by their pleading, claimed a right to continue a wrongful act (A. G. v. Acton, 22 Ch. D. 221); or that they were acting in violation of a statute (A. G. v. Cockermouth, 18 Eq. 172; see A. G. v. Shrewsbury Co., 21 Ch. D. 752). Where a sewage nuisance has been created by the acts of others, and a local authority is subsequently constituted, but does no act to create or increase the nuisance, it cannot be made liable in damages or restrained by injunction, the remedy being by mandamus (Glossop v. Heston, &c. Board, 12 Ch. Div. 102; A. G. v. Dorking, 20 Ch. Div. 595; A. G. v. Clerkenwell, 1891, 3 Ch. 527). But as soon as the local authority begin to alter the sewers the jurisdiction to grant an injunction and give damages arises (Warwick Co. v. Burman, 63 L. T. 673). In one case a local authority was restrained from permitting a nuisance caused by another to continue where they could stop the nuisance without inconvenience to others (Charles v. Finchley Board, 23 Ch. D. 767). Several forms of injunctions in the case of pollution of water are given in Seton, 528, 5th ed. The right of a riparian proprietor to immediate relief by injunction is not interfered with by the month's notice required under 25 & 26 Vict. c. 102, s. 106 (A. G. v. Hackney, 20 Eq. 626); or under 38 & 39 Vict. c. 55, 8. 264 (Flower v. Low Leyton, 5 Ch. Div. 347; Chapman v. Auckland Union, 23 Q. B. Div. 294, where damages were given in substitution). The doctrine of acquiescence, as applied to the right of riparian proprietors to restrain the pollution of a stream by sewage, was considered in A. G. v. Halifax (17 W. R. 1088); and as to delay in such a case, see A. G. v. Bradford Canal (2 Eq. 71); A. G. v. Leeds (5 Ch. 583). The Act 39 & 40 Vict, c. 75, provides a summary means of preventing the pollution of rivers; see also Public Health Act, 1875, ss. 68 et seq. The cleansing and repairing of drains and sewers is prima facie the duty of him who occupies the premises, and does not devolve upon the owner merely as such (Brent v. Haddon, Cro. Jac. 555; Cheetham v. Hampson, 4 T. R. 319; Boyle v. Tamlyn, 6 B. & C. 329; Russell v. Shenton, 3 Q. B. 449; see R. v. Kerrison, 1 M. & S. 435; Bullard v. Harrison, 4 M. & S. 387; Tenant v. Goldwin, 1 Salk. 21, 360; 2 Salk. 770; Payne v. Rogers, 2 H. Bl. 349; R. v. Pedly, 1 Ad. & E. 822). If the owner of land, on which is a house, construct on other part of the land a sewer, and let the house, and afterwards by reason of the original faulty construction of the sewer, and the continued use of it by the owner in such a faulty state, the house is injured, the owner is liable to his lessee for keeping and continuing the sewer so constructed (Alston v. Grant, 3 Ell. & Bl. 128). If a lease be made of a house and piece of land, except the land on which a pump stands, with the use of the pump, the lessee may repair the pump, but an action of covenant does not lie against the lessor for not repairing it (Pomfret v. Ricroft, 1 Saund. 320; see ante, p. 64). Where an easement exists giving the owner of a house a right to bring water to his house through a pipe over adjoining land, such owner may go on the adjoining land to repair the pipe (Goodhart v. Hyett, 25 Ch. D. 182). The commissioners of sewers have not such a possession in their works as to enable them to maintain an action of trespass against wrong-doers; therefore in an action of trespass against the commissioners of a harbour for pulling down a dam erected by the former across a navigable stream, they were nonsuited (Newcastle v. Clark, 8 Taunt. 602). Commissioners of sewers may now acquire the legal interest and constructive possession of land and works under 3 & 4 Will. 4, c. 22, for amending the laws relating to sewers (See sects. 24, 38, 47, 57; Stracey v. Nelson, 12 M. & W. 535). The laws relating to sewers are further amended by 12 & 13 Vict. c. 50; 24 & 25 Vict. c. 133. Where in the ordinary and proper working of the defendant's mine water, which was naturally present there, flowed from his mine into the plaintiff's, the defendant was not liable (Smith v. Kendrick, 7 C. B. 564; Clegg v. Dearden, 12 Q. B. 576; compare West Cumberland, &c. Co. v. Kenyon, 11 Ch. Div. 782). On the other hand, where the defendant, the owner of an upper mine, pumped water into his mine which flooded a lower mine belonging to the plaintiff, it was held, that the defendant was liable (Baird v. Williamson, 15 C. B. N. S. 376). These decisions were followed by the House of Lords in a case which arose as to liability for the escape of water from a mine; and it was laid down, that where the owner of land without wilfulness or negligence uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbour, he will not be liable in damages. But if he brings upon his land anything which would not naturally come upon it, and which is in itself dangerous, and may become mischievous if not kept under proper