Seawall. Wrongful diversion of water into reservoir. Wrongful sufficient for all ordinary occasions) burst in consequence of exceptionally heavy rains, and the water escaped into and accumulated in the hollows and openings, where the rains had already caused an unusual amount of water to collect, and thence, by fissures and cracks, passed into the defendants' and so into the plaintiff's mines. If the land had been in its natural condition, the water would have spread itself over the surface and have been innocuous. The defendants were not guilty of any actual negligence in the management of their mines. At the trial of an action brought by the plaintiff to recover the damage he had sustained, the learned judge directed a verdict for the plaintiff, holding that the case was governed by Fletcher v. Rylands, supra, and that the defendants were absolutely liable; and rejected evidence offered by the defendants that every reasonable precaution had been taken to guard against ordinary emergencies. The Court of Appeal held (reversing the judgment of the Court of Exchequer), that the case was not beyond all question governed by Fletcher v. Rylands; that the water coming from the natural overflow, and that coming from the diversion of the watercourse, might possibly admit of different considerations; that if the evidence tendered had been received, there might have been questions for the jury; and that under all the circumstances there ought to be a new trial; and that the opinion of the jury at such trial ought to be taken as to whether what was done by the defendants was done by them in the ordinary, reasonable, and proper mode of working the mines. The cause having been tried again, and a verdict entered for the plaintiff, leave being reserved to move to have it entered for the defendants, the rule was obtained, argued, and discharged, and the Court of Appeal affirmed that decision. Lately (Weekly Notes, 4th Aug. 1877, p. 196, sub nom. Musgrave v. Smith) the House of Lords affirmed the judgment of the Court of Appeal. See further as to water from one mine being allowed to flow into a neighbouring mine, and so causing damage, West Cumberland Iron and Steel Co. v. Kenyon (Weekly Notes, 11th Aug. 1877, p. 212). As to the liability of frontagers to keep a seawall in repair, see Hudson v. Tabor, L. R., 2 Q. B. D. 290; 46 L. J., Q. B. 463; 36 L. T., N. S. 492. The defendants, a corporation, were empowered, by a local act of parliament, to construct a reservoir for public purposes, and to divert to it the waters of certain rivers and streams, and were required (under penalties) to discharge from the reservoir a certain specified quantity of water per second, for the use of the mills on the river E. The act provided that the defendants should not divert any of the waters of the river E. until the reservoir should be completed and filled, and water discharged therefrom in the quantity provided, and that, except as provided for, the rights of mill-owners should not be prejudiced. The defendants diverted a part of the waters of the river E., but, from engineering difficulties, the reservoir was not completed so as to be capable of being filled with water: held, that the mill-owners on the river E. could not maintain an action for the non-supply of the statutable amount of water from the reservoir, but were confined to an action for damages occasioned by the wrongful diversion of the natural supply before the completion of the reservoir. Waller and another v. Mayor of Manchester, 6 H. & N. 667; 30 L. J., Exch. 293. The Bristol Waterworks Act, 1846, enabled the company to take the taking of water water of the river Chew, subject to certain conditions, and on paying by company. compensation for it. In 1849 their works were completed, and they used the water of the river. In 1853 a subsequent act provided, that "nothing in that act or in the Bristol Waterworks Act, 1846, shall extend to authorize the company to purchase, take, use or interfere with any land, soil or water, or any rights in respect thereof belonging to the Duke of Cornwall, without the consent" of the duke under his privy seal. After the passing of that act, the company continued to take the water of the river as they had done before, since the completion of their works, and thereby diverted a stream which ought to have irrigated certain land 10 & 11 VICT. c. 17. water. belonging to the duke. It was held that the proviso in the Act of 1853 13 L. J., N. S. Exch. 289; and other cases cited post, p. 208. A company undertaking for their