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draw distinction between the right to divert and the right to pollute water arising from temporary causes. "The "Court of Queen's Bench," says Pollock, C. B., delivering the judgment of the Court in the latter case, "in the subsequent case of Magor v. Chadwick, supported a ver"dict for the plaintiff for the disturbance of a stream, "under circumstances somewhat similar; but in that case "the action was not brought against the party in whose "land the artificial watercourse commenced, nor anyone claiming under him, and he had not put an end to it by altering the mode of working his mines; but what is more important, the action was not brought for abstract"ing, but for fouling-a species of injury which does not "stand on the same footing; for, although the possessor "of the mine might stop the stream, it does not follow "that he or any other could pollute it whilst it continued "to run."1

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1 As to pollution of artificial watercourses, see ante, p. 154 et seq.

Acquired rights of

water termed easements.

Definition of easement.

CHAPTER IV.

OF ACQUIRED RIGHTS OF WATER, AND THE EASEMENT
OF WATERCOURSE.

In addition to the natural right to receive flowing water
in its accustomed course, rights, the object of which is to
interfere with the natural course of the stream, may be
acquired over a stream flowing through a man's land
or through his neighbour's land. Thus a right may be
acquired to throw back upon the land of proprietors higher
up the stream the water which, unless so reflected, would
by the force of gravity pass from it; or to discharge the
water upon the land lying lower down the stream either
injured in quality, or with a degree of force greater or less
than the natural current.1

Such acquired rights are termed easements.

An easement may be defined as a service or convenience which one neighbour hath, without profit upon, over, or from any land or water of another.2

An easement (under which head all acquired rights of water are classed) differs from a profit à prendre, in that the former is merely a right to do some act which, if done without such right, would be a simple trespass on another's property, while a profit à prendre carries with it a right to take and appropriate a portion of the soil and its produce.3

Easements must be used in connection with some tene

1 Gale on Easements, p. 270; Sampson v. Hoddinot, 1 C. B., N. S. 611.

2 Co. Litt. 19, 20; see also Angell on Watercourses, p. 244; Hewlins v. Shippam, 5 B. & C. 221;

Manning v. Wasdale, 5 A. & E. 764; Race v. Ward, 4 E. & B. 702.

3 Phear, Rights of Water, p. 57; Race v. Ward, 4 E. & B. 702; Manning v. Wasdale, 5 A. & E 764.

ment, and cannot, as hereditaments, be created or acquired in gross.1

The tenement in respect of which an easement is used is termed the dominant tenement; and the tenement upon, over, or from which it is used is termed the servient tenement. Considered with reference to the servient tenement, an easement is frequently termed a servitude.

The easements relating to water may be classified Easements of thus: 2

1. The right to affect or use the water of a natural stream in any manner not justified by natural right—

(a) In quantity;

(b) In quality.

2. The right to conduct water across a neighbour's land by an artificial watercourse, and to go on his land for the purposes of clearing it.

3. The right to discharge water or other matter on a neighbour's land.

4. The right to go on a neighbour's land to draw water from a well.

It is proposed to consider, first, how these easements may be acquired; and, secondly, the nature, extent, and mode of enjoyment of the above-mentioned particular,easements of water.

water.

Easements of Water, how acquired.

The origin of rights of this kind is referred either to express contract between the parties, or to a similar contract implied from the peculiar relation of the parties at the time they became possessed of their respective tenements, or from the long-continued exercise of the right from which a previous contract between them may be

1 Ackroyd v. Smith, 10 C. B. 164; Shuttleworth v. Le Fleming, 19 C. B., N. S. 637; Hill v. Tupper, 2 H. & C. 121; and see also remarks on the last case by Bram

well, B., in Nuttal v. Bracewell,
L. R., 2 Ex. 11.

2 The acquired rights of fishery
and navigation are fully treated of
elsewhere; see Chaps. VI. and VII.

An easement is an incorporeal right.

By express agreement.

