the bridge, were held not liable for the death of a person who fell into the cutting through the defective condition of the bridge (Gautret v. Egerton, L. R. 2 C. P. 371; see Gwinnell v. Eames, L. R. 10 C. P. 658; Tarry v. Ashton, 1 Q. B. D. 314).

Rights of
Way.

Where a person having a right of way over the land of another pur- Extinction of chases such land, the right of way is extinguished by the unity of seisin rights of way: and possession (Heigate v. Williams, Noy, R. 119; see James v. Plant, 4 By unity of Ad. & El. 761, ante, p. 58). seisin.

A long forbearance to exercise a right of way may reasonably be ac- By abandoncounted for by supposing a release of the right (Doe v. Hilder, 2 B. & ment. Ald. 791; see Moore v. Rawson, 3 B. & C. 339). But a mere suspension of the exercise of a right is not sufficient to prove an intention to abandon it (Crossley v. Lightowler, 2 Ch. 482). It is the nature of the act done, or of the adverse act acquiesced in by the owner of the easement, and the intention thereby indicated, which are material (R. v. Chorley, 12 Q. B. 519; Mulville v. Fallon, I. R. 6 Eq. 458).

It was laid down in another case, that where a right of way has been once established by clear evidence of enjoyment, it can be defeated only by distinct evidence of interruptions acquiesced in; an unsuccessful attempt on the part of the occupiers of the land, over which the way ran, from time to time to interrupt such right, will not be sufficient to get rid of it (Harvie v. Rogers, 3 Bligh, N. S. 444-447; see 12 Ves. 265; Norbury v. Meade, 3 Bligh, 211, 241).

The discontinuance for upwards of twenty years of the use of an immemorial right of way to a close, because the occupiers had a more convenient access to it over another close, is not evidence of an intention to abandon the right (Ward v. Ward, 21 L. J. Exch. 334). Alderson, B., observed in this case, "The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user, therefore, must be the consequence of something which is adverse to the user." A parol agreement for the substitution of a new way for an old prescriptive way, and the consequent discontinuance to use the old highway, afford no evidence of the abandonment thereof (Lovell v. Smith, 3 C. B. N. S. 120). In this case the plaintiff, having a right of way by prescription more than thirty years previously, agreed with the owner and occupier of the servient tenement that the use of a portion of that way should be discontinued, and a new one equally convenient substituted for it; Willes, J., said, "I do not think that this court means to lay down that there can be an abandonment of a prescriptive easement like this without a deed or evidence from which the jury can presume a release of it" (Ib. pp. 126, 127). A right of way may be abandoned, and it is always a question of fact, to be ascertained by a jury or by the court from the surrounding circumstances, whether the act amounts to an abandonment or was intended as such (Cook v. Bath, 6 Eq. 179).

Where the mode of enjoyment of an easement has been more or less By alteration altered, and where an attempt has been made to usurp a greater right of dominant than the party was entitled to, it appears that in the case of those ease- tenement. ments which depend upon repeated acts of man and require no permanent alteration in the dominant tenement as rights of way, the previouslyexisting right will not be affected by acts of usurpation (Gale on Easements, 514, 6th ed.; and see Luttrell's case, 4 Rep. 86 a). There does not appear to be any direct authority to show whether, if the use of a place, to and from which a way is by express words reserved or granted, be completely changed, the way can still be continued to be used. It has been held, that if a man has a right of way to a close called A., he cannot justify using the way to go to A., and from thence to another close of his own adjoining to A. (1 Roll. Abr. 391, pl. 3; Howell v. King, 1 Mod. 191; Lawton v. Ward, 1 Ld. Raym. 75; and 1 Lutw. 111; Skull v. Glenister, 16 C. B. N. S. 81). If a right of way be granted for the purpose

S.

F

Rights of
Way.

By statute.

Remedy for disturbance of right of way by abatement.

Remedy by action.

Action by reversioner.

Pleading.

Actions in the
Chancery
Division.

of being used as a way to a cottage, and the cottage is changed into a tan yard, the right of way ceases; but if there is a general grant of all ways to a cottage, the right is not lost by reason of the cottage being altered (Henning v. Burnet, 8 Exch. 192; see Sloan v. Holliday, 30 L. T. 757).

