has an equal right to the subsequent use of the same water in its natural state, or retard the flow, or throw back the water so as injuriously to affect the grounds, mills or springs of his neighbour above him (r). This is the clear and settled principle on the subject, but there is often difficulty in the application of it. A certain diminution in the quantity of the water, or an acceleration or retardation of the flow, is generally an implied element in the right of issuing the stream at all, but de minimis non curat lex, and unless the use be such as to affect materially the adjoining proprietor, a right of action will not arise. The test in all cases is whether the extent or mode of enjoyment has been such as to inflict a positive or sensible injury upon other riparian proprietors, or to interfere in a substantial and perceptible degree with their common right to a like user of the same water (s). So long as a reasonable user is made by a man of the water, and no actual or perceptible damage arises to the right of another to a similar use of the same water, no action will lie (t). If, however, the user be unreasonable, an action will lie although there be no actual present damage (u). Chap. VI. for domestic purposes. Whether the user of the water by an upper proprietor be User of water reasonable is generally a question of fact depending on the particular circumstances of the case. Enjoyment of water for cattle or domestic purposes may be called the ordinary user. However small the stream, and however large the supply taken may be, user for these purposes is always reasonable, provided the enjoyment is bonâ fide and is had in the ordinary mode according to the common usage of the country. A proprietor lower down the stream has no ground of complaint against a (r) Wright v. Howard, 1 Sim. & St. 203; 24 R. R. 169; Mason v. Hill, 5 B. & A. 19; 39 R. R. 354; Embrey v. Owen, 6 Exch. 369; Orr Ewing v. Colquhoun, 2 A. C. 854, per Lord Blackburn. See, as to throwing back water, Cooper v. Barber, 3 Taunt. 99; 12 R. R. 604; Saunders V. Newman, 1 B. & Ald. 258; 19 R. R. 312. (8) Embrey v. Owen, 6 Exch. 353; Sampson v. Hoddinott, 1 C. B. N. S. (t) Embrey v. Owen, 6 Exch. 353; (u) Ib.; Att.-Gen. v. Great Eastern Chap. VI. User of water for manufacturing or agricultural purposes. proprietor higher up in case of a deficiency of the water (r). The enjoyment of water for manufacturing or agricultural purposes may be called the extraordinary user. The right to a reasonable use of the water being common to all the riparian proprietors, it is often difficult to determine whether a particular use is consistent with this common right. In determining the question a just regard must be had to the force and magnitude of the current, the volume of water, its height and velocity, the fall, the nature of the soil, the mode and duration of the user, the general usage of the country, and all other circumstances which may, in a particular case, bear upon the question. To take a large quantity of water from a large river for manufacturing or agricultural purposes would cause no sensible or perceptible diminution of the benefit to the prejudice of a lower proprietor, whereas taking the same quantity from a small stream passing a farm would be a great and manifest injury to those below who use it for domestic supply and to water cattle; and therefore it would be an unreasonable use of the water in the latter case, and not in the former. The question in each case is entirely one of degree. It is impossible to define precisely the limits which separate the permitted use of a stream from its wrongful application (y). The question of reasonable user most frequently arises between mill owners on streams which afford a power available for the propulsion of machinery. The maxim that water should be allowed to flow, as it is wont to flow, if strictly construed and applied would prevent the use of such streams for manufacturing purposes. The construction of dams to collect a head of water and of sluices and canals to convey and discharge it is necessary to the operation of mills propelled by the water of a stream. (x) Miner v. Gilmour, 12 Moo. P. C. 131, as modified by Lord Norbury v. Kitchen, 9 Jur. N. S. 132. See Wood v. Waud, 3 Exch. 781; Nuttall v. Bracewell, L. R. 2 Ex. 1. (y) Embrey v. Owen, 6 Exch. 369; Swindon Waterworks Co. v. Berks and Wilts Canal Co., L. R. 7 H. L. p. 704. See Ormerod v. Todmorden Mill Co., 11 Q. B. D. 155; Belfast Co. v. Boyd, 21 L. R. Ir. 560; Mostyn v. Atherton, (1899) 2 Ch. 360; Baily v. Clark, (1902) 1 Ch. 649 (C. A.). See as to the detention of water, Shears v. Wood, 7 Moo. 345; Williams v. Morland, 2 B. & C. 910; 26 R. R. 579; Sampson v. Hoddinott, 1 C. B. N. S. 390. The use of these appliances necessarily to a greater or less degree disturbs and interrupts the natural flow of the current and often injures the proprietor below. But the fact that injury is occasioned to other riparian owners from the construction and use of dams is not decisive of the question whether such use is permissible. Dams may however be so constructed and used as to interfere with the common right of riparian owners and subject the party maintaining them to an action. The party claiming the right to interrupt the natural flow of a watercourse must show that such interruption is consistent with a reasonable exercise of his right as riparian owner (z). Chap. VI. water. Sect. 4. A riparian proprietor has no right to divert any part of the Diversion of water of the stream into a course different from that in which it has been accustomed to flow for any purpose to the prejudice of any other riparian proprietor. The upper of two riparian proprietors on the same stream may divert