EMBREY v. OWEN.

EXCHEQUER. 1851.

[Reported 6 Ex. 353.]

CASE. The first count of the declaration stated, that the plaintiffs, before and at the time of the committing of the grievances, were lawfully possessed of certain water grist mills, and 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 certain stream or watercourse, which had been used to run and flow, and during all that time of right ought to have run and flowed, and still of right ought to run and flow unto the said mills, for the supplying the same with water for the working thereof, save and except at such times and on such occasions when it might be reasonable and necessary to irrigate or water certain closes of the defendant, situate and being on the southern side of the said stream or watercourse, and near to the same, with reasonable quantities of the water thereof. Yet the defendant, intending to injure the plaintiffs, at times when it was not reasonable or necessary to irrigate or water the said closes of the defendant, to wit, on &c., and for divers, different, and other purposes than the irrigating or watering the same, wrongfully and injuriously cut, dug, made, and erected, in, upon, and near to the sides and banks of the said stream or watercourse, and at a part thereof above the said mills, divers sluices, trenches, channels, aqueducts, and cuts, and kept and continued the same for a long time, &c., and thereby unlawfully and wrongfully diverted and turned divers large quantities of the water of the said stream, &c., out of and away from the said mills, and stopped, prevented, and hindered the water of the said stream or watercourse from running or flowing along its usual course to the said mills, and from supplying the same with the necessary water for the working thereof, as the same of right ought to have done and otherwise would have done; and by reason thereof, the water of the said stream or watercourse, sufficient for the supplying of the said mills, could not run or flow to the same; and the plaintiffs thereby, for want of such sufficient water, could not during that time use the said mills, or follow, use, or exercise their trade or business therein, in so large, extensive, and beneficial a manner as they might and otherwise would have done, &c.

The declaration contained two other counts, which it is not necessary to state.

The defendant pleaded (inter alia) first, not guilty; fourthly, to the first count, that one John Jones, before and at the several times when &c., was lawfully possessed of divers, to wit, four closes, situate and being on the bank of, and next adjoining to, and extending to the middle

of the said stream or watercourse, to wit, on the north side thereof, and at a part of the said stream or watercourse above the said mills and premises, and which said closes were and are other than the closes on the southern side of the said stream or watercourse in the first count mentioned, and part of which said several closes, whereof the said J. Jones was so possessed as aforesaid, to wit, up to the middle of the said stream or watercourse, hath, from the time whereof the memory of man runneth not to the contrary, been, and at the several times when, &c., was and still is covered with the water of the said stream or watercourse; which said stream or watercourse, from the time whereof the memory of man is not to the contrary, hath been used and accustomed to run and flow in its usual flow, stream, and current, over part of and unto and by the said last-mentioned closes, for the watering, fertilization, and general benefit and advantage thereof; that it is at certain intermittent periods and times during certain months of the year, to wit, January, February, and March, the said periods and times being periods and times when the waters of the said stream or watercourse are most abundant, and flow in great quantities and abundance, and are more than sufficient or necessary, and flow in greater quantity than can be used, for the due and proper working of the said mills and premises, right and proper, and fit and necessary and requisite to water and irrigate the first-mentioned closes with the water of the said stream or watercourse, for the more convenient enjoyment and occupation and substantial improvement and cultivation of the said closes, and for rendering the same fertile and productive and conducive to the public and general weal and advantage. Wherefore the defendant, at the said several times when, &c., the same being reasonable and proper times in that behalf respectively, and during the said months of January, February, and March, and the waters of the said stream or watercourse then being most abundant and then flowing in great quantity and abundance, and being more than sufficient or necessary, and flowing in a greater quantity than could be used for the due and proper working of the said mills and premises, as the servant of the said J. Jones, and by his command, diverted and turned divers small quantities of the water of the said stream or watercourse, the same being reasonable and fit and proper quantities in that behalf, and not more than was necessary and convenient for the purpose of irrigating and watering the first-mentioned closes from and out of the said stream or watercourse, and then caused the same to flow in, over, and upon the first-mentioned closes, and which quantities of water, save and except such small portions and quantities thereof as were necessarily absorbed and used by and in the passing over the said closes, in and by course of the irrigating and watering thereof, as aforesaid, then fell, passed, flowed, and returned into and unto the said stream or watercourse, at divers parts and places above the mills and premises, and before the said stream or watercourse reached and arrived at the same mills and premises, and for the purposes aforesaid, the defendant, at the said several times when, &c., as the servant of the said J. Jones,

