10 & 11 VICT. c. 17. did not extend beyond water in its natural condition, and such matters as are the product of the ordinary use of land for habitation, and that therefore it did not give to the occupier of certain tan-pits, who claimed under the lessor, a right of passage for the refuse of those pits. Chadwick v. Marsden, L. R., 2 Exch. 285; 36 L. J., Exch. 177; 15 W. R. 964; 16 L. T., N. S. 666. A watercourse, though artificial, may have been originally made under such circumstances and have been so used as to give all the rights that the riparian proprietors would have had if it had been a natural stream; and, therefore, in an action by one riparian proprietor against another for the pollution and diversion of a watercourse, it was held a misdirection to tell the jury that, if the stream were artificial and made by the hand of man, the plaintiff could have no cause of action. Sutcliffe v. See Ennor v. Barwell, 2 Giff. 410; and (on Booth, 32 L. J., Q. B. 136. appeal) 1 De G., F. & J. 529; 4 L. T., N. S. 597, and also Beeston v. Weate, 5 El. & Bl. 986; 25 L. J., Q. B. 115; 2 Jur., N. S. 540. Water, as it issues from a well or a spring, is not to be considered as produce of the soil, so as to make the right to take it in alieno solo for domestic purposes a profit à prendre. Such right is an easement only, and Race v. Ward, 4 El. & Bl. 702; 24 L. J., may be claimed by custom. Q. B. 153; 3 C. L. R. 744; 1 Jur., N. S. 704. It was held in Greatrex v. Hayward (8 Exch. 291; 22 L. J., Exch. 137), that the flow of water from a drain, for the purpose of agricultural improvements, for twenty years, could not give a right to a neighbour, so as to preclude the proprietor from altering the level of his drain for the improvement of his land. An owner of land has an unqualified right to drain it for agricultural purposes in order to get rid of mere surface water, the supply of the water being casual, and its flow following no regular or definite course; and a neighbour cannot complain that he is thereby deprived of the water so drained. Therefore, where the defendant's land was a wet, springy spot, at which, at most seasons of the year, some water rose to the surface and flowed down the slope of the land: in wet seasons a great body of water flowed down, and after a long drought there was scarcely There was no regularly-formed ditch or any, and sometimes none. channel for the water, the place where it flowed being constantly trodden in with cattle. The water which was not absorbed (and all was not absorbed, except in times of drought) ran into an old watercourse of the plaintiff. The water had so flowed for more than twenty years. The defendant, for the purpose of supplying some of his property with water and draining his land, diverted the water in question from the plaintiff's reservoir. At a certain other spot in the defendant's land there had always been, as far back as anyone could recollect, water rising to the surface; there had generally been a regular drinking place for cattle, formed with stones, and the overflow of the water went down a ditch and thence into a watercourse to the plaintiff's reservoir. The defendant carried a drain under the spot in question, and conveyed away the water to another portion of his property, so that the water ceased to rise to the surface and flow into the plaintiff's reservoir: held, that in neither case Raustron v. Taylor, was the plaintiff entitled to the benefit of the flow of the water, and that the defendant was not liable for the diversion. 11 Exch. 369; 25 L. J., Exch. 33. For more than twenty years before the Riparian and other neighbouring proprietors. domestic, or agricultural purposes any water flowing from or through the contiguous lands of the defendant unto and into Gin Bank, returning the surplus, or so much as remained after being used for the purposes aforesaid, into its usual channel at a certain point, so that the water should not be diverted from its present course, but be allowed to flow into the Gin Bank. The defendant diverted into a lock-up well water which arose on his land contiguous to Gin Bank, and which had been accustomed to flow along the old drain unto the ancient watercourse into Gin Bank, and caused the water to be conveyed from the well to a lower part of his land, to be there used by his tenants. The water so conveyed away was used for domestic, agricultural, &c. purposes, but some of it could not be returned to the point at Gin Bank: held, that the defendant was liable to the plaintiff in respect of the permanent diversion of the water by him. Ibid. Power given to a canal company by their act of incorporation to supply the canal with water from all brooks, streams and watercourses within 1,000 yards of the canal, does not so far comprise rain and other surface water which, being collected on the road, ran along an open gutter into the canal, as to preclude a local board of health from allowing it to fall through gratings into a