cases of Bealy v. Shaw (a), Saunders v. Newman (b), Williams v. Moreland (c). It appears to us also, that the doctrine of Blackstone and the dicta of learned judges, both in some of those cases, and in that of Cox v. Matthews (d), have been misconceived. In the case of Bealey v. Shaw, the point decided was, that the owner of land through which a natural stream ran, (which was diminished in quantity, by having been in part appropriated to the use of works above, for twenty years and more, without objection,) might, after erecting a mill on his own land, maintain an action against the proprietor of those works, for an injury to that mill, by a further subsequent diversion of the water. This decision is in exact accordance with the proposition contended for by the plaintiff, that the owner of the land through which the stream flows, may, as soon as he has converted it to a purpose producing benefit to himself, maintain an action against the owner of the land above, for a subsequent act, by which that benefit is diminished; and it does not in any degree support the position, that the first occupant of a stream of water has a right to it against the proprietor of land below. Lord Ellenborough distinctly lays down the rule of law to be, that, "independent of any particular enjoyment used to be had by another, every man has a right to have the advantage of a flow of water in his own land, without diminution or alteration. But an adverse right may exist, founded on the occupation of another; and though the stream be either diminished in quantity, or even corrupted in quality, as by means of the exercise of certain trades, yet if the occupation of the party so taking or using it (a) 6 East, 208. C 2 (b) 1 B. & A. 258. have 1833. MASON against HILL. 1835. MASON against HILL. have existed for so long a time as may raise the presumption of a grant, the other party, whose land is below, must take the stream, subject to such adverse right." Mr. Justice Lawrence confirms the opinion of Mr. Baron Graham on the trial, that " persons possessing lands on the banks of rivers had a right to the flow of the water in its natural stream, unless there existed before, a right in others to enjoy or divert any part of it to their own use." Mr. Justice Le Blanc, in his judgment, says as follows: "The true rule is, that after the erection of works, and the appropriation, by the owner of land, of a certain quantity of the water flowing over it, if a proprietor of other land afterwards takes what remains, the first-mentioned owner, however he might, before such second appropriation have taken to himself so much more, cannot do so afterwards;" and. this expression, in which, in truth, that learned judge cannot be considered as giving any opinion upon the effect of a prior appropriation, is the only part of the case, which has any tendency to support the doctrine contended for by the defendants. The case of Saunders v. Newman (a) is no authority upon this question, and is cited only to shew, that Mr. Justice Holroyd quotes the opinion of Le Blanc J. * above mentioned; and he confirms it, so far as this, that the plaintiff, by erecting his new mill, appropriated to himself the water in its then state, and had a right of action for any subsequent alteration, to the prejudice of his mill; about which there is no question. The last and principal authority cited is that of Williams v. Morland(b). The case itself decides no more than this: that the (a) 1 B. & A. 258. (b) 2 B. & C. 910. plaintiff plaintiff having in his declaration complained, that the defendants had, by a floodgate across the stream above, prevented the water from running in its regular course through the plaintiff's land, and caused it to flow with increased force and impetuosity, and thereby undermined and damaged the plaintiff's banks, could not recover, the jury having found that no such damage was sustained. The judgments of all the judges proceed upon this ground, though there are some observations made by my brother Bayley, which would seem at first sight to favour the proposition contended for by the defendants. These observations are, that "flowing water is originally publici juris. So soon as it is appropriated by an individual, his right is co-extensive with the beneficial use to which he appropriates it. Subject to that right, all the rest of the water remains publici juris. The party who obtains a right to the exclusive enjoyment of the water, does so in derogation of the primitive right of the public. Now, if this be the true character of the right to water, a party complaining of the breach of such a right, ought to show that he is prevented from having water which he has acquired a right to use for some beneficial purpose." (a) The dictum of Lord Chief Justice Tindal in Liggins v. Inge (b) is to this effect :-" Water flowing in a stream, it is well settled by the law of England, is publici juris. By the Roman law, running water, light, and air, were considered as some of those things which were res communes, and which were defined, things, the property of which belongs to no person, but the use to all. And by the law of England, the person who first appro (a) 2 B. & C. 913. C 3 (b) 7 Bing. 692. priates 1833. MASON against HILL. 1833. MASON agrinst HILL. priates any part of this water flowing through his land to his own use, has the right to the use of so much as he then appropriates, against any other;" and for that he cites Bealey v. Shaw and Others (a), which case, however, is no authority for this position, as far as relates to the owner of the land below; and probably, therefore, the Lord Chief Justice intended the expression "any other" to apply only to those who diverted or obstructed the stream. To these dicta may be added the passage from Blackstone's Commentaries, vol. ii. 14" There are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary property is capable of being had; and therefore they still belong to the first occupant, during the time he holds possession of them, and no longer. Such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences: such, also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition, which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.” "Water And, 2 Blackstone's Commentaries, p. 18. is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can (a) 6 East, 208. only only have a temporary, transient, usufructuary property therein; wherefore if a body of water runs out of my pond into another man's, I have no right to reclaim it.” None of these dicta, when properly understood with reference to the cases in which they were cited, and the original authorities in the Roman law, from which the position that water is publici juris is deduced, ought to be considered as authorities, that the first occupier or first person who chooses to appropriate, a natural stream to a useful purpose, has a title against the owner of land below, and may deprive him of the benefit of the natural flow of water. The Roman law is (2 Inst. Tit. 1. s. 1.) as follows:— "Et quidem naturali jure, communia sunt omnium hæc: aer, aqua profluens, et mare, et per hoc littora maris." It is worthy of remark, that Fleta, enumerating the res communes, omits "aqua profluens," Lib. 3. ch. 1. Vinnius, in his commentary on the institutions, explains the meaning of the text,-Communia sunt quæ à natura ad omnium usum prodita, in nullius adhuc ditionem aut dominium pervenerunt: Huc pertinent, præcipue aer et mare, quæ cum propter immensitatem, tum propter usum, quem in commune omnibus debent, jure gentium divisa non sunt, sed relicta in suo jure, et esse primævo adeoque nec dividi potuerunt. Item aqua profluens, hoc est aqua jugis, quæ vel ab imbribus collecta, vel e venis terræ scaturiens, perpetuum fluxum agit, flumenque aut rivum perennem facit. Postremò propter mare, etiam littora maris. In hisce rebus duo sunt, quæ jure naturali omnibus competunt. Primum communis omnium est harum rerum usus, ad quem natura comparatæ sunt, tum siquid earum rerum per naturam occupari potest, id eatenus occupantis fit, quatenus ea occupatione 1833. MASON against HILL |