defendant's land to the plaintiff's mill. (Dewhurst v. Wrigley, 1 C. P. Coop. 319.)

Where the court interposes by injunction to prevent a nuisance, provision was formerly required to be made for having the question between the parties tried at law. (Dewhurst v. Wrigley, 1 C. P. Coop. 319; Motley v. Downham, 3 My. & Cr. 1, 14; Attorney-General v. Cleaver, 18 Ves. 211, 218.) If a party having a right to the flow of water acquiesces for three, or even two years, in the erection of works injurious to his right, equity will not interfere in his behalf until he has established his right at law. (Weller v. Smeaton, 1 Br. C. C. 572; S. C., 1 Cox, 102; Birmingham Canal Company v. Lloyd, 18 Ves. 515; Coop. C. C. 77, 193. See 25 & 26 Vict. c. 42, ss. 1, 2, post, p. 132, and ante, p. 87.) So parties by allowing works to be completed will be deprived of their remedy by injunction. (Blakemore v. Glamorganshire Canal Navigation, 1 Mylne & K. 154.)

The defendant consented to the plaintiff's making a watercourse through his land, upon being paid a proper and reasonable sum. The watercourse

was made, but no grant was executed and no sum arranged. After nine years' user the defendant stopped it up, but he was restrained by decree from so doing, and a reference was made to the Master to settle a proper compensation. The agreement having been made with a number of subscribers: it was held, that the proper mode of suing was by some on behalf of all. (Duke of Devonshire v. Eglin, 14 Beav. 530; 20 L. J., Ch. 495.)

The defendant diverted a stream as it passed through his premises, but restored it undiminished as to the quantity of water to its former channel before it reached the premises of the plaintiff; the defendant also employed the stream while on his premises in a way which rendered the water unfit for ordinary use, but he alleged that the water, by the time it reached the plaintiff's land, was freed to the utmost possible extent from any noxious ingredient with which it had become impregnated, and it did not appear that any actual damage was sustained by the plaintiff. Under these circumstances the Lord Chancellor dissolved an injunction which had been granted by the Vice-Chancellor, restraining the defendant from diverting and using the water. (Elmhirst v. Spencer, 2 Mac. & G. 45.)

Where parties, in possession of an easement, filed a bill to restrain the owner of the land from proceeding with an action of trespass, alleging three grounds of defence to the action, two of which were legal, and one equitable, the Court of Chancery allowed the action to proceed to judgment, inasmuch as if the legal grounds of defence should be sustained, the interposition of that court would be unnecessary, and if they should not be sustained, and it should therefore become necessary to entertain the equitable question, that court would know what amount of damages a jury had assessed as a compensation for the easement, and be enabled to secure that amount until the hearing of the cause. (Barnard v. Wallis, 1 Cr. & Phil. 85.)

A bill in equity will lie for the establishment of the enjoyment of a watercourse, and for the performance of a covenant to cleanse it. (Holmes v. Buckley, 1 Eq. Cas. Abr. 27, pl. 4; 2 Vern. 390; Gilb. Eq. C. 3; New River Company v. Graves, 2 Vern. 431.) And it was held, that a man who had been in possession of a watercourse sixty years might bring a bill against a mortgagee, who foreclosed the equity of redemption, to be quieted in the possession, although he had not established his right at law. (Bush v. Western, Prec. Ch. 530. See Duke of Dorset v. Girdler, Ib. 531.) The diversion of watercourses, or the pulling down their banks, and causing inundation, are nuisances against which a court of equity will protect parties by injunction, and in some cases without first bringing an action at law. (Martin v. Stiles, Mos. 144; see 1 Ves. sen. 476; 2 Atk. 302; 3 Atk. 726; 1 Vern. 120, 129.)

An injunction may be granted on the ground of danger to property. Where the defendant, having large pieces of water in his park, supplied by the stream flowing to the plaintiff's mill, had at one time stopped the water, and at another time let it out in such quantities as to endanger the mill although the court will not restrain what has been enjoyed twenty years, yet it will interpose where a different mode of enjoyment, calculated to do