sewer which they had made under the road for the drainage of the district. Manchester, Sheffield and Lincolnshire Railway Co. v. Worksop Local Board of Health, 26 L. J., Ch. 345. A defendant, against whom an injunction is prayed to be restrained from diverting a watercourse, has a right to have the alleged right of the plaintiff established by means of an action at law. The court will not grant such an injunction in the meantime, where the balance of convenience or inconvenience in the attendant circumstances would be against the defendant's right to do the thing sought to be restrained. William v. Heath, 1 L. T., N. S. 267. "When the boundary of two properties passes along or over a stream or piece of water, it is taken prima facie to coincide with the medium filum of the stream, or the diameter of the pool; although, of course, it may be proved expressly to have some other direction. If a river be divided into two courses by an island in its middle, the medium filum for boundary purposes is that which bisects the island; but if the island be nearer one side than the other no account is taken of the smaller branch; the other alone represents the whole river, and its medium filum constitutes the prima facie line of proprietary division." Phear on Rights of Water, p. 1. This may be rebutted; but, generally speaking, "an imaginary line running through the middle of the stream is the boundary, just as, if a road separates two properties, the ownership of the road belongs half-way to one and half-way to the other. It may be rebutted; but if not rebutted that is the legal presumption." Per Lord Cranworth (L. C.) in Wishart v. Wylie, 1 Macq. H. L. Cas. 389. Lord Where one riparian proprietor had erected a permanent building in the channel of a stream, the House of Lords held that the opposite riparian proprietor might maintain an action against him without proving actual damage. Bickett v. Morris, L. R., 1 H. of L. Sc. & D. App. 47. Cranworth in that case remarked, that "by the law of Scotland, as by the law of England, where the lands of two conterminous proprietors are separated from each other by a running stream of water, each proprietor is prima facie owner of the soil of the alveus or bed of the river, ad medium filum aquæ. The soil of the alveus is not the common property of the two proprietors, but the share of each belongs to him in severalty, so that, if from any cause the course of the stream should be permanently diverted, the proprietors on either side of the old channel would have a right to use the soil of the alveus, each of them up to what was medium filum aquæ, in the same way as they were entitled to the adjoining land. The appellant contended that, as a consequence, every riparian proprietor is at liberty at his pleasure to erect buildings on his share of the alveus, so long as the other proprietor cannot show that damage is thereby occasioned or likely to be occasioned to him. I do not think that this is a true definition of the law." See Edleston v. Crossley & Sons (Limited), 18 L. T., N. S. 15. The maxim is Sic utere tuo ut alienum non lædas; and, therefore, no proprietor has a right to use the water to the prejudice of another. Nor may he use it for any purpose inconsistent with similar enjoyment in the owners above and below. Mason v. Hill, 2 N. & M. 747; 5 B. & Ad. 1, and 3 B. & Ad. 204; and see also Wright v. Howard, 1 Sim. & Stu. 190; Wood v. Waud, 3 Exch. 748; 18 L. J., Exch. 305; Sampson v. Hoddinott, 1 C. B., N. S. 590; 26 L. J., C. P. 148. "It is wholly immaterial whether the party be a proprietor above or below in the course of the river, the right being common to all the proprietors on the river; no one has a right to diminish the quantity which will, according to the natural current, flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all." Per Mr. Justice Story, in Tyler v. Wilkinson, 4 Mason, U. S. R. 397. And see Gale on Easements, 5th ed., p. 220. Lord Kingsdown, in Miner v. Gilmour, 12 Moore, P. C. C. 131, 156, in the course of his judgment, observed: 'By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of the water flowing past his land; for instance, the reasonable use of the water for his domestic purposes and for his cattle, and this without regard to the effect which such use may have in case of deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided that he does not thereby interfere with the rights of other proprietors either above or below him. Subject to this condition, he may dam up for the purpose of a mill or divert the water for the purpose of irrigation; but he has no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury." This statement of the law is thus referred to by Martin, B., in Nuttall v. Bracewell, (L. R., 2 Exch., at p. 9): "The law has been supposed to be well settled and, in my opinion, is nowhere more clearly stated than by Lord Kingsdown in Miner v. Gilmour." In that case the plaintiff was the lessee of a mill situated