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strata to the river Wandle, part rising to the surface, and part finding its way underground in courses which continually vary. The Local Board of Health of Croydon (represented in this action by the defendant), for the purpose of supplying the town of Croydon with water, and for other sanitary purposes, sunk a well in their own land in the town of Croydon, and about a quarter of a mile from the river Wandle, and pumped up large quantities of water from their well for the supply of the town of Croydon; and by means of the well and the pumping the Local Board of Health did divert, abstract, and intercept underground water, but underground water only, that otherwise would have flowed and found its way into the river Wandle, and so to the plaintiff's mill; and the quantity so diverted, abstracted, and intercepted was sufficient to be of sensible value towards the working of the plaintiff's mill.

"The question is, whether the plaintiff can maintain an action against the Local Board of Health for this diversion, abstraction and interception of the underground water.

"The law respecting the right to water flowing in definite, visible channels, may be considered as pretty well settled by several modern decisions, and it is very clearly enunciated in the judgment of the Court of Exchequer in the case of Embrey v. Owen, 6 Exchequer Reports, 369. But the law, as laid down in those cases, is inapplicable to the case of subterranean water not flowing in any definite channel, nor indeed at all, in the ordinary sense, but percolating or oozing through the soil more or less according to the quantity of rain that may chance to fall.

"The inapplicability of the general law respecting rights to water to such a case has been recognized and observed upon by many judges whose opinions are of the greatest weight and authority.

"In the case of Rawstron v. Taylor, 11 Exch. Rep. 382, Baron Parke, in delivering the judgment of the Court, says: "This is the case of common surface water flowing in no definite channel, though contributing to the supply of the plaintiff's mill. The water having no definite course, and the supply not constant, the plaintiff is not entitled to it. The right to have a stream running in its natural direction, does not depend upon a supposed grant, but is jure naturæ.'

"In delivering the judgment of the Court of Exchequer in the subsequent case of Broadbent v. Ramsbottom, 11 Exch. Rep. 615, Baron Alderson observes, that all the water falling from heaven, and shed upon the surface of a hill, at the foot of which a brook runs, must by force of gravity find its way to the bottom, and so to the brook; but this does not prevent the owner of the land on which it falls from dealing with it as he pleases. He cannot do so if the water has arrived at, and is flowing in, some definite channel. There is here no watercourse at all.'

"In the earlier case of Acton v. Blundell, 12 M. & W. 349, the Court of Exchequer were of opinion that the owner of the surface might apply subterranean water as he pleased, and that any inconvenience to his neighbour from so doing was damnum absque injuria, and gave no ground of action.

"There is no case or authority of which I am aware that can be cited in support of the position contended for by the plaintiff, or in which the right to subterranean percolating water adverse to that of the owner of the soil came in question, except the Nisi Prius case of Balston v. Bensted, 1 Campbell, 463, and Dickenson v. The Grand Junction Canal Company, 7 Exchequer Reports, 282.

"In the first of these cases, Lord Ellenborough is reported to have expressed an opinion that twenty years' enjoyment of the use of water in any manner afforded an exclusive presumption of right. This opinion amounted only to the dictum of an eminent judge, followed by no decision upon the point, for the case ended in the withdrawal of a juror, and is directly at variance with the judgment of the Court of Exchequer in the other case, upon which the plaintiff relies, of Dickenson v. The Grand Junction Canal Company, in which the Court held that the right to have a stream running in its natural course is not by a presumed grant from long acquiescence on the part of the riparian proprietors above and below,