mischief, is used; and an injunction was granted for restraining the defendant from using dams, &c., so as to prevent the water flowing in such regular quantities as it had done on a particular day. (Robinson v. Lord Byron, 1 Br. C. C. 588; see Anon. 1 Ves. jun. 140; Crowder v. Tinkler, 19 Ves. 620.) If on a motion to dissolve the injunction there be a question as to the right to the flow of water, an issue will be directed to try it. (2 Cox, 4.) The effect of an order specifically to repair the banks of a canal and other works has been obtained by an order to restrain a party using and enjoying a canal from impeding the navigation, by continuing to keep the canal, banks, or works out of repair; by diverting the water, or preventing it, by the use of locks, from remaining in the canals, or by continuing the removal of a stopgate. (Lane v. Newdigate, 10 Ves. 192.) This case was said to go to the very uttermost verge of all the former cases. Lord Brougham agreed with Lord Lyndhurst in the opinion, that if the court had this jurisdiction, it would be better to exercise it directly and at once; and that the having recourse to a roundabout mode of obtaining the object seems to cast a doubt upon the jurisdiction. (Blakemore v. The Glamorganshire Canal Navigation, 1 M. & Keen, 183.) In this case the court, on an interlocutory application for an injunction, refused to grant the order in such a form as indirectly to compel some positive act to be done by the party enjoined. The leading principle to guide the court in such an application, at least where no very special circumstances occur, being that only such a restraint shall be imposed as may suffice to stop the mischief complained of, and where it is to stay further injury, to keep things as they are for the present. (Ib. 185.)

By mining operations the defendant had sunk not only the level of a stream supplying the plaintiff's mill, but also that of the adjoining land. The plaintiff filed a bill for an injunction, but it did not appear that there had been any diminution of the supply of water to the mill: it was held that the bill ought not to be dismissed; and on the defendant undertaking not to work the minerals so as to obstruct the water and the supply thereof along the watercourse, it was retained, with liberty to apply. The court, however, intimated that in default of the undertaking being given, an injunction would be granted. (Elwell v. Crowther, 31 Beav. 163.)

The conservators of river banks, who were empowered by act of parliament to apply the funds under their control (which were raised by a rate upon the proprietors of adjacent lands) in executing all works, &c., necessary for putting the banks into and maintaining the same in a permanent state of stability, were held to be authorized to apply a portion of the fund in watching, and, if necessary, opposing a bill in parliament for a project lower down the river, which was likely to be injurious to the banks under their superintendence. (Bright v. North, 2 Ph. C. C. 216; 16 Law J., Ch. 255.)

The court refused to decree a specific performance of an agreement to purchase the fee-simple of certain lands, and also the right to impound the water of a river, and to divert from it a stream of water, because the vendor, though seised in fee of the lands, had only a lease for ninety-nine years of the other subjects of the contract, and had not, as against some of the proprietors of the land on the banks of the river, a right to divert the water; and because the purchaser had entered into a contract for the purpose of erecting a manufactory to be wrought by the water, and twelve years had elapsed between the time of the agreement and the hearing of the cause. (Wright v. Howard, 1 Sim. & Stu. 190. See Shackelton v. Sutcliffe, 1 De G. & S. 609.)

The statute 10 & 11 Vict. c. 17, consolidates the provisions usually contained in acts authorizing the making of waterworks for supplying towns with water. This act places the taking of streams upon the same footing as the taking under the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18; and a waterworks company was restrained from diverting a stream belonging to the plaintiff, without first paying compensation for the same, or making deposit, and giving a bond, in accordance with the provisions of the latter act. (Ferrand v. Mayor, &c. of Bradford, 21 Beav. 412; 2 Jur.,

N. S. 175. See Purnell v. Wolverhampton New Waterworks Company, 10 C. B. 576; Hildreth v. Adamson, 8 W. R. 470; Busby v. Chesterfield Waterworks, &c. Company, 1 El., Bl. & El. 176.)

6. OF THE RIGHT TO PEWS.

Of common right, the soil and freehold of the church is the parson's; the Right to pews use of the body of the church, and the repair of it, common to the parishion- founded on ers; and the disposing of the seats therein the right of the ordinary. (Hob. 69; Gibs. Cod. tit. 9, c. 4.)

According to the common law the rector, whether endowed or spiritual only, is entitled to the chief seat in the chancel unless some other person be in a condition to prescribe for it from time immemorial. The ecclesiastical court, in the exercise of its ordinary authority, would allot to him such sitting and protect him against the disturbance of such right. (Spry v. Flood, 2 Curt. 357.)

An exclusive title to pews and seats in the body of the church may be maintained in virtue of a faculty, or by prescription, which is founded on the presumption that a faculty had been heretofore granted. All other pews and seats in the body of the church are the property of the parish; and the churchwardens, as the officers of the ordinary, and subject to his control, have authority to place the parishioners therein. No precise rules are prescribed for the government of churchwardens in the use of this power, for its due exercise must depend on a sound judgment and discretion applied to the circumstances of the parish. (Report of Eccl. Commrs., Feb. 1832, p. 48.)

faculty or prescription.

