where the owner of a coal-field excavated his coal, and in so doing left large hollows which filled with water, and then, when the adjoining landowner proceeded to work his coal, the subterraneous water from the hollows flowed into his workings and flooded them, it was held that he had no right of action for the damage.*

Defilement of Water.-Every owner of the bank of a flowing stream has a right to the flow of the stream through his land in its natural purity. If an owner of the bank higher up throws dirt and ashes or gas refuse into it, so as to defile the water and make it unfit for use, to the damage of another proprietor who has been in the habit of using the water, an action is maintainable for the injury, unless a title to so defile the water by grant or prescription can be shown.t For there is no doubt that a right to pollute and foul a stream with all sorts of refuse may be established by proof of the continued and uninterrupted use of the stream as a drain and sewer for twenty years.

Artificial Streams. It is not only necessary to consider the law relating to flowing streams and natural springs, but also that relating to artificial streams or watercourses. "In mining operations it is always necessary to keep the works free from water, and often to acquire a large supply of water for general purposes. In effecting these objects many natural springs and streams are often directed or accumulated into one channel, or are otherwise so diverted or disturbed as very much to affect the

Smith v. Kenrick, 7 C. B. 565.

+ Murgatroyd v. Robinson, 26 Law Journ. Q. B. 233.

interests of adjoining landowners. The right of drawing, discharging, or otherwise conducting water from its natural bed, over the lands of others, by artificial channels, is strictly an easement, and like other easements may be acquired by express grant, or sufficient uninterrupted user."* The leading case upon this subject is the great case of Arkwright v. Gell (5 M. & W. 203, and 8 Law Journal, Exch.). In that case an action was brought by the plaintiff to recover damages for the diversion of some water which had formerly been conducted to his mills at Cromford, in Derbyshire. The circumstances of the case were these. In the year 1705 certain persons extended an existing underground drain, called the Cromford Sough, for the purpose of relieving from water part of the mineral field in the wapentake of Wirksworth. The company had an agreement with the owners of the mines lying near to the sough to remunerate them by certain quantities of ore raised from the mines thus benefited. The sough discharged its waters into a stream called Bonsall Brook. Below the junction stood an ancient corn mill, which was worked by the united power of the two currents. In 1738 the owners of the sough and the composition in ore granted a lease of them for 99 years, with covenants to keep the sough in repair, &c. In 1771 the lord of the manor, being owner of the land through which the sough was made, and of a piece of land between the mouth of the sough and Bonsall Brook, leased them to Sir R. Arkwright (the father of the plaintiff), together with the water issuing from the sough.

* Bainbridge on Mines, 106.

In 1772 he erected cotton mills on this piece of land, partly on the site of the above-mentioned ancient corn mill. This lease contained a proviso that if, by the bringing up of any other sough, or by any other unforeseen or unavoidable accident, the stream from the Cromford Sough should be taken away or lessened, the lessee should have power to take down the mills and rebuild them on another site. In 1789 the lessee purchased the absolute interest in the land demised, and in so much of that through which the sough was laid as was within the manor of Cromford. In the meantime another company of adventurers had begun to construct another mining sough, called the Meer Brook Sough, on a much lower level, in the adjoining parish of Wirksworth, for the purpose of draining a larger portion of the mineral field, under a similar licence from the same mine proprietors who used the Cromford Sough. Accordingly they so extended the Meer Brook Sough that in 1836 the Cromford Sough was drained of its waters, and the water supplying the cotton mills was diverted. All the known authorities, ancient and modern, were cited and examined, and the subject was thoroughly considered by judges distinguished for ability and learning.

The judgment of the Court of Exchequer was delivered by Mr. Baron Parke, who (inter alia) observed: "The stream upon which the mills were constructed was not a natural watercourse, to the advantage of which, flowing in its natural course, the possessor of the land adjoining would be entitled. This was an artificial watercourse, and the sole object for which

it was made was to get rid of a nuisance to the mines, and to enable the proprietors to get the ores which lay within the mineral field drained by it. The flow of water through that channel was, from the nature of the case, of a temporary character, having its continuance only whilst the convenience of the mine owners required it, and in the ordinary course it would most probably cease when the mineral ore above its level should have been exhausted. That Sir R. Arkwright contemplated the discontinuance of this watercourse there is evidence in the lease of 1771; and that such an event was not improbable appears from a clause in the Cromford Canal Act. What, then, is the species of 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, and independently of the effect of user under the statute 2 & 3 Will. IV. c. lxxi.? He would only have a right to use it for any purpose to which it was applicable, so long as it continued there. A user for twenty years, or a longer time, would afford no presumption of a grant of the right to the water in perpetuity. For such a grant would 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 level drained by that sough, and to keep these 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 purpose. How can it be supposed that the mine owners could have meant to burden themselves with such a servitude so destructive to their interests? and what is there to

raise an inference of such an intention? Several instances were put, in the course of the argument, of cases analogous to the present, in which it could not be contended for a moment that any right was acquired. A steam-engine is used by the owner of a mine to drain it, and the water pumped up flows in a channel to the estate of the adjoining landowner, and is there used for agricultural purposes for twenty years. Is it possible, from the fact of such user, to presume a grant from the owner of the steam-engine of the right to the water in perpetuity, so as to burden himself and the assigns of his mine with the obligation to keep a steam-engine for ever, for the benefit of the landowner? Or if the water from the spout of the eaves of a row of houses was to flow into a yard and be there used for twenty years by its occupiers for domestic purposes, could it be successfully contended that the owners of the houses had contracted an obligation not to alter their construction so as to impair the flow of water? Clearly not. In all, the nature of the case distinctly shows that no right is acquired as against the owner of the property from which the course of water takes its origin; though as between the first and any subsequent appropriator of the watercourse itself such a right may be acquired. So in this case Sir R. Arkwright, by the grant from the owner of the surface, acquired a right to use the stream as against him; and if there had been no such grant, he would by twenty years' user have acquired the like right as against such owner. But the user, even for a much longer period, whilst the flow of water was going on for the convenience of the mines,