Of Watercourses. Natural right of riparian proprietors to divert flood water. Natural right Alienation of natural (or riparian) rights. Acquired rights with regard to water in natural stream. Right to uninterrupted through adjoining land is withdrawn (Grand Junction Co. v. Shugar, 6 Ch. 483). upon A proprietor of land adjoining a river has a right to raise the banks his own land, so as to prevent the water from overflowing his land, with this restriction, that he does not occasion injury to the property of others (R. v. Trafford, 1 B. & Ad. 874; 8 Bing. 204; 2 Cr. & Jerv. 265; Menzies v. Breadalbane, 3 Bligh, N. S. 414, 418; A. G. v. Lonsdale, 7 Eq. 377). If, however, an extraordinary flood is seen to be coming on land, the owner may protect his land from it without being responsible for consequences, although his neighbour may be injured (Nield v. L. & N. W. R. Co., L. R. 10 Ex. 4; see Whalley v. Lancashire R. Co., 13 Q. B. Div. 136, 140. Compare the similar right on the sea-shore: R. v. Pagham, 8 B. & C. 355). But if the flood has already come, the owner must not, for the purpose of getting rid of the mischief, injure his neighbour (Whalley v. Lancashire R. Co., sup.) As to the duties in respect of a river-wall incumbent on the owner of land on a tidal navigable river, see NitroPhosphate Co. v. London and S. Katharine's Docks, 9 Ch. Div. 524; Burt v. Victoria Co., 47 L. T. 378. A riparian proprietor has a right to the natural stream of water flowing through the land in its natural state; and if the water is polluted by a proprietor higher up the stream so as to occasion damage in law, though not in fact, to the inferior proprietor, it gives him a good cause of action against the superior proprietor, unless the latter has gained by long enjoyment or grant a right to pollute (Wood v. Waud, 3 Ex. 748; see Weeks v. Heward, 10 W. R. 557). The natural right to purity extends to subterranean water when appropriated (Hodgkinson v. Ennor, 4 B. & S. 229; Turner v. Mirfield, 34 Beav. 390; Ballard v. Tomlinson, 29 Ch. Div. 115). If land with a run of water upon it be sold, the water passes with the land (Canham v. Fisk, 2 Cr. & Jer. 126). The rights of a riparian proprietor cannot be granted so as to entitle the grantee as against the other riparian proprietors, even to the rights in respect of the ordinary use of water possessed by the grantor. The only right acquired by the grantee would be as against the grantor himself (Ormerod v. Todmorden Co., 11 Q. B. Div. 155; Nuttall v. Bracewell, L. R. 2 Ex. 1; Stockport Co. v. Potter, 3 H. & C. 300; Jones v. Dorothea Co., 58 L. T. 80; see Insole v. James, 1 H. & N. 243). Every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of the proprietors above or below him on the stream. By usage he may acquire a right to use the water in a manner not justified by his natural rights; but such acquired right has no operation against the natural rights of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tenement (Sampson v. Hoddinott, 1 C. B. N. S. 590). Independently of any particular enjoyment which another has been accustomed to have, every person is entitled to the benefit of a flow of water in his own lands, without diminution or alteration; but an adverse right may exist, founded on the occupation of another; and although the stream be either diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it hath existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream subject to such adverse right. Before the stat. 2 & 3 Will 4, c. 71, twenty years' exclusive enjoyment of water in any particular manner afforded a strong presumption of right in the party so enjoying it, derived from grant or act of parliament (Bealey v. Shaw, 6 East, 208; Cox v. Matthews, 1 Vent. 237; 2 Wms. Saund. 