receive from passing from his own premises to the plaintiff's premises, otherwise than along the old accustomed channel, and that this duty was independent of negligence on his part, and independent of his knowledge or ignorance of the existence of the drain.

By the South Shields Waterworks Act a company were authorized to enter upon lands within the manor of Westow, and to dig and search for any spring of water, and to convey the water from such springs into South Shields for the use of the inhabitants of the town and the shipping in the harbour. The act also provided that the company should not take the water from any spring, streams or ponds, so as to deprive the occupiers of the lands of water for their own necessary uses and for the cattle depasturing therein. The company had power to lay down pipes, and the inhabitants, with the consent of the company, might obtain the water by pipes, to communicate with the company's pipes, at certain charges, according to the bore of the pipes: held, that the owners or occupiers of lands within the manor were not prevented by the act from sinking wells in such lands, though the effect might be to draw off the water from the company's springs. South Shields Waterworks Co. v. Cookson, 15 L. J., Exch. 315. This case was decided on the authority of the leading case of Acton v. Blundell, 12 M. & W. 324, supra, p. 208.

When a well is supplied with water which percolates through the earth, and does not flow through any defined channel, although the owner of the well is not entitled to the water until it actually enters his well, the occupier of adjoining property will be restrained from using a cesspool therein in such a manner as to pollute the water coming through his property and supplying the well. Womersley v. Church, 17 L. T., N. S. 190.

An owner of a mine is not liable for the escape of water, from natural causes, into a neighbouring mine. Smith v. Kenrick, 7 C. B. 515; 18 L. J., C. P. 172; Baird v. Williamson, 15 C. B., N. S. 376; 33 L. J., C. P. 101. On the subject of the escape of subterranean water, the following cases may also be consulted:-Harrison v. Great Northern Railway Co., ante, p. 197; Bagnall v. London and North Western Railway Co., 7 H. & N. 423; 1 H. & C. 544; 31 L. J., Exch. 121, 480; Firmstone v. Wheeley, 2 D. & L. 203; Clegg v. Dearden, 12 Q. B. 576; Fletcher v. Rylands and Carstairs v. Taylor, ante, p. 194; and Crompton v. Lea, L. R., 19 Eq. 115, and Weekly Notes, 25 Nov., 1876, p. 267.

At common law, and apart from the effect of particular statutes, in- Right to foul cluding the Rivers Pollution Prevention Act, 1876 (which will be hereafter streams. separately considered), a right to foul or render impure a stream may be acquired by adverse user for twenty years; but apart from prescription, no one in enjoyment of a stream is entitled to carry on any manufacture or business whereby the water flowing to his neighbour is rendered impure (Co. Litt. 200). Such a right, while it may be gained by user for twenty years, may also be lost by non-user for twenty years. Magor v. Chadwick, 11 Ad. & Ell. 571; but see Crossley v. Lightowler, L. R., 3 Eq. 279; 2 Ch. App. 478. Time will not begin to run until there has been an actionable invasion or infringement of a right, although it is not necessary that actual damages should have been sustained. Angell on Watercourses, s. 219c.

It has been decided in Baxendale v. M'Murray (L. R., 2 Ch. App. 790), that an easement to discharge polluted water from a paper-mill into a stream extends to a new material used in the manufacture of paper, if the material is proper for the purpose and does not increase the amount of pollution as against the servient tenement to any substantial or tangible degree. In Wood v. Sutcliffe (21 L. J., Ch. 253; 2 Sim., N. S. 163), it appeared that the plaintiff had occupied for many years a manufactory for worsted spinning on a stream, and claimed a right of having the water come to his works in a pure state. The defendant erected dye-works on the same stream, by which the water was polluted. The plaintiff brought an action against the defendant and recovered a farthing

