from a brook which flowed through the plaintiff's land, at a point above the plaintiff's land, the rest of the water continuing to flow in its natural channel. In 1847 an act was passed authorizing the defendants, a railway company, to purchase the canal, to discontinue the use of it, and to fiil it up, and sell such parts as were not used for the railway. Under these powers, the use of the canal was discontinued in 1853, and in 1864 the defendants made a cut by which they restored to the brook, at a point above the plaintiff's land, the water which had been diverted from it. In 1865 the defendants conveyed the part of the canal on which they had made the cut to a purchaser in fee. The bed of the stream, owing to the diminished scour of the water from 1800 to 1853, had been silted up, so as to be insufficient to carry off the water coming down in extraordinary floods. In 1866 such a flood occurred-the water overflowed the plaintiff's land and damaged his crops, upon which he brought an action against the defendants: held, that there being no obligation imposed upon the canal company to continue the diversion, the plaintiff had no right of action:-By Blackburn and Hannen, JJ.: On the ground that, though the claim to have the water, which would otherwise have come down to the plaintiff's land, diverted over other land was a claim to a watercourse within the Prescription Act (2 & 3 Will. 4, c. 71), s. 2, yet the enjoyment was not as of right; and therefore, though for more than forty years, conferred no right on the plaintiff.-By Cockburn, C. J. On the ground that the plaintiff, the owner of the servient tenement, could acquire, by the mere existence of the easement, no right as against the owner of the dominant tenement to the continuance of the diversion.-Quære by Blackburn and Hannen, JJ., whether such a right could be acquired under the Prescription Act, against a canal company: semble, by the same judges, on the authority of Roswell v. Prior (12 Mod. 635), that the fact of the defendants having parted with the property would not have affected their liability.-Mason v. Shrewsbury and Hereford Railway Co., L. R., 6 Q. B. 578; 40 L. J., Q. B. 293; 20 W. R. 14; 25 Ľ. T., N. S. 239.

As

The S. & W. canal was formed under an act of parliament. Two years afterwards, another act passed, authorizing the formation of the B. canal. This latter act contained provisions requiring the B. company to make a "communication" between the B. and the S. & W. canals at A., and gave the S. & W. company power to make this communication if the B. company should not make it within a given time. It was made by the S. & W. company under an agreement executed between the two companies, which appointed commissioners for the purpose. then formed, the communication was effected by twenty locks. Some years afterwards the B. company improved the communication and saved much water by substituting, at one particular spot, two locks for one. A consolidating act was passed (5 Will. 4, c. 34), which contained in the 15th section provisions enabling the B. company (the proprietors of several canals), "to raise the water of the canals from one level to another" by reservoirs and machinery, &c. The 83rd section, with a view to preserve the communication at A., forbad the B. company to use water from or out of the W. level (which was the highest level of the B. company-the communication at A. being 132 feet below it) for any purpose whatever, when the depth of the water in the lowest lock of the B. communication should stand at less than three feet perpendicular, to be reckoned from the sill of an upper gate in the S. & W. cansi adjoining thereto; and in case of breach of this prohibition, and consequent injury to the S. & W. company, directed that any damages sustained should be assessed by a jury. The 258th section prohibited the B. company from doing anything to obstruct the navigation of the S. & W. canal, or "in any wise to shorten or vary all or any of the B. company's canals so as thereby to impede the navigation of the S. & W. canal" without the consent of the S. & W. com

pany. By the interpretation clauses, the word "canal" was to include "communications." The B. company recently proposed to construct machinery which should pump back some of the water coming from the W. level, and so would affect the supply to the S. & W. canal, but would not prevent the existence and free use of the communication at A. The S. & W. company filed a bill to prevent the construction of this machinery, alleging that it was contrary to the intention of the legislature, as shown in the various acts, and to the deed of arrangement; and also contrary to the right which must now be taken as vested in the S. & W. company by user and prescription: held (affirming the decision of the Lords Justices), that the bill must be dismissed: held, also, that the powers granted by the acts were granted for specific purposes, which were those of making and maintaining a free communication between different places by navigable canals; and that the ordinary doctrine as to the permissive use of water did not apply in such a case, and that no grant could be made by the B. company of the use of any water which might injuriously affect those purposes. That consequently no right by prescription could, in this case, have any foundation in grant. Nor could any prescriptive right by user be founded on the fact that the B. company had, for many years, allowed the water to pass out of the B. canal in a particular manner, so as to prevent the B. company from afterwards improving its machinery and economizing the water, for the water so passing into the S. & W. canal did not constitute a stream or watercourse within the meaning of the Prescription Act, 2 & 3 Will. 4, c. 71. And held, that the object of the communication being fully secured, the proposed works were not an impeding or obstructing of the S. & W. canal, such as was prohibited by the act. Staffordshire and Worcestershire Canal Co. v. Birmingham Canal Co., L. R., 1 E. & I. App. 254; 35 L. J., Ch. 757.

