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be extinct by a unity of possession, as common appendant, to arable land, for cattle of the plough, and because appendant unto ancient arable land, (S) Hyde and Gaigne, to be only for cattle, (S) chivalls et beofes, for to plough the land, and for kine, and sheep, for to compester the land.
As to the case of ways, if they are private ways, they are extinct by a unity of possession, but not so, if they be ways of necessity; as to the church or to the market; and so was Popham's opinion in his time, upon this difference, where a way shall be extinct, and where not, by a unity of possession. The case of the watercourse is upon the like reason.
11 H. 7, fol. 25. A notable case there of the gutter, the reason there given, because matter of necessity, where one had a gutter running within the tenement of another; both purchase the tenement, the gutter remains, not extinct, this being as necessary as it was before.
2. Another reason may be drawn from the nature of water, the which will naturally descend, and will make a way for its passage, if stopped ; it is not possible to have such to be extinct by a unity of possession.
Coke, 4 pars. Luttrell's Case, of the Mill, and the Case of the Dyehouse, no mill nor dye-house can subsist without water.
Crew, C. J., agreed herein, that this watercourse is not extinct by the unity of possession ; this case differs from the case of the way, and common appendant.
Coke, 4, pars. fol. 38, in Tirringham's Case. 3. Resolved, that a common appendant is extinct by a unity of possession ; and so it is, of every profit which one bath out of land, and so is 24 E. 3, fol. 25.
The whole court agreed in the principal case, that the watercourse was not extinct by the unity of possession; and accordingly by the rule of the court (the defendant's plea in bar being not good),
Judgment was given for the plaintif!
[Reported 1 Salk. 360.) In an action on the case the plaintiff declared, that he was possessed of a messuage, and in a cellar, part thereof, was wont to lay coals, beer, &c. : That the cellar joined to the defendant's messuage ; and by a wall which the defendant debuit reparare was separated and defended from the defendant's privy, and that for want of repairing this wall, fredidates & sordida suricæ prædict. in cellarium ipsius que. fluebant, dc
. There was judgment by default, and damages upon the writ of inquiry : And, upon a motion in arrest of judgment, Holt, C. J., was at first of opinion, that, the defendant being a tertenant, the plaintiff
1 s. C. sub nom. Sury v. Pigot, Pop. 166, at greater length.
could not put a charge upon him without showing a special title. Upon this it was afterwards argued, that there have been cases where the plaintiff has, by a de jure debuit & consuevit, charged the defendant even where a tertenant. Sands and Trefuses, 1 Cro. 575. In the case of a watercourse, 3 Lev. 266. In the case of a way, 1 Lut. 119. And that it is not necessary in any case for the plaintiff to show a title where the defendant is liable of common right. Thus it is not requisite in an assize for a rent-service, or for common appurtenant to make title even against the tertenant; aliter of an assize for a rent-charge or common in gross, unless the assize be against the pernor of the profits. 32 H. 6, 15 a, 35 H. 6, 7 b. So of all charges by act in law, as against a parish for not repairing a highway; otherwise if against a private person : That the flowing of this filth was an actual trespass, like the case of 6 E. 4, 7.; Fitz. Tres. 110: And that every man ought to use and keep his own, so as not to damnify his neighbor. That one man might compel another to repair his house, in several cases. Two joint-tenants of a house, one may have a writ de reparatione facienda against the other; and the writ supposes quod ad reparationem & sustentationem domus tenetur : Aliter of a wood and fence; Mo. 374; 11 Co. 82 b; 2 Inst. 403 ; Reg. 153 b; F. N. B. 127. So if H. has a house near another's, which he will not repair, a writ de domo reparanda lies, and supposes quod reparare debet. Note: The writ is good without solet ; Reg. 153 b, F. N. B. 127 c, d ; Reg. 153 b; 1 Inst. 56 b. One man has the upper part of a house, another the lower; Kelw. 98 b. Towards the end of the term, the Chief Justice called for the postea, and gave judgment for the plaintiff. He did not approve of the case in Kelw. 98 b, and thought the writ in F. N. B. 127 b, must be founded upon the particular custom of places. The reason he gave for his judgment in the principal case was, because it was the defendant's wall and the defendant's filth, and he was bound of common right to keep his wall so as his filth might not damnify his neighbor; and that it was a trespass on his neighbor, as if his beasts should escape, or one should make a great heap on the border of his ground, and it should tumble and roll down upon his neighbor's. That the case might indeed possibly be such, that the defendant might not be bound to repair ; as if the plaintiff made a new cellar under the defendant's old privy, or in a vacant piece of ground which lay next the old privy before, in such case the plaintiff must defend himself: But that cannot be the case here, for then he could not be bound to repair; and upon the words debet reparare, he must be acquitted upon the trial. But, on the other side, if A. has two houses, and the house of office on the one is contiguous to the cellar of the other, but defended by a wall, and he sells this house with the house of office, the vendee must repair the wall; so if he keeps this and sells the other, he himself must repair the wall of the house of office; for he whose dirt it is must keep it that it may not trespass. Salkeld pro quer. Southouse pro def.1
