water did not apply in such a case, and that no grant could be made by the B. Company of the use of any water which might injuriously affect these purposes. That consequently no right by prescription could in this case have any foundation in grant. Nor could any prescriptive right by user be founded on the fact that the B. Company had for many years allowed the water to pass out of the B. canal in a particular manner, so as to prevent the B. Company from afterwards improving its machinery and economising the water, for the water so passing into the S. and W. Canal, did not constitute a stream or watercourse within the meaning of the Prescription Act, 2 & 3 Will. IV. c. 71. The object of the communication being fully secured, the proposed works, it was held, were not an impeding or obstructing of the S. and W. Canal, such as was prohibited by the Act. 66 "The 2nd section of that Act" (2 & 3 Will. IV. c. 71), said Lord Chelmsford, L. C., "applies to a claim to the use of water which may be lawfully made at common "law by custom, prescription or grant. Custom and prescription are here out of the question, and if the respon"dent could not have granted the use of the water to the appellants, the Act is wholly inapplicable; but to impose "such a servitude upon the water in their canal, as that " contended for by the appellants, would have been ultra "vires of the respondents, and consequently length of user "could never confer an indefeasible claim upon the appel"lants under the Prescription Act, as no grant of the use "of the water could have been lawfully made by the "respondents." Lord Cranworth observed, "The water flowing from the "Wolverhampton level to the Atherley junction is not a natural nor even an artificial stream. The water in "the canal is not flowing water. It is accumulated under "the authority of the legislature in what is in fact a tank "or reservoir, which the respondents are bound to econo"mize and use in particular manner for the convenience of "the public. It never flows. It is let down artificially "for the convenience of persons wishing to pass in boats. "To such water none of the doctrines, either as to natural 66 or artificial streams, is applicable; and the only way in "which appellants could have obtained a right to insist, "on having a lock full of water discharged into their canal, must be by express grant or covenant by respon"dents. Of such grant there is no trace whatever, and it "cannot be presumed. To have entered into any such "engagement would have been a clear breach of duty in respondents." 66 pany to have diverted. In the case of Mason v. Shrewsbury Rail. Co., a canal Claim against company, under the powers of their Act, diverted before a canal com1800 a great part of the waters of a brook flowing through water the plaintiff's land to their canal, the rest of the water continuing to flow as before. In 1847 the defendants, under Act of Parliament, bought and discontinued the canal, and in 1864 restored by means of a cut the water which had been diverted. In 1865 they sold the part of the canal on which was the cut. The bed of the brook, owing to the diminished scour from 1800 to 1853, had become silted up, so as not to be sufficient to carry off the water in extraordinary floods. In 1866, such a flood having damaged the plaintiff's land, it was held by the court, that there being no obligation imposed on the canal to continue the diversion of the water, plaintiff had no right of action. The opinion of Blackburn and Hannen, JJ., proceeded on the ground that, though the claim to have the water diverted was a claim to a watercourse under the Prescription Act, 2 & 3 Will. IV. c. 71, yet the enjoyment was not of right, and, therefore, though of more than forty years, it conferred no right on the plaintiff. That of Cockburn, C. J., was based on the ground that the plaintiff, the owner of the servient tenement, could acquire by the mere existence of the easement, no right against the owner of the dominant 1 L. R., 6 Q. B. 578; cf. Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287; Hodgson v. Mayor of York, 28 Canal companies entitled to ordinary remedies at law. tenement. "The question appears to me to depend on principles of the law relating to easements, which would "have been equally applicable if the Act in question (Prescription Act) had never been passed."1 Where the statutory rights of companies are infringed, they are entitled to the ordinary remedies at law.2 "Such a company," said Erle, J., in Rochdale Canal Co. v. King, "has all the rights and remedies which an "individual owner of property has, unless the statute " contains some provision to take them away." In that case the plaintiffs were empowered to purchase lands for making a canal, and manufacturers within a certain distance were authorized to lay pipes and to use water for the sole purpose of condensing steam; disputes with any person desirous of taking or using the same were to be referred to commissioners. The declaration stated that the company had made the canal and that the defendants had used the water for purposes other than that of condensing steam. It