first origin, and before it has arrived at any definite natural watercourse conveying it onwards towards Longwood Brook, has not been intercepted by the defendant's drain, and so appropriated by him; and we think it has. For what are the facts? The water in dispute is only the overflow of a well, and the well is now prevented from overflowing. But when before it did overflow it ran into a ditch (the lowest adjoining ground) made artificially, and for a different purpose, running beAfter this, side a hedge. This was no natural defined watercourse. it squandered itself over a swamp made by the feet of cattle treading about, and it is not till long after this, that what still remained of it found its way into what may there perhaps be correctly called a definite natural watercourse, receiving this and probably other water from other sources also. This part of the case, we think, is wholly undistinguishable from, and is governed by the decision of this court in, the late case of Rawstron v. Taylor, 11 Ex. 369.

This complaint, therefore, fails also. The result is (without going into any question as to this being done by the defendant Atkinson in the rightful exercise of his power of draining his own lands, which probably the pleadings do not raise), that the plaintiff has failed to establish any right to the natural flow of these four streams of water, or any of them, and that on this part of the case our judgment must be for the defendants. Judgment for the defendants.

CRESSWELL, J., delivered the judgment of the court.

1

In this case, several causes of complaint were brought forward on behalf of the plaintiff, first, in respect of the diversion of the River Yeo; secondly, in respect of the diversion of a stream called the Back Water; thirdly, in respect of the obstruction and diversion of a stream called the Silver Lake Spring.

In the course of the argument, the court decided all the points that were raised in respect of the two latter causes of complaint, in favor of the defendant; but they took time to consider the question arising on

the first.

The result of the facts as to this part of the case appears to us to be as follows, viz., that the plaintiff had immemorially enjoyed the benefit of irrigating certain of his meadows with the water of the River Yeo, subject, however, to the right of the miller at West Mill to detain the water for the use of his mill. Although the natural flow of the river

1 The opinion only is given.

was prevented by the exercise of this right, yet the water was allowed to come down at such times that the plaintiff was enabled to irrigate his meadows effectually. But, of late, the defendant, for the purpose of irrigating his own adjacent land, had from time to time diverted the water after it had passed the mill, and before it reached the plaintiff's meadows; and, although the facts stated in the special case do not, in our opinion, lead to any certain conclusion, that, by the mere irrigation on the part of the defendant, the quantity of water which ultimately reached the plaintiff's meadows was sensibly diminished, yet the effect was, that the water was detained, by the process of irrigation, and did not arrive till so late in the day that the plaintiff was deprived of the power to use it fully.

The question is, whether such a diversion and detaining of the water by the defendant is actionable.

It was contended, on his part, that it was not, because he had a right by law, as a riparian proprietor, to apply the water of the stream to irrigate his adjacent land, provided he did so (as it was admitted he did) in a careful and proper manner.

On the part of the plaintiff, it was denied, generally, that a riparian proprietor has any such right: and it was also contended, that, at all events, in this case the plaintiff had gained a title to the uninterrupted flow of the stream by immemorial enjoyment.

As to the latter proposition, it appears to us that all persons having lands on the margin of a flowing stream have, by nature, certain rights. to use the water of that stream, whether they exercise those rights or not; and that they may begin to exercise them whenever they will. By usage, they may acquire a right to use the water in a manner not justified by their natural rights: but such acquired right has no operation against the natural rights of a landowner higher up the stream, unless the user by which it was acquired affects the use that he himself has made of the stream, or his power to use it, so as to raise the presumption of a grant, and so render the tenement above a servient tenement. If the user of the stream by the plaintiff for irrigation was merely an exercise of his natural right, such user, however long continued, would not render the defendant's tenement a servient tenement, or in any way affect the natural rights of the defendant to use the water. If the user by the plaintiff was larger than his natural rights would justify, still there is no evidence of its affecting the defendant's tenement, or the natural use of the water by the defendant, so as to render it a servient tenement.

But, if the user by the defendant has been beyond his natural right, it matters not how much the plaintiff has used the water, or whether he has used it at all. In either case, his right has been equally invaded, and the action is maintainable.1

1 See Harrop v. Hirst, L. R. 4 Ex. 43.

"The case of a stream affords a very clear illustration of the difference between injury and damage; for the pollution of a clear stream is to a riparian proprietor below

The question between the parties is thus reduced to this single point : Has the defendant used the water as any riparian proprietor may use it, or has he gone beyond that?

The general principle of law which, in our opinion, may be deduced from the decision of Embrey v. Owen, 6 Exch. 353, and the authorities cited by Parke, B., in delivering judgment in that case, is, that every proprietor of lands on the banks of a natural stream has a right to use the water, provided he so uses it as not to work any material injury to the rights of other proprietors above or below on the stream.

In the present case, it appears to us, on the evidence, that the detention by the defendant, under the circumstances, of the water of the River Yeo for the purposes of irrigation, was a use of it which, in its character, was necessarily injurious to the natural rights of the plaintiff as the proprietor of land lower down the stream. The effect was obviously the same as if the defendant had placed a bar or weir across the river, and by that means had wholly prevented its natural course for a certain number of hours. And it appears to us that there is neither authority nor principle for contending that such an act can be justified on the ground that it was done for the purpose of improving the adjacent land of the defendant, whether by irrigation or otherwise. For these reasons, we are of opinion that our judgment must be for the plaintiff as to such part of his complaint as relates to the River Yeo, and, as to the rest of the alleged causes of action, for the defendant. Judgment accordingly.