An easement can only be created or assigned at

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inferred; or to the provisions of an Act of the legislature.2

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"A watercourse," says Woolrych,3" may be either a "real or an incorporeal hereditament. If by grant, prescription, or otherwise, one should have an easement of "this kind in the land of another person, it would partake "of the latter quality; but if the water flow over the party's own land, although, indeed, it cannot be claimed as water, yet it is, in effect, identified with the realty, "because it passes over the soil, and cujus est solum, ejus est usque ad cœlum."

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The ceremony required by law for the creation of easements and all other incorporeal hereditaments, is a deed, devise, or record; and as the same ceremonies are requisite in the transfer of a right as are requisite in its original formation, a water right as an incorporeal hereditament can only be assigned by deed, devise, or record.

This point was decided in Hewlins v. Shippam," where the question was, whether a right to a drain running law by deed. through the adjoining land could be conferred by a parol licence, and under the Statute of Frauds; and the Court held that such an interest could only be created by deed.

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Bayley, J., in delivering judgment of Court, says: "A right of way or a right of passage for water (where it "does not create an interest in land), is an incorporeal right, and stands on the same footing with other incorporeal rights, such as rights of common, rents, advow"sons, &c. It lies not in livery, but in grant, and a free"hold interest in it cannot be created or passed (even if a "chattel interest may, which I think it cannot), otherwise "than by deed." "

Gale on Easements, p. 3.
2 Per Cockburn, C. J., in Mason
v. Shrewsbury Railway, L. R., 6
Q. B. 537.

Woolrych, p. 146.

4 Angell on Watercourses, p. 324; Gale on Easements, p. 27.

55 B. & C. 221; see as to this subject, Gale on Easements, pp.

27-83.

6 Hewlins v. Shippam, 5 B. & C. 221; see also Fentiman v. Smith, 4 East, 107; see also Corker v. Payne, 18 W. R. 436; Cocker v. Cowper, 1 C. M. & R. 418; Duke of Somerset v. Fogwell, 5 B. & C. 875; Gale, pp. 29, 53.

After citing other cases1 in support of his opinion, the learned judge continues: "And in Fentiman v. Smith,2 "where the plaintiff claimed to have passage for water by "a tunnel over defendant's land, Lord Ellenborough lays "it down distinctly-The title to have the water flowing "in the tunnel over defendant's land could not pass by

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parol licence without deed.' Upon these authorities, "we are of opinion, that, although a parol licence might "be an excuse for a trespass till such licence were coun"termanded, that a right and title to have passage for "water, for a freehold interest, required a deed to create "it; and that, as there has been no deed in this case, the "present action, which is founded on a right and title, "cannot be supported." 3

The doctrine laid down in this case was fully recognized in Cocker v. Cowper, where an action was brought for stopping a watercourse. It appears from the award of the arbitrator that the channel in question consisted of a drain and tunnel which had been constructed in defendant's land by the plaintiff with the verbal consent of the then tenant and the defendant, and that the water had flowed through it up to the year 1833, when upon plaintiff's refusal to pay for the use of the water the defendant diverted the channel. The Court of Exchequer were clearly of the opinion that the plaintiff was not entitled to recover. "With regard to the question of licence," says the Court, "the case of Hewlins v. Shippam is decisive to show that an easement like this cannot be conferred unless by

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1 Co. Litt. 9a, 42a, 169; 2 Roll. Abr. 62; Shep. Touch. 231; Monk v. Butler, Cro. Jac. 574; Rumsey v. Rawson, 1 Vent. 18-25; Hoskins v. Robins, 1 Vent. 123-163; Harrison v. Parker, 6 East, 154.

24 East, 107.

3 See also the remarks of the learned judge on the cases of Winter v. Brockwell, 8 East, 309; Webb v. Paternoster, Palm. 71; Wood v.

Lake, Sayer, 3; and Taylor v.
Waters, 7 Taunt. 374.

1 C. M. & R. 418; see also Wood v. Leadbitter, 13 M. & W. 838; Wood v. Manley, 11 A. & E. 30; Bird v. Higginson, 6 A. & E. 824; Perry v. Fitzhowe, 8 Q. B. 757; Bryan v. Whistler, 8 B. & C. 288; Brown v. Windsor, 1 Cr. & J. 20; Wallis v. Harrison, 4 M. & W. 538.

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