By the 10th section of the General Inclosure Act (41 Geo. 3, c. 109), the commissioners are directed to set out private roads; and by the 11th section of that act it is declared that all roads, ways, and paths, over, through and upon such lands and grounds, which shall not be set out, shall be extinguished. Where a private inclosure act does vary the terms of the above act, if the commissioners in their award do not notice a road running over the inclosed lands, it is, by the operation of that act, extinguished, and the proprietor of the lands over which it runs may stop it up (White v. Reeves, 2 B. Moore, 23; Holden v. Tilley, 1 F. & F. 650; see Turner v. Crush, 4 App. Cas. 221). As to the construction of local inclosure acts giving powers to stop up roads, see Logan v. Burton (5 B. & C. 513); Harber v. Rand (9 Price, 58); R. v. Hatfield (4 Ad. & El'. 156).

It would seem that the owner of a right of way may, after proper notice requesting the removal of an obstruction, himself remove it, even if the obstruction is a house which is inhabited (Lane v. Capsey, 1891, 3 Ch. 411). The refusal by the court to grant a mandatory injunction would not interfere with such a right (1b.); and leave was given to exercise the right where the house was in the possession of a receiver appointed by the court (Ib.)

An action lies for the disturbance of a right of way, created either by reservation, grant, or prescription (Com. Dig. Action on the Case for Disturbance (A. 2); 1 Roll. Abr. 109); and such disturbances may be either by absolutely stopping up the way, or by ploughing up the land through which the way passes (2 Roll. Abr. 140), or by damaging the way with carriages, so that it is of no use (Lawton v. Ward, 1 Lutw. 111). A reversioner cannot sue for the obstruction of a right of way unless the obstruction be such as either permanently injures the estate, or operates in denial of the right (Hopwood v. Scholfield, 2 M. & Rob. 34; see Young v. Spencer, 10 B. & C. 145; Baxter v. Taylor, 4 B. & Ad. 72; Jackson v. Pesked, 1 M. & S. 234; Alston v. Scales, 2 M. & Scott, 5; Mott v. Shoolbred, 20 Eq. 22; Kidgill v. Moor, 9 C. B. 364). Where the plaintiff had, under the special act of a railway company, acquired the use of a siding, which he leased to tenants, and the company denied the plaintiff's right, and obstructed the siding by carriages constantly kept there, the obstruction was sufficiently permanent to give the plaintiff a right of action as reversioner (Bell v. Midland R. Co., 10 C. B. N. S. 287).

The Railway Clauses Act, 1845, s. 53, takes away the common law right of action for an interference under the powers of a railway company with a private right of way, except when special damage has been sustained (Watkins v. G. N. R. Co., 16 Q. B. 961).

In all cases for disturbance of a way, the obstruction ought to be alleged as occurring in the way itself to which the party has a right (Tebbutt v. Selby, 6 Ad. & Ell. 786). Where in an action for wrongfully stopping up a way the precise locality of the way is material to the defence, the defendant is bound to show it in his pleadings (Ellison v. Iles, 11 Ad. & Ell. 665).

In an action brought since the Jud. Acts for obstructing a private way the pleading should, under the R. S. C., show the termini of the way and its course; and whether the plaintiff claims by prescription or grant (Harris v. Jenkins, 22 Ch. D. 481). And where the defendant in an action of trespass pleads that the locus in quo was a highway, he must now state how it became a highway (Spedding v. Fitzpatrick, 38 Ch. Div. 410; see under the old law, Williams v. Wilcox, 8 Ad. & El. 331). As to variances under the old law, see Duncan v. Louch (6 Q. B. 904); Colchester v. Roberts (4 M. & W. 769).

Where a bill was filed by a lessee to establish a right of way, an objection for want of parties, because the plaintiff's lessor was not before the

court, was allowed under the Chancery practice before the Jud. Acts (Poore v. Clark, 2 Atk. 515). As to the certainty required in such bills, see Gell v. Hayward (1 Vern. 312); Cresset v. Mitton (3 Bro. C. C. 481; 1 Ves. jun. 449). Agreements as to right of way were enforced by injunction in Newmarch v. Brandling (3 Swan. 99); Phillips v. Treeby (3 Giff. 632); Collins v. Slade (23 W. R. 199).

As to the remedy in equity, in the case of a licence for a right of way which has been executed, and where expense has been incurred, see Mold v. Wheatcroft (27 Beav. 510), and the cases quoted ante, p. 48.

An injunction will be granted to restrain the obstruction of a right of way by the acts of several persons, although the damage occasioned by the acts of one of them, if taken alone, would be inappreciable (Thorpe v. Brumfitt, 8 Ch. 650). Injunctions have been granted to restrain interference with the private access of the owner of property abutting on the highway to and from the highway (Lyon v. Fishmongers' Co., 1 App. Cas. 662; Original Hartlepool Co. v. Gibb, 5 Ch. D. 713; see Fritz v. Hobson, 14 Ch. D. 542). In a proper case a mandatory injunction will be granted (Krehl v. Burrell, 7 Ch. D. 551; 11 Ch. Div. 146). The remedy of a parishioner in respect of a churchway is in the Ecclesiastical Court (Batten v. Gedye, 41 Ch. D. 507). See further the forms of injunctions, Seton, 5th ed. 505 et seq.

