Charles James Gale.

A treatise on the law of easements. online

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water, is jure naturae, and not by presumed grant, and the
circumstance of the mill being ancient would in that case make no

" The question then is, whether the plaintiff has such a right as he
claims jure naturae 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 rights 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



rights in

Chasemorc v.

way into it had no sensible effect upon the quantity of water in the
river which ran to the plaintiff's mill, no action would be maintain-
able ; but if many landowners sank wells upon their own lands, and
thereby absorbed so much of the percolating water, by the united
effect of all the wells, as would sensibly and injuriously diminish
the quantity of water in the river, though no one well alone would
have that effect, could an action be maintained against any one of
them, and, if any, which — for it is clear that no action could be main-
tained against them jointly ?

" In the course of the argument one of your Lordships (Lord
Brougham) adverted to the French Artesian well at the Abattoir
de Grenelle, which was said to draw part of its supplies from a
distance of forty miles, but underground, and, as far as is known,
from percolating water. In the present case the water which finds
its way into the defendant's well is drained from, and percolates
through, an extensive district, but it is impossible to say how
much from any part. If the rain which has fallen may not be inter-
cepted whilst it is merely percolating through the soil, no man can
safely collect the rain water as it fell into a pond ; nor would he have
a right to intercept its fall, before it reached the ground, by extensive
roofing, from which it might be conveyed to tanks, to the sensible
diminution of water which had, before the erection of such impedi-
ments, reached the ground and flowed to the plaintiff's mill. In the
present case the defendant's well is only a quarter of a mile from the
river Wandle ; but the question would have been the same if the
distance had been ten or twenty or more miles, provided the effect
had been to prevent underground percolating water from finding
its way into the river, and increasing its quantity, to the detri-
ment of the plaintiff's mill. Such a right as that claimed by the plain-
tiff is so indefinite and unlimited that, unsupported as it is by any
weight of authority, we do not think that it can be well founded, or
that the present action is maintainable."

The speech of Lord Wensleydale, one of the Lords who took part
in the decision of Chasemore v. Richards, contained the following
remarks on the plaintiff's claim, as based on the possession of his
mill for thirty or sixty years : " I do not think that the principle on
which prescription rests can be applied. It has not been with the
permission of the proprietor of the land that the streams have
flowed into the river for twenty years or upwards : ' qui non prohibit
quod prohibere potest, assentire videtur.' But how here could he
prevent it ? He could not bring an action against the adjoining
proprietor ; he could not be bound to dig a deep trench in h's own


land to cut off the supplies of wafer, in order to indicate his dissent. Prescriptive
It is going very far to say, that a man must be at the expense of |'.;',!j m j"
putting up a screen to window lights, to prevent a title being gained water-
by twenty years' enjoymenl of light passing through a window.
But this case would go very far beyond that. I think that the Richards.
enjoyment of the right to these natural streams cannot be supported
by any length of user if it does not belong of natural right to the

(III.) Miscellaneous Prescriptive Rights.

Independently of the prescriptive rights of user and flow which Prescriptive
are mainly called in question between riparian owners, other mis- cellaneous.
cellaneons rights may be mentioned. Thus a landowner can acquire
by prescription the right to go on his neighbour's land and draw
water there from a spring (h) or from a pump (i), or to bring water
to his house from pipes over his neighbour's land (k). Similarly A.,
a non-riparian owner, was held to have acquired by prescription the
right to go on the land of B., an adjoining riparian owner, to turn
the water from a natural stream into an artificial channel which
passed from the stream across B.'s land to A.'s land, and to repair
such channel (/).

As regards discharging water upon adjoining land, it was said by
Bowen, L.J., that the mere discharge of water by A., an upper pro-
prietor, on the land of B., a lower proprietor, may easily establish
a right on the part of A. to go on discharging, because so long as the
discharge continues there is submission on the part of B. to proceed-
ings which indicate a claim of right on the part of A. But it is difficult
for B. to establish a right to have the flow continued, just as it would
be very difficult to make out that because for twenty years my pump
has dripped on to a neighbour's ground, therefore he has a right at
the end of twenty years to say that my pump must go on leaking (m).