own profit to maintain a channel for Banks of for damage done to the adjoining land by reason of the banks giving way. By an award, made by commissioners under an enclosure act, drains In Nield v. The London and North Western Railway Co. (L. R., 10 Damage to Exch. 4; 44 L. J., Exch. 15), the defendants, owners of a canal, being canal by flood threatened by an overflow of flood water from a neighbouring river, and water of river. fearing damage to their premises, situated on the banks of the canal, placed across it, at a point above their premises, planks reaching from The flood water afterwards the bottom of the canal to the coping stone, which was some inches higher than the surface of the canal water. broke into the canal at a point above the barricade of planks, and opposite to the plaintiff's premises, which were also situated on the banks of the canal above the premises of the defendants, and being penned back by the planks, the water rose in the canal until it flooded the plaintiff's premises. In an action brought to recover damages for the injury so caused: held, that the defendants were not liable, on the ground that the water which did the mischief was not brought there by them, and that there is no duty on the owners of a canal analogous to that on the owners of a natural watercourse not to impede the flow of water down it. By parol licence from L. and from the defendant, the plaintiffs con Injuriously affecting lands, &c. structed and used a watercourse for the purpose of discharging the water from their own mines across the land of L., and thence across the land of defendant. The defendant having revoked his licence, and the plaintiffs having refused to discontinue using the watercourse, the defendant entered upon the land of L. at a spot near the boundary between it and the land of the plaintiffs, and obstructed the watercourse. The defendant, by stopping the watercourse on his own land, would have done less damage to the plaintiffs than was actually done, but more damage to L. and possibly some damage to the public: held (affirming the judgment of the court below), that the watercourse was obstructed in a reasonable manner, inasmuch as the convenience of the plaintiffs, who, after revocation of the licence, were wrongdoers, was subordinate to the convenience of innocent third persons and of the public. Roberts v. Rose, L. R., 1 Ex. (Exch. Ch.) 82; 4 H. & C. 103; 35 L. J., Exch. 62; 13 L. T. N. S. 471; 14 W. R. 225; 12 Jur., N. S. 78. As to what constitutes "injuriously affecting," the following cases decided under the Lands Clauses Consolidation Act may be referred to, viz. :-Mortimer v. South Wales Railway Co., 1 E. & E. 375, where the defendants partially diverted water which flowed into the plaintiff's tanyard; Ware v. Regent's Canal Co., 3 De G. & J. 212, where occasional flooding of the plaintiff's lands was caused by works of the defendant properly executed; Little v. Dublin & Drogheda Railway Co., 7 Ir. Law Rep. 82, where the defendants diverted a stream which a farmer used for irrigation and watering his cattle; R. v. Nottingham Old Waterworks Co., 6 A. & E. 355, where the removal of a weir by the defendants impeded the plaintiff's mill, and lessened its value; R. v North Midland Railway Co., 2 Rail. Cas. 1, where the defendants raised the level of a brook into which the sough of a coal-mine had been wont to empty itself, and thereby caused the water of the brook to flow into the sough, and inundate and stop the coal works; R. v. The Commissioners of the Naviga tion of the Thames and Isis, 5 A. & E. 804, where the defendants made a cut in the river, by which barges were enabled to avoid a part of the river on which was an ancient towing path, and so to deprive the owner of the tolls, &c. But in R. v. The Bristol Dock Co., 12 East, 429, it was decided, that the owners of a brewery were not entitled to compensation for loss arising to them in their business from the deterioration of the water of the public river Avon, from which the brewery had been before supplied by means of pipes laid under low-water mark, the use of the water being common to all the king's subjects, and not claimed as an easement to the particular tenement. See also Bush v. Trowbridge Waterworks Co., L. R., 10 Ch. Ap. 459; 44 L. J., Ch. 645; 23 W. R. 641; 33 L. T., N. S. 137; and Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 E. & I. App. 418; Metropolitan Board of Works v. M'Carthy, L. R., 7 E. & I. App. 243. A water company cannot (unless specially authorized by their act) carrying