damages, and now applied for an injunction to restrain the defendant from a continuous infringement of his rights. It was held, that a person may by long user acquire a right to the water of a stream free from pollution, though he may have no proprietorship in the stream, and may acquire a right to pour polluted matter into a stream as against all new comers; that a person having established his right at law is not, as a matter of course, entitled to an injunction, particularly where the injunction would not restore the plaintiff to the right he has established, and where the act complained of may be compensated by pecuniary damages; that in this case the evidence proved that, owing to the increase of polluting matter poured into the stream from other sources than that of the defendant's works, the plaintiff never could be reinstated in his original rights; that the damage might be compensated by money; and that the plaintiff had been guilty of such an amount of acquiescence as would disentitle him to an injunction. See further Crossley v. Lightowler, L. R., 3 Eq. 279; 2 Ch. App. 478; and Att.-Gen. v. Proprietors of the Bradford Canal, L. R., 2 Eq. 71; 35 L. J., Ch. 619; 11 Jur., N. S. 769; 6 B. & S. 631; 13 W. R. 892.

In the case of The Duke of Buccleuch v. Cowan, Court of Session Cases (Scotch) 3rd series, vol. 5, p. 214, it was held that "An upper proprietor is not entitled to throw impurities, and especially artificial impurities, into a stream, so as to pollute the water as it passes through the estate of a lower proprietor; that the lower proprietor is entitled to complain of such pollution as renders the water unfit for primary purposes; but that it will be a good defence against such a complaint, that the stream has been for time immemorial devoted to secondary purposes, such as manufactories, so as to supersede and abrogate the primary purposes." See L. R., 2 Ap. Ca. 344.

The Public Health Acts, and other acts empowering local authorities (the place of which enactments has now been taken by the Public Health Act, 1875), did not authorize local authorities to send sewage into a river to the prejudice of parties having established interests in the water. Oldaker v. Hunt, 6 De G., M. & G. 376; Bidder v. Croydon, 6 L. T., N. S. 778; Att.-Gen. v. Luton Board of Health, 2 Jur., N. S. 180; Manchester, Sheffield and Lincolnshire Railway Co. v. Worksop Board of Health, 23 Beav. 198; Spokes v. Banbury Board of Health, L. R., 1 Eq. 42; Att.-Gen. v. Birmingham, 4 K. & J. 528; Cator v. Lewisham Board of Works, 5 B. & S. 115; 34 L. J., Q. B. 74; R. v. Darlington, 5 B. & S. 515; 33 L. J., Q. B. 305; 6 B. & S. 562; 35 L. J., Q. B. 45; Goldsmid v. Tunbridge Wells Improvement Commissioners, 35 L. J., Ch. 88; 13 L. T., N. S. 352; 14 L. T., N. S. 154; 35 L. J., Ch. 382; L. R., 1 Ch. App. 349; Att.-Gen. v. Leeds Corporation, L. R., 5 Ch. App. 583; 39 L. J., Ch. 711; 19 W. R. 19; Att.-Gen. v. Cockermouth Local Board, L. R., 18 Eq. 172; 30 L. T., N. S. 590; 22 W. R. 619; Att.-Gen. v. Richmond, L. R., 2 Eq. 306; 35 L. J., Ch. 597; 14 W. R. 686; 14 L. T., N. S. 398; 12 Jur., N. S. 554; and Att.-Gen. v. Colney Hatch Lunatic Asylum, L. R., 4 Ch. App. 146. See also Att.-Gen. v. Basingstoke Corporation, 45 L. J., Ch. Div. 726; 24 W. R. 817; and St. Helen's Chemical Works Co. v. St. Helen's Corporation, 45 L. J., M. C. 150; L. R., 1 Ex. Div. 196; 34 L. T., N. S. 397.

By the Public Health Act, 1875, s. 332, it is provided, that "Nothing in this act shall be construed to authorize any local authority to injuriously affect any reservoir, canal, river or stream, or the feeders thereof, or the supply, quality or fall of water contained in any reservoir, canal, river, stream or in the feeders thereof, in cases where any body of persons or person would, if this act had not passed, have been entitled by law to prevent or be relieved against the injuriously affecting such reservoir, canal, river, stream, feeders, or such supply, quality or fall of water, unless the local authority first obtained the consent in writing of the body of persons or person so entitled as aforesaid." This provision comes in place of the 73rd section of the Local Government Act, 1858, and the 45th section of the Nuisances Removal Act, 1855, both repealed (the latter except as to the metropolis) by the Act of 1875.