In the case of eaves, it has been laid down that though every one
in building is bound so to construct his house as not to overhang his

(h) Baa v. Ward, 1855, 4 E. & B. Ch. D. 508 ; 55 L. J. Ch. 859. See to

702 ; 24 L. J. Q. B. 153 ; 99 R. R. the same effect the remarks of Lord

702. Abinger in delivering the judgment of

(/) Polclen v. Bastard, L865, L. 11. 1 the Court of Exchequer in Arkwright v.

Q. B. 150; 35 L. J. Q. B. 92 ; 147 R. R. GeU, 1839, 5 M. & W. 233; 8 L. J.

374. (N. S.) Ex. 201 ; 52 R. R. 071 ; and

{k) Goodhart v. Hyatt, 1883, 5 Ch. D. of Erie, C.J., in delivering the judg-

182 ; 53 L. J. Ch. 219. tnent of the Court of Common Pleas

(I) Becston v. Weate, 1850, 5 E. & B. in Gaved v. Martyn, 1865, 19 C. B. N. S.

980; 25 L. J. Q. B. 115; 103 R. R. 732 : 34 L. J. C. P. 352 : 147 R, R.

853. 739.

(m) Chamber v. Hopwood, 1880, 32



rights, mis-

neighbour's property, and construct his roof in such a manner as not
to throw the rain water upon the neighbouring land (n), yet accord-
ing to our law a man may acquire a right, by user, to project his
wall or eaves over the boundary line of his property, or discharge
the rain running from the roof of his house upon the adjoining land.
The case of projecting buildings over a boundary will be dealt with
in a subsequent chapter (o). The easement of eavesdroppings is
recognized by the Court of Exchequer in Thomas v. Thomas (p). In
Pyer v. Carter (q) there was an easement for the defendant to have
the rain water flow from his eaves on to the plaintiff's roof, and for
the plaintiff to have such water, together with the water originally
falling on his own roof, carried away by a drain on the defendant's

There are ancient decisions recognizing similar easements in the
case of a discharge of water on the neighbouring land by means of a
gutter or leaden pipe (r). "If a man hath a sue, that is to say,
a spout, above his house, by which the water used to fall from
his house, and another levies a house paramount the spout, so
that the water cannot fall as it was wont but falls upon the walls
of the house, by which the timber of the house perishes, this
is a nuisance " (s). Where a man who had not acquired any
easement of eavesdroppings built his roof with eaves which dis-
charged rain water by a spout into adjoining premises, whereby
the reversion in such premises was damaged, the reversioner
could sue (t). It was not necessary to prove that rain had
actually fallen (u).

The right of eavesdroppings will not be lost by raising the house (x).
The occupier of a house who has a right to have the rain fall from
the eaves of it upon another man's land cannot by spouts discharge
it upon such land in a body (y). For such an act trespass would not
lie, but case (z). The flow of water for twenty years from the eaves

(n) Com. Dig. Action on the Case for
a Nuisance, A ; Dig. viii. 2, 2 ; Inst.
II. iii. 1 ; Code Civil, art. 681.

(o) See post, Part III., Chap. 8.

(p) 1835, 2 C. M. & R. 34 ; 4 L. J.
(N. S.) Ex. 170 ; 41 R. R. 678.

(q) 1857, 1 H. & N. 916 ; 26 L. J.
Ex. 258.

(r) Lady Browne s Case, 3 Dyer, 319 b,
cited in Sury v. Pigott, 1625, Palmer,
446 ; Com. Dig. Action on the Case for
Nuisance, A ; Baten's Case, 1738, 9
Rep. 53 b, recognized in Fay v. Prentice,
1845, 1 C. B. 828 ; 68 R. R. 823 ; 14
L. J. C. P. 298.

(s) Rolle. Abr. Nusans, G. 5. citing
18 Edw. 3, 22 b ; Via. Abr. Nuisance,
G. 5.

(t) Tucker v. Newman, 1839, 11
A. & E. 40 ; 9 L. J. (N. S.) Q. B. 1 ;
52 R. R. 276.

(u) Fay v. Prentice, 1845, 1 C. B.
828; 14 L. J. C. P. 298; 68 P. R.

(x) Harvey v. Walters, 1S72, L. R.
8 C. P. 162 ; 42 L. J. C. P. 105.