control, though in so doing he may act without personal wilfulness or negligence, he will be liable in damages for any mischief thereby occasioned (Rylands v. Fletcher, L. R. 3 H. L. 330; see Carstairs v. Taylor, L. R. 6 Ex. 217; Nichols v. Marsland, 2 Ex. Div. 1; Box v. Jubb, 4 Ex. D. 78; Hurdman v. N. E. R. Co., 3 C. P. D. 168; Whalley v. Lancashire & Yorkshire R. Co., 13 Q. B. D. 131). The occupier of the upper floor of a house was held not liable to the occupier of the lower floor for escape of water (Ross v. Fedden, L. R. 7 Q. B. 661). Of Watercourses. A contract was entered into between a canal company and the plaintiffs, Actions in the owners of paper mills, as to the mode of enjoyment of the waters by respect of which both were supplied. The company did acts in violation of the con- water rights tract, and proposed to continue them, and a bill was filed for an injunction. arising by Held, that it was no answer to say that the acts proposed would not be contract. injurious, or even to prove that they were beneficial to the plaintiffs; and the court, although no evidence was given of any actual damage done, granted an injunction (Dickenson v. Grand Junction Co., 15 Beav. 260). In a case where an injunction was granted against heating water contrary to agreement, it was laid down that where the construction of a contract is clear and the breach clear, it is not a question of damage; but the mere circumstance of the breach of covenant affords sufficient ground for the court to interfere by injunction. And, semble, the court may fo interfere whether the breach has or has not been actually committed, provided the defendant claims and insists on a right to do the act which would constitute such breach (Tipping v. Eckersley, 2 K. & J. 264). "There is a manifest distinction between cases depending on nuisance and those depending on contract. It is shown by the case of Rochdale Co. v. King (2 Sim. N. S. 78), and many other authorities, that where there is a contract the court cannot attach the same importance to the question whether the damage is serious or not, as it does in mere cases of nuisance; but that the main point is whether the contract has been broken" (A. G. v. Mid Kent R. Co., 3 Ch. 104; and see, as to damages, Lord Manners v. Johnson, 1 Ch. D. 679; Richards v. Revitt, 7 Ch. D. 224). Injunctions were granted to restrain breaches of agreements as to sewage in Wood v. Harrogate, 1874, W. N. 132, 225; Nuneaton v. General Sewage Co., 20 Eq. 127. As to specific performance of a contract to purchase the right to divert the water of a river, see Wright v. Howard, 1 S. & Stu. 190; Shackelton v. Sutcliffe, 1 De G. & S. 609; and of a contract to erect a pump and reservoir and supply water, see Cooke v. Chilcott, 3 Ch. D. 694. Persons obtaining from the legislature powers to interfere with the Statutory rights of property are bound strictly to adhere to these powers, and to do powers. no more than the legislature has pointed out (Liverpool v. Chorley Co., 2 D. M. & G. 852; Dawson v. Paver, 5 Hare, 415). Further, if a public body, which has powers given it by a statute for the performance of a particular object, exercises its powers so as to injure the property of others, it is responsible for the injury, unless the act done was absolutely necessary for the performance of the object of the statute (A. G. v. Colney Hatch, 4 Ch. 146; Metropolitan Asylum District v. Hill, L. R. 6 H. L. 193; Truman v. L. B. & S. C. R. Co., 29 Ch. Div. 89; compare Vernon v. St. James', 16 Ch. Div. 449; A. G. v. Hackney, 20 Eq. 626). A corporation empowered by statute to improve the navigation of the river were not liable to clear away weeds, &c., which, though injurious S. G is to the 82 Of Water- Waterworks Navigable Right of to adjoining lands, were no detriment to navigation (Parrett Co. v. Robins, 10 Where water is diverted in a manner, or to an extent not authorized by statutory powers, the diversion will not be restrained except at the instance of the A. G., or a person having a private interest in the stream (Liverpool v. Chorley Co., 2 D. M. & G. 852; Ware v. Regent's Canal Co., 3 De G. & J. 212). As to the duty of the A. G. in such a case, see A. G. v. G. E. R. Co. (11 Ch. Div. 449), and as to private injury, see Pudsey Co. v. Bradford (15 Èq. 167). A penalty for suffering washings to flow into and foul a well was held recoverable from a gas company in Pipkins v. Birmingham Gas Co. (5 H. & N. 74; 6 H. & N. 250). A power for a navigation company to alter a dam was held to continue, although the compensation commission had become extinct (Kennet Co. v. Witherington, 18 Q. B. 581). The funds of conservators of river banks were allowed to be applied in opposing a bill for a project likely to be injurious to the banks (Bright v. North, 2 Ph. 216). The statute 10 & 11 Vict. c. 17, consolidates the provisions usually contained in acts