By the general law, and of common right, all the pews in a parish church Disposal of pews. are the common property of the parish; they are for the use in common of the parishioners, who are all entitled to be seated orderly and conveniently, so as best to provide for the accommodation of all. The distribution of seats rests with the churchwardens, as the officers, subject to the control of the ordinary. (12 Rep. 105; 3 Inst. 202; 3 Hagg. Eccl. Rep. 733.) By the general law, the use of all the pews belongs to the parishioners; they are to be seated therein, in the first instance, by the churchwardens; the power of the latter, however, is subject to the control of the ordinary, who is to see that the churchwardens exercise their authority discreetly, for the proper accommodation of the parishioners at large. This is the law, not merely to be found in ecclesiastical authorities, but is the common law of the land, as laid down by the highest common law authorities. (Blake v. Usborne, 3 Hagg. Eccl. R. 733.) It will be sufficient to refer to Lord Coke. (12 Rep. 105; 3 Inst. 202.) The churchwardens have a discretionary power to appropriate the pews in the church amongst the parishioners, and may remove persons intruding on seats already appropriated. (Reynolds v. Monkton, 2 M. & Rob. 384.) The parishioners cannot prescribe to dispose of pews in exclusion of the ordinary. (1 Salk. 167, pl. 7.) Neither the minister nor the vestry have any right whatever to interfere with the churchwardens in seating and arranging the parishioners, as often erroneously supposed; at the same time the advice of the minister, and even sometimes the opinion and wishes of the vestry, may be fitly invoked by the churchwardens, and to a certaint extent may be reasonably deferred to in this matter. The general duty of the churchwardens is to look to the general accommodation of the parish, consulting, as far as may be, that of all the inhabitants. The parishioners, indeed, have a claim to be seated according to their rank and station; but the churchwardens are not, in providing for this, to overlook the claims of all parishioners to be seated, if sittings can be afforded them. Accordingly they are bound, in particular, not to accommodate the higher classes beyond their real wants, to the exclusion of their poorer neighbours, who are equally entitled to accommodation with the rest, though they are not entitled to equal accommodation, supposing the seats to be not all equally convenient. (2 Addams, R. 425, 426.)

The incumbent has no authority in the seating and arranging the parishioners beyond that of an individual member of the vestry, and which his

Prescriptive right to pews, on what founded.

station and influence in the parish naturally give him. He may properly object to a plan which is generally inconvenient, which diminishes the accommodation in the church, which disfigures the building, which renders it dark and incommodious. In every case of this description, it is very proper he should make a representation to the ordinary; but as to the mere arrangement of seats, if the parishioners can settle that among themselves, and to their own satisfaction, and can agree about the expense, there seems but little necessity for the interference of the incumbent; the expense is that of the parishioners; the churchwardens are bound to repair with the consent of the vestry; it is not the vicar, but the vestry which appropriates the seats: the general superintendence and authority in allotting them rests with the ordinary. (1 Phill. R. 233.)

The general right then being in the parish and the ordinary, any particular rights in derogation of these are stricti juris; it is the policy of the law that few of these exclusive rights should exist, because it is the object of the law that all the inhabitants should be accommodated; and it is for the general convenience of the parish that the occupation of pews should be altered from time to time, according to circumstances. A possessory right is not good against the churchwardens and the ordinary: they may displace, and make new arrangements, but they ought not without cause to displace persons in possession; if they do, the ordinary would reinstate them the possession therefore will have its weight,-the ordinary would give a person in possession, cæteris paribus, the preference over a mere stranger. (1 Phill. R. 324.) The churchwardens are not justified in dispossessing any one of a sitting which he has enjoyed for a time, without giving notice of their intention, and offering an opportunity for explanation. (Horsfall v. Holland, 6 Jur., N. S. 278.)

:

A possessory right is sufficient to maintain a suit against a mere disturber. (Spry v. Flood, 2 Curt. 356.) The fact of possession implies either the actual or virtual authority of those having power to place. The disturber may show that he has been placed there by this authority, or must justify his disturbance by showing a paramount right,-a right paramount to the ordinary himself; namely, a faculty by which the ordinary has parted with the right; or if there be no proof of a faculty, there may be proof of prescription, and such immemorial usage as presumes the grant of a faculty. (1 Phill. R. 324.) Where the prescription is interrupted, the jury are not bound to presume a faculty from long undisturbed possession. (Morgan v. Curtis, 3 M. & R. 389.) On the expiration of a faculty, as where one was granted for ninety-nine years, the right of the parishioners to the use of the pew revives. (3 Hagg. Eccl. R. 733.) A faculty (for annexing a pew to a messuage) obtained by surprise and undue contrivance may be revoked. (2 Hagg. Eccl. R. 417.)