Rights of
Way.

(5.) OF WATERCOURSES.

The right of conducting water through one estate for the use and convenience of an adjoining estate, is an incorporeal hereditament of the class of easements, or a prædial service, which was known to the civilians under the name of service aquæ ductus (Domat's Civil Law, L. 1, T. 12); and is of use when Seius has a scarcity of water, and requires it for watering his cattle, or his lands, or for making his mill go, or for any other such advantage to his ground (2 Frederican Code, 144).

The ground and origin of the law which governs streams running in Origin of law their natural course would seem to be this, that the right enjoyed by the governing several proprietors of the lands over which they flow is, and always has natural been, public and notorious: that the enjoyment has been long continued streams. -in ordinary cases, indeed, time out of mind-and uninterrupted; each man knowing what he receives and what has always been received from the higher lands, and what he transmits and has always been transmitted to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages, or perhaps it may be considered as a rule of positive law (which would seem to be the opinion of Fleta and of Blackstone), the origin of which is lost by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, in his judgment in the case of Tyler v. Wilkinson (4 Mason's American Rep. 401), in the courts of the United States, as an incident to the land; and that whoever seeks to found an exclusive use must establish a rightful appropriation in some mader known and admitted by the law" (Acton v. Blundell, 13 M. & W. 349, 350).

66

"Prima facie, the proprietor of each bank of a stream is the proprietor of Natural right half the land covered by the stream, but there is no property in the water. of riparian Every proprietor has an equal right to use the water which flows in the proprietor to stream; and consequently no proprietor can have the right to use the the use and to water to the prejudice of any other proprietor, without the consent of the the flow of other proprietors, who may be affected by his operations. No proprietor water in can either diminish the quantity of water, which would otherwise descend natural to the proprietors below, nor throw the water back upon the proprietors above" (Ŵright v. Howard, 1 Sim. & Stu. 203; adopted by Lord Tenter

streams.

Of Watercourses.

Appropriation not necessary.

Channel must be defined.

den, C. J., Mason v. Hill, 3 B. & Ad. 312, 313; and see 5 B. & Ad. 18; Ennor v. Barwell, 2 Giff. 426, 427; Embrey v. Owen, 6 Exch. 369). "The flow of a natural stream creates mutual rights and liabilities between all the riparian proprietors along the whole of its course. Subject to reasonable use by himself, each proprietor is bound to allow the water to flow on without altering the quantity or quality" (Gaved v. Martyn, 19 C. B. N. S. 732). "By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land; for instance, to the reasonable use of the water for domestic purposes and for his cattle; and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, for what may be deemed the extraordinary use of it, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up a stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury "(Per Lord Kingsdown, Miner v. Gilmour, 12 Moo. P. C. 156; adopted in Nuttall v. Bracewell, L. R. 2 Ex. 1; see A. G. v. G. E. R. Co., 6 Ch. 572; Buccleuch v. Metropolitan Board, L. R. 5 H. L. 418). The question what is an extraordinary use may depend on the development of trade in the neighbourhood, and on the use to which the water of rivers is put in the adjoining district (Ormerod v. Todmorden Co., 11 Q. B. Div. 168). A riparian proprietor must not scour the bed so as to alter the flow of the water (Withers v. Purchase, 60 L. T. 819).

66

In Williams v. Morland (2 B. & C. 910), Bayley, J., said: Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it: subject to that right, all the rest of the water remains publici juris. The party who obtains a right to the exclusive enjoyment of the water, does so in derogation of the primitive right of the public." The same doctrine of appropriation was laid down in the earlier cases (Rutland v. Bowler, Palm. 290; Bealey v. Shaw, 6 East, 208; Saunders v. Newman, 1 B. & Ald. 258; Liggins v. Inge, 7 Bing. 692; Frankum v. Falmouth, 6 C. & P. 529). Lord Denman, however, said: "It appears to us that there is no authority in our law, nor, as far as we know, in the Roman law (which, however, is no authority in ours), that the first occupant, though he may be the proprietor of the land above, has any right by diverting the stream to deprive the owner of the land below of the special benefit and advantage of the natural flow of water therein" (Mason v. Hill, 5 B. & Ad. 24). In Arkwright v. Gell (5 M. & W. 220), Parke, B., said: The object of the judgment in Mason v. Hill was to set right the mistaken notion which had got abroad in consequence of certain dicta in Williams v. Morland (2 B. & C. 910), that flowing water is publici juris, and that the first occupant of it for a beneficial purpose may appropriate it." And in Sampson v. Hoddinott (1 C. B. N. S. 590), it was said: "It appears to us that all persons having land on the margin of a flowing stream have by nature certain rights to use the water of the stream, whether they exercise their rights or not" (adopted by Wood, V.-C., in Crossley v. Lightowler, 3 Eq. 296; see Orr-Ewing v. Colquhoun, 2 App. Cas. 854).

