case further consideration; but, as my noble and learned friends have formed their opinions upon it, I acquiesce, and do not give my advice to your Lordships to reverse the judgment.

LORD KINGSDOWN. My Lords, I confess that I am unable to share in the doubts that have been expressed by my noble and learned friend opposite in the able and elaborate judgment which he has just delivered. I entirely concur in the opinion which has been given by the judges unanimously in this case, and for the reasons by which that opinion has been supported; and I think the House is greatly indebted to those learned persons for the admirable reasoning by which they appear to have removed all doubt upon one of the most important questions that ever came under the consideration of a court of justice.

LORD CHELMSFORD. My Lords, I ought to have mentioned, that my noble and learned friend, Lord Brougham, who is compelled to leave the House to-day, but who was present during the whole of the argument, entirely concurs in the opinion which I have expressed.1

Judgment of the Court of Exchequer Chamber affirmed, with costs.2

STOCKPORT WATERWORKS COMPANY v. POTTER.

EXCHEQUER.

1864.

[Reported 3 H. & C. 300.]

POLLOCK, C. B. I am about to deliver the judgment of my Brother Channell and myself. My Brother Wilde, being no longer a member of the court, takes no part in the judgment; but it may be satisfactory to the profession to know that he had prepared a judgment founded on the principles which I am about to state.

The plaintiffs bring this action against the defendants for fouling the waters of the River Mersey.

The case is very voluminous, but a recapitulation of all the facts is by no means necessary for the purpose of giving judgment. It is enough to say that the plaintiffs have been in the habit of taking water by means of conduits, &c., from the River Mersey, at a point called the Nab Pool Weir, ever since the year 1853. That the owners of the Woodbank Estate (which estate bounds the river for some distance, including the spot where the Nab Pool Weir is erected, and through which estate the conduits, tunnels, &c., by which the plaintiffs draw

1 Lord Cranworth delivered a concurring opinion, which is omitted.

2 In Grand Junction Canal Co. v. Shugar, L. R. 6 Ch. 483 (1871), it was held that one cannot, by draining his own land, draw off water running in a defined surface channel on adjoining land.

See also Dudden v. Clutton Union, 1 H. & N. 627 ; West Cumberland Iron Co. v. Kenyon, 6 Ch. D. 773; Burroughs v. Saterlee, 67 Iowa, 396.

3 The opinions only are here given.

the water, pass), have also been used to draw the water at the same place for some years, perhaps it may be conceded for fourteen years, before the year 1853.

So that water has in fact been drawn at that point (it may be taken for the purpose of the argument) for more than twenty years before this suit. That the water so drawn has been used to supply the town of Stockport with water fit for household purposes and has not been returned to the river again.

It further appears that, in 1853, the owners of the Woodbank Estate executed a deed under which the Stockport Waterworks and the use of the several conduits and tunnels, &c., by means of which the water has, during the period aforesaid, been drawn from the river at Nab Pool Weir, were ceded to the plaintiffs.

Whether what has been called in argument "the right to take the water" at that spot from the river and carry it to Stockport to be there used by the inhabitants and never returned, was also granted to them, is a disputed question under the deed. The plaintiffs affirm that it was

so granted, and the defendants deny it.

It is to be taken as a fact that the defendants have polluted the stream, and although the stream had, as early as 1853, "become more foul than formerly" from causes which have nothing to do with the defendants, yet," the foulness of the stream was sensibly increased by the refuse discharged into it from the defendants' works."

There is, therefore, no doubt that if the plaintiffs have such rights in reference to the stream as to be entitled to insist upon its purity for practical purposes, the acts of the defendants constitute a cause of action.

But the defendants contend that, whatever others may have, the plaintiffs have no such rights. And they raise a variety of very formidable objections.

In the first place, the defendants argue that, although the right to pure water is the right of a riparian proprietor, the plaintiffs are not riparian proprietors at all. Nor are the plaintiffs the assignees of a riparian proprietor.

For, first, the law knows of no such right as the subject of assignment separate from the land in respect of which it arises, and, secondly, no such assignment has in fact been made.

And the defendants say there is no authority for the proposition that these rights in respect of water, which, in Embrey v. Owen, 6 Exch. 353, and other modern cases have been for the first time defined and attributed to the ownership of land by the side of a river, can be dealt with in gross and assigned in any way except in conjunction with such land.

And further, that if such rights could be the subject of transfer they have not been in fact transferred. For the deed of May, 1853, never in terms affected to pass any such right, but only the waterworks, with the use of the conduits, tunnels, &c., and a right to water power to be used

for turning one or more water wheels; the water when used being returned to the river again. This turns on the construction of the deed and some general words contained in it.

The defendants also say that the rights even of a riparian proprietor himself would not extend to the abstraction from the stream of water for the use of a populous town situated on land in no way connected with such stream, and the conveyance of it away from the river-side to a considerable distance for that purpose without returning it into the

stream.

But then the plaintiffs' case, thus driven from a more exact basis, is placed upon the fact that he and those under whom he claims have done the same thing for twenty years.

To this the defendants answer that the mere doing of a particular thing for twenty years will not necessarily give a right of action against anybody who interferes with its being done as beneficially as it hitherto has been.

The plaintiffs, thus pressed, contended before us that the right they claimed of having pure water come down the stream for them to abstract and use was an "easement " acquired by more than twenty years' user, in which the Stockport Waterworks were the dominant tenement and the defendants' land the servient tenement.

Several answers were made to this. First, there was no continuing user for twenty years of a character to create an easement; for, before 1853, the user was by those who owned the land at Nab Pool Weir, and was in exercise of their ordinary riparian rights.