113 b.; see Dewhirst v. Wrigley, 1 C. P. Coop. 329). No right to the uninterrupted flow of subterranean water which percolates in an undefined course can be acquired by prescription (Chasemore v. courses. terranean water cannot be acquired Richards, 7 H. L. C. 349; where it was said that "Any such right against of Wateranother, founded upon length of enjoyment, is supposed to have originated in some grant which is presumed from the owner of what is sometimes called the servient tenement. But what grant can be presumed in the flow of subcase of percolating waters depending upon the quantity of rain falling, or the natural moisture of the soil, and in the absence of any visible means of knowing to what extent, if at all, the enjoyment of the plaintiff's mill would be affected by any water percolating in and out of the defendant's or any other land? The presumption of a grant only arises where the person against whom it is to be raised might have prevented the exercise of the subject of the presumed grant; but how could he prevent or stop the percolation of water?") by prescrip tion; Where, however, a grant was made of all streams of water that might but may be be found in certain closes, it was held that the grantor and those claiming acquired by under him could not work mines so as to divert underground water from express grant. wells in the closes (Whitehead v. Parkes, 2 H. & N. 870). In Prescott v. Phillips (cited 6 East, 213; 5 B. & Ad. 23) it was ruled, Prescriptive "that nothing short of twenty years' undisturbed possession of water right to divert diverted from the natural channel, or raised by a weir, could give a party acquired by an adverse right against those whose lands lay lower down the stream, user for and to whom it was injurious; and that a possession of above nineteen twenty years. years, which was shown in that case, was not sufficient" (See Cox v. Matthews, 1 Ventr. 237, cited 5 B. & Ad. 25). Previously to the stat. 2 & 3 Will. 4, c. 71 (ante, pp. 1-21), the acquiescence of lessees would not bind the landlord, nor that of tenants for life, the reversioner. Thus A., who was tenant for life with a power of jointuring, which he afterwards executed, in 1747 gave a licence to B. to erect a weir on a river in A.'s soil, then A. died and the jointress entered, and continued seised till 1799, when the tenant of A.'s farm diverted the water from the weir, upon which the tenant of B.'s farm brought an action on the case for diverting the water; the court were of opinion that the uninterrupted possession of the water for so many years, with the acquiescence of the particular tenants for life, would not affect the reversioner (Bradbury v. Grinsell, 2 Wms. Saund. 516). Evidence of user for twenty years of a head stock to pen up a rivulet was held insufficient evidence for raising the presumption of a grant to warrant its continuance to the injury of church land; for if the preceding vicar had made such a grant, it would not have bound his successor (Wall v. Nixon, 3 Smith's R. 316; see Barker v. Richardson, 11 East, 372). The right of diverting water, which in its natural course would flow over or along the land of a riparian owner, and of conveying it to the land of the party diverting it, can be created according to the law of England only by grant, or by long-continued enjoyment from which the existence of a former grant may be reasonably presumed, or by statute. Such an easement exists for the benefit of the dominant owner alone, and the servient owner acquires no right to insist on its continuance, or to ask for damages on its abandonment (Per Cockburn, C. J., Mason v. Shrewsbury R. Co., L. R. 6Q. B. 587). The right to a fishing weir may be acquired in non-navigable Right to rivers by grant from other riparian owners, or by enjoyment, or by any obstruct. means by which such rights may be constituted (Rolle v. Whyte, L. R. 3 Q. B. 286; Leconfield v. Lonsdale, L. R. 5 C. P. 657). And a right to pen back a stream may be acquired by prescription (Cooper v. Barber, 3 Taunt. 99). An action may be maintained for the erection of a roof with eaves pro- Prescriptive jecting over another's land, and discharging rain water on to it, without right to disproof that rain has actually fallen (Fay v. Prentice, 1 C. B. 828). The charge water reversioner may sue (Tucker v. Newman, 11 Ad. & Ell. 40). Although, upon adjoinhowever, every one in building is bound so to construct his house as not ing land. to overhang his neighbour's property, and to construct his roof in such a manner as not to throw the rain water upon the neighbouring land (11 Hen. 7, f. 257); yet a right by user for twenty years and upwards for the owner to project his wall or eaves over the boundary line of his property, or to discharge the rain running from the roof of his house upon the ad courses. Of Water joining land, has been recognized (Thomas v. Thomas, 2 C. M. & R. 34; see Wright v. Williams, 1 M. & W. 77; Lady Browne's case, cited in Slaney v. Pigott, Palm. 