the water on his own land by an artifical channel, provided he restore it to the natural channel before it leaves his land with reasonable care and prudence and without injury to the lower riparian proprietors. But the diversion by a riparian proprietor of any portion of the stream without returning the water to its natural channel before it leaves his land is an illegal user, if any other riparian proprietor is prejudiced thereby (a). The diversion of water from a stream for the purpose of supplying a neighbouring town with water is not a lawful user of the water (b). So, again, a local authority has no power under sect. 51 of the Public Health Act, 1875, for the purpose of supplying water to its district to alter the flow of water in a stream without the consent in writing of the riparian proprietors lower down the stream, as required by sect. 322 of the Act. By so altering the flow of water the local authority is "injuriously affecting," within the meaning of sect. 332, (z) Bullard v. Saratoga, &c., Co., 32 Sickels (Amer.) 529. See Clinton v. Myers, 7 Amer. R. 376; Dumont v. Kellogg, 18 Amer. R. 105. (a) Luttrel's case, 4 Co. Rep. 86 b; Bealey v. Shaw, 6 East, 208; 8 R. R. 466; Garwood v. Central, &c., Rail way Co., 38 Amer. R. 452; Canfield (b) Swindon Waterworks Co. v. Chap. VI. Stream at the source. Stream flowing from under ground. the common law rights of such riparian proprietors, and will be restrained from so doing, without proof of sensible damage caused thereby (c). As between two riparian proprietors, each is entitled to use one half of the water (d). But the stream itself is indivisible. The stream can be used by each only as an entire stream in its natural channel, and there can be no severance (e). If an island divides the stream so that only a small portion of the stream descends on one side of the island and the residue on the other, the owner of the bank where the greater quantity of water flows is entitled to the use of the whole quantity flowing there, and the owner of the bank where the smaller quantity flows is entitled to no more of the water than naturally runs between his bank and the island, and has no right to place obstructions at the head of the island for the purpose of causing one half of the stream to descend on his side of the river (f). Where a spring of water arises on a man's land, he may, it seems, use it as he does any other property, which is the produce of his estate, without regard to the convenience or advantage of his neighbour, provided that the water is not at its source a watercourse. But if a stream begins to flow at the spring head in a defined channel, the rights incidental to streams of running water attach to it at the source (g). The rights of a riparian proprietor in respect of a natural stream extends to its tributaries or feeders flowing in defined channels or watercourses, but do not extend to water flowing over or soaking through land previous to its arrival at a stream (h). The same principles which apply to natural streams flowing in a defined channel over the surface are also applicable to (c) Roberts v. Gwyrfar District Council, (1899) 2 Ch. 608; and see Mostyn v. Atherton, (1899) 2 Ch. 360. (d) Pratt v. Lamson, 2 Allen (Amer.) 275. (e) Vanderbergh v. Van Bergen, 13 Johns (Amer.) 212; Webb v. Portland Manufacturing Co., 3 Sumn. (Amer.) 189. (f) Crooker v. Bragg, 10 Wend. (Amer.) 260. (g) Dudden v. Guardians of Clutton Union, 1 H. & N. 627; Gaved v. Martyn, 19 C. B. N. S. 732; Bunting v. Hicks, 70 L. T. 455 (C. A.); Mostyn v. Atherton, (1899) 2 Ch. 360. (h) Broadbent v. Ramsbotham, 11 Exch. 617; Lord Blantyre v. Dunn, 10 Dec. of Ct. of Sess., 2nd series, p. 509. streams flowing from under the ground in a distinct and welldefined channel. The right in the latter case is equally a rightex jure naturae, and is incident to the adjacent land as a beneficial adjunct (i). But it seems that the right does not exist in the case of underground water flowing in a defined but unknown channel (j). Chap. VI. Sect. 4. or river. A riparian proprietor has a right to have the water of a Fouling a stream natural stream run through his land in a natural state of purity (). He may maintain an action to restrain the fouling of the water without showing that the fouling is actually injurious to him (1). The pollution or fouling of a stream is a ground of action against a particular person, even although other persons may have so fouled the water, that the acts of the defendant may not have rendered it less applicable to useful purposes than it was before. The damage is an injury to a right, and is therefore actionable (m). The pollution of a clear stream is to a riparian proprietor below both injury and damage, whilst the pollution of a stream already made foul and useless by other pollutions is an injury without damage which would, however, at once become both injury and damage on the cessation of the other pollution (»). The right to affect the quantity, the quality, or the flow of (i) Wood v. Waud, 3 Exch. 748; Dickenson v. Grand Junction Railway Co., 7 Exch. 300, per Pollock, C. B.; Chasemore v. Richards, 7 H. L. C. 384, per Lord Chelmsford; Hodgkinson v. Ennor, 4 B. & S. 229; Grand Junction Canal Co. v. Shugar, 6 Ch. 486; Black v. Bullymena, &c., Commissioners, 17 L. R. I. 459; and see Mostyn v. Atherton, (1899) 2 Ch. 360. (j) Bradford Corporation v. Ferrund, (1902) 2 Ch. 655. (k) Bealey v. Shaw, 6 East, 208 ; 8 R. R. 466; Wright v. Howard, 1 Sim. & St. 190; 24 R. R. 169; Mason v. Hill, 5 B. & A. 1; 39 R. R. 354 ; John Young & Co. v. Bankier Distillery Co., (1893) A. C. 691. See also the Rivers Pollution Pre- (1) Crossley v. Lightowler, 2 Ch. (m) Wood v. Waud, 3 Exch. 748; (n) Pennington v. Brinsop Hal |