authorizing the making of waterworks for supplying This act places the taking of streams upon the same towns with water. footing as the taking lands 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. Bradford, 21 Beav. 412; see Purnell v. Wolverhampton Co., 10 C. B. 576; Hildreth v. Adamson, 8 W. R. 470; Busby v. Chesterfield Co., 1 El. Bl. & El. 176). As to compensation, see Bush v. Trowbridge Co., 10 Ch. 459. A waterworks company was restrained from polluting a river, its act not authorizing the pollution (Clowes v. Staffordshire Co., 8 Ch. 125). The statute 26 & 27 Vict. c. 93, consolidates in one act additional clauses frequently inserted in acts relating to waterworks. For a collection of the cases relating to waterworks companies, see Fisher's Digest, vol. vii. 602. In general, a riparian proprietor on a navigable river has (subject to the public right of navigation) the same rights of access as such a proprietor on a non-navigable river (Lyon v. Fishmongers' Co., 1 App. Cas. 673; North Shore R. Co. v. Pion, 14 App. Cas. 612). Whether a river be navigable or not is a question of fact for the jury (Vooght v. Winch, 2 B. & Ald. 662). The test in French law is, the possible use of the river for transport in some practical and profitable manner (Bell v. Quebec, 5 App. Cas. 84). The flux or reflux of the tide is evidence of a navigable river (Miles v. Rose, 5 Taunt. 705; Colchester v. Brooke, 7 Q. B. 373; see Ilchester v. Raishleigh, 61 L. T. 477). A judgment disaffirming an exclusive right to a river, is strong evidence in another action trying the same right, but not conclusive. On a question whether a creek be a public navigable river or not, instances of persons going up it for the purpose of cutting reeds, and on parties of pleasure, without the consent of the person claiming exclusive property in the creek, are evidence sufficient for the jury to presume it a public river (Miles v. Rose, 1 Marsh. 313; 5 Taunt. 705; 4 M. & S. 101). The public right over a navigable river is a right to use the river for the purposes of navigation, similar to the right the public have to passage along a public road or footpath through a private estate (Orr-Ewing v. Colquhoun, 2 App. Cas. 839; Original Hartlepool Co. v. Gibb, 5 Ch. D. 713; Blount v. Layard, 1891, 2 Ch. 689, n.) Windermere is a public in the Norfolk brows is a cul de sac, see Bourke v. Davis (44 Ch. D. 110). The liberty of passage Of Water courses. as, with relation to the circumstances of each river, are necessary for the * see Hawkins & Although an adverse enjoyment for the space of twenty years is, as Extinction against a private individual, evidence of a grant by him, yet it is other- of right of wise in the case of a public river navigable by all the Queen's subjects: navigation. for no obstruction for twenty years will bar a public right (Vooght v. Winch, 2 B. & Ald. 662; Weld v. Hornby, 7 East, 195). A public right of navigation may be extinguished either by an act of parliament, a writ ad quod damnum and inquisition, or, under certain circumstances, by commissioners of sewers, or by natural causes, such as the recess of the sea, or accumulation of silt or mud. And where a public road, obstructing a channel once navigable, has existed for so long a time that the state of the channel when the road was made cannot be proved, it is to be presumed that the right of navigation was legally extinguished (R. v. Montague, 4 B. & C. 598). The law has made no provision for the clearing of such a highway in the case of accumulation of silt or any other natural cause by which the channel becomes choked up; and in such cases the river ceases to be navigable, at least until such causes are by some means counteracted (Colchester v. Brooke, 7 Q. B. 374). A corporation, being the conservators of a river, and the owners of the Obstructions soil between high and low water mark, cannot authorize their lessee to to navigation. erect a wharf there which produces inconvenience to the public in the use of the river for the purposes of navigation (R. v. Grosvenor, 2 Stark. N. P. C. 511). Where the declaration stated that the defendant wrongfully placed timber in a certain navigable river, whereby the rightful access to the plaintiff's public-house was obstructed, and divers persons who would otherwise have come to the plaintiff's house, and taken refreshments there, were prevented from so doing: held, that the declaration stated no act on the defendant's part amounting to a public nuisance: but that if it had done so, the plaintiff might nevertheless maintain an action for the particular injury to himself, and that there was a sufficient allegation of special damage (Rose v. Groves, 5 M. & G. 613; Dobson v. Blackmore, 9 Q. B. 991). An action will lie for the special damage occasioned to a party conveying goods along a navigation, by its obstruction by a barge moored across, whereby