of his mining operations, or by a landowner from his drainage works, will give no right to a neighbour below who has enjoyed the benefit of the water, so as to preclude the mine owner from ceasing to pump out his mine after the ore shall have been exhausted, or from sending the water off in a different direction, or the landowner from altering the course or level of his drains (). As between intermediate proprietors below the one by whom the artificial watercourse is created or caused to flow, the upper one may at first intercept the water, but after twenty years' use the lower proprietor gains a right to the flow as against the upper one (m). Chap. VI. Sect. 4. courses. The circumstances, however, under which an artificial water- Artificial watercourse has been made, and the manner in which it has been used, may be such as to give the proprietors of land adjacent all the rights which they would have been entitled to claim as riparian proprietors, had it been a natural stream (n). If it appear that the stream was originally intended to have a permanent flow, or to be of a permanent character, or if the party by whom, or in whose behalf it was caused to flow can be shown to have abandoned permanently the works by which the flow was caused without intention to resume them, and to have given up all right to and control over the stream, such stream may become subject to the law of prescription, and the other laws relating to natural streams (o). Nor does a natural stream cease to be so by reason of its flowing for a part of its course over an artificial bed (p). (1) Arkwright v. Gell, 5 M. & W. 203; 52 R. R. 671; Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Exch. 291; Rawstron v. Taylor, 11 Exch. 369. (m) Arkwright v. Gell, 5 M. & W. 203; 52 R. R. 671; Wood v. Waud, 3 Exch. 748; Briscoe v. Drought, 11 Ir. C. L. 250. (n) Magor v. Chadwick, 11 A. & E. 571; Wood v. Waud, 3 Exch. 748; Sutcliffe v. Booth, 32 L. J. Q. B. 136; Nuttall v. Bracewell, L. R. 2 Exch. 1; Rameshur, &c., Singh v. Koonig, 4 A. C. 121; Roberts (0) Gaved v. Martyn, 19 C. B. N. (p) Beeston v. Weute, 5 E. & B. Chap. VI. It is impossible, however, to create a new burden that is something short of an easement, that is to say, an easement which shall be enjoyed nec per vim, nec clam, sed precario (q). Where a right to an artificial watercourse is claimed by prescription, it is necessary to consider whether the watercourse was made for a permanent, or only a temporary purpose. If it was made for a temporary purpose, the enjoyment would be precarious, and prescription would not apply. The expression a temporary purpose," within the meaning of the rule, is not confined to a purpose which happens to last in fact for only a few years, but includes a purpose which is temporary in the sense that it may within the reasonable contemplation of the parties come to an end (r). 66 The rule that the purpose for which the waters of an artificial watercourse have been collected or caused to flow, is to be regarded in determining whether rights or interests can be acquired in them by other persons than those who collected them or caused them to flow, applies with still greater force to the waters of canals than to artificial watercourses of an ordinary character (s). A canal company having a duty imposed on it by the legislature to keep open the canal, the legislature must be taken at least prima facie to have intended that the powers and control over the waters of the canal should be vested in the company (t). A canal company which has enjoyed for a number of years the flow of the surplus waters of another canal lying on a higher level, has no right to insist on the continuance of the flow (u). Nor can the water of a canal be abstracted by the adjacent proprietors, without the consent of the company (r). In Attorney-General 986; Briscoe v. Drought, 11 Ir. C. L. (q) Per Farwell, J., (1901) 2 Ch. 511. (r) Burrows v. Lang, (1901) 2 Ch. 302, 508. (8) Staffordshire and Worcestershire Canal Co. v. Birmingham Canal Co., 1 L. R. H. L. 254. (t) Ib. (u) Ib. See Att.-Gen. v. Corporation of Plymouth, 9 Beav. 67. (x) Rochdale Canal Co. v. King, 14 Q. B. 122; Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Swindon Waterworks Co. v. Wilts and Berks Canal, &c., Co., 7 L. R. H. L. 697. v. Great Eastern Railway Co. (y), a railway company was restrained from taking a large quantity of water for the use of their stations, from a river under the control of conservators, credit being given to the evidence on their part that taking the water would impede the navigation against the evidence on the part of the company that taking such water would produce no appreciable injury. The fouling of the water of an artificial watercourse is a species of injury which does not stand upon the same footing as the abstraction of it. Neither the party who originates the watercourse, nor the upper proprietors, nor the intermediate owners, may pollute the stream, so as to cast a greater burden on the proprietors below (z). The right, however, may be acquired by long use (a). ¡Chap. VI. Sect. 4 The principles which apply to water flowing in a known and Surface-water. defined channel do not apply to water of a temporary and casual character, which does not flow in a regular channel, or has no certain course, but which merely squanders itself over the surface of land (b). Water of this character may be drained away or appropriated before it reaches any defined channel of water (c). course and water character. As distinguished from water of a casual and temporary Distinction character, a watercourse is a flow of water usually flowing in between a watera certain direction, and