1 See Ballard v. Tomlinson, 29 Ch. Div. 115.
DECLARATION stated, that the plaintiff, before the committing of the grievances thereinafter mentioned, was lawfully possessed of a messuage or dwelling-house, lands, and premises, with the appurtenances, and by reason thereof of right ought to have had and enjoyed, and still of right ought to have and enjoy, the benefit and advantage of the water of a stream, called the Lee river, and which during all that time of right ought to have run and flowed, and until the committing of the grievances thereinafter mentioned, of right had run and flowed, and still of right ought to run and flow, unto and past the lands and premises of the plaintiff, for supplying the same with water; yet the defendant, well knowing the premises, but contriving, &c., heretofore, and whilst the plaintiff was possessed of the tenements, with the appurtenances, to wit, on, &c., at, &c., wrongfully and injuriously erected and made a certain pent-stock, dam, or floodgate, in and across the said stream, higher in the said stream than the tenements of the plaintiff, and wrongfully and injuriously widened and enlarged a certain other pent-stock, dam, or floodgate, then being in and across the said stream, higher in the said stream than the lands and premises of the plaintiff, and kept and continued the said first-mentioned pent-stock, dam, or floodgate so erected and made, and the said other pent-stock, dam, or floodgate so widened, enlarged and altered respectively, in and across the said stream, for a long space of time, to wit, from thence hitherto, and thereby unlawfully and wrongfully prevented the water of the stream from running and flowing along its usual and regular course, and in its usual calm, moderate, and smooth manner, unto and past the lands and premises of the plaintiff
, as the same otherwise would have done, and thereby the water of the stream ran and flowed in a different direction or channel, and with much greater force and increased violence and impetuosity, unto and against the banks and premises of the plaintiff, and undermined, washed away, damaged, and destroyed the banks of the lands of the plaintiff, &c. The second count stated, that the defendant wrongfully and injuriously stopped, hindered, and prevented the water of the stream from running or flowing unto and past the tenements of the plaintiff, along its usual or regular course, and in its usual calm and smooth manner, as the same otherwise would have done, and also wrong. fully and injuriously caused the water of the stream to run and flow in another direction with much greater force, violence, and impetuosity, than it of right ought to have and would have done, in and against the lands and premises of the plaintiff, and thereby the banks and other parts of the lands and premises, &c. were damaged (as in the last count). Plea, not guilty. At the trial before Graham, B., at the last Summer Assizes for the county of Kent, the jury found that no damage had been done to the plaintiff's banks or lands either by the pent-stock set up, or that which was enlarged, but that their bad condition was owing to the plaintiff's neglect to repair them; and they added, that they thought the defendant should not stop the water in the summertime. It was then insisted, that the plaintiff was entitled, upon this finding, to a verdict, because the defendant had stopped the water from coming to the plaintiff's premises in the summer-time. But the learned judge was of opinion, that inasmuch as the plaintiff, in his declaration, did not complain that he was deprived of a supply of water, but that the natural course of the stream was altered, and that the water was caused to flow with greater impetuosity against his lands, whereby his banks were injured ; and as the jury had found that the banks were not injured from such flowing of the water, the defendant was entitled to a verdict. Liberty, however, was reserved to the plaintiff to move to enter a verdict, with nominal damages. A rule nisi having been obtained for that purpose in last Michaelmas Term,
Marryat and Bollund were to have shown cause, but the court called upon
Chitty, in support of the rule.