446; Com. Dig. Action on Case for Nuisance (A.); Baten's case, 9 Rep. 50, n. (b); Vin. Abr. Nuisance (G. 5)). Such a right will not be lost by raising the house (Harvey v. Walters, L. R. 8 C. P. 162). The occupier of a house who has a right to have the rain fall from the eaves of it upon another man's land, cannot put up spouts to collect that rain and discharge it upon such land in a body (Reynolds v. Clarke, Ld. Raym. 1399). If one had a right to enter into the yard of another, and he fixed a spout there to discharge water upon the plaintiff's land, trespass would not lie, but case (Reynolds v. Clarke, 1 Str. 634; 8 Mod. 272; Fort. 212). The flow of water for twenty years from the eaves of a house will not give a right to the neighbour to insist that the house shall not be pulled down or altered so as to diminish the quantity of water flowing from the roof (Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Exch. 293, 294; Arkwright v. Gell, 5 M. & W. 233). Prescriptive right to pollute. Prescriptive right to discharge sewage. Artificial watercourses of a permanent character. Of a temporary character. No right to uninterrupted flow can be acquired by prescription against creator of stream; nor against a superior proprietor. A right to pollute a stream can be acquired by prescription (Baxendale v. McMurray, 2 Ch. 790), but only through the continuance of perceptible injury for twenty years (Goldsmid v. Tunbridge Commissioners, 1 Ch. 349; see Millington v. Griffiths, 30 L. T. 65; Murgatroyd v. Robinson, 7 E. & B. 391; Sampson v. Hoddinott, 1 C. B. N. S. 611; O'Brien v. Enright, I. R. 1 Ch. 718). And there can be no prescriptive right to justify a public nuisance (A. G. v. Barnsley, 1874, W. N. 37). A right to discharge sewage through a drain can be acquired by prescription (4. G. v. Dorking, 20 Ch. Div. 601; see Wright v. Williams, 1 M. & W. 77). As to such a right being binding on a local authority, see R. v. Staines, 60 L. T. 261; Ogilvie v. Blything, 65 L. T. 338. The natural rights of a riparian proprietor are limited to natural streams, and do not attach in the case of artificial watercourses (Sampson v. Hoddinott, 1 C. B. N. S. 590). Prescriptive rights, however, may be acquired in artificial watercourses of a permanent character (Rameshur, &c. v. Koonj &c., 4 App. Cas. 121; Wood v. Waud, 3 Exch. 777; Blackburne v. Somers, 5 L. R. Ir. 1). The enjoyment must be as of right (Chamber Co. v. Hopwood, 32 Ch. Div. 549; see also Beeston v. Weate, 3 El. & Bl. 986; Gaved v. Martyn, 19 C. B. N. S. 732; Ivimey v. Stocker, 1 Ch. 396; Powell v. Butler, I. R. 5 C. L. 309, and ante, p. 9). Where the enjoyment of an artificial watercourse depends on temporary circumstances, no right to the uninterrupted flow of water can be acquired by prescription against the creator of the stream. Thus, it was held that a party receiving water drained from a mine has no right to compel the owners of the mine to continue such discharge. The right or interest which the proprietor of the surface where the stream issued forth, or his grantees, would have in such a watercourse, at common law, independently of the effect of user under the stat. 2 & 3 Will. 4, c. 71, was to use it for any purpose to which it was applicable so long as it continued there. An user for twenty years, or a longer time, would be no presumption of the right to the water in perpetuity; for such a grant would in truth be neither more nor less than an obligation on the mine owner not to work his mines by the ordinary mode of getting minerals below the bed drained by that watercourse, and to keep the mines flooded up to that level, in order to make the flow of water constant for the benefit of those who had used it for some profitable purposes (Arkwright v. Gell, 5 M. & W. 203; see Magor v. Chadwick, 11 Ad. & Ell. 571). The right of a party to an artificial watercourse, as against the party creating it, must depend upon the character of the watercourse, and the circumstances under which it was created. The flow of water from a drain, made for the purpose of agricultural improvements, does not give a right to the neighbour so as to preclude the proprietor from altering the level of his drain for the improvement of his land (Greatrex v. Hayward, 8 Exch. 291). Where the owners of a colliery had suffered the water pumped out of their colliery to flow along an artificial channel, it was