by a regular channel, having a bed, of a casual banks, and sides, and possessing that unity of character by which the flow on one man's land can be identified with that on the land of his neighbour (d). It is not requisite that the (y) 6 Ch. 572. (z) Magor v. Chadwick, 11 A. & E. 571; Wood v. Waud, 3 Exch. 748; Blackburne v. Somers, 5 L. R. I. 7; Baily v. Clark, (1902) 1 Ch. 649 (C. A.). (a) Magor v. Chadwick, 11 A. & E. 571; Wood v. Waud, 3 Exch. 748; Baily v. Clark, (1902) 1 Ch. 649 (C. A.). (b) Broadbent v. Ramsbotham, 11 Exch. 602; Chasemore v. Richards, 7 H. L. 349; Bradford Corporation Pickles, (1895) A. C. 587. V. K.I. (c) Ib.; Rawstron v. Taylor, 11 Exch. 375. See Manchester, Sheffield, and Lincolnshire Railway Co. v. Worksop Board of Health, 23 Beav. 198; Holker v. Porritt, L. R. 10 Ex. 61; M'Nab v. Robertson, (1897) A. C. 129. As to whether there is a right to drain underground water where the effect would be to cause a neighbour's land to subside, see Jordeson v. Sutton, &c., Gas Co., (1899) 2 Ch. pp. 239, 242, 243. (d) Briscoe v. Drought, 11 Ir. C. L. 271, per Christian, J. See Rex v. 13 Chap. VI. Subterranean percolating water. stream should flow continuously: it may be dry at times, but it must have a well-defined and substantial existence (e). Water, though it may squander itself in flood-time over the surface, may nevertheless flow in a defined channel (f). So also water, though owing to the level character of the land it may spread out over a wide space without any apparent banks, still continues to be a watercourse, if it usually flows in a continuous current and passes over the surface to the land below (g). The same principles which apply to water of a casual and temporary character which squanders itself over the surface, are equally, if not more strongly, applicable to subterraneous water of the same casual and undefined description, which does not flow in a well-defined and known (gg) channel, but merely percolates or oozes through the soil more or less according to the quantity of rain that may chance to fall. A man may by operations on his own soil, or in the execution of works which he is authorised to make, intercept, drain away, and appropriate as much of such water as he pleases, notwithstanding the effect may be not only to prevent it reaching his neighbour's land, but even to cause the water already collected there in wells and ponds to percolate away, so as to leave his neighbour's land dry (h). The right which a man has to divert or appropriate percolating water within his own land so as to deprive his neighbour of such water is the same whether his motive is bonâ fide to improve his own land, or maliciously to injure his neighbour, or to induce his neighbour to buy him out (i). But he may Inhabitants of Oxfordshire, 1 B. & A. (e) Luther v. Winnisimmet Co., 9 (f) Briscoe v. Drought, 11 Ir. C. L. 250. See Gibbs v. Williams, 37 Amer. R. 241. (g) Macomber v. Godfrey, 11 Amer. R. 349. (gg) See Bradford Corporation v. Ferrand, (1902) 2 Ch. 655 (C. A.). (h) Acton v. Blundell, 12 M. & W. 324; Chasemore v. Richards, 7 H. L. C. 349; New River Co. v. Johnson, 2 El. & El. 435; Queen v. Metropolitan Board of Works, 3 B. & S. 710; Ewart v. Belfast Poor Law Guardians, 9 L. R. I. 180; Lybe's Appeal, 51 Amer. R. 543. (i) Bradford Corporation v. Pickles, (1895) 1 Ch. 145, (1895) A. C. 587. Cf. Allen v. Flood, (1898) A. C. 1. Chap. VI. water. not draw off the water flowing underground in a certain and well-defined channel through his neighbour's land. If he cannot get at the underground water without touching the water in a known (j) and defined channel, he cannot get it at all (k). The case is different where polluted water penetrates into Pollution of percolating the earth on one man's land, and percolates through to the wells and springs of his neighbour. Though water percolating in the soil is a common reservoir or source which any landowner may intercept and appropriate, but in which no landowner has any property, no landowner has a right by any operations on his land to contaminate this common reservoir or source. Every owner of land under which such water percolates has a right to have it in its natural condition, and no one is entitled to interfere with that right by polluting that common source. A landowner has a right to draw up the water lying under his land in its natural condition, and may in the exercise of that natural right use pumps or other appliances for the purpose (1). In a case accordingly, where the plaintiff and the defendant had each a well on his land, and the defendant turned sewage into his well, which percolating through the soil polluted the water which the plaintiff pumped up from his well, an injunction was granted restraining the defendant from thus polluting the water which formed the supply of the plaintiff's well (m). When land is so located that water naturally or in the course Drainage. of ordinary agricultural operations, such as by deep ploughing, descends from the estate of the superior proprietor to the inferior estate, the owner of the latter cannot do anything to prevent the course of such water. If he build a wall at the upper part of his estate so as to prevent the water from descending on it, whereby the land above is damaged, there is an actionable injury. The owner of land lying on a lower level is subject to the burden of receiving water which drains naturally or in the course of ordinary agricultural operations, 217 (C. A.). () See Bradford Corporation V. Ferrand, (1902) 2 Ch. 655 (C. A.). (k) Grand Junction Canal Co. v. Shugar, 6 Ch. 486; Jordeson v. Sutton, &c., Gas Co., (1899) 2 Ch. (1) Ballard v. Tomlinson, 29 C. |