Rights of Way. right of way before the passing of the act, but which was not noticed or described among those set out by the commissioner, might justify the stopping up of such way, although the award contained no declaration that the road in question was stopped up. (White v. Reeves, 2 B. Moore, 23.) As to the construction of local inclosure acts giving powers to stop up roads, see Logan v. Burton (5 B. & Cr. 513; S. C., 3 Dowl. & Ryl. 299); Harber v. Rand (9 Price, 58); Rex v. Inhabitants of Hatfield (4 Ad. & Ell. 156.)

Remedy for disturbance of right

of way by action at law.

Action by reversioner.

Pleading.

An action on the case lies for the disturbance of a right of way, created either by reservation, grant or prescription; (Com. Dig. Action on the Case for Disturbance (A. 2); 1 Roll. Abr. 109;) and such disturbances may be either by absolutely stopping up the way, or by ploughing up the land through which the way passes (2 Roll. Abr. 140), or by damaging the way with carriages, so that it is of no use. (Loughton v. Ward, 1 Lutw. 111.) A reversioner cannot maintain an action on the case against a stranger for merely entering upon his land held by a tenant on lease, though the entry be made in exercise of an alleged right of way, such an act during the tenancy not being necessarily injurious to the reversioner; for, in order to entitle a reversioner to maintain an action on the case against a stranger he must allege in his count, and prove at the trial, an actual injury to his reversionary interest. (Baxter v. Taylor, 4 B. & Ad. 72; S. C., 1 Nev. & M. 11. See Jackson v. Pesked, 1 Maule & S. 234; Alston v. Scales, 2 Moore & Scott, 5.) A reversioner cannot sue for the obstruction of a right of way, unless the obstruction be such as either permanently injures the estate, or operates in denial of the right. (Hopwood v. Scholfield, 2 M. & Rob. 34. See Young v. Spencer, 10 B. & Cr. 145.) A declaration in case by a reversioner alleged that the plaintiff was entitled to a right of way for his tenants over a certain close of the defendant, and charged that the defendant wrongfully locked, chained, shut and fastened a certain gate, standing in and across the way, and wrongfully kept the same so locked, &c, and thereby obstructed the way, and that by means of the premises the plaintiff was injured in his reversionary estate; it was held, on motion in arrest of judgment, that the declaration was sufficient, inasmuch as such an obstruction might occasion injury to the reversion, and it must be assumed after verdict that evidence to that effect had been given. (Kidgill v. Moor, 9 C. B. 364.) If a road, when made, was such as was authorized by a reservation in a lease, the intention to use it for a purpose not authorized is no ground for an action by the reversioner, though, if the intent were carried into effect, the tenant in possession may be entitled to bring an action of trespass. (Durham and Sunderland Railway Company v. Walker, 2 Q. B. 940.)

Where the plaintiff had, under a clause in the special act of a railway company, acquired the use of a siding, which he used as a coal wharf and leased to tenants, and the railway company subsequently denied the plaintiff's right to use the siding, and, with a view to prevent its being used, obstructed the entrance to the siding by carriages constantly kept there, and by other means: it was held that the obstruction was sufficiently permanent to give the plaintiff a right of action as reversioner. (Bell v. Midland Railway Company, 10 C. B., N. S. 287; 9 W. R. 612.)

The Railway Clauses Act, 1845, s. 53, takes away the common law right of action for an interference under the powers of a railway company with a private right of way, except when special damage has been sustained. (Watkins v. Great Northern Railway Company, 16 Q. B. 961; 20 Law J., Q. B. 391.)

In the Schedule to the Common Law Procedure Act, 15 & 16 Vict. c. 76, the following forms of pleading are given: "That the defendant, at the time of the alleged trespass, was possessed of land, the occupiers whereof, for twenty years before this suit, enjoyed, as of right and without interruption, a way on foot and with cattle from a public highway over the said land to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway, at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use by the defendant of

the said way." The form of replication to the above plea is, "That the occupiers of the said land did not for twenty years before this suit enjoy as of right and without interruption the alleged way."