(y) Reynolds v. Clarke, 1680, Ld.
Ravm. 1399.

(:) Reynolds v. Clarke, 1680, 1 !
634 ; 8 Mod. 272 ; Fort, 212.


of a house will not give a right to the neighbour to insist that the 'I", ,' "j;'p"
house shall not be altered so as to diminish the quantity of water ...Tn, ,„'.,„,..
flowing from the roof ('/). It may be noted here that a Legal origin
was presumed Eor the right of discharging water from a highway
through a pipe on to adjoining land (b).

Easements of tin- above nature are distinctly recognized by the
civil law under the head of Urban Servitudes, "that a man shall
receive upon his house or land the flumen or stillicidium of his
neighbour " (c). " The difference," says Vinnius in his Commentary
on this passage, " between the flumen and the stillicidium is this—
the latter is the rain falling from the roof by drops (guttatim et
stillatim) ; the flumen is when it is poured forth in a continuous
stream from the lower part of the building. The servitude of receiv-
ing the Btillicidium exists when my neighbour is compelled to receive
upon his house the rain water running from my roof ; the servitude
of receiving the flumen, when he is compelled to receive the same
flowing in a channel or conduit, and falling with force on his house."
The civil law prohibited a man from projecting the wall or roof of his
house over the boundary line of his neighbour's land, even though,
by spouts or other means, the fall of water therefrom might be pre-
vented : but a right to do so might be acquired by user ; and when
such projection did not, in any manner, rest upon the neighbour's
soil, it was called jus projiciendi. Where the projection was merely
intended to protect the wall, either by creating shade against the
heat of the sun, or keeping off the rain, it was the jus protegendi.
" There is this difference between the right of projecting over and
that of placing upon the neighbour's property — that the projection
is carried out (proveheretur) in such a manner as not to rest any-
where (nusquam requiesceret), as a balcony or eaves ; while the
thing ' placed upon ' is so put as to rest on something, ' as a beam
or rafter '" {d).

Part 3. — Artificial Watercourses.

Artificial watercourses occur frequently, especially in parts of the Artificial

. , . • c water-

country where mining is carried on. A common instance ot an courses>

(a) Wood v. Waud, 1849, 3 Exch. cloacam.— Inst. 2, 3, L, desery.

748; 18 L. J. Ex. 305 ; 77 R. R. 809 ; {d) Enter projectum et immissum hoc

Greatrex v. Hamvard, 1853, 8 Exch. 293, interesse, ait Labeo : quod projectum

294 ; 22 L. J. Ex. 137 ; 91 R. R. 4!t:? ; esset id, quod Lta proveheretur at aus-

ArkiorigU v. OeU, 1839, 5 M. & W. 233 ; quam requiesceret, qualia mssniana, ct

8 L. J. (N. S.) Ex. 201 ; 52 R. R. 671. suggrunda essent; unmissum autem,

{b) A.-G. v. Copdand, 1902, 1 K. B. quod ita Beret, at aliquo loco requies-

690 ; 71 L. J. K. I>. 47:2. ceret, veluti tigna, trabes, qua immitte-

(c) Ut stillicidium vol flumen recipiat rentur.— Dig. 50, 16, 242, de v. s.
quis in aides suas, vcl in aream, vcl in




water- j

artificial watercourse is where a system of draining is created for a
mine whereby the water is pumped up and flows away from the
mining property through the lands of several neighbouring land-
owners to join some river or lake (e). Another instance is where an
artificial watercourse is constructed for diverting water from a
natural stream for use at a mill not itself situate on the natural
stream (/). The rights in the water of artificial watercourses have
been the subject of numerous judicial decisions.

" There is no doubt," said Sir Montagu Smith in delivering the
judgment of the Privy Council in Rameshur v. Koonj (g), " that the
right to water flowing in a natural channel and the right to water
flowing through an artificial watercourse do not rest on the same
principle. In the former case each successive riparian proprietor
is prima facie entitled to the unimpeded flow of water in its natural
course and to its reasonable enjoyment as it passes through his land
as a natural incident to his ownership. In the latter case any right
to the flow of water must rest on some grant or arrangement, either
proved or presumed, from or with the owners of the lands from
which the water is artificially brought or on some other legal origin."
Again, it was said by Vaughan Williams, L.J., that in the case of an
artificial watercourse any right to the flow of the water must be
based on some grant whether in the nature of an easement or other-
wise. The basis of every right to the flow of the water must be an
agreement expressed or presumed from the user with the owners of
the land through which the stream runs (h).