and by his command, cut, dug, made, and erected in, upon, and near to the sides and banks of the said stream or watercourse, at a part of the said stream or watercourse above the said mills and premises of the plaintiffs, a certain sluice, trench, channel, or aqueduct, and kept and continued the same, and caused the same to be kept and continued, in, upon, and near to the said sides and banks of the said stream or watercourse, and thereby diverted and turned the said small quantities of the water off the said stream or watercourse in manner as in this plea aforesaid, as she lawfully might for the cause aforesaid, quæ sunt eadem, &c. - Averment, that the diversion and abstraction aforesaid was not nor is a continuous diversion, but only takes place at intermittent periods, and in manner in this plea aforesaid; and that the quantities of water so absorbed and used as aforesaid, and stopped, prevented, and hindered from running and flowing to the said mills and premises, were and are very small and inappreciable quantities, and not more or greater than were and are necessary for the purposes in this plea aforesaid, and that the same were and are not required, and had at no time theretofore been appropriated by the plaintiffs for the purpose of working the said mills and premises, or any other purposes; and that the diverting, turning away, and abstracting, and stopping, hindering, and preventing the same from flowing to the said mills and premises did not at any time cause any damage, hindrance, or impediment to the due, proper, and necessary working and using of the said mills and premises.- Verification.

The seventh and tenth pleas were similar to the fourth, being respectirely pleaded to the second and third counts of the declaration.

The plaintiffs joined issue on the first plea, and to the fourth, seventh, and tenth replied de injuria. Issue thereon.

At the trial, before Talfourd, J., at the last Summer Assizes for Montgomeryshire, it appeared that the plaintiffs were occupiers of a water grist mill situate on the banks of the River Rhiew, a mountain stream, in the parish of Berriew, in that county. The defendant Mrs. Owen was the owner of land on both sides of that river above the mill; and this action was brought against her for diverting part of the water of the river, for the purpose of irrigating certain meadows on the northern bank, which were in the occupation of her tenant John Jones. The water was diverted by means of an iron trough or aqueduct placed near a waste weir, from whence the surplus or waste water was carried into the trough or aqueduct, and by it over the river into the main and floating gutters of the meadows, when required for irrigation; at other times such surplus water was discharged from the trough or aqueduct direct into the bed of the river by means of an iron flap or sluice in the middle side of the trough, so constructed as to be opened for the latter purpose at pleasure. A portion of the water was lost by absorption and evaporation in the process of irrigation; the working of the plaintiffs' mill, however, was not in the least impeded; and the quantity thus lost differently calculated by scientific witnesses on both sides, a wit

was

ness for the plaintiffs estimating it at four or five per cent, and a witness for the defendant at only one seventh per cent, even in summer. All the witnesses concurred, that there was no sensible diminution of the stream by reason of the diversion, that is to say, none cognizable by the senses, and that the amount of loss was ascertainable only by inference from scientific experiments on the absorption and evaporation of water poured out on the soil.

The learned judge, with reference to the first issue, left to the jury the question, whether there was any sensible diminution of the natural flow of the water by means of the diversion; and with reference to the other issues above mentioned, he left it to them to say, in the terms of the pleas, whether the quantities of water absorbed and evaporated in the process of the defendant's irrigation were small and inappreciable quantities; intimating, however, that he felt great difficulty in fixing a legal meaning on this latter term, but suggesting that it might mean "so inconsiderable as to be incapable of price or value." Both the questions left to the jury having been answered by them in favor of the defendant, the former in the negative and the latter in the affirmative, the learned judge directed that the verdict should be entered on the above issues for the defendant, reserving leave to the plaintiffs to move to enter it for them, with nominal damages.