A mine had from before the time of living memory been worked by tin-bounders, according to the custom of Cornwall, which enables any person to mark out a piece of waste ground, the owner of which does not choose to work the mines under it, and work them without the consent of the owner, yielding to the owner a share of the proceeds. The bounders had from before the time of living memory used for the purpose of their works the water of an artificial watercourse arising in the land of another person. The bounders abandoned the mine in 1856, since which the owners had been in possession. A bill by the owners to restrain the diversion of the watercourse by the owner of the land in which it rose was dismissed by Kindersley, V.-C., on the ground that there was no privity of estate between the owner and the bounders, and that the owner, therefore, could not claim an easement by prescription on the ground of their enjoyment of it: held, on appeal, that an injunction ought to be granted, for that it ought to be presumed that a right to use the waters had been acquired by arrangement with the owner of the mine as well as with the bounders. Ivimey v. Stocker, L. R., 1 Ch. App. 396; 34 L. J., Ch. 633; 14 W. R. 743; 14 L. T., N. S. 427; 12 Jur., N. S. 419.

A riparian proprietor has a right, by means of water-wheels and machinery erected by him for that purpose, to pump up water from a natural stream flowing past his land to a reservoir, and to convey it thence by pipes to his dwelling-house, upon another estate at a distance from the stream, and he may there apply such water to his domestic and other necessary purposes of utility; provided he take only a reasonable quantity, with reference to the size of the stream, and the rights of his neighbour; but he has no right to take more water, by means of the wheels and machinery, than he would have a right to take otherwise. Earl of Norbury v. Kitchin, 7 L. T., N. S. 685; and see 9 Jur., N. S. 132, and 3 F. & F. 292.

No one is at common law entitled to embank a river or stream in such Embanking a way as to cause the water to flow with greater violence against and rivers, &c.

Subterranean water.

injure the lands of adjoining proprietors. The case is different, however, in regard to embankments against the sea, which it has been said is a "common enemy." Therefore, in the case of The King v. The Commismissioners of Sewers for the Levels of Pagham (8 B. & C. 355), where commissioners of sewers, acting bona fide for the benefit of the levels for which they were appointed, directed certain defences against the inroads of the sea, which caused it to flow with greater violence against and injure the adjoining land not within the levels, it was held, that they could not be compelled to make compensation to the owner of it, or to erect new works for its protection. "I am of opinion," said Lord Tenterden, "that the only safe rule to lay down is this, that each landowner, for himself, or the commissioners acting for several landowners, may erect such defences for the land under their care as the necessity of the case requires, leaving it to others, in like manner, to protect themselves against the common enemy." See also R. v. Bognor Commissioners, 6 L. J., K. B. 338. But if a stream floods the adjoining lands in an unusual manner, the landowner may, it seems, fence against it within the period of prescription. He may raise the banks to keep the stream within its ancient bed if he can do so without injury to others (Trafford v. Rex, 8 Bing. 204; 2 C. & J. 265); and so perhaps if the stream changes its course; Gale on Easements, 5th ed. 444. And in the case of subterranean water, as he on whose land it comes is entitled to intercept or withdraw it, so it may be let loose into the substrata of adjacent land; and the owner of such adjacent land, if desirous of preventing its influx on his land, may defend himself against it as against a common enemy. Gale on Easements, 5th ed. 420; Smith v. Kenrick, 7 C. B. 515. In the case of the Att.-Gen. v. The Earl of Lonsdale, 38 L. J., Ch. 335; L. R., 7 Eq. 377, where the plaintiff and the defendant were opposite riparian proprietors on the banks of a navigable tidal river: it was held, that the defendant could not for the protection of his own soil or otherwise construct a jetty projecting into the bed of the river, whereby the tidal water was thrown with greater violence upon the plaintiff's shore, and the public navigation of the river was or might be impeded; and that a suit by information and bill to restrain the erection of such a jetty was properly constituted. In this case the contention of the defendant was that tidal waters ought to be considered in the same position as the sea in the Pagham case, and that he was therefore entitled to protect himself against their encroachments.