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 (Broadbent v. Ramsbottom, 25 L. J. Ex. 115). The owner of land has an unqualified right to drain it for agricultural purposes, in order to get rid of mere surface water, the supply of the water being casual and its flow following no regular definite course; and a neighbouring proprietor cannot complain that he is thereby deprived of such water, which otherwise would have

come to his land (Rawstron v. Taylor, 11 Exch. 369). The water from a spring flowed in a gully or natural channel to a stream on which was a mill. The spring having been cut off at its source, and the water received into a tank as it rose from the earth, by the licence of the owner of the soil on which the spring rose, it was held, that an action lay by the millowner against the person so abstracting the water (Dudden v. Clutton Union, 1 H. & N. 627; see Van Breda v. Silberbauer, L. R. 3 P. C. 84). As to what is a defined channel, see Briscoe v. Drought (11 Ir. C. L. R. N. S. 250; Ennor v. Barwell, 2 Giff. 410).

In the case of a natural stream flowing through an artificial channel, the riparian proprietors may possess rights similar to those which they would have possessed if the channel had been a natural one (Holker v. Parritt, L. R. 8 Ex. 116; Roberts v. Richards, 44 L. T. 271; Sutcliffe v. Booth, 32 L. J. Q. B. 136; see also Nield v. L. & N. W. R. Co., L. R. 10 Ex. 4; and post, p. 72.

Of Water

courses.

In a case where a stream had from time to time changed its course, it Stream was laid down that the accustomed course of a natural stream which a changing its riparian owner is entitled to have preserved is the natural and apparently course. permanent course existing when the right is asserted or called in question (Withers v. Purchase, 60 L. T. 819).·

If the course of a subterranean stream be well known, as is the case Natural with many, which sink underground, pursue for a short space a sub- rights with terraneous course and then emerge again, it never would be considered regard to that the owner of the soil under which the stream flowed could not main- subterranean tain an action for the diversion of it, if it took place under such circum- water: stances as would have enabled him to recover if the stream had been where course wholly above ground (Per Pollock, C. B., Dickenson v. Grand Junction Co., is known and 7 Ex. 300; Chasemore v. Richards, 7 H. L. C. 349; see also Dudden v. defined; Clutton Union, 1 H. & N. 630).

The owner of land, through which water flows in a subterraneous where course course, has no natural right or interest in it which will enable him to is undefined. maintain an action against a landowner, who, in carrying on mining operations on his own land in the usual manner, drains away the water from the land of the first-mentioned owner, and lays his well dry. In Acton v. Blundell (12 M. & W. 353), Tindal, C. J., thought the case fell within that principle which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil and part water; that the person who owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque injuria, which cannot become the ground of an action. The same principle was laid down by the House of Lords in Chasemore v. Richards, 7 H. L. C. 349; see also Hammond v. Hall, 10 Sim. 551; Dickenson v. Grand Junction Co., 7 Ex. 282. It is now settled by several authorities that no action will lie against a man who, by digging or cutting drains in his own land, thereby drains his neighbour's land either by intercepting the flow of the water percolating through the pores of the soil, and which but for such digging or draining would have reached his neighbour's land, or by causing the water already collected, in fact, on his neighbour's soil to percolate away from and out of it (New River Co. v. Johnson, 6 Jur. N. S. 374; 7 W. R. 179; see also South Shields Co. v. Cookson, 15 L. J. Ex. 315; R. v. Metropolitan Board, 3 B. & S. 710; Ballacorkish Co. v. Harrison, L. R. 5 P. C. 60). The ultimate decision in Dickenson v. Grand Junction Co. (7 Exch. 282), and the dictum of Lord Ellenborough in Balston v. Benstead (1 Camp. 463), have been overruled by Chasemore v. Richards, 7 H. L. C. 349.

On the other hand, a landowner will be restrained from making a drain in his own land by which water flowing in a defined surface channel