but is ex jure naturæ, and an incident of property as much as the right to have the soil itself in its natural state unaltered by the acts of a neighbouring proprietor, who cannot dig so as to deprive it of the support of his land.' "In the case of Dickenson v. Grand Junction Canal Company, the very question now before your Lordships' House arose, and that case is relied upon by the plaintiff as a decisive authority in his favour. The Court of Exchequer was of opinion that the Company, by digging a well and pumping out the water, and so intercepting and diverting underground and percolating water which would otherwise have gone into a stream which flowed to the plaintiff's mill, and was applied to the working of it, had rendered themselves liable to an action for the infringement of a right at common law. In the same judgment, however, the Court refers to the case of Acton v. Blundell, apparently with approbation, and observes 'that the existence and state of underground water is generally unknown before a well is made; and after it is made there is a difficulty in knowing certainly how much, if any, of the water of the well, when the ground was in its natural state, belonged to the owner in right of his property in the soil, and how much belonged to his neighbour;' and then further observes, ⚫ that these practical uncertainties make it very reasonable not to apply the rules which regulate the enjoyment of streams and waters aboveground to subterranean waters." But the Court, without at all adverting to this distinction which it has adopted, treats the case of the underground percolating water as governed by the same rules as would obtain in the case of visible streams and watercourses aboveground; and no remark or comment is made or reason assigned by the Court for arriving at a conclusion which not only does not seem warranted by the premises previously adopted, but is in effect hardly consistent with them. The plaintiff in that case was held to have a cause of action, independently of any infringement of a right at common law by reason of the breach of an agreement between the parties and of an Act of Parliament; and a decision upon the right at common law seems not to have been necessary for determining the suit between the parties. These considerations greatly weaken the effect of the case of Dickenson v. The Grand Junction Canal Company, as an authority against the defendant upon the point now in question, but it is an authority in his favour to show that a right to water is not by a presumed grant from long acquiescence, but, if it exists at all, is jure naturæ, and that the rules of law that regulate the right of parties to the use of water are hardly, or rather not at all, applicable to the case of waters percolating underground.

"In such a case as the present, is any right derived from the use of the water of the river Wandle for upwards of twenty years for working the plaintiff's mill? Any such right against another founded upon length of enjoyment is supposed to have originated in some grant which is presumed from the owner of what is sometimes called the servient tenement. But what grant can be presumed in the case of percolating waters, depending upon the quantity of rain falling or the natural moisture of the soil, and in the absence of any visible means of knowing to what extent, if at all, the enjoyment of the plaintiff's mill would be affected by any water percolating in and out of the defendant's or any other land? The presumption of a grant only arises where the person against whom it is to be raised might have prevented the exercise of the subject of the presumed grant; but how could he prevent or stop the percolation of water? The Court of Exchequer, indeed, in the case of Dickenson v. The Grand Junction Canal Company, expressly repudiates the notion that such a right as that in question can be founded on a presumed grant, but declares that with respect to running water it is jure naturæ. If so, à fortiori, the right, if it exists at all, in the case of subterranean percolating water, is jure naturæ, and not by presumed grant, and the circumstance of the mill being ancient would in that case make no difference.

"The question then is, whether the plaintiff has such a right as he claims jure nature to prevent the defendant sinking a well in his own ground at a distance from the mill, and so absorbing the water percolating in and into his own ground beneath the surface, if such absorption has

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the effect of diminishing the quantity of water which would otherwise find its way into the river Wandle, and by such diminution affects the working of the plaintiff's mill.

"It is impossible to reconcile such a right with the natural and ordinary rights of landowners, or to fix any reasonable limits to the exercise of such a right.

"Such a right as that contended for by the plaintiff would interfere with, if not prevent, the draining of land by the owner. Suppose, as it was put at the bar in argument, a man sunk a well upon his own land, and the amount of percolating water which found its way into it had no sensible effect upon the quantity of water in the river which ran to the plaintiff's mill, no action would be maintainable; but if many landowners sunk wells upon their own lands, and thereby absorbed so much of the percolating water, by the united effects of all the wells, as would sensibly and injuriously diminish the quantity of water in the river though no one well alone would have that effect, could an action be maintained against any one of them, and if any, which, for it is clear that no action could be maintained against them jointly?

"In the course of the argument one of your Lordships (Lord Brougham) adverted to the French artesian well at the Abattoir de Grenelle, which was said to draw part of its supplies from a distance of forty miles, but underground, and as far as is known, from percolating water. In the present case the water which finds its way into the defendant's well is drained from and percolates through an extensive district, but it is impossible to say how much from any part. If the rain which has fallen may not be intercepted whilst it is merely percolating through the soil, no man could safely collect the rainwater as it fell into a pond; nor would he have a right to intercept its fall before it reached the ground, by extensive roofing, from which it might be conveyed to tanks, to the sensible diminution of water which had, before the erection of such impediments, reached the ground and flowed to the plaintiff's mill. In the present case the defendant's well is only a quarter of a mile from the river Wandle; but the question would have been the same if the distance had been ten or twenty or more miles, provided the effect had been to prevent underground percolating water from finding its way into the river, and increasing its quantity, to the detriment of the plaintiff's mill. Such a right as that claimed by the plaintiff is so indefinite and unlimited that, unsupported as it is by any weight of authority, we do not think that it can be well founded, or that the present action is maintainable; and we therefore answer your Lordships' question in the negative.”