was objected in arrest of judgment that the declaration did not show any ownership of the canal or water, or any invasion of a private right, inasmuch as the act complained of, if wrongful, was clearly prohibited by statute, so that the repetition of the act could never be used as evidence of a right; that the remedy was by indictment, and that the complaint should have been referred to the commissioners who had exclusive jurisdiction. It was held, however, that the declaration was good, as it must be held that the company was in possession of the canal, and that without special damage the wrongful act was a damage to the company's right; and also that the jurisdiction of the commissioners was over disputes between persons in the use of or about to use the water for a rightful purpose, and not over wrongdoers. Erle, J., observed, 1 See ante, Chap. IV., p. 252 et 2 Rochdale Canal v. King, 14 Q. B. 122, 136. 3 Ib.; cf. Rochdale Canal v. Rad cliffe, 18 Q. B. 287; see ante, p. 278. 4 See Cockburn v. Erewash Canal, 11 W. R. 34, ante, p. 283; Shand v. Henderson, 2 Dow (H. L. C.) 519, ante, p. 286. "It is said the company could have no property in this "water; perhaps not in the identical passing atoms, but they had in the flow, the flumen aquæ.” In bringing actions, canal companies, like individuals, are liable to be deprived of their remedy by laches. Where a canal company made a demand in May, 1842, for penalties for obstructing their canal, such obstruction having been caused in November, 1840, and June, 1841, and brought no action till July, 1842, it was held that they were too late, since by the Act of the Railway Companies, who had caused the obstruction, no action was to be brought against them for injury done in pursuance of the Act after six months, which six months were held to begin to run from the ceasing of the obstruction, and not from the demand for non-payment of the penalty.1 The owners of a canal taking tolls for the navigation Duties with are bound, at common law, to use reasonable care in making navigation. regard to the navigation secure.2 maintain Parnaby v. Lancaster Canal2 was an action which came Duty to before the Exchequer Chamber on error from the Court of navigation. Queen's Bench. The declaration in the case stated that by 32 Geo. III. c. 101, the Lancaster Canal Company was formed to make and maintain the canal, with power to take tolls, and that all persons had free liberty to navigate the canal; but if any boat should be sunk in the canal, and the owner or person having care of it should not, without loss of time, weigh it up, the Act empowered the company to weigh it up and detain it till payment of expenses. That the company completed the canal, and took tolls on it; that a boat Kennet and Avon Canal v. Great Western Rail. Co., 4 Rail. Cas. 90; cf. Rochdale Canal v. King, 2 Sim., N. S. 78; Lord Oakley v. Kensington Canal Co., 5 B. & Ad. 138; Fraser v. Swansea Canal, 1 Ad. & El. 354; S. C., 3 N. & M. 391; see Lord Brougham in Blakemore v. Glamorganshire Canal, 1 M. & K. 161; Shand v. Henderson, 2 Dow 2 Parnaby v. Lancaster Canal, 11 sunk in the canal, so that vessels passed with difficulty in the day, and at night were in danger of running foul of it; that, although the company could and ought to have requested the owner to weigh it up, and, if that was not done without loss of time, could and ought to have weighed it up, and, in the meantime, have caused a light or signal to be placed to enable boats to avoid it; yet the company did not cause the owner, &c. to weigh it up, nor themselves weigh it up, nor place a light or signal, whereby the plaintiff's boat, navigating the canal, ran foul of the sunken boat and was damaged. On the trial, before Coleridge, J., at the Liverpool Summer Assizes, 1836, it was objected that, admitting the facts as laid in the declaration, no breach of duty was shown. Verdict being given in favour of the plaintiffs, leave was reserved to move for a nonsuit. 66 66 Lord Denman, C.J., delivering the judgment of the Court, after hearing the arguments in favour of the defendants said, "We do not feel the smallest doubt that this action may be maintained. The only one of the numerous cases cited, that appeared to point the other way, is Harris v. "Baker, where trustees of a road were held not liable to an action for a personal injury arising from the plaintiff's "falling in the night-time over a heap of scrapings placed on the roadside by the defendant, who placed no light to give notice of the obstruction. But that case may be "distinguished, as the action was against public officers "who derived no benefit from the road. The present defendants, on the contrary, invite the whole of the public "to navigate on their canal in consideration of the tolls paid. They have lawful power to make the canal in all respects fit for navigation, and particularly to remove the "kind of obstruction by which the plaintiff suffered. It is "the same in principle as if they announced the carrying on of a business at premises accessible only by a certain "road over their land, which was open to the public for 66 66 1 4 M. & S. 27. |