on riparian land. A., through whom he derived title, had, in 1840, under a written agreement with the adjoining higher riparian owner, and subject to an annual payment, constructed a goit on the higher owner's land, intercepting the water of the stream at a weir in that land, and bringing it thence to his mill. The flow of the water through this goit had ever since been enjoyed by the mill-owner and used for the purpose of working the mill; and the annual acknowledgment had been paid. The defendant, a riparian owner above the weir and also a mill-owner, intercepted the water of the stream for the purposes of his mill, and the plaintiff sued for damages. The Court of Exchequer held that he was entitled to recover. A company which purchases the land of a riparian owner stands in the same situation as he did with respect to the water rights connected with that land. A canal company was established by act of parliament, and had parliamentary power to take water from streams within the distance of 2,000 yards, for the purpose of making and maintaining their canal. They purchased a mill on a stream from which they had the right to take water. They thus became riparian owners, and as such they were entitled to the flow of water from brooks and streams running into that stream, subject only to the rights which other riparian owners at the upper part of the stream might lawfully exercise. The directors of a waterworks company purchased a mill on the upper part of the same stream, and so became riparian owners as the owner of that mill had been. They not only used the water for the purposes and in the manner allowed by law to every riparian owner, but collected it into a permanent reservoir for the supply of an adjacent town, and claimed such user of it as their legal right. It was held, however (Swindon Waterworks Co. v. Wilts and Berks Canal Co., L. R., 9 Ch. App. 451; 30 L. T., N. S. 443; affirmed L. R., 7 E. & I. App. 697), that this use of the water by the directors of the waterworks company was not a reasonable use of the stream such as could justifiably be made by an upper riparian owner, and that the canal proprietors, who were also riparian owners, whose flow of water was thereby affected, were entitled to obtain an injunction to restrain such use of the water. There is no distinction between the position of a riparian owner of land abutting on a tidal and that of an owner of land abutting on a nontidal stream, as far as regards right of access from the stream to his own land and vice versa. Such right of access is a private right distinct from the right of navigating the stream, which is common to the riparian owner and the rest of the public. Such right is not to be interfered with by a licence to embank under section 53 of the Thames Conservancy Act, 1857 (20 & 21 Vict. c. 147), but is protected by section 179 of that act. Lyon v. Fishmongers' Co., 46 L. J., Ch. Div. 68; L. R., 1 App. Cas. 662; 35 L. T., N. S. 569. A., having a prescriptive right to a flow of water led by means of a gutter laid in a millstream at a point where an ancient weir was erected, lengthened the gutter for the purpose of irrigating more land. The flow of water down C.'s millstream was diminished, and he, in consequence, pulled down the ancient weir, which prevented the water from flowing down A.'s gutter: held, that no suspension of his right to the enjoyment of the flow of water as it had formerly existed was caused by his having become a wrongdoer, and C. was not justified in stopping the excessive user by means which altogether prevented A.'s enjoyment of the water, but only in stopping it by the least injurious means in his power. Hill v. Cock, 26 L. T., N. S. 185. Where the defendants, who were justices of the peace for the county, and also on the committee of visitors of the county gaol, took, by means of pipes and machinery, water from a navigable river, over which the plaintiffs had the control, under 17 Car. 2, c. 11, and 13 Geo. 2, c. 26, for the purposes of the gaol, without the permission of the plaintiffs: held, that, upon the true construction of the 13 Geo. 2, c. 26, s. 2, the plaintiffs had not such a limited right in the river as a private grant of the river might have conveyed, but that it created such a property and interest in the water which was interfered with by the abstraction of it for the purposes to which it was applied by the defendants, which purposes were more extensive than those for which a riparian proprietor could insist on appropriating a stream as it passed his land, and that it was not necessary that there should be an actual damage to the navigation, because the legislature intended to give the company such an interest in all the water of the river for the purposes of navigation as was interfered with by the abstraction of any part thereof. The Proprietors of the Medway Navigation v. The Earl of Romney, 4 L. T., N. S. 87; 9 C. B., N. S. 575; 30 L. J., C. P. 236; 7 Jur., N. S. 