With regard to the rights of riparian proprietors the following extracts from the ruling of the Judges in Nuttall v. Bracewell, 15 L. T. (N. s.) 313; 12 Jur. (N. s.) 989 (followed in Holker v. Porritt, 42 L. J. Exch. 85, ante, p. 46), may be added. Per Martin, B.; "It is competent to the owners of adjoining closes abutting on a stream to take water therefrom through a goit from the close of one to the close of the other, returning the water to the stream in the close of the latter. The right to a flow of water through a goit being an incorporeal hereditament, and the subject of property and of grant, cannot be created so as to bind the original grantor and his heirs except by deed; yet actual possession and enjoyment of it under a parol agreement, though conferring no title as against the original grantor and his heirs, gives a right of action against a wrong-doer." Per Bramwell, B.: "As a general rule a man grant estates and rights of enjoyment of his property, and the grantees may maintain an action against those who disturb them. A riparian proprietor, subject to the rights of those opposite and down the stream, may divert the water where it flows by his land, and he may grant the right or mode of enjoyment to another person, and the burden of proof is on those who may say he may not." Distinguishing Hill v. Tupper, 8 L. T. (N. 8.) 792; 32 L. J. Exch. 217; 2 H. & C. 121. Per Channel, B.: "The rights of a riparian proprietor with respect to the stream are limited only by those of persons in a similar and analogous position with respect to the stream as himself; and if, therefore, he grants

may

to a non-riparian a right to abstract water from the stream, the grantee may sue only the grantor for any interference with him. But if two adjoining riparian proprietors agree to divert the stream, so that it shall run in two channels instead of one, the water passing again into the old stream below their land and flowing down to the lower proprietors as before, the case is different: a goit is to all intents and purposes a new stream, and any person having land upon it would have the right of a riparian proprietor to use the water in any way not interfering with others. There is no reason why the law applicable to ordinary running streams should not be applicable to such a stream, for it is a natural stream or flow of water, though flowing in an artificial channel; and that an artificial stream may be on the same footing as a natural one, as regards the rights of riparian proprietors, was held in Sutcliffe v. Booth." 32 L. J. Q. B. 136.

Further, with regard to riparian rights, in Bickett v. Morris, 12 Jur. (N. s.) 803; L. R. 1 H. L. 47; 14 L. T. 835, it was held that riparian proprietors have a common interest in the water of a running stream, and a separate property in the alveus or channel thereof, usque ad medium filum fluminis; but no proprietor may so use his property in the alveus as to affect the interest of ex adverso proprietors in the stream; and in order to entitle a riparian proprietor to relief against building on the alveus, it is not necessary for him to prove that damage to him has been, or is likely to be, caused thereby. In such case the onus of showing that no damage will arise lies on the person making the encroachment. Anything done in alveo which produces no sensible effect on the stream is, however, allowable. Per Lord Chelmsford, L.C.: A riparian proprietor may build a bulwark on his bank ripa munienda causâ, but he must so build as to cause no actual injury to the opposite proprietor; in this case, however, mere apprehension of damage would not be sufficient ground for relief. Per Lord Westbury: The interest of a riparian proprietor in the stream extends not only to the prevention of a diversion or diminution thereof, but to the prevention of any such interference with its course as might possibly be attended with damage at a future period to another proprietor. The general rule is, that even though immediate damage cannot be described, or actual loss predicted, an obstruction to the current of a stream constitutes an injury of which the Courts will take notice as an encroachment which adjacent proprietors have a right to have removed.

By an Act for amalgamating two companies, the amalgamated company were empowered to maintain and keep navigable the united canal, and for that purpose to supply it with water from all springs and streams which had been or should be found within 2000 yards of the canal. Under this power they diverted the water of a stream within the prescribed limits by means of a new channel into the canal. Held (reversing decision of Malins, V.-C.) that the canal company, though they had suffered no present damage, were entitled to an injunction to restrain a waterworks company from diverting the water of the stream so as to cause injury to the navigation of the canal. Wilts and Berks Canal Navigation Company v. Swindon Waterworks Company (Limited). 30 L. T. (N. s. 443); affirmed by the House of Lords, 33 L. T. (N. s.) 513.