pipes compel a landowner to sell them the mere easement of laying pipes; the through lands. landowner is entitled to insist on their taking the whole land ab infero usque ad cœlum. Companies purposing merely to tunnel underneath land may also be compelled to take the surface as well. See Ramsden v. Manchester, &c. Railway Co., 1 Exch. 723; 5 Rail. Ca. 552; Sparrow v. The Oxford, &c. Railway Co., 2 De G., M. & G. 94, 108 (per Lord Chelmsford); 21 L. J., Ch. 731; MacGregor v. Metropolitan Railway Co., 14 L. T., N. S. 354. But see Simpson v. South Staffordshire Waterworks Co., 34 L. J., Ch. 380; 11 Jur., N. S. 453; 13 W. R. 729. Easement of As to the laying of pipes through streets and land dedicated to public use, see p. 229. The easement of laying pipes through any land not dedicated to public use may, however, be acquired by agreement (see sect. 29, p. 232). When so acquired, the company tacitly acquire also the right to enter upon those lands from time to time as occasion may reasonably require, in order to renew or repair their pipes. Whoever grants a thing is supposed also tacitly to grant that without which the grant itself would be of no effect. 11 Rep. 52. And in Pomfret v. Ricroft, 1 Saund. 321-Twysden, J., observed, "If a man gives me a licence to lay pipes of lead in his land to convey water to my cistern, I may afterwards enter and dig the land to mend the pipes, though the soil belongs to another and not to me." On the same ground, it has been decided in America that the grant of a right to build a dam carries with it a right to enter and repair the dam and cleanse the pond. Fraily v. Waters, 7 Barr, 221; Angell on Watercourses, s. 158. The same principle would necessarily apply in the case of the grant of a right to construct a reservoir. On this subject see also per Lord Ellenborough, C. J., in Hodgson v. Field, 7 East, 622; Hinchcliffe v. Earl of Kinnoul, 5 Bing. N. C. 1; Hall v. Lund, 1 H. & C. 676; 32 L. J., Exch. 113. "Where," says Angell (Watercourses, s. 363), "an easement—as a right to lay aqueduct logs through land-is granted in general terms, without giving definite location and description to it, so that part of the land over which the right is to be exercised cannot be definitely ascertained, the grantee does not thereby acquire a right to use the servient estate without limitation as to the place or mode in which the easement is to be enjoyed. When the right granted has been once exercised in a fixed and definite course, with the full acquiescence and consent of both parties, it cannot be changed at the pleasure of the grantee. If it be admitted that he has the right originally to select the place on which the easement is to be enjoyed, he cannot afterwards alter it. This rule rests on the principle that where the terms of a grant are general or indefinite, so that its construction is uncertain and ambiguous, the acts of the parties, contemporaneous with the grant, giving a practical construction to it, shall be deemed to be a just exposition of the intent of the parties." Inasmuch as the 6th section of the Waterworks Clauses Act, 1845, deals RIGHTS TO not merely with "owners and occupiers" of streams, but refers also to WATER "all other parties interested in any lands or streams taken or used," &c., GENERALLY. some inquiry into the leading decisions regarding water rights naturally suggests itself as desirable, though space for this purpose must neces sarily be limited in a work of this kind. The right to the enjoyment of a natural stream of water on the surface Surface water. belongs ex jure nature to the proprietor of the adjoining land as a natural incident to the right to the soil itself. He has the right to have it come to him in its natural state, in flow, quantity, and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbour's soil for his own in its natural state. And such a right depends in no way upon prescription or the presumed grant of his neighbour, nor from the presumed acquiescence of the proprietors above and below. Chasemore v. Richards, 5 Jur., N. S. 873; 7 H. L. Cas. 349; 7 W. R. 685; 29 L. J., Exch. 81; and (Ex. Ch.) 2 H. & N. 168; 26 L. J., Exch. 393. Flowing water is publici juris in this sense only, that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. Embrey v. Owen, 15 Jur. 633; 20 L. J., Exch. 212; 6 Exch. 353. The right to have a stream of water flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes; but this is not an absolute and exclusive right to the flow of all the water, but only subject to the right of the other