It is an elementary rule in pleading, that when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of producing it, or the evidence sustaining the allegation. Thus, in a case very familiar, if a trespass be justified by a plea of highway, the pleader never states how the locus in quo became a highway; and if the plaintiff's case is that a locus in quo, by an order of justices, award of inclosure commissioners, local act of parliament, or any other lawful means, had ceased to be such at the time alleged in the declaration, he simply puts in issue the fact of its being a highway at that time, without alleging the particular mode by which he intends to show, in proof, that it had before then ceased to be such. (Williams v. Wilcox, 8 Ad. & Ell. 331.) In all cases for disturbance of a way, the obstruction ought to be charged in the pleadings in the thing itself to which the party has a right, and if charged generally, the declaration would be bad. Much more, then, when the mode of the obstruction is stated, and that not in the thing where the right is claimed. (Tebbutt v. Selby, 1 Nev. & P. 717; 6 Ad. & Ell. 786.) Where in an action for wrongfully stopping up a way the precise locality of the way is material to the defence, the defendant is bound to show it in his pleadings. (A (Ellison v. Iles, 3 Per. & D. 391; 11 Ad. & Ell. 665.) Where in an action of trespass for disturbing a right of way the plaintiff averred that the defendant used and enjoyed the right of way mentioned in the plea, but that he did so under the plaintiff's leave and licence, the plaintiff is bound to show a licence co-extensive with the right claimed in the plea, and admitted by the replication. (Colchester v. Roberts, 4 Mees. & W. 769.) In an action on the case for obstructing a right of way, between two specified termini over a close called the Terrace Walk, the way was claimed as appurtenant to a messuage, in general terms, without reference to any obligation to repair. On the trial of an issue joined on a traverse of the right of way, the easement proved was a right to pass forwards and backwards over every part of the close, and not merely between the termini specified in the declaration; and it was shown that the easement was enjoyed under a grant thereof to D., his heirs, tenants and assigns, and to certain other persons, he, they, and every of them from time to time contributing and paying a rateable share and proportion towards repairing and amending the Terrace Walk: it was held no variance, the easement proved being only larger than the easement alleged, and not different in kind; and it was also held, that the obligation to repair was not in the nature of condition precedent, and need not be alleged in the declaration. (Duncan v. Louch, 6 Q. B. 904.)

Rights of Way.

Where the lessees of a colliery had agreed to grant to the lessees of a Remedy in neighbouring colliery licence to use a right of way enjoyed by the former, equity. and the owner of the first colliery had granted to the second lessees the same right of way during a term of years, and afterwards by assignment from the first lessees became possessed of the first colliery and the right of way, an injunction was granted to restrain him from removing the materials and destroying the way. (Newmarch v. Brandling, 3 Swanst. 99.)

It was stipulated by an agreement between the parties to a suit that the plaintiff, his heirs and assigns, should have full and free permission "to use at all times the roads and ways in and through the defendant's estate." There were two roads traversing the estate, at a further extremity of which, where his land terminated, certain existing obstructions were continued by the defendant, so that the plaintiff, whilst he had the use of the roads over the estate, could not pass beyond it. An injunction was granted to restrain the defendant from making and continuing the obstruction at the extremity of his land. (Phillips v. Treeby, 8 Jur., N. S. 999; 3 Giff. 632.)

Where a bill was filed by a lessee to establish a right of way, an objection for want of parties, because the plaintiff's lessor was not before the court, was allowed. (Poore v. Clark, 2 Atk. 515.) As to the certainty required in such bills, see Gell v. Hayward (1 Vern. 312); Cresset v. Mitton (3 Bro. C. C. 481; 1 Ves. jun. 449).

As to the remedy in equity, in the case of a licence for a right of way

Rights of Way.

Origin of law

streams.

which has been executed, and where expense has been incurred, see Mold v. Wheatcroft (27 Beav. 510), and the cases quoted, ante, p. 60.

An injunction was granted, restraining the user of a right of way in a manner which was not intended when it was reserved. (Ardley v. St. Pancras Guardians, 39 L. J., Ch. 871.)

(5.) OF WATERCOURSES.

The right of conducting water through one estate for the use and convenience of an adjoining estate, is an incorporeal hereditament of the class of easements, or a prædial service, which was known to the civilians under the name of service aquæ ductus (Domat's Civil Law, L. 1, T. 12), and is of use when Seius has a scarcity of water, and requires it for watering his cattle, or his lands, or for making his mill go, or for any other such advantage to his ground. (2 Frederican Code, 144.)