Secondly, the case showed that this user had within the twenty years been objected to by another riparian proprietor, and litigation had ensued which terminated in an award, so that it was not adverse and as of right against all the other riparian proprietors.

But a third and conclusive answer, as it seems to us, was given to such an easement.

The defendants' land is far higher up on the stream than the conduit or tunnel at Nab Pool Weir by which the plaintiffs abstract the water. No amount of water abstracted by the plaintiffs or those under whom they claim could possibly be felt by the defendants. If the water was abstracted unlawfully or in excessive quantities, or not returned into the river, the proprietors below might have cause to complain, but the defendants could not, because they could not be affected by it. They had neither the will nor the power to interfere with the plaintiffs' use nor to take legal proceedings against them.

No grant could therefore be presumed by the defendants, because no user ever existed adverse to their full enjoyment of the water. And Sampson v. Hoddinott, 1 C. B. N. S. 590, 611, was cited as an express authority for this proposition.

We have thus recapitulated these arguments of the defendants because they appear to us to contain a perfect answer to the plaintiffs' claim in whatever light it can be put.

It is difficult to perceive any possible legal foundation for a right to have the river kept pure, in a person situated as this company is.

There seems to be no authority for contending that a riparian proprietor can keep the land abutting on the river the possession of which gives him his water rights, and at the same time transfer those rights or any of them, and thus create a right in gross by assigning a portion of his rights appurtenant.

It seems to us clear that the rights which a riparian proprietor has with respect to the water are entirely derived from his possession of land abutting on the river. If he grants away any portion of his land so abutting, then the grantee becomes a riparian proprietor and has similar rights. But if he grants away a portion of his estate not abutting on the river, then clearly the grantee of the land would have no water rights by virtue merely of his occupation. Can he have them by express grant? It seems to us that the true answer to this is that he can have them against the grantor, but not so as to sue other persons in his own name for an infringement of them. The case of Hill v. Tupper, 2 H. & C. 121, recently decided in this court, is an authority for the proposition that a person cannot create by grant new rights of property so as to give the grantee a right of suing in his own name for an interruption of the right by a third party.

The case where a riparian proprietor makes two streams instead of one and grants land on the new stream, seems to us analogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river. In the case of a grant of land on a new stream, the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights.

We think then that in this case the right claimed cannot be the subject of a grant so as to enable the plaintiffs to sue in their own name for an infringement.

Nor is the supposed easement founded on user much more defensible. The dominant and servient tenements have no apparent connection with one another.

The abstraction of the water from the stream took place at a spot situated on other land than that now called the dominant tenement, and in no sort of way affected the enjoyment of the water at what is now called the servient tenement.

If the waterworks could be considered a dominant tenement, every house in Stockport to which the water flowed through pipes might equally be so.

And as in modern times water is often conveyed many miles under ground in pipes for the supply of large towns, the dominant and servient tenements might not only be many miles apart, but have no other connection with each other than the artificial one created by miles of pipes.

For these reasons we think that it is unnecessary more closely to in

vestigate the effect of the deed of 1853 or to give any other reasons than those already stated, as upon the broad points of the case, the defendants are in our opinion clearly entitled to judgment.

BRAMWELL, B. In this case the plaintiffs cannot rely on their mere possession of the water they take, or perhaps I ought to say on their mere taking of it. For whatever Whaley v. Laing, 3 H. & N. 675, 901, may have decided, it certainly decided this, that such possession was not enough to enable the possessor to maintain an action. For that case decides that the plaintiff had not alleged, or having alleged, had not proved, a right to the water, and so could not recover. Nor can the plaintiffs rely on the more than twenty years' user as giving them any right. They themselves have not enjoyed the water twenty years, and their enjoyment cannot be connected with the antecedent enjoyment of Messrs. Marslands. For that enjoyment was an enjoyment as riparian proprietors, which might give a right beyond the natural right against owners below whom it affected, but could not give any right against the riparian proprietors or others who were not affected by it, and could not have resisted it.

The plaintiffs, therefore, must rely on the grant from Messrs. Marsden; and upon that two questions arise. First, is a right conferred on the plaintiffs? Secondly, can they maintain an action in respect of an injury to the enjoyment under such right? On the first of these two questions there seems to me no difficulty. It is not necessary to examine the deed minutely. It is enough to say that the reservoir is granted and conveyed, and a right to have water from the river to it. If any right can be granted which will enable the grantee to maintain an action like the present, this is a sufficient grant. It is true that this is not the claim in the declaration, but that may be amended by agreement of the parties to raise the real question, and should be, if necessary. The case then is reduced to this. Can a grantee from a riparian proprietor of land, part of the former riparian estate, but separated from the stream by land of the grantor not included in the grant, with a grant from the grantor of a right to lay pipes from the stream to the granted land and take water by means of them from the stream to such granted land, maintain an action against a person who fouls the stream? It is strange that this question should arise for the first time. There can be no doubt that the grant as between the riparian grantor and the grantee is good. And there is this to be said in favor of supporting the present claim, that we must suppose that the grantor and grantee have found the arrangement to be to their mutual advantage, that the stream can be more beneficially used this way than otherwise. Consequently that such an arrangement is for the public good. Why, then, should it not be effectual against a person, who as against the riparian proprietor is a wrongdoer? It imposes no additional burden on the riparians or others above. If they are wrongdoers by fouling now, so were they before. They could be restrained by injunction before if they can now. No doubt they might be made liable to larger damages than they would