See also Nield v. London and North Western Railway Co., L. R., 10 Exch. 4, cited ante, p. 197, and Hudson v. Tabor, ante, p. 196,

The owner of land through which water flows in a subterraneous course has no right or interest in it which will enable him to maintain an action against a landowner, who, in carrying on mining operations in his own land in the usual manner, drains away the water from the land of the first-mentioned owner and lays his well dry. Acton v. Blundell, 12 M. & W. 324; 13 L. J., Exch. 289.

The principles which regulate the rights of owners of land in respect of water flowing in known and defined channels, whether upon or below the surface of the ground, do not apply to underground water which merely percolates through the strata in no known channels. Chasemore v. Richards, 7 H. L. Cas. 349; 5 Jur., N. S. 873; 29 L. J., Exch. 81; and Ex. Ch., 2 H. & N. 168; 3 Jur., N. S. 984; 26 L. J., Exch. 393. Where, therefore, a landowner and a millowner, who had for above sixty years enjoyed the use of a stream which was chiefly supplied by such percolating underground water, lost the use of the stream after an adjoining owner had dug on his own ground an extensive well, for the purpose of supplying water to the inhabitants of the district, many of whom had no title as landowners to the use of the water: it was held, that the millowner had no right of action. Ibid.

But although a landowner will not in general be restrained from drawing off the subterranean waters in the adjoining land, yet he will

be restrained, if, in so doing, he drains off the water flowing in a defined surface channel through the adjoining land. Grand Junction Canal Co. v. Shugar, L. R., 6 Ch. App. 483; 24 L. T., N. S. 402; 19 W. R. 569; In this case the Lord Chancellor Hatherley (reversing the decree of Lord Romilly, M. R.) observed, "I do not think Chasemore v. Richards, or any other case, has decided more than this, that you have a right to all the water you can draw from the different sources which may percolate underground; but that has no bearing at all on what you can do with regard to water which is in a defined channel, and which you are not to touch. If you cannot get at the underground water without touching the water in a defined surface channel, I think you cannot get it at all."

Notwithstanding the principles settled in the case of Chasemore v. Richards, it has been held that the owner of a well is entitled to an injunction to restrain his neighbour from so using a cesspool on his land as thereby to pollute the water in the well. Womersley v. Church, 17 L. T., N. S. 190. It was contended for the defendant in this case, that the well was supplied by water percolating through the earth and not flowing through any defined channel, and that the plaintiff had no title to the water until it actually entered his well, and then only in the condition in which it was when it arrived. Lord Romilly, M. R., however, granted the injunction with costs.

An owner of land has no right at common law to the support of No right to subterranean water, and has, therefore, no right of action when that support of water is drained off from beneath his land. Popplewell v. Hodgkinson, subterranean L. R., 4 Exch. 248; 38 L. J., Exch. 126; 17 W. R. 806; 20 L. T., water. N. S. 578-Ex. Ch. ; and on this subject, see also Elliot v. North Eastern Railway Co., 10 H. L. Cas. 333; 32 L. J., Ch. 402. See also New River Co. v. Johnson, cited ante, p. 197, and also Whitehead v. Parks, 2 H. & N. 870; 27 L. J., Exch. 169.

Where, in making a public sewer, the metropolitan board of works cut a high road contiguous to lands of the plaintiffs in such a manner that they withdrew the water from an ancient spring and laid dry a rivulet and a series of ponds extending three quarters of a mile; upon a bill by the landowners claiming an immemorial right to the spring, the Master of the Rolls refused to restrain the defendants in the execution of the works or compel them to make the sewer water-tight, or to do any act to restore the ancient flow of water, and held that the plaintiffs were without any remedy in equity, and that their only relief lay in requiring compensation for the damage done. Stainton v. Woolrych and Stainton v. The Metropolitan Board of Works, &c., 23 Beav. 225; 26 L. J., Ch. 300. In the same matter, on a mandamus to assess compensation for the injury, it was held by the Queen's Bench that the case came within the principle of the decision in Chasemore v. Richards, and that therefore there would be no right of action had the act been that of an adjoining proprietor, and that there was no right to compensation under the Lands Clauses Act, and (Cockburn, C. J., diss.) that there was no right to compensation at all (11 W. R. 492). S.C. sub nom. R. v. Metropolitan Board of Works, 3 B. & S. 277.

