CHAPTER VI.

WATER.

Lands gained from the sea.-In The Attorney General v. Chambers, Sc., the Crown claimed to have the medium line (the boundary of the rights of the Crown on the sea-shore) laid down as it would have existed but for artificial causes; and it was held on appeal by Lord Chancellor Chelmsford that lands imperceptibly gained from the sea by a party's lawful use of his own land, belong to the owner of the land adjoining, unless it can be shown that the operations were intended to produce this gradual acquisition of the sea-shore. And where a party claimed the sea-shore in front of his property, on the ground that he had turned his cattle upon the marsh, and that they had crossed the boundary separating the marsh from the sea-shore, and that he had done this for sixty years without interruption, it was held that where property is of a nature that cannot easily be protected against intrusion, and, if it could, it would not be worth the trouble of preventing it, mere user is not sufficient to establish a right (ib).

Incidents of the sea-shore.-The sea-shore below high-water mark, and without inhabitants, is an extra-parochial place, having a population less than two hundred persons within the meaning of sec. 6 of 18 & 19 Vict. c. 121 (Reg. on proson. of Earl Derby v. Gee and Others). Part of sea-shore between high and low-water mark is within and part of the adjoining county; so that the justices of the county have jurisdiction to take cognizance of offences committed therein, whether land be covered with water or not at the time the offence is committed. And per Cockburn C.J.: It is clear upon the authorities, as also upon Reg. v. Musson (27 L. J., N.S., Q. B., 222), where it was distinctly held that such part of the sea was within the county, that the justices had jurisdiction to entertain this matter, and that that jurisdiction ought to be exercised" (Embleton appt. v. Brown resp.).

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Property in accretions from a non-navigable river.-Accretions from the gradual change of the course of a non-navigable river, where there are no fixed boundaries, will become the property of the owner of the adjoining land (Ford v. Lacey).

No action lies for interception of water merely percolating through the earth.-By sec. 12 of 10 & 11 Vict. c. 17 (Waterworks Clauses Acts, 1847), powers for the execution of certain works are given; and it is provided that the undertakers shall make full compensation to all parties interested for all damage sustained by them through the exercise of such powers. In the execution of certain works authorized by

a local act incorporating that section, the appellants intercepted water which would otherwise have percolated through the strata of the earth into a well on the premises of the respondent, and drained off water which had accumulated in the well. On a complaint by the respondent before justices, in order to recover compensation for the damages she had sustained, the appellants were ordered to pay her a sum of money and costs. It was held by the Court of Queen's Bench that this order was wrong; for that inasmuch as no action will lie against the appellants in respect of either quantity of water, or supposing no act authorizing the execution of the works had been passed, the claim for compensation could not be sustained. Chasemore v. Richards [see Law of the Farm, p. 128] is an authority for showing that water which percolates through the earth is not a thing for the intercepting of which an action will lie; and therefore there was no cause of action in respect of the water which would have found its way into the well of the respondent; and on the second point, as to water which had reached and was in the well, Acton v. Blundell (12 M. & W., 324) is an authority (New River Company v. Johnson).

Chasemore v. Richards was carried by Writ of Error into the House of Lords. Mr. Justice Wightman, in delivering the unanimous answer of the learned judges to the questions submitted to them by the House, said that the question was whether the plaintiff could maintain an action against the Local Board of Health in respect of the water abstracted from the sources which supplied the river. It was impossible to reconcile such a right as the plaintiff claimed with the ordinary rights of landowners. If such a principle were to be established, a man would not be able properly to drain his land without being subject to actions from all the mill-owners on a river near him, because he might thereby alter the flow of the rain-water. They were unanimously of opinion that the decision of the Court below was correct, and that the plaintiff could not maintain the right he claimed to prevent the defendant taking the water.

Hence the owner of an ancient water-mill on a river has no right of action against an owner of land adjacent who digs a deep well on his land, and thereby diverts the underground waters, not known to be formed into a stream, flowing in a defined channel, which otherwise would have percolated into the river, although the landowner does not use the water for purposes connected with the land, but pumps it up and carries it off in pipes to supply persons living in the neighbourhood, many of whom had no right to use the water at all. The decision in Dickenson v. The Grand Junction Canal Company [see Law of the Farm, pp, 127, 129, 130, 137] was questioned.

Water escaping from railway-cuttings into a mine.-A railway company is responsible for injuries sustained by reason of water escaping from a stream in flood-time, or collected from rain falling on the railway, and flowing along a cutting of the railway, and percolating through the substratum into mines beneath, although such mines had not been worked at the time of the formation of the railway; and such damage is the subject of an action, and not the subject of compensation

under the compensation clauses (Bagnell v. London and North Western Railway Company).

Working mines under water-course.-The owner of freehold lands and his lessee will be restrained from working mines under a watercourse, otherwise than in a manner not likely to prevent the plaintiff from enjoying an uninterrupted flow of water to his works (Elwell v. Crowther).

Cattle drinking stagnant water improperly emptied on to land.— In Baker v. Strong (Veterinarian, June, 1861), the plaintiff recovered before Wightman J. £80 damages against the defendant for the loss of cattle which had drunk the stagnant water which the defendant had emptied through a trench from his land into a pond on plaintiff's farm, from which the plaintiff's cattle were accustomed to drink. The defence was that the water was not stagnant, and that the cattle died of lung disease.