riparian proprietors to the reasonable enjoyment of it; and consequently it is only for an unreasonable and unauthorized use of this common benefit that any action will lie. Ibid. But the right of using flowing water does not necessarily depend upon the ownership of the soil covered by such water. Lord v. Sydney (Commissioners), 12 Moore, P. C. C. 473; 7 W. R. 267. A person who has used the water of a river uninterruptedly, though for less than twenty years, gains a title to it by appropriation, and may maintain an action for obstructing it. Canham v. Fisk, 2 C. & J. 126; 2 Tyr. 155. But it has been held that water which squanders itself over an infinite surface is not a proper subject-matter for the acquisition of a right of user. Briscoe v. Drought, 11 Ir. C. Law Rep. 250-Ex. Ch. In a case where the plaintiffs, in common with other inhabitants of a particular district, enjoyed a customary right at all times to have water from a certain spout in a highway in the district for domestic purposes, the defendant, a riparian owner of the stream whereby the spout was supplied with water, on various occasions prevented such large quantities of water from reaching the spout as to render what remained insufficient for the needs of the inhabitants. The plaintiffs had not themselves ever suffered any actual personal damage or inconvenience: held, that an action for diverting the water was maintainable without proof of any actual personal damage, inasmuch as the act of the defendant might, if repeated often enough without interruption, furnish evidence in derogation of the plaintiff's legal rights. Harrop v. Hirst, L. R., 4 Exch. 43; 38 L. J., Exch. 1; 17 W. R. 164; 19 L. T., N. S. 426. In the year 1860, the owner of properties A. and B. made a drain from a tank on property B. to a lower tank on the same property, and laid pipes from the lower tank to cattle sheds on property A., for the purpose of supplying them with water, and they were so supplied till 1863, when the owner sold property A. to the plaintiff, with all waters, watercourses, &c. to the same hereditaments and premises belonging or appertaining, or with the same or any part thereof held, used, enjoyed, or reputed as part thereof, or as appurtenant thereto. The plaintiff had the use of the water after his conveyance until the defendant, a subsequent purchaser of property B., stopped it. Held (reversing the decision of the Master of the Rolls), that the watercourse was a continuous easement necessary for the use of property A., and would have passed by implication; that the plaintiff was entitled to the use of the water on the conveyance of the property, without any words of grant; and that, supposing it only convenient and not necessary, the general words were sufficient to pass it. Held, further, that the right was to have the accustomed flow of water through the pipes, without regard to the purpose for which the plaintiff used it; and that right, therefore, was not lost by his erecting cottages instead of cattle sheds. Watts v. Kelson, L. R., 6 Ch. App. 166; 40 L. J., Ch. 126; 19 W. R. 338; 24 L. T., N. S. 209. A purchaser of a piece of land, with a well or spring upon it, covenanted with the vendor-who retained land adjoining intended to be disposed of for building sites to erect a pump and reservoir, and to supply water from the well to all houses built on the vendor's land: held (1), that both the benefit and the burden of the covenant ran with the land, and that the case was not within the second resolution in Spencer's case; but if not, a sub-purchaser, with notice of the covenant, was bound by it: held (2), that though the covenant was not one of which the court would decree specific performance directly, as being for the construction of works which the court could not superintend, it could be enforced indirectly by an injunction restraining the defendant from allowing the work to remain unperformed. Cooke v. Chilcott, 3 L. R., Ch. Div. 694; 34 L. T., N. S. 207. In a lease of certain premises with appurtenances, the lessor reserved out of the demise "the free running of water and soil coming from any other buildings and lands contiguous to the premises hereby demised in and through the sewers and watercourses made or to be made within, through, or under the said premises: " held, first, that the reservation extended to water and soil coming from contiguous lands and buildings, whether that water and soil in the first instance actually arose on or from such contiguous lands or buildings or not; and, secondly, that it |