The ground and origin of the law which governs streams running in their governing natural natural course would seem to be this, that the right enjoyed by the several proprietors of the lands over which they flow is, and always has been, public and notorious: that the enjoyment has been long continued-in ordinary cases, indeed, time out of mind-and uninterrupted; each man knowing what he receives and what has always been received from the higher lands, and what he transmits and has always been transmitted to the lower. The rule, therefore, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands from all ages, or perhaps it may be considered as a rule of positive law (which would seem to be the opinion of Fleta and of Blackstone), the origin of which is lost by the progress of time; or it may not be unfitly treated, as laid down by Mr. Justice Story, in his judgment in the case of Tyler v. Wilkinson (4 Mason's American Rep. 401), in the courts of the United States, as "an incident to the land; and that whoever seeks to found an exclusive use must establish a rightful appropriation in some manner known and admitted by the law." (Per Tindal, C. J., in Acton v. Blundell, 13 Mees. & W. 349, 350.)

Natural right of

to the use and to the flow of water in natural streams.

In Acton v. Blundell (13 Mees. & W. 348, 349), the court considered the riparian proprietor following to be a correct exposition of the law as laid down in Mason v. Hill (5 B. & Ad. 1; 2 Nev. & M. 747); and substantially declared by Sir John Leach, V.-C., in Wright v. Howard (1 Sim. & S. 190). "The rule of law which governs the enjoyment of a stream flowing in its natural course over the surface of land belonging to different proprietors is well established; each proprietor of the land has a right to the advantage of the stream flowing in its natural course over his land, to use the same as he pleases, for any purposes of his own, not inconsistent with a similar right in the proprietors of the land above or below; so that neither can the proprietor above diminish the quantity or injure the quality of the water which would naturally descend, nor can any proprietor below throw back the water without the licence or the grant of the proprietor above." The principles upon which the right to the use of water depends, were thus expressed by Sir J. Leach, V.-C., in a luminous judgment:-"Primâ facie, the proprietor of each bank of a stream is the proprietor of half the land covered by the stream, but there is no property in the water. Every proprietor has an equal right to use the water which flows in the stream; and consequently no proprietor can have the right to use the water to the prejudice of any other proprietor, without the consent of the other proprietors, who may be affected by his operations. No proprietor can either diminish the quantity of water, which would otherwise descend to the proprietors below, nor throw the water back upon the proprietors above." (Wright v. Howard, 1 Sim. & Stu. 203; the foregoing remarks were adopted by Lord Tenterden, C. J., Mason v. Hill, 3 B. & Ad. 312, 313; and see 5 B. & Ad. 18; Ennor v. Barwell, 2 Giff. 426, 427.)

The right to have the stream to flow in its natural state, without diminution or alteration, is an incident to the property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum racans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably

use it who have a right of access to it; that none have any property in the Of Watercourses. water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has a right to the usufruct of the stream of water which flows through it. This right to the benefit and advantages of the water flowing past his land is not an absolute and exclusive right to the flow of all the water in its natural state, but it is only a right to the flow of the water and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence. (Per Parke, B., Embrey v. Owen, 6 Exch. 369.)

"The flow of a natural stream creates mutual rights and liabilities between all the riparian proprietors along the whole of its course. Subject to reasonable use by himself, each proprietor is bound to allow the water to flow on without altering the quantity or quality." (Per Erle, C. J., Gared v. Martyn, 19 C. B., N. S. 732; 14 W. R. 66.)

"By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land; for instance, to the reasonable use of the water for domestic purposes and for his cattle; and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But, further, he has a right to the use of it for any purpose, for what may be deemed the extraordinary use of it, provided he does not thereby interfere with the rights of other proprietors, either above or below him. Subject to this condition, he may dam up a stream for the purpose of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury." (Per Lord Kingsdown, Miner v. Gilmour, 12 Moo. P. C. 156; 7 W. R. 330; adopted by Martin and Channell, BB., in Nuttall v. Bracewell, L. R., 2 Ex. 1. See Att.-Gen. v. Great Eastern Railway Company, L. R., 6 Ch. 572; Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 H. L. 418.)