Supplying horses with water from a public fountain.-A local board of health, empowered by their private act to supply a town with water at certain rates, supplied an ornamental fountain (which had been presented to the town by one of the inhabitants, and erected in one of the public streets) with water for the use of cattle in the cattle market on market days, and for horses, if yoked, when passing to and fro. The board had a fixed charge per horse for water supplied to persons keeping horses, who might choose to have water laid into their stables. The respondent, in order to evade payment of this charge, took his horses from his stable to the fountain to drink. Upon a complaint against him for so doing, under the Water Works Clauses Act, 1847, sec. 59, which enacts that " every person who, not having agreed to be supplied with water by the undertakers, shall take any water from any place containing water belonging to the undertakers other than such as may have been provided for the gratuitous use of the public, shall forfeit," &c.; the magistrates being of opinion that the local board had no power to erect a fountain in the public highway except for the gratuitous use of the public, and that therefore the water supplied to such fountains came within the exception in the above clause, refused to convict. It was held by the Court of Common Pleas that the decision of the magistrates was wrong; for that, whether the fountain were a public nuisance or not, the board were at liberty to supply it with water on their own conditions. And per Williams J.: "It is clear, upon the facts here, that there was no unrestricted dedication to the public at large, and nothing in the act of parliament to work that result. Though there may be a dedication for a limited purpose to all, there cannot be a dedication to a limited part of the public on the principle which is established in Poole v. Huskisson (11 M.

& W., 827), [see Law of the Farm, p. 71], and The Marquis of Stafford v. Coyney (7 B. & C., 257). The consequence is not that a partial dedication will operate as a dedication to all the public, but such dedication is simply void, and no dedication at all. And per Byles B.: "I am not sure that the use for which this water is supplied was not a public use. Anybody's cattle and yoke-horses may drink at it; and though the time at which the fountain may be used, and

the class of cattle and horses, which may use it are limited, it is not the less for the use of all the public (see Rex v. Berenger, 3 M. and S., 73). But that by no means justifies the respondent in using the water for other purposes than those to which the use is limited (Hil dreth appt. v. Adamson resp.)-30 L. J. (N.S.), M.C., 204.

Conveyance of right of continuance of culvert with farm.-By permission of the tenant for life of farms A and B, the defendant many years ago made a culvert from a brook, which in its natural course flowed to farm A for the purpose of getting water for his own premises, and for farm B. The culvert, which carried off nearly all the water from the brook, commenced in some lands of the defendant, which were bounded by the brook, and then passed through farm B, where a portion of the water was drawn out of it by means of a small pipe for the use of farm B. The rest of the water, viz., the larger portion, flowed on down the culvert, which, after traversing farm B, ended in other premises of the defendant, where the water was consumed. In September, 1856, the then owners of farms A and B conveyed a farm, B, in fee to the defendant, together with all waters and watercourses appertaining to the premises, or used, occupied, or enjoyed with the same. He afterwards conveyed farm A to the plaintiff, with al waters and watercourses. It was held in the Exchequer Chamberl affirming the judgment of the Queen's Bench, that as against th owner of farm A the words of the conveyance of farm B were suffie cient to convey to the defendant the right to the continuance of the culvert and to the accustomed flow of water down it, and that his right was not limited to the taking so much of the water as had heretofore been used for the purposes of farm B (Wardle v. Brocklehurst).

Condition under which tenant for life received compensation for loss of pond which worked his mill.-A pond which supplied a stream by which a flour-mill was worked, was purchased by the Ordnance under the Defence Act, 1842. The water being diverted, the tenant for life of the mill claimed compensation; and before an award was made, he erected a steam-engine and suitable buildings for the mill, expending thereon £1,300. Compensation amounting to £920 being awarded to him, the Court of Appeal, on a question from the Master of the Rolls, permitted this sum to be paid to the tenant for life, upon the understanding that the erection of the steam-engine and buildings was of a substantial and permanent nature (In re Duke of Wellington's Settled Estates Act).

CHAPTER VII.

SERVANTS.

Presumption that servant did not contract on behalf of master.— Although where a servant has once been held out by his master as having authority to pledge his credit, that authority cannot be withdrawn merely by orders to the servant; yet, without express evidence of actual notice to the tradesmen, there may be evidence from all the circumstances, as lapse of time, not sending in accounts for four years even to servant (and none to master), from which it may be inferred that the tradesman must have known that the servant had no such authority, and that he did not contract on the credit of the master. Per Erle C.J. (Home Circuit).—(Stavely v. Uzzielli).

No contract implied on part of master not to expose servant to great risk.—From the mere relation of master and servant, no contract can be implied on the part of the master to take due and ordinary care not to expose the servant to extraordinary danger and risk in his service. And per Pollock C. B.: "This is an attempt to nullify the decision of the Court in Priestley v. Fowler (3 M. & W., 1; 7 L. J., N.S., Ex., 42), and to enlarge the case in which persons in the relation of master or employer are to be made responsible for injuries incurred by those in their employment, who are in general much more able to judge of the probability and extent of the risk they run in the service than those who employ them. I think it highly expedient that the rule laid down in Fowler v. Priestley should be maintained, and not eaten up by exceptions" (Riley adx. v. Baxendale and Another).

Injury to servant working with master.-Where by the negligence of the master an injury is caused to a servant in the course of his employment, the master is liable, although he was employed as a workman at the time, and was working with the servant; and if one member of a partnership is guilty of such an act of negligence, and if it occurs in a matter within the scope of the common undertaking of the partnership, all the partners will be liable for the injury caused to the servant. And per Curiam: "If the defendant had been simply the fellow-workman of the plaintiff, the case would have come within the principle, and would be quite analogous to Bartonshill Coal Company v. Reid (3 Macq. H. L. Ca., 300), where it was decided that a servant sustaining an injury from the negligence of a fellow-servant engaged in the same employment, cannot recover against the common master. The present case is distinguishable in this important particular, that the defendant, although engaged jointly in the work of the mine, was also a co