held, that in the absence of any grant or prescriptive title, no action lay by the owner of land through which the water had been so accustomed to flow against an owner of land above, and through whose land the sough likewise passed, for diverting such water; for the owners of a colliery thus getting rid of a nuisance to their works, by discharging the water into such sough, could not be considered as giving it to one more than to others of the proprietors of the land through which such sough had been constructed, but that each might take and use what passed through his land, and the proprietor of the land below had no right to any part of that water until it had reached his own land, nor had he any right to compel the owners above to permit the water to flow through their land for his benefit (Wood v. Waud, 3 Exch. 748; see Wardle v. Brocklehurst, Ell. & Ell. 1058; Mason v. Shrewsbury R. Co., L. R. 6 Q. B. 584). Of Water courses. artificial Where mine owners made an adit through their lands to drain the Right to mine, which they afterwards ceased to work, and the owner of a brewery, purity of through whose premises the water flowed for twenty years after the water in working had ceased, had during that time used it for brewing; it was watercourse. held, that he thereby gained a right to the enjoyment of the water in an unpolluted state (Magor v. Chadwick, 11 Ad. & El. 586; Blackburne v. Somers, 5 L. R. Ir. 1). As to the effect of a grant of an artificial watercourse, see Taylor v. S. Grant of Helens, 6 Ch. Div. 264. artificial Before the statute 2 & 3 Will. 4, c. 71, twenty years' exclusive enjoy- watercourse. ment of water in any particular manner afforded a strong presumption of Modes of right in the party so enjoying it derived from grant or act of parliament acquisition of (Bealey v. Shaw, 6 East, 208). The long enjoyment of a watercourse is rights with the best evidence of right and raises a presumption of an agreement: and regard to proof of a special licence, or that it was limited in point of time, must water. come from the party who opposes the right (Finch v. Resbridger, 2 Vern. Grant pre390; Gilb. Eq. C. 3). The enjoyment of water drawn from a brook sumed from along an artificial channel, and acts done by the owner of the dominant enjoyment. tenement upon the servient tenement, which, without the existence of an easement, would be tortious and actionable, may be evidence of a right in the owner of the dominant tenement to the use of the water (Beeston v. Weate, 5 El. & Bl. 986). In Deeble v. Lineham, 12 Ir. C. L. N. S. 1, there was sufficient evidence of enjoyment to support the presumption of a grant. If, however, such a grant would be void by statute, it cannot be presumed (Rochdale Co. v. Radcliffe, 18 Q. B. 287; where the supposed grantor was a canal company incorporated by statute). For the nature of the enjoyment requisite for obtaining under the Pre- Acquisition scription Act acquired rights with regard to water, see the note to 2 & 3 under PreWill. 4, c. 71, s. 2, ante, p. 7. scription Act. In Northam v. Hurley (1 El. & Bl. 665), it was held on the construction By express of the grant of a watercourse from the land of the grantor to the land of grant. the grantee, that the grantor could not alter the channel on his own land although no damage had occurred to the grantee. The effect of special words in an express grant or reservation of water was also considered in Rawstron v. Taylor, 11 Exch. 369; Lee v. Stevenson, 27 L. J. Q. B. 263; Finlinson v. Porter, L. R. 10 Q. B. 188. The privilege of a watercourse is not confined to private individuals; it may be vested in a corporation, as where there was a grant to the corporation of Carlisle of water, for the purpose of turning the city mills (8 East, 487). As to the effect of conveyances of land since 1881 in carrying rights of water and watercourses, see Conv. Act, 1881, s. 6, post. By the grant of part of a tenement, there will pass by implication to By implied the grantee all those continuous and apparent easements over the other grant. part which are necessary to the enjoyment of the part granted and have been hitherto used therewith (Wheeldon v. Burrows, 12 Ch. Div. 31). And this principle has been applied to a watercourse (Watts v. Kelson, 6 Ch. 166; see Pullan v. Rough fort, 21 L. R. Ir. 73). As a general rule, however, there is no corresponding implication