he was compelled to unload and carry his goods overland (Rose v. Miles, 4 M. & S. 101). A weir appurtenant to a fishery, obstructing the whole or part of a navigable river, is legal, if granted by the Crown before the commencement of the reign of Edward the First. Such a grant may be inferred from evidence of its having existed before that time. If the weir when so first granted obstruct the navigation of only a part of the river, it does not become illegal by the stream changing its bed, so that the weir obstructs the only navigable passage remaining. Where the Crown had no right Of Watercourses. Ownership of soil of tidal waters. to obstruct the whole passage of a navigable river it had no right to erect a weir obstructing a part, except subject to the rights of the public; and therefore in such a case the weir would become illegal upon the rest of the river being so choked that there could be no passage elsewhere (Williams v. Wilcox, 8 Ad. & Ell. 314; Rolle v. Whyte, L. R. 3 Q. B. 286; Leconfield v. Lonsdale, L. R. 5 C. P. 657). It is not competent, either to the Crown or to a subject, to use the soil of a navigable river for any purpose amounting to a nuisance (A. G. v. Johnson, 2 Wils. C. C. 87). Where the defendant, as grantee of the Crown, was entitled to the soil of a navigable river, such ownership did not justify him in constructing a jetty which interfered with the navigation (A. G. v. Lonsdale, 7 Eq. 377). Conservators empowered by statute to remove obstructions to navigation were held not liable for damage to a barge injured by an obstruction, on the ground that they were unpaid trustees appointed for public purposes and with a discretionary power, but no compulsory duty of removing obstructions (Forbes v. Lea Board, 4 Ex. D. 116; see also Jolliffe v. Wallasey Board, L. R. 9 C. P. 62, where a public body was held guilty of negligence in the performance of a public duty with regard to navigation). Where a vessel is sunk by accident, and without any default in the owner or his servant, in a navigable river, and remains there under water, no duty is ordinarily cast upon the owner to use any precaution, by placing a buoy or otherwise, to prevent other vessels from striking against it (Brown v. Mallett, 5 C. B. 599). An owner of land at the side of a public navigable river cannot erect on the bed of the river, for the benefit of his own trade, any structure, whether an actual obstruction to navigation or not (A. G. v. Terry, 9 Ch. 423; see Booth v. Ratte, 15 App. Cas. 188). One who erects on the shore of a navigable river between high and low water mark, a work for the more convenient use of his wharf adjoining, which presents a dangerous obstruction to navigation, is responsible for an injury thereby occasioned to a barge coming to the wharf, without any default on the part of the persons in charge (White v. Phillips, 15 C. B. N. S. 245). As to the liability of wharfingers in respect of the bed of a navigable river adjoining their jetty, see The Moorcock (14 P. Div. 64; The Calliope, Id. 138; and 1891, A. C. 11). As to the right of persons entitled to land from a navigable river on the bank adjoining, to pass over permanent obstructions, see Eastern Counties R. Co. v. Dorling (5 C. B. N. S. 821); Marshall v. Ulleswater Co. (L. R. 7 Q. B. 166). The A corporation empowered by statute to improve navigation was held entitled to sue in respect of abstraction of water without proof of actual damage to navigation (Medway Co. v. Romney, 9 C. B. N. S. 575). Att. Gen. can restrain interference with the public right of navigation without showing actual injury (A. G. v. Shrewsbury Co., 21 Ch. D. 752). As to purpresture and the remedy in that case, see A. G. v. Johnson (2 Wils. C. C. 87). The presumption as to the ownership of the soil of rivers depends on whether they are tidal or non-tidal (See Orr-Ewing v. Colquhoun, 2 App. Cas. 847). In the case of navigable tidal waters (including rivers, estuaries, and arms of the sea), the presumption is that the soil is vested in the Crown (Gann v. Free Fisheries of Whitstable, 11 H. L. C. 192; A. G. v. Tomline, 14 Ch. Div. 69; 4. G. v. Emerson, 1891, A. C. 649). But the soil of tidal waters may be vested in a subject (A. G. v. Emerson, sup.; Neil v. Devonshire, 8 App. Cas. 135). So the City of London has been stated to own the soil of the Thames (Dav. 56, b; Com. Dig. Navigation (B.); see, however, A. G. v. London, 2 Mac. & G. 247; A. G. v. Johnson, 2 J. Wils. C. C. 87). A title to the foreshore on a tidal navigable river was held established as against the Crown by acts of possession on the part of an adjoining owner, subject however to the public right of navigation (Lord Adv. v. Blantyre, 4 App. Cas. 770; see A. G. v. Emerson, sup.) As to the duties of an owner of land abutting on a tidal navigable river, in respect of a river wall, see Nitro-Phosphate Co. v. London and |