846. If the owner of land adjoining a stream has once appropriated the water to a beneficial purpose, he may maintain an action against any person diverting it from its usual course, though such diversion be the continuation of an act done previous to that beneficial appropriation on his part, provided such diversion has not continued for a sufficient length of time to confer an easement. Mason v. Hill, 3 B. & Ad. 304; 5 B. & Ad. 1; 2 Nev. & M. 747. A. erected a mill in 1823 on his own land, the former owner of which had for twenty years before 1818 appropriated the water of a stream running through it to the purposes of watering his cattle and irrigating his land. In 1818, B. had erected a mill near the same stream, and the owner and occupier of A.'s land then gave a parol licence to B. to make a dam at a particular spot, and take what water he pleased from that point, which water was so taken, and returned by pipes into the stream above the spot where A.'s mill was afterwards erected. In 1818, B., without licence, conveyed part of the water which had before flowed into the stream from certain springs, into a reservoir, for the use of his mill. In 1828, A. appropriated to the use of his mill all the surplus water which flowed through and over the dam, and which was not conducted into the reservoir. In 1829, A. demolished the dam erected by B., and gave him a notice not to divert the water. B. then erected a new dam lower down the stream, and by means of it diverted from A.'s mills, at some times, all the water before appropriated by A., at others, a part of it, and the water, when returned into the stream, was in a heated state: held, on special verdict: first, that whether the right to the use of flowing water be in the first occupant, or in the possessor of the land through which it flows, A. was entitled to the surplus water, for he was first occupant of that, and also owner and occupier of the land through which it flowed, and might maintain an action for the injury sustained by the abstraction or spoiling of such surplus water: secondly, that A. was in like manner entitled to recover in respect of the water diverted by B. at his new dam; because the licence granted to B. by the former occupier was to take the water at one particular point, and not at the place where this dam was made: and, further, because if the licence had been general to take at any place, it would have been revocable, except as to such places where it had been acted on, and expense incurred; and it was revoked before the last dam was erected: thirdly, that A. was entitled to recover for the water diverted from the springs, and collected in a reservoir in 1818; for the possessor of land, through which a natural stream flows, has a right to the advantage of that stream, flowing in its natural course, and to use it when he pleases for his own purposes, no adverse right having been acquired by actual grant, or by twenty years' enjoyment. Whether such possessor of land can maintain an action for the mere violation of such general right, by diversion of the water, &c., without having sustained any special injury, quære. Mason v. Hill, supra. Where a man has exclusive right to the water of a stream, and by directing it to a mill increases its usefulness, any person obstructing the flow of water is liable for the full damage sustained, although such damage is increased by the use to which the water has been so put; and although the person putting it to that use has obtained no prescriptive right so to use it. Holker v. Porritt, L. R., 8 Exch. 107; 42 L. J., Exch. 85; 21 W. R. 414; affirmed on appeal, L. R., 10 Exch. 59; 44 L. J., Exch. 52; 23 W. R. 400; 33 L. T., N. S. 125. A riparian proprietor cannot keep the land abutting on a river, the possession of which gives him his water rights, and at the same time, by granting a part of that land which does not abut on the river, transfer those rights, or any of them, and thus create a right in gross, by assigning a portion of his rights appurtenant. The rights which a riparian proprietor has with respect to the water are entirely derived from possession of land abutting on the river. If he grants away any portion of his land so abutting, the grantee becomes a riparian proprietor and has similar rights; but if he gives away a portion of his estate not abutting on the river, then the grantee of the land would have no water rights by virtue merely of his occupation, nor can he have them by express grant, except as against the grantor, so as to sue other persons in his own name for an infringement of them. Bramwell, B., dissentiente. Stockport Waterworks v. Potter and others, 10 L. T., N. S. 748; 3 H. & C. 300. This case was particularly considered in Nuttall v. Bracewell, L. R., 2 Exch. 1; 4 H. & C. 714; 36 L. J., Exch. 1, cited supra, p. 203. Before 1800, a canal company, under powers of an act of parliament, diverted, for the purposes of the canal, a considerable part of the water |