in favour of the grantor (Wheeldon v. Burrows, sup., disapproving of Pyer v. Carter, 1 H. & N. 916, in which Of Watercourses. By licence. By custom. Extent and mode of enjoyment of rights with regard to water. Irrigation, &c. case the grant of a right to a drain by the grantee of land had been implied in favour of the grantor). Pyer v. Carter had been approved in Ewart v. Cochrane, 4 Macq. H. L. C. 117; Watts v. Kelson, sup.; but had been disapproved by Lord Westbury in Suffield v. Brown, 33 L. J. Ch. 249. A grant of the right to pollute a stream was implied in Hall v. Lund (1 H. & C. 676). As a general rule, it requires a deed to create a right and title to have a passage for water (4 East, 107; 5 B. & C. 233). As to creating rights with regard to water by parol licence, see Liggins v. Inge (7 Bing. 682), and the note on licences, p. 47, ante. As to the acquisition by custom of a right to divert water in Devonshire, see Bastard v. Smith (2 M. & Rob. 129); and in Cornwall, Gaved v. Martyn (19 C. B. N. S. 732; 14 W. R. 62). For a customary right to pollute water, see Carlyon v. Lovering (1 H. & N. 784); and for a customary right to the use of water, see Harrop v. Hirst (L. R. 4 Ex. 43). Whether a riparian proprietor may use the water of a stream for the purpose of irrigation, if he again return it into the river with no other diminution than that caused by the absorption and evaporation attendant on the irrigation, depends on the circumstances of each particular case. The right of taking water for such a purpose is a question of degree, and it is impossible to define precisely the limits which separate the reasonable and permitted use of the stream from its wrongful application. If the irrigation take place not continuously but only at intermittent periods, when the river is full, and no damage is done thereby to the working of a mill on the stream, and the diminution of water is not perceptible to the eye, it is such a reasonable use of the water as is not prohibited by law (Embrey v. Owen, 6 Exch. 372; see Sampson v. Hoddinott, 1 C. B. N. S. 603; Wood v. Waud, 3 Exch. 748). As to the circumstances which may be taken into account in determining a reasonable user, see Ormerod v. Todmorden, &c. Co., 11 Q. B. Div. 168. Where one riparian proprietor had by means of a water-wheel diverted about one-fortieth part of the volume of a stream, it was for the jury to consider whether he had thereby inflicted on the other any sensible or material injury (Norbury v. Kitchin, 3 F. & F. 292). The diversion of the water of a river by means of pipes, for the use of a lunatic asylum and county gaol, was a user more extensive than that to which a riparian proprietor as such was entitled (Medway Co. v. Romney, 9 C. B. N. S. 575). So also where a waterworks company collected water in a permanent reservoir for the supply of an adjacent town (Swindon, &c. Co. v. Wilts., &c. Co., L. R. 7 H. L. 697). The taking by a railway company of water to supply their locomotives was restrained where such abstraction interfered with navigation (A. G. v. G. E. R. Co., 6 Ch. 572); but was permitted where it interfered very slightly with an inferior riparian proprietor (Sandwich v. G. N. R. Co., 10 Ch. D. 707). See also as to reasonable user, Belfast Co. v. Boyd (21 L. R. Ir. 560). Where land and buildings were demised, together with the free passage of water and soil to a cesspool, the easement was restricted to a reasonable use for the purposes of the premises in the condition in which they were at the time of the demise, and was not extended to buildings subsequently erected (Wood v. Saunders, 10 Ch. 582; see New Windsor v. Stovell, 27 Ch. D. 665; Metropolitan Board v. L. & N. W. R. Co., 17 Ch. Div. 246). When a lease reserved the free running of water and soil through the demised premises from other contiguous lands, the reservation was extended to water and soil coming from contiguous lands whether arising thereon or not, but was not extended to the refuse of tan pits (Chadwick v. Marsden, L. R. 2 Ex. 285). By an award made under an inclosure act, drains were set out, and it was ordered that the occupiers of the land over which such drains passed should make and cleanse, and keep the same of sufficient width and depth to carry off the water intended to run down such drains it was held, that the plaintiff was not thereby authorised to make an underdrain |