M. Smith, Q. C. (with whom were Kinglake, Serjt., and Barstow), for the plaintiff.

Butt, Q. C. (with whom were Slade, Q. C., and Ffooks), contra.

CHASEMORE v. RICHARDS.

HOUSE OF LORDS. 1859.

[Reported 7 H. L. C. 349.]

THIS was a proceeding in error on a judgment in the Court of Exchequer Chamber. The plaintiff was a millowner near Croydon; the defendant, the clerk of the Local Board of Health of that town, in which character he was sued.

The declaration stated that the plaintiff was possessed of an ancient mill, with the appurtenances, and was entitled to the flow of a certain stream, called the Wandle, for the purpose of working, using, and

both injury and damage, whilst the pollution of a stream already made foul and useless by other pollutions is an injury without damage, which would, however, at once become both injury and damage on the cessation of the other pollutions." Per FRY, J., in Pennington v. Brinsop Hall Coal Co., 5 Ch. D. 769, 772. See also Crossley v. Light

oveler, L. R. 2 Ch. 478.

more conveniently enjoying the said mill, and that the said board. wrongfully abstracted and prevented the flow of and diverted the water of the said stream away from the said mill, and wrongfully abstracted and prevented and intercepted the flow of and diverted water which ought to have flowed into the said stream and mill, and continued to abstract, prevent, divert, and intercept the same respectively, by digging and sinking a well near to the said stream, and taking the water of such well.

The defendant pleaded, Not guilty, by Statute. The Statute stated in the margin was 11 & 12 Vict. c. 63, § 139, a public Act. Upon this plea issue was joined.

The cause came on for trial at the Kingston Assizes in March, 1854, before Mr. Baron Alderson, when a verdict was entered for the plaintiff, subject to the award of Mr. Creasy, with power to him to state a special case for the opinion of the court. A case was stated, and the following are the material facts set forth in it:

"The plaintiff is, and at the time of the acts complained of was, possessed of and was the occupier of an ancient mill on the River Wandle, in the county of Surrey, called Waddon Mill, situate about one mile from the town of Croydon in the said county.

"The plaintiff, and the preceding possessors and occupiers of the said mill, had, for upwards of sixty years next before the acts of the local board hereinafter mentioned, and for upwards of sixty years next before the bringing of the action, used and enjoyed as of right, and been entitled to use and enjoy the flow of the said river for the purpose of working and using the said mill.

"The River Wandle commences, and always has commenced, its course near the part of the town of Croydon which is nearest to the said mill, and the said river flows and always has flowed thence to and by the plaintiff's mill.

"The River Wandle is, and always has been, fed and supplied above the plaintiff's mill by (among other sources of supply) the water produced by the rainfall on a district of many thousand acres in extent, comprising the town of Croydon and its vicinity.

"Large quantities of this water sink into the upper ground to various depths, and then flow and percolate through the strata towards and to the River Wandle (if not interfered with), in some instances rising to the surface as springs, and then flowing as little surface streams into the river; in other instances finding their whole way underground into the river. The precise lines and courses in which the underground runlets and particles of water so find their way underground towards and to the river vary continually and infinitely with the shiftings and variations in the soil which occur from natural causes, but the general flow of large quantities of water to the River Wandle is as above described; and if they are not interfered with or intercepted, they form considerable sources of supply to the river, as well above as below the plaintiff's mill.

"It is impossible to know beforehand the precise or complete effect which the sinking a new well, and pumping from it in any part of the district above described, may have upon springs or streams in the vicinity; the effect may be instantly sensible and considerable, or for a long time no sensible effect may appear; but the natural effect of abstracting a large quantity of water at any spot of the district above described is to diminish the quantity at every other spot throughout the district, though the amount of diminution at particular spots may be infinitesimally small; and the natural effect to be reasonably expected from sinking a new well in such a district, and from continually or almost continually pumping thence large quantities of water for a long time, must be the sensible diminution of the water supply of springs and streams in the vicinity.

"The above description is to be taken to apply to the district in question, not merely at the present time, but for sixty years and upwards next before the works and acts of the Local Board of Health hereinafter mentioned, and for sixty years and upwards before the bringing of the action.

"The Local Board of Health for the town of Croydon was duly constituted under the Public Health Act,' and under the 'Public Health Supplemental Act, 1849.'

"In the year of our Lord 1851, the said local board, for the purpose of supplying the town of Croydon with water, and for other sanitary purposes under the said Statutes, made and sank a large well to the depth of seventy-four feet in their own ground, in a piece of land of and belonging to them in the town of Croydon, and within the district which has been above described. The distance of the said well from the commencement of the River Wandle is about a quarter of a mile. They also erected pumps and steam-engines on their said ground, and began to pump water from the well into a reservoir and pipes, for the supply of the town at the end of the said year, and, with slight periods of intermission, have continued to do so to the present time.

"The amount of water so pumped and taken by them through and from the said well during the period of six calendar months from the 16th of August, in the year of our Lord 1853, to the 16th day of February in the year of our Lord 1854, was between 500,000 and 600,000 gallons daily. Part of the said quantity of water so then pumped and taken by them through and from the said well, was water then flowing and finding its way underground through the strata in the manner above described, towards the River Wandle, and which, if not intercepted by the operation of the said well and pumping, would have flowed and found its way into the River Wandle above the plaintiff's mill; but which by the operation of the said well and pumping, was drawn away into the said well, and thence pumped up and taken by the said local board: and I find, as a fact, that the said local board did during the six months aforesaid, by means of the said well and pumping, abstract, divert, and intercept underground water, but underground