The right of a riparian owner to the lateral tributaries or feeders of the main stream, applies to water flowing in a defined and natural channel or watercourse, and does not extend to water flowing over or soaking through land previous to its arrival at such watercourse. The water of a shallow basin or pond formed by land-slips, when exceeding a certain depth, escaped over the surface of the land, and thence by natural force of gravity found its way back by land-drains or dykes to a certain brook. In like manner, the overflow of water from an ancient well, and a swamp adjoining, ran in wet seasons to the brook. The overflow from another well used as a watering-place for cattle, formed a stream, which, after following the course of an artificial ditch along a

W.

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210

hedge side, and in other parts flowing.down a small channel formed by the water, and over swampy places where the cattle had trodden in the soil, ran over a field, and thence along a natural valley and along hedge sides and ditches, and discharged itself into the brook: held, that a millowner having a right to the use of the water of the brook, had no cause of action against the occupier or owner of the land for diverting either of these sources of supply before the waters had arrived at a definite natural watercourse. Broadbent v. Ramsbotham, 11 Exch. 602;

25 L. J., Exch. 115.

A. was possessor and occupier of an ancient mill and lands adjoining, and carried on therein the business of a manufacturer of paper, which had from time immemorial been carried on in them. The mill and lands were situate in a valley at the foot of a range of hills, sloping towards and terminating in a tall precipitous rock abutting upon them. Inside this rock, and at the elevation of a few feet above the lands, was, from time immemorial, a natural cavern, and the water produced by the rainfall on a portion of the hills ran by underground passages into it, and, after traversing the floor of the cavern in a defined stream, flowed by an underground passage out of the cavern into an open natural basin in the lands of A., and thence in an open and defined stream to the mill in a pure and unpolluted state. In 1857, B. became possessor and occupier of land and premises on the summit of the hills, at a higher elevation than the cavern, and worked on them a machinery for extracting from the soil minute particles of lead intermixed with it. In working this he constructed eight buddles, or circular pits, in the surface of the ground, into which water was brought through artificial cuts. From these buddles polluted water was discharged into drains communicating with two swallets or natural rents existing from time immemorial in the limestone rock of the hills, and having an underground passage for water communicating with an outlet, at which the water escaped in an open stream at their foot. The water passages from these two swallets communicated with the cavern through which the polluted water flowed, and thence mingled with the stream flowing through the cavern into the basin, and thence to A.'s lands and mill, whereby the water was fouled: held, that an action for fouling the stream was maintainable by A. against B. Hodgkinson v. Ennor, 4 B. & S. 229; 32 L. J., Q. B. 231; 9 Jur., N. S. 1152; 11 W. R. 775; L. T., N. S. 451. "The defendant has a right to use the water which was to be found upon In giving judgment, Blackburn, J., observed, his own land for the purpose of washing his lead, but then, as was laid down in Tenant v. Goldwin (2 Ld. Raym. 1089), he must use it so as not to injure his neighbour's property; or, as it is concisely and quaintly stated in the report, 1 Salk. 360, 'he whose dirt it is must keep it that it may not trespass.' So here, the defendant ought to take care that the water does not come to the mill in such a way as to injure his neighbour. He has not kept it so as not to be a trespass to the plaintiff, who had a right to have the water in a clean state, and has instead thereof got it in a polluted and filthy state. There is, therefore, damnum and also injuria, and a cause of action against the defendant." In Humphries v. Cousins, L. R., 2 C. P. Div. 239; 46 L. J., C. P. 438, it appeared that the plaintiff and the defendant were occupiers of adjoining houses. An old drain which commenced on the defendant's premises and thence passed under and received the sewage of several other houses, turned back under the defendant's house and thence under the cellar of the plaintiff's house and ultimately into a public sewer. The part of the return drain which passed through the defendant's premises being decayed, the sewage escaped, and flowing into the plaintiff's cellar, did damage. The defendant was unaware of the existence of this return drain, and consequently of its want of repair. It was held, following Tenant v. Goldwin, supra, however, that the defendant was liable for the damage done to the plaintiff; for that defendant's duty was to keep the sewage which he himself was bound to