Welsby, in last Michaelmas Term, obtained a rule nisi accordingly, and also to enter judgment for the plaintiffs, non obstante veredicto, on the fourth, seventh, and tenth issues.

Bramwell and E. Beavan showed cause at the sittings after Hilary Term. Welsby, Foulkes, and Wynn, in support of the rule.

The judgment of the court was delivered by

PARKE, B. (after stating the pleadings and facts). We are not prepared to say that the learned judge at Nisi Prius was correct in his interpretation of the word "inappreciable" when connected with the word

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quantity," nor sure that he was not; for the word "inappreciable' or "unappreciable" is one of a new coinage, not to be found in Johnson's Dictionary or Richardson's. The word "appreciate" first appears in our dictionaries in the last edition of Johnson, by Todd, 1827, with the explanation "to estimate," "to value;" and assuming that to be the true meaning, which we suppose it is, the compound adjective signifies that the quantities were not capable of being estimated or valued, and in that sense the fourth plea was not proved. It is, however, a matter of little importance; for assuming that the word was wrongly explained, the only consequence would be, that a question would arise, whether the fourth issue and the others involving the same terms ought not to have been found for the plaintiffs, a question we need not decide; for if the issue on not guilty remains as it now is found for the defendant, as we think it ought to be, there should be no new trial, if the defendant consents, as she probably will, that the fourth and other corresponding issues should be found for the plaintiffs. This course was adopted in Stead v. Anderson, 4 C. B. 836.

The important question is that which arises on the plea of Not guilty, the jury having found that no sensible diminution of the natural flow of the stream to the plaintiff's mill was caused by the abstraction of the water. That the working of the mill was not in the least impeded was clear on the evidence. On that finding we think the verdict was properly ordered to be entered for the defendant.

It was very ably argued before us by the learned counsel for the plaintiffs, that the plaintiffs had a right to the full flow of the water in its natural course and abundance, as an incident to their property in the land through which it flowed; and that any abstraction of the water, however inconsiderable, by another riparian proprietor, and though productive of no actual damage, would be actionable, because it was an injury to a right, and, if continued, would be the foundation of a claim of adverse right in that proprietor.

We by no means dispute the truth of this proposition, with respect to every description of right. Actual perceptible damage is not indispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage; injuria sine damno is actionable, as was laid down in the case of Ashby v. White, 2 Ld. Raym. 938, by Lord Holt, and in many subsequent cases, which are all referred to, and the truth of the proposition powerfully enforced, in a very able judgment of the late Mr. Justice Story in Webb V. The Portland Manufacturing Company, 3 Sumn. Rep. 189. But in applying this admitted rule to the case of rights to running water, and the analogous cases of rights to air and light, it must be considered what the nature of those rights is, and what is a violation of them.

The law as to flowing water is now put on its right footing by a series of cases, beginning with that of Wright v. Howard, 1 Sim. & S. 190, followed by Mason v. Hill, 3 B. & Ad. 304; 5 Id. 1, and ending with that of Wood v. Waud, 3 Exch. 748, and is fully settled in the AmeriSee 3 Kent's Comm., Lect. 52, pp. 439–445.

can courts.

The right to have the stream to flow in its natural state without diminution or alteration is an incident to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, 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; see 5 B. & Ad. 24. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.

This right to the benefit and advantage of the water flowing past his land, is not an absolute and exclusive right to the flow of all the water in its natural state; if it were, the argument of the learned counsel, that every abstraction of it would give a cause of action, would be irrefragable; but it is a right only to the flow of the water, and the enjoyment

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