BAYLEY, J. I think that this rule ought to be discharged. My judg. ment in this case is founded on the nature of flowing water, and the manner in which an exclusive right to it is obtained. Flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it. Subject to that right all the rest of the water remains publici juris. The party who obtains a right to the exclusive enjoyment of the water does so in derogation of the primitive right of the public. Now if this be the true character of the right to water, a party complaining of the breach of such a right ought to show that he is prevented from having water which he has acquired a right to use for some beneficial purpose. Here the declaration states a right to the use of this water at all times ; but still, if the plaintiff had as much water as could be necessary for his purposes, the defendant would have been guilty of no wrong, by preventin gadditional water from coming to the plaintiff's premises. The gravamen of the plaintiff's complaint in his declaration is, not that the defendant prevented him from having the quantity which had formerly flowed to his premises, but that the defendant prevented the water of the stream from flowing along its usual course, in its usual, calm, moderate, and smooth manner unto the plaintiff's lands, and that his banks were injured by the impetuous manner in which it was caused to flow, by the act of the defendant. Now the jury have found, that the banks, &c., were not injured by the manner in which the water flowed ; and that being so, it appears that the plaintiff has not sustained the injury complained of in the declaration, and therefore the verdict is properly entered for the defendant.
HOLROYD, J. I think the verdict was properly entered for the defendant in this case.
Running water is not in its nature private properts. At least it is private property no longer than it remains on the soil of the person claiming it. Before it came there, it clearly was not his property. It may, perhaps, become, quasi, the property of another before it comes upon his premises, by reason of his having appropriated to himself the use of the water accustomed to flow through his lands before any other person had acquired a prior right to it. Thus in Bealey v. Shaw, 6 East, 208, the defendants or those under whom they claimed had appropriated to themselves a quantity of the flowing water of the River Irwell, sufficient for the purposes of working their mill. The plaintiff afterwards erected premises lower down the stream, and appropriated to himself the surplus water for the use of his works. Four years after the plaintiff had erected his works, the defendants widened their sluice, so that nearly double the quantity of water was drawn from the stream, and the plaintiff's works were thereby materially impeded. It was beld in that case, that although the defendants might originally have appropriated the whole water to themselves, yet they could not do so after the plaintiff had appropriated the residue of the unappropriated water to himself. If the plaintiff, therefore, in this case, had shown in his declaration a right to the unappropriated water of the stream, and had alleged as the ground of his complaint that he had been deprived of the use of that surplus water, he might then have been entitled to a verdict. But the present declaration is framed to meet a different case froin that now relied upon. The gravamen of the complaint is not that the water was prevented by the act of the defendant from coming down to the plaintiff's premises, and that he was injured by the want of water, but that it, in fact, flowed in a more impetuous manner, and thereby damaged the plaintiff's banks ; but the jury have found that no damage has been done to the plaintiff's bank, by the manner in which the water was caused to flow by the act of the defendant. The jury have, therefore, found against the plaintiff in respect of the right of action which he claims. The mere obstruction of the water which had been used to flow through his lands does not of itself give any right of action. In order to entitle himself to recover, he should show the loss of some benefit, or the deterioration of the value of the premises.
LITTLEDALE, J. I think that the plaintiff is not entitled to have the verdict entered for him in this case. The first count does not allege that the plaintiff was deprived of any benefit to which he was entitled, but that his banks were injured by reason of the water having been caused to flow in an impetuous manner. The jury have found that his banks were not thereby injured, and therefore the proof has not sup