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water only, that otherwise would have flowed and found its way into the River Wandle, and would then and there, as part of the water and stream of the said river, have flowed and found its way to the said mill of the plaintiff, and have been applicable and serviceable to and for the working thereof, and that the same was sufficient in quantity to have been of sensible value in and towards the working of the said mill.

"And I find that the said local board did not, during any part of the time in question, intercept, divert, or abstract, or draw into their well, any water which had already joined the said River Wandle and become integral part of the same, or which had already joined and become integral part of any surface stream running into the said river.

"I further find that the said local board, throughout all their acts and works hereinbefore described, were actuated by no malice against the plaintiff or any one else, and that they did not intend in any way to diminish the quantity of water in the River Wandle, or to injure any person interested in the use of the said river; but the said board at the time of their said acts and works, and throughout the said period of six months particularly in question in this cause, had reasonable means of knowing the probable and natural effects of their said acts and works. "In considering this case, the court is to have power to draw all inferences of fact which a jury might draw.

"The question for the opinion and judgment of the court is whether, under these circumstances, the said Local Board of Health is legally liable in this action to the plaintiff for the abstraction of water as above described."

On the 14th May, 1856, the Court of Exchequer, acting upon the authority of Broadbent v. Ramsbotham, 11 Exch. 602, and without hearing any argument, gave judgment for the defendant.

On the 12th May, 1857, the Court of Exchequer Chamber affirmed that judgment, Mr. Justice Coleridge differing from the other judges. 2 H. & N. 168. On this judgment error was suggested.

The judges were summoned, and Mr. Justice Wightman, Mr. Justice Williams, Mr. Baron Martin, Mr. Justice Crompton, Mr. Baron Bramwell, and Mr. Baron Watson, attended.

Mr. Bovill and Mr. Needham (Mr. Raymond was with them), for the plaintiff in error.

The Attorney-General (Sir F. Kelly) and Mr. G. Miller, for the defendant in error.

The LORD CHANCELLOR (Lord Chelmsford) proposed for the opinion of the judges the following question: "Whether under the circumstances stated in the printed case, the Croydon Local Board of Health is legally liable to the action of the appellant for the abstraction of the water in the manner described?"

Mr. Justice Wightman delivered the unanimous opinion of the judges who had been present at the argument. They answered the question in the negative.1

1 The opinion of the judges is omitted.

LORD CHELMSFORD. My Lords, the question in this case is, whether the plaintiff in error is entitled to claim against the defendant the right to have the benefit of the rain water which falls upon a district of many thousand acres in extent, and percolates through the strata to the River Wandle, increasing the supply of water in the river, and being of sensible value in and towards the working of an ancient mill belonging to the plaintiff. The acts of the defendant by which this underground water was interrupted and prevented from finding its way into the river, were done upon his own land.

It was conceded by the plaintiff in argument, that a landowner had a limited and qualified right to appropriate water, the course of which is invisible and undefined, exactly to the same extent and for the same purposes as he would be entitled to use water flowing in a defined and visible channel. This, it was contended, must be confined to a reasonable use of the water for domestic and agricultural purposes, and perhaps (it was said) according to the opinion of Chancellor Kent, for the purposes of manufacture also. It must further be admitted (and appeared to be so in argument), that in addition to these direct uses to which the water may be diverted, if, in the regular course of mining operations the percolation of underground water is arrested in its progress, and prevented reaching a point where it would have increased a supply which had previously been usefully employed by an adjoining landowner, he can maintain no action for the loss of the water thus cut off from him. A distinction was suggested between such a use as the one last mentioned, where the interception of the water was merely the consequence of operations upon a party's own land, and the present, where the very end and object of the act done was to collect and appropriate the water. And upon the state of things existing in this case, a further distinction was insisted upon between a party sinking a well in his own land for domestic, or agricultural, or manufacturing purposes, and a public board or a water company doing the same thing for sanitary purposes, or for supplying the inhabitants of the neighborhood

with water.