An encroachment on the alveus of a running stream may be complained of without the necessity of proving that damage has been sustained, or is likely to be sustained; but where, upon a balance of testimony, it appears that the quantity of water sent on to another's works will not, in all probability, be substantially diminished, in quantity or quality, the Court will not proceed by mandatory injunction, but will leave the plaintiff to his remedy at law, if any. Edleston v. Crossley and Sons (Limited), 18 L. T. (N. s.) 15.

Further, on the same point, see Mason v. Shrewsbury and Hereford Railway Company, L. R. 6. Q. B. 578; 25 L. T. (N. s.) 239, and AttorneyGeneral v. Great Eastern Railway Company, L. R. 6 Ch. App. 572.

A bill was filed to restrain the Barmouth Local Board of Health from abstracting water from a brook called the Ceilant Brook, flowing through the plaintiff's land. The whole ordinary flow of this brook was stated not to exceed 77,000 gallons per day, and in summer it is sometimes

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dry. The defendants having in December, 1873, bought a piece of land on the bank of this brook for the purpose of obtaining the right of water, in April last put a five-inch iron pipe into the brook, capable of conveying to their reservoir 67,000 gallons of water in the 24 hours, and it was admitted that they had been abstracting about seven-eighths of the water without returning any part of it to the brook. The plaintiff is the owner of an ancient mill, now disused, and two cottages lower down the stream, and he insisted that his rights as a riparian owner were being injuriously affected by the acts of the defendants. The Master of the Rolls said that the defence of acquiescence failed, for it had not been shown that the plaintiff in December knew the particulars of what the defendants were about to do, nor even in April would he have been justified in presuming that they were about to do an unlawful act. As a riparian owner, the plaintiff had a right to have the natural flow of water through his land, and to the use of it for all ordinary purposes. It could not be said that he would not sustain sensible damage by the abstraction of seven-eighths of the water. But his Honour need not enter into that question, for the Local Board had only the ordinary_rights of a riparian owner, and according to a recent case (Wilts and Berks Canal Navigation Company v. Swindon Waterworks Company, supra, p. 51) the diversion of the water of a stream for the purpose of sending it in large quantities to a reservoir to supply a town is not within those rights. As the defendants were diverting water for a purpose which was not legal, actual pecuniary damage was not necessary to give a right of action or suit. He could not make it a question of damages, however much he might personally wish to do so, having regard to the inconvenience to which the people of Barmouth might be subjected in consequence of his granting an injunction. The defendants must be restrained from abstracting or diverting water from the brook so as to injuriously affect the supply of water flowing through the plaintiff's land, and they must pay the costs of the suit. But the injunction would be suspended until the second motion day in the Michaelmas sittings in order to enable the defendants, if they could not come to terms with the plaintiff, to obtain water elsewhere. Owen v. Davies; Times, 25 July, 1874.

A person against whom an injunction is prayed to restrain him from diverting a watercourse, has a right to have the alleged right of the party who seeks to divert the watercourse established by means of an action at law; but 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.

The inhabitants of a certain district were entitled by custom to the flow of water from a certain spring to a spout in the public highway, and to take water therefrom to use for domestic purposes. The defendant, a proprietor of land through which the water flowed from the spring to the spout, abstracted and diverted the water on divers occasions so as substantially and sensibly to diminish the flow of water to the spout. The plaintiffs, being inhabitants of a house within the district, brought an action against the defendant for wrongfully obstructing the flow of water. It appeared that many of the inhabitants had been put to inconvenience on divers occasions by failing to find water on going to the spout, while the flow was so diminished; the Jury found that the plaintiffs had not personally suffered any actual inconvenience or damage by want of water; but it was held on a rule nisi to enter a nonsuit that the plaintiff's could maintain the action without having suffered actual damage individually, for the act of defendant if continued would be evidence of a right existing in him in derogation of the rights of the inhabitants of the district among the number of whom were the plaintiffs. Harrop and Another v. Hirst, 19 L. T. (N. 8.) 426; L. R. 4 Exch. 43; 34 L. J. Exch. 1.

Surface water.-A landowner has a right to appropriate surface water which flows over his land in no definite channel, although the water is thereby prevented from reaching a watercourse which it previously_supplied. Broadbent v. Ramsbottom, 11 Exch. Rep. 602; 25 L. J. Exch.