1832. TRAFFORD V. The KING. direction; it is upon the same level throughout, and is raised by artificial embankments on each side through the whole half mile, and is carried across the river by an aqueduct of one arch (mentioned in the indictment), which was built at the time of making the canal. At the distance of 430 yards from the river, towards the north, the canal is supported upon three arches, also built at the last-mentioned time; on the south side it has two culverts at 160 and 460 yards' distance from the river, one made at the same time with the canal, the other built by the trustees of the late Duke of Bridgewater (the proprietors of the canal) in 1806. About 800 yards above the aqueduct the river is joined from the east by Chorlton Brook, the capacity of which, at the junction, is equal to one tenth of the capacity of the river at the same point; and after this junction, the river, which had before flowed northward, turns immediately to the west. On each side of the river, and also of the brook, there are now artificial banks called fenders, made to prevent the water, in times of flood, from overflowing the adjacent lands. These fenders have from time to time been raised, as occasion required, by proprietors and occupiers of adjoining lands; and the fenders on the banks of the river on the north side are now three feet higher than they were twenty years ago; the fenders on the northern banks of the brook two feet three inches higher than they were at the same period. Before the banks of the river and of the brook were so raised, the water of the river, in times of flood, was frequently penned back up the brook, and, together with the water of the brook, ran over the north bank of the brook, and inundating certain lands (the situation of which was particularly described in the verdict), made its way to the three arches above mentioned, on the north side of the river. After passing through these, it flowed along a low tract of land, until it fell into the river again at a place place called Ermston, two miles from the said three arches, inundating in its course, both above and below the arches, many hundred acres of land, throwing down hedges, and otherwise doing much mischief. No regular watercourse was ever kept open for the flood water. Since the banks of the river and of the brook have been raised as above mentioned, the flood water, whenever it has overflowed or broken down the banks of the brook, has taken the same course to the three arches. The whole three arches are not necessary for any other purpose than for the passage of such flood water; one arch, of small dimensions, would be sufficient for the passage of all other water collected at that place. At times, since the making of the canal, the water of the river has overflowed the banks above its junction with the brook, and has inundated a tract of land on the south and west of the river; and by reason of the embankment on which the canal is raised, and of the want of sufficient outlets underneath, this flood water has (particularly in the year 1806) broken down the south bank of the river between the aqueduct and the brook, passed across the river, and broken down the north bank; and then, after inundating the adjoining lands, flowed down to the three arches before mentioned. In 1806 the trustees of the Duke of Bridgewater (the then proprietors of the canal,) on complaint from the landowners on the north bank of the river, made them compensation for the damage so sustained; and they have, since that time, paid an annual rent or compensation for a piece of land on the south side, which was on that occasion washed away. They have, also, from time to time repaired the south bank of the river and the fender thereon, to the extent of fifty yards eastward from the canal. The verdict then described the particular fields and fenders belonging to the several Defendants, and it appeared that every fender was much higher than the land 1832. TRAFFORD υ. The KING. 1832. TRAFFORD ข. The KING. to the north of it, and that the fenders on the banks of the river and brook had been raised from time to time within the last six years, and kept and continued so raised by the Defendants severally in their respective occupations, but not jointly. It also described the level of the lands through which the flood water was accustomed to escape in the direction of the three arches as first above mentioned, and also the level of the bed of the river for some miles above its junction with the brook. A statement was then given of injuries sustained in July 1828, when the flood-water broke the banks of the river and canal, (the navigation of which was stopped,) and ultimately flowed down to the three arches before mentioned. The improved drainage of the country higher up the river for many miles has occasioned a greater quantity of water to flow down the river to the aqueduct than used to flow to it for several years after it was built, but the aqueduct is still wide enough for the river water to pass at all times except in high floods. The raising of the fenders on the banks of the river and of the brook, has occasioned a much greater quantity of water to flow to the aqueduct in high floods than did or could flow to it for several years immediately after it was built, and has rendered it insufficient for the passage of the water in high floods, and thereby greatly endangered the canal. If the fenders on the banks of the river and of the brook were reduced to the height at which they were twenty years ago, a great part of the waters of the river and brook in high floods would overflow the banks of the brook, and inundate the neighbouring lands, and would take the direction in which the flood-water used formerly to flow to the said three arches, and thence to Ermston; but many hundred acres of land would thereby be inundated, and great injury done to the owners and occupiers of that land. The fenders on the banks of the the river and of the brook have not been raised more than was necessary to prevent the lands being so inundated. The case having been removed into this court, on error, after judgment had been given for the crown by the Court of King's Bench, F. Pollock, for the Defendants below, contended that, as the bed of rivers is continually rising from the gradual deposit of matters washed down from the source to the mouth, the owners of adjoining lands must have a right of raising the banks from time to time to prevent the effects of inundation. That if the Defendants below had in this case raised their embankments higher than usual, it was owing to the prosecutors' causeway, which, obstructing the passage of the waters in ordinary floods, and thereby occasioning damage to the land, it became necessary to prevent the overflow by a higher bank. By the statute which regulated the affairs of the canal, the prosecutors were bound to allow sufficient waterway. Wightman, contrà, admitting that to a certain extent the owners of adjoining lands might have, without occasioning injury to others, the right of raising fenders to obviate the effects of ordinary floods, denied the right, if the exercise of it occasioned injury to others, as it must do supposing the banks raised to such a height as to contain all floods whatever. As upon such a supposition the banks must continually rise, no bridge could be erected high enough to carry off the water for many years. (As the judgment of the Court turned upon the form of the special verdict, it would be superfluous to state the argument at greater length.) (a) 1832. TRAFFORD V. The KING. 1832. TRAFFORD V. TINDAL C. J. Upon this special verdict, in which judgment has been given for the crown by the Court of King's Bench, such judgment appears to have proceeded exThe KING. pressly on the principle, that the ancient course and outlet of the flood water had been obstructed by the wrongful raising from time to time of the fenders therein described, by the Defendants below. Whilst, however, we agree in the principle so laid down by the Court, we are unable to discover, upon this special verdict, a finding of sufficient facts to warrant its application to the present case. In order to shew the Defendants to have been guilty of the offence charged in this indictment, we think, in the first place, it ought to appear distinctly upon the special verdict that the raising and heightening of the fenders on the lands of the respective Defendants, was not an accustomed and 'rightful usage which has obtained from time to time; that it was an enjoyment commencing since the construction of the canal in 1763; not sanctioned by ancient usage, or by the ordinary right which every man possesses, prima facie, to protect his own property, provided he can do it without injury to others: and that it ought also to appear distinctly that the course which the floodwater is stated in the special verdict to have taken, and by which it was carried again into the river at a lower point, was the ancient and rightful course which it ought to take. And we think, in the second place, it ought not to be left in doubt, upon the facts found in the verdict, whether the raising the fenders to their present height has or has not become necessary in consequence of the construction of the aqueduct and embankment. On the contrary, that it ought to appear distinctly upon the finding by the jury, either that the embankment and the aqueduct have not wrongfully penned back more water upon the low lands of the Defendants than was formerly collected in times of flood; or, that the banks of the |