Before, however, the plaintiff can question the act of the defendant, or discuss with him the reasonableness of the claim to appropriate this underground water for these purposes (whatever they may be), he must first establish his own right to have it pass freely to his mill, subject only to the qualified and restricted use of it, to which each owner may be entitled through whose land it may make its way. It seems to me that both principle and authority are opposed to such a right.

The law as to water flowing in a certain and definite channel, has been conclusively settled by a series of decisions, in which the whole subject has been very fully and satisfactorily considered, and the relative rights and duties of riparian proprietors have been carefully adjusted and established. The principle of these decisions seems to me to be applicable to all water flowing in a certain and defined course, whether in an open visible stream or in a known subterranean channel;

and I agree with the observation of Lord Chief Baron Pollock, in Dickinson v. The Grand Junction Canal Company, 7 Exch. 300, 301, "that if the course of a subterranean stream were well known, as is the case with many which sink underground, pursue for a short space a subterraneous course, and then emerge again, it never could be contended that the owner of the soil under which the stream flowed could not maintain an action for the diversion of it, if it took place under such circumstances as would have enabled him to recover had the stream been wholly above ground." But it appears to me that the principles which apply to flowing water in streams or rivers, the right to the flow of which in its natural state is incident to the property through which it passes, are wholly inapplicable to water percolating through underground strata which has no certain course, no defined limits, but which oozes through the soil in every direction in which the rain penetrates. There is no difficulty in determining the rights of the different proprietors to the usufruct of the water in a running stream. Whether it has been increased by floods or diminished by drought, it flows on in the same ascertained course, and the use which every owner may claim is only of the water which has entered into and become a part of the stream. But the right to percolating underground water is necessarily of a very uncertain description. When does this right commence? Before or after the rain has found its way to the ground? If the owner of land through which the water filters cannot intercept it in its progress, can he prevent its descending to the earth at all, by catching it in tanks or cisterns? And how far will the right to this water supply extend?

In this case, the water which ultimately finds its way to the River Wandle is strained through the soil of several thousand acres. Are the most distant landowners, as well as the adjacent ones, to be bound, at their peril, to take care to use their lands so as not to interrupt the oozing of the water through the soil to a greater extent than shall be necessary for their own actual wants? For, with Mr. Justice Coleridge, I do not see here "how the ignorance" which the landowner has of the course of the springs below the surface, of the changes they undergo, and of the date of their commencement, "is material in respect of a right which does not grow out of the assent or acquiescence of the landholder, as in the case of a servitude, but out of the nature of the thing itself." 2 H. & N. 191.

This distinction between water flowing in a definite channel, and water whether above or under ground not flowing in a stream at all, but either draining off the surface of the land, or oozing through the underground soil in varying quantities and in uncertain directions, depending upon the variations of the atmosphere, appears to be well settled by the cases cited in argument. In Rawstron v. Taylor, 11 Exch. 369, 382, it was held that, in the case of common surface water, rising out of springy or boggy ground, and flowing in no definite channel, the landower was entitled to get rid of it in any way he pleased,

although it contributed to the supply of the plaintiff's mill. And in Broadbent v. Ramsbotham, 11 Exch. 602, it was decided that 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 brook, the stream of which had for more than fifty years worked the plaintiff's mill. Baron Alderson, in delivering the judgment of the court in that case says (11 Exch. 615): "No doubt all the water falling from heaven and shed upon the surface of a hill, at the foot of which a brook runs, must, by the natural force of gravity, find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which this water falls from dealing with it as he may please, and appropriating it. He cannot, it is true,

do so if the water has arrived at and is flowing in some natural channel already formed. But he has a perfect right to appropriate it before it arrives at such channel."