The Public Health (Scotland) Act, 1867 (30 & 31 Vict. c. 101), s. 25, provides that nothing in that act shall enable any local authority or other person to injuriously affect the supply of water required for the purposes of any waterworks established by act of parliament, or of the compensation water required to be given by the owners of such waterworks, unless the local authority shall have previously obtained the consent of such owners.

For form of an order restraining the pollution of a stream, see Lingwood v. Stowmarket Co., L. R., 1 Eq. 77, 336.

In Att.-Gen. v. The Mayor, &c. of Kingston-on-Thames (34 L. J., Ch. 481; 11 Jur., N. S. 596), an information was instituted, at the relation of the conservators of the River Thames, to restrain the corporation of Kingston-on-Thames from altering their drains so as to discharge a greatly increased quantity of sewage into the river. The court, considering upon the evidence that neither present nuisance nor probability of immediate prospective nuisance had been proved, dismissed the information without prejudice to future proceedings in the event of nuisance being subsequently occasioned.

In another case, Att.-Gen. v. Gee (L. R., 10 Eq. 131; 23 L. T., N. S. 299), the injury proved being trifling, the court dismissed, with costs, a bill and information to restrain a local board from discharging sewage into a river.

The provisions of 25 & 26 Vict. c. 102, s. 106, requiring one month's notice to be served before instituting any proceeding against the metropolitan board of works or any district board in respect of anything done or intended to be done under their parliamentary powers, were held not to affect the right of a riparian owner whose stream is being polluted by the drainage works of a district board to summary relief by injunction; it having also been held that the authority over sewers and the drainage powers given by parliament to local boards do not authorize the committal of a nuisance by the boards in their exercise of such powers. Att.-Gen. v. Hackney Local Board, L. R., 20 Eq. 626; 44 L. J., Ch. 545; 33 L. T., N. S. 244.

A local board, under cover of legislative powers, cannot make a sewer which will have the effect of polluting the water of a canal. It was held therefore, that the board must be restrained from permitting sewage communications to be made between the adjoining houses and the main sewer so long as it should discharge itself into the canal. The Manchester, Sheffield and Lincolnshire Railway Co. v. The Worksop Board of Health, 26 L. J., Ch. 345.

A waterworks company were authorized by their private act to take Injunction to and use the water of certain springs which supplied a river, upon the restrain waterbanks of which certain mills were situate. The act provided that the works comcompany should not abstract more than a certain amount of water pany from before they had constructed a compensation reservoir for storing the fouling stream. water during floods, for the benefit of the millowners. The act gave the company compulsory powers for acquiring lands, streams and springs for their undertaking, and powers to acquire by consent lands for constructing their compensation reservoir. The act contained a reservation of the right of the owners and occupiers of any lands, mills or works to the use of the waters of the stream, except so far as provided and declared by the act. The Waterworks Clauses Act, 1847, was incorporated with the act. The company constructed a compensation reservoir; and a subsequent act of parliament, which gave them further powers, including powers of emptying and cleansing the reservoir, recognized this reservoir as a sufficient compensation reservoir for the millowners, and directed it to be maintained. The owner of some dye-works, situated on the river below the reservoir, filed a bill against the company, complaining that the effect of the reservoir was to make the water of the river more muddy than it was before its construction, and to render it unfit for the process of dyeing, and praying for an injunction to restrain the defendants

Errors and omissions in

plans, &c. may

be corrected
by justices,
&c. who shall
certify the

same.

Certificate, &c. to be deposited.

from fouling the stream. These allegations being proved, it was held (reversing the decision of Malins, V.-C.), that the acts gave the defendants no power to foul the water; that the compensation clauses in the Waterworks Clauses Act, 1847, did not apply, inasmuch as the injury was such as the company were not authorized to commit, and that the plaintiff was entitled to an injunction. In the course of the case it was doubted whether section 6, supra, was intended to give compensation for injuries to the lands of third persons caused by works on land which could be taken only by consent. Clowes v. Staffordshire Potteries Waterworks Co., L. R., 8 Ch. 125; 27 L. T., N. S. 521; 21 W. R. 32.

