State of Georgia, 23 Howard, 515; a case relating to a non-tidal river cited by A. L. Smith, L.J., in Thames Conservators v. Smeed & Co. [1897] 2 Q. B. 334, and Hindson v. Ashby [1896] 2 Ch. 1, at p. 25.

(z) Thames Conservators v. Smeed & Co. [1897] 2 Q. B. 334, overruling Pearce v. Bunting (1896) 2 Q. B. 360; post, p. 493. If this ruling applies to all tidal waters, it would follow that the bed of the sea includes the seashore, which is not the view taken by the Crown: further as to this, see Stuart Moore on Fisheries, pp. 113-123. See also Howard v. Ingersoll, 13 Howard, 381, a case relating to a non-tidal river, cited and adopted by Romer, L.J., in Hindson v. Ashby [1896] 1 Ch. 78, at pp. 84, 85.

(a) Angell on Watercourses, 5; Woolrych on Waters, 117; Phear on Waters, p. 22; 1 Stephen's Black. (7th ed.), pp. 659, 693; Co. Litt. 4; Rex v. Wharton, Holt, 499.

(b) Page 117.

(c) 2 Comm. 18.

(d) Angell on Watercourses, 9; 1 Greenleaf's ed., Cruise's Dig. 37. (e) See Holker v. Porrit, L. R. 10 Ex. 59; Chasemore v. Richards, 7 H. L. 349; 29 L. J. Ex. 81: Acton v. Blundell, 12 M. & W. 324; New River Co. v. Johnson, 2 E. & E. 435; and post, Chap. III.