These cases apply to the right to surface water not flowing in any defined natural watercourse. But, of course, the principles they establish are equally, if not more strongly, applicable to subterranean water of the same casual, undefined, and varying description. This appears clearly to have been the opinion of Lord Chief Justice Tindal and the Court of Exchequer Chamber, in the case of Acton v. Blundell, 12 M. & W. 324, 348; for, although the court abstained from intimating any opinion as to what might have been the rule of law if there had been an uninterrupted user for twenty years of the well of the plaintiff, which had been laid dry by the mining operations of the defendant, yet the Chief Justice having prefaced his judgment by stating, that "the question argued had been in substance this: whether the right to the enjoyment of an underground spring, or of a well supplied by such underground spring, is governed by the same rule of law as that which applies to and regulates a watercourse flowing on the surface," he concludes with these words (12 M. & W. 353): “We think that the present case is not to be governed by the law which applies to rivers and flowing streams, but that it rather falls within that principle which gives to the owner of the soil all that lies beneath his surface; that the land immediately below is his property, whether it is solid rock, or porous ground, or venous earth, or part soil, part water; that the person who Owns the surface may dig therein, and apply all that is there found to his own purposes at his free will and pleasure; and that if, in the exercise of such right, he intercepts or drains off the water collected from underground springs in his neighbor's well, this inconvenience to his neighbor falls within the description of damnum absque injuria, which cannot become the ground of an action."

The Court of Exchequer, in the present case, gave judgment for the defendants without argument, on the authority of the decision in Broadbent v. Ramsbotham. The Court of Exchequer Chamber affirmed that judgment, there having been only one dissentient opinion, which, however, pronounced as it was by a most learned and able judge (Mr.

Justice Coleridge), is certainly entitled to the highest respect. The judges, of whose assistance your Lordships have had the advantage, have been unanimous in their agreement with the judgment of the Court of Exchequer Chamber.

Against this concurrence of authority, what is there to be opposed in favor of the plaintiff, but the Nisi Prius case of Balston v. Bensted, 1 Camp. 463, and the case of Dickinson v. The Grand Junction Canal Company, 7 Exch. 282? With respect to Balston v. Bensted, it does not appear that the question of the right to water percolating through the strata, as contradistinguished from water flowing in a visible stream, was ever presented to Lord Ellenborough's mind, as it is stated, that the defence was intended to be set up, but that he observed, early in the trial, that there could be no doubt but that twenty years' exclusive enjoyment of water in any particular manner affords a conclusive presumption of right in the party so enjoying it. Whether, by the words, "in any particular manner," his Lordship meant to point to the right claimed in that case, or intended to state a proposition applicable to all water of which there had been a twenty years' enjoyment, from whatever source it might be derived, it is impossible to gather from the report; but the question was never argued; and as, upon proof that the decrease of the water in the plaintiff's bath had been occasioned by the operations in the defendant's quarry, the case was at once referred, it can hardly be urged as any authority at all upon a point of such importance, and which requires so much consideration as that which it is supposed to have decided.

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With respect to the case of Dickinson v. The Grand Junction Canal Company, upon which the plaintiff also relied, after the observations made upon it by Mr. Justice Cresswell in the Exchequer Chamber, and by Mr. Justice Wightman in delivering the opinion of the judges to this House, it is unnecessary for me to say more than that I entirely agree with them, and think that it can hardly be regarded as a satisfactory decision upon the point now under consideration. It appears to me, that reason and principle, as well as authority, are opposed to the claim of the plaintiff to maintain an action for the interception of the underground water which would otherwise have ultimately found its way to the River Wandle, and that, therefore, the judgment of the Court of Exchequer Chamber ought to be affirmed.

LORD WENSLEYDALE. My Lords, this case is of the greatest importance, and requires the most full and attentive consideration. No question that has occurred in my time has been so worthy of the most careful examination; and though we have had a very able argument at the bar from the learned counsel, and we also have been favored with the able and unanimous opinion of six of the judges, pronounced by Mr. Justice Wightman, I must own, speaking for myself, I should still desire further discussion, as I have felt very great difficulty in coming to a conclusion satisfactory to my mind; so many difficulties present themselves on both sides.

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