VII. If any omission, mis-statement, or wrong description shall have been made of any lands or streams, or of the owners, lessees, or occupiers of any lands or streams, described on the plans or books of reference deposited in compliance with the Standing Orders of either house of parliament, or in the schedule to the special act, the undertakers, after giving ten days' notice to the owners, lessees, and occupiers of the lands and streams affected by such proposed correction, may apply, in England or Ireland, to two justices, and in Scotland to the sheriff, for the correction thereof; and if it appear to such justices or sheriff that such omission, mis-statement, or wrong description arose from mistake, they or he shall certify the same accordingly, and shall in such certificate state the particulars of any such omission, mis-statement, or wrong description; and such certificate, with the other documents to which it relates, shall be deposited, in England or Ireland, with the clerk of the peace, and in Scotland with the sheriff clerk of the several counties in which the lands or streams affected thereby are situated, or, where any such lands or streams are situated in a royal burgh, in Scotland, with the town clerk of such burgh; and such certificate shall be kept by such clerks of the peace, sheriff clerks, or town clerks respectively with the other documents to which they relate; and thereupon such plan, book of reference, or schedule shall be deemed to be corrected according to such certificate; and the undertakers may make the works in accordance with such certificate, as if such omission, mis-statement, or wrong description had not been made.

It was decided in Kemp v. The West of London and Crystal Palace Railway Co. (1 Kay & J. 681; 1 Jur., N. S. 1012), that the corresponding section in the Railways Clauses Act was intended to meet the case of any omission of land in the plan, or of description of any owner of it in the books of reference, or the omission of the number or the mis-statement of the acreage or a mistake in the name of the owners, &c., as from an error in copying or the like. In that case the promoters of a proposed railway about to pass through land held by the plaintiffs on a long lease from the

freeholder, and by them sub-let to an occupying tenant, described it in their book of reference, naming the freeholder as owner and the sub-lessee as occupier, omitting all mention of the plaintiffs, the lessees. The special act was passed incorporating all the Consolidation Acts of 1845, the plaintiffs not appearing before the committee, and having in fact no notice of the proceedings in parliament. The lands were afterwards taken by proceedings under the compulsory clauses of the Lands Clauses Act-the plaintiffs not being summoned. The time for exercising the special powers elapsed before the plaintiffs were applied to:-V.-C. Wood refused to grant an injunction to prevent the railway company from entering on the land. On this subject see also Taylor v. Clemson, 2 Q. B. 978; 11 Cl. & Fin. 610.

If the justices are satisfied that the omission, &c. arose from mistake, it is their duty to grant the necessary certificate; and they may be compelled to do so by mandamus. Ex parte Central Wales Railway Co., Mich. T. 1864, noted in Hodges on Railways, 6th edit. 335.

alterations

VIII. The undertakers shall not begin to execute the Works not to waterworks unless they shall have previously deposited with with until be proceeded the clerk of the peace in England or Ireland, and the sheriff plans of all clerk in Scotland, of every county, and the town clerk of every authorized by royal burgh in Scotland, in which the waterworks shall be parliament have been situated, a plan and section of all such alterations from the deposited. original plan and section (if any) as shall have been approved of by parliament, on the same scale and containing the same particulars as the original plan and section of the waterworks, and shall also have deposited with the parish clerks of the several parishes in England, and the clerks of the unions of the several parishes in Ireland, and the schoolmasters of the several parishes in Scotland, in which such alterations shall have been authorized to be made, copies or extracts of or from such plans and sections as shall relate to such parishes respectively.

&c. and allow

IX. The said clerks of the peace, sheriff clerks, and town Clerks of the clerks, parish clerks, clerks of unions, and schoolmasters shall peace, &c. to receive plans receive the said plans and sections of alterations, and copies of alterations, and extracts thereof respectively, and shall keep the same, as inspection. well as the said original plans and sections, and shall allow all persons interested to inspect any of the documents aforesaid, and to make copies and extracts of and from the same, in the like manner, and upon the like terms, and under the like penalty for default, as is provided in the case of the original plans and sections by an act passed in the first year of the reign of her majesty, intituled "An Act to compel clerks of 7 Will. 4 & 1 the peace for counties, and other persons, to take the custody of such documents as shall be directed to be deposited with

Vict. c. 83.