A prescriptive right must be clearly proved; the facts must not be left equivocal; and they must be such as are not inconsistent with the general right. In the first place, it is necessary to show that the use and occupation of the seat have been from time immemorial appurtenant to a certain messuage, not to lands; the ordinary himself cannot grant a seat appurtenant to lands. Secondly, it must be shown that if any acts have been done by the inhabitants of such messuage, they maintained and upheld the right. At all events, if any repairs have been required within memory, it must be proved that they have been made at the expense of the party setting up the prescriptive right. The onus and beneficium are supposed to go together; mere occupancy does not prove the right. What might be the effect of very long occupancy, where no repairs have been necessary, does not appear to be decided. It is a common error to suppose that by mere occupancy pews become annexed to particular houses. In country parishes the same families occupy the same pews for a long time, but they still belong to the parish at large: if, however, it is shown that the inhabitants of a particular house have repaired, that fact establishes that the burthen and benefit have gone together, and is inconsistent with the right of the parish still to claim the benefit, and is evidence of the annexation of the pew. Thus the uniform and exclusive possession of the inhabitants of a particular messuage connected with the burthen of maintaining and repairing the seat is evidence sufficient to establish a prescriptive title. (1

Phill. R. 325-6.) To exclude the jurisdiction of the ordinary from the disposal of a pew, it is necessary, not merely that possession should be shown for many years, but that the pew should have been built and repaired time out of mind. (1 T. R. 428.) The strongest evidence of that kind is the building and repairing time out of mind; but mere repairing for thirty or forty years will not exclude the ordinary. The possession must be ancient, and going beyond memory, though on this subject the high legal memory, even before the act 2 & 3 Will. 4, c. 71, was not required. (1 Hagg. Cons. R. 322.) Twenty years' adverse possession seems to bar the right to a pew. (1 Phill. R. 328.)

On application for a faculty to repair and repew a church, a parishioner appeared to the decree and prayed a faculty might not be granted without a proviso that a pew claimed to be held by him by prescription should not be removed or altered. The prescription was denied. It was held, that a primâ facie title by prescription was established, and that the faculty should be issued with the proviso. (Knapp v. Parishioner of St. Mary, Willesden, 2 Rob. Ecc. Rep. 358; 15 Jur. 473.) Evidence of repair to a pew claimed by prescription is not absolutely necessary, as no repair may have been made within the period of any one living. (Ib.)

Where the members of a corporation have as such occupied a particular pew in the parish church, the repairs of it may be properly charged on the borough fund. (Reg. v. Mayor, &c. of Warwick, 10 Jur. 262; 15 Law J., Q. B. 306.)

Extra-parochial persons cannot establish a claim to seats in the body of a parish church without proof of a prescriptive title, and therefore if they sue in the ecclesiastical court to be quieted in the possession of such seats, the court of K. B. will grant a prohibition, although it seems that such persons cannot establish such a claim even by prescription. (Byerly v. Windus and others, 5 B. & C. 1; S. C., 7 Dowl. & Ryl. 564. See Hallack v. University of Cambridge, 1 Gale & D. 100; 1 Q. B. 593, as to prohibition against granting a faculty.) A pew in an aisle or chancel may belong to a non-parishioner, for the case of an aisle or chancel depends upon, and is governed by, other considerations. (2 Addams, R. 427.)

A pew annexed by prescription to a certain messuage cannot, as is often erroneously conceived, be severed from the occupancy of the house, but passes with the messuage, the tenant of which for the time being has de jure the prescriptive right to the pew, (1 Hagg. Cons. R. 319; 1 T. R. 430; 3 M. & R. 334; 2 Add. 428,) which cannot be sold nor let without a special act of parliament, (1 Hagg. Eccl. R. 319, 321,) or under the provisions of the Church Building Acts. (See 58 Geo. 3, c. 45, ss. 65, 66, 75–79; 59 Geo. 3, c. 134, ss. 26, 32; 8 & 9 Vict. c. 70, s. 11.) Where an occupier of a pew ceases to be an inhabitant of the parish, he cannot let the pew with, and thus annex it to his house, but it reverts to the disposal of the churchwardens. (1 Hagg. Eccl. R. 34.) A person who has permission from the churchwardens to sit in a pew temporarily, and in order, by keeping possession for the future tenant, to carry into effect the conditions of sale of a house with which the pew has for above a century been held under an expired faculty, has no possession on which he can bring a suit for perturbation of seat against a mere intruder, such permission by the churchwardens being illegal, as confirming the sale of the pew. (Blake v. Usborne, 3 Hagg. Eccl. R. 726.) Customs pleaded, “that pews are appurtenant to certain houses, and are let by the owners to persons who are not inhabitants of the parish," are bad. (1 Hagg. Cons. R. 317.) Custom, "that persons who had not pews appurtenant pay rent for seats, which is applied in payment of the parish rate," is a practice which has been constantly reprehended by the ecclesiastical courts, and discouraged as often as set up. (1 Hagg. Cons. R. 317.) But if a house to which a pew is appurtenant be let to a parishioner, in that character he is clearly entitled to the pew. (2 Add. 428.)

It was held, that sect. 51 of the local statute 51 Geo. 3, c. 151, which enacts, that the said vestrymen (of St. Marylebone) shall set out and appropriate such a number of seats for the gratuitous accommodation of the poor of the said parish for the time being, and also of such other pews