mable value. And, lastly, there is no limit of space within which the claim of right to an underground spring can be confined: in the present case, the nearest coal-pit is at the distance of half a mile from the well. It is obvious that the law must equally apply if there is an interval of many miles."

The Court of Error for these reasons decided that the case did not fall within the rule which obtains as to surface streams, and that it was not to be governed by analogy therewith. But at the close of this judgment the Court added, "We intimate no opinion as to what might be the rule of law if there had been an uninterrupted user of the right for more than the last twenty years, but, confining ourselves to the facts stated, we think the present case is not to be governed by the law which applies to rivers and flowing streams, but that it rather falls 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, part water; that the person who owns the soil may dig therein, and apply all that is found there to his own purposes, at his own 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 him falls within the description of damnum absque injuriâ, which cannot become the ground of an action.”

Although the Court reserved their opinion if a user of this well for upwards of twenty years had been proved, yet undoubtedly the course of the

reasoning, and the spirit and tenor of the judgment, are against the acquisition of any such right.

The later cases on this subject are those of Embrey v. Owen (20 Law Journal, Ex. 212), in which an action was brought by the occupier of a mill against the defendant for diverting part of the water for the irrigation of his land above. It was proved that this diversion was not continuous, but only intermittent, and except a small quantity which was absorbed in irrigation, it was returned again to the stream, without causing any diminution of water cognisable by the senses. The Court of Exchequer decided that as no damage was done to the working of the plaintiff's mill, and as the diminution of water was not perceptible, the irrigation was a reasonable use of the water, and was not an infringement of the plaintiff's right in respect of his mill. But care is taken in this judgment to show that an action may be maintainable for the infringement of a right, though there is no actual damage sustained.

Another case is that of Sampson v. Hoddinot (26 Law Journal, C. P. 148). In that case the defendant also possessed a mill on a stream, and he had not only used the water for his mill, but had latterly diverted it for the purpose of irrigating his meadows. The plaintiff had been accustomed to irrigate his own meadows by the same stream. It appeared that by the acts of the defendant the water flowing down to the plaintiff was not sensibly diminished in quantity, but it arrived later in the day, and he was thus prevented from using it as beneficially as he otherwise would. The Court held that the

defendant had by the irrigation of his meadows detained the water for a time, and in a manner necessarily injurious to the natural right of the plaintiff, and that the latter was entitled to maintain his action.

In another case, Dudden v. Guardians of the Clutton Union (26 Law Journal, 146), the Court of Exchequer decided that a person has no right to take water from a spring-head where it rises from the ground, so as to obstruct its flowing into its natural course and stream, to the injury of owners on the banks. The defendants had done this by tanks placed close to a spring, to the injury of the owner of a mill below. The Court of Exchequer held that a stream may be said to begin at the spot where the water rises to the surface, and that a person is not justified in diverting it as it springs from the ground, and that the action was therefore maintainable.

Still more recently, in the case of Chasemore v. Richards (29 Law Journal, Ex. 81), the House of Lords decided that an action is not maintainable against a person who, by digging a well, cuts off water from a stream which would otherwise have flowed into it. The rules applicable to the enjoyment of a natural stream do not apply to underground water, not proceeding in any defined course, but percolating through the strata in all directions, and ultimately reaching some stream. In such a case the owner may dig and intercept such water, though the flow of the stream be sensibly affected thereby, and though the water is taken not for the use of the owner's own land, but for extraneous purposes, and to an enormous

extent.

In delivering the unanimous opinion of the judges in the House of Lords, Mr. Justice Wightman said (inter alia):

"The question is, then, whether the plaintiff has such a right as he claims jure naturæ to prevent the defendant sinking a well in his own ground at a distance from the mill, and so absorbing the water percolating in and into his own ground beneath the surface, if such absorption has the effect of diminishing the quantity of water which would otherwise find its way into the river Wandle, and by such diminution affect the working of the plaintiff's mill. It is impossible to reconcile such a right with the natural and ordinary rights of landholders, or to fix any reasonable limits to the exercise of such a right. Such a right as that contended for by the plaintiff would interfere with, if not prevent, the draining of land by the owner. Suppose, as it was put at the bar in argument, a man sank a well upon his own land, and the amount of percolating water which found its way into it had no sensible effect on the quantity of water in the river which ran to the plaintiff's mill, no action would be maintainable; but if many landowners sank wells upon their own lands, and thereby absorbed so much of the percolating water by the united effects of all the wells as would sensibly and injuriously diminish the quantity of water in the river, though no one well alone could have that effect, could an action be maintained against any one of them? and, if any, which? -for it is clear that no action could be maintained against them jointly. In the course of the argument one of your Lordships (Lord Brougham) adverted to

the French artesian well at the Abattoir de Grenelle, which was said to draw part of its supplies from a distance of forty miles under ground, but, and as far as is known, from percolating water. In the present

case, the water which finds its way into the defendant's well is drained from and percolates through an extensive district, but it is impossible to say how much from any part. If the rain which has fallen may not be intercepted whilst it is merely percolating through the soil, no man could safely collect the rainwater as it fell into a pond, nor would he have a right to intercept its fall before it reached the ground by extensive roofing, from which it might be conveyed by tanks, to the sensible diminution of water which had, before the erection of such impediments, reached the ground, and flowed to the plaintiff's mill. In the present case, the defendant's well is only a quarter of a mile from the river Wandle; but the question would have been the same if the distance had been ten or twenty or more miles distant, provided the effect had been to prevent underground percolating water from finding its way to the river and increasing its quantity, to the detriment of the plaintiff's mill. Such a right as that claimed by the plaintiff is so indefinite and unlimited, that, unsupported as it is by any weight of authority, we do not think that it can be well founded, or that the present action is maintainable; and we therefore answer your Lordships' question in the negative."

We have seen, in treating of the subject of water, that all lands must receive and pass on natural flowing streams which come down from higher levels.

But