In Williams v. Morland (2 B. & C. 910), Bayley, J., said, “Flowing Appropriation not water is originally publici juris. So soon as it is appropriated by an indi- necessary. vidual, 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." See further as to the doctrine of appropriation laid down in the earlier cases, Earl of Rutland v. Bowler (Palm. 290); Bealey v. Shaw (6 East, 208); Saunders v. Newman (1 B. & Ald. 258); Liggins v. Inge (7 Bing. 692); Frankum v. Earl of Falmouth (6 C. & P. 529). Lord Denman, however, in delivering the judgment of the Court of King's Bench, said: "It appears to us that there is no authority in our law, nor, as far as we know, in the Roman law (which, however, is no authority in ours), that the first occupant, though he may be the proprietor of the land above, has any right by diverting the stream to deprive the owner of the land below of the special benefit and advantage of the natural flow of water therein." (Mason v. Hill, 5 B. & Ad. 24.) See Arkwright v. Gell (5 Mees. & W. 220), where Parke, B., said, "The object of the judgment in Mason v. Hill was to set right the mistaken notion which had got abroad in consequence of certain dicta in Williams v. Morland (2 B. & C. 910), that flowing water is publici juris, and that the first occupant of it for a beneficial purpose may appropriate it." And see Sampson v. Hoddinott (1 C. B., N. S. 590; 5 W. R. 230), where it was said, "It appears to us that all persons having land on the margin of a flowing stream have by nature certain rights to use the water of the stream, whether they exercise their rights or not." (Adopted by Wood, V.-C., in Crossley v. Lightowler, L. R., 3 Eq. 296.)

defined.

To constitute a watercourse in which rights may be acquired by user, the Channel must be flow of water must possess that unity of character by which the flow on one person's land can be identified with that on his neighbour's land. Water which squanders itself over an indefinite surface is not a proper subject

Of Watercourses. matter for the acquisition of a right by user. (Briscoe v. Drought, 11 Ir. C. L. R., N. S. 250.) The right of a riparian owner to the lateral tributaries or feeders of the main stream applies to water flowing in a defined and natural channel or watercourse, and does not extend to water flowing over or soaking through land previous to its arrival at such watercourse. (Broadbent v. Ramsbottom, 25 L. J., Exch. 115.)

Natural rights with regard to subterranean water:

where course is known and defined;

where course is undefined.

The owner of land has an unqualified right to drain it for agricultural purposes, in order to get rid of mere surface water, the supply of the water being casual and its flow following no regular definite course; and a neighbouring proprietor cannot complain that he is thereby deprived of such water which otherwise would have come to his land. (Rawstron v. Taylor, 11 Exch. 369.) The water from a spring flowed in a gully or natural channel to a stream on which was a mill. The spring having been cut off at its source, and the water received into a tank as it rose from the earth, by the licence of the owner of the soil on which the spring rose: it was held, that an action lay by the mill-owner against the person so abstracting the water. (Dudden v. Guardians of Clutton Union, 1 H. & N. 627; 26 L. J., Exch. 146. See Van Breda v. Silberbauer, L. R., 3 P. C. 84.)

As to what is a defined channel, see Briscoe v. Drought (11 Ir. C. L. R., N. S. 250); Ennor v. Barwell (2 Giff. 410).

If the course of a subterranean stream be 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 would be considered 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 if the stream had been wholly above ground. (Per Pollock, C. B., Dickenson v. Grand Junction Canal Company, 7 Ex. 300; adopted by Lord Chelmsford, Chasemore v. Richards, 7 H. L. C. 349; 7 W. R. 685. See also Dudden v. Guardians of Clutton Union, 1 H. & N. 630.)

The owner of land, through which water flows in a subterraneous course, has no natural right or interest in it which will enable him to maintain an action against a landowner, who, in carrying on mining operations on his own land in the usual manner, drains away the water from the land of the first-mentioned owner, and lays his well dry. Tindal, C. J., intimated no opinion whatever as to what might be the rule of law, if there had been an uninterrupted user of the right for more than the last twenty years; but the court, confining themselves strictly to the facts stated in the bill of exceptions, thought the case was not to be governed by the law which applies to rivers and flowing streams, but that it rather fell 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 and 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 neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque injuriâ, which cannot become the ground of an action. (Acton v. Blundell, 12 Mees. & W. 353, 354.) The same principle was laid down by the House of Lords in Chasemore v. Richards, the facts of which case are stated, p. 91, post. It was there said: The question then is, whether the plaintiff has such a right as he claims jure nature to prevent the defendant sinking a well in his own ground at a distance from the mill, and so absorbing the water percolating in and into his own ground beneath the surface, if such absorption has the effect of diminishing the quantity of water which would otherwise find its way into the river Wandle, and by such diminution affects the working of the plaintiff's mill? It is impossible to reconcile such a right with the natural and ordinary right of landowners, or to fix any reasonable limits to the exercise of such a right. Such a right as that contended for by the plaintiff would interfere with, if not prevent, the draining of land by the owner. Suppose, as it was put at the bar in argument, a man sank a well upon his own land, and the amount of percolating water which found a way