In ascertaining the rights in respect of an artificial watercourse,
there must be taken into account, first, the character of the water-
course, whether it is temporary or permanent, secondly, the cir-
cumstances under which it was presumably created, and, thirdly,
the mode in which it has in fact been used and enjoyed (i).

The Court may conclude that the watercourse is a permanent
one (k), and in this case it is settled that prescriptive rights may be

(i) Per Stirling, L.J., Baily v. Clark,
1902, 1 Ch. 668 ; 71 L. J. Ch. 396.

(k) As in Baily v. Clark (sup.) ;
Lewis v. Meredith, 1913, 1 Ch. 571, 580.
In Gavedv. Martyn, 1865, 19 C. B. N. S.
732 ; 34 L. J. C. P. 352 ; 147 R. R.
739, the Court held that the " lower
launder " (one of the three streams in
question in the action) was a good
example of a stream artificially made
but in its origin supplied by a natural
spring, and subject to prescription,
i.e., in effect, that this watercourse was
a permanent one.

(e) As in Arkwright v. Cell, 1839,
5 M. & W. 203 ; 8 L. J. (N. S.) Ex. 201 ;
52 R. R. 671 ; Wood v. Waud, 1849,
3 Ex. 748 ; 18 L. J. Ex. 305 ; 77 R. R.

(/) As in Burrows v. Lang, 1901,
2 Ch. 502 ; 70 L. J. Ch. 607.

(g) 1878, 4 App. Cas. 126 (a case in
which disapproval was expressed of
Lord Denman's ruling, in Magor \.
Chadwick, 1840, 11 A. & E. 586, that
the law of natural and artificial water-
courses was the same).

{h) Baily v. Clark, 1902, 1 Ch. 664 ;
71 L. J Ch. 396.



acquired (/). The enjoyment on which the claim to such a presorip- Artificial
tive right is based must be " as of right," i.e., not by leave (m) or ^ n "," ._
under a mistake (n). There must also be a capable grantor of the
easement (o).

In the case of some artificial watercourses the origin of which is
unknown the proper conclusion from the user of the water and other
circumstances may be that the watercourse was originally con-
structed upon the condition that all the riparian owners should have
the same rights as they would have had if the watercourse had been
a natural one (p). The result of such a conclusion would, it seems,
be that not only could prescriptive rights be acquired, but also that
the riparian owners would have in the water the ordinary rights
known as natural rights.

On the other hand, the Court may conclude that the watercourse Temporary
is a temporary one, constructed for a temporary purpose (q), as ^f^
where a watercourse was constructed and maintained for the pur- courses.
pose of a mill (r), or for draining a mine. The rules applicable to
cases of this nature were discussed by Lord Abinger in delivering the
judgment of the Court of Exchequer in Arkwright v. Gell (s). That
case turned upon the right of the occupiers of mills situate on a
stream which drained a mine to compel the mine-owners to
continue such discharge. And the Court held that no such right
existed. The judgment of Lord Abinger contained the following
remarks : —

" The stream upon which the mills were constructed was not a
natural watercourse, to the advantage of which flowing in its natural
course the possessor of the land adjoining would be entitled, accord-
ing to the doctrine laid down in Mason v. Hill (t) and in other cases ;
this was an artificial watercourse, and the sole object for which it
was made was to get rid of a nuisance to the mines, and to enable their
proprietors to get the ores which lay within the mineral field drained

V. Or 11.

(I) Ivimetj v. Stacker, 1866, 1 Ch. 406,
409 ; 35 L. J. Ch. 467 ; Rameshur v.
Koonj, 1878, 4 App. Cas. 128 ; Black-
hiinir v. Somers, 1879, 5 L. 11. Ir. 1 ;
Powell v. Butler, 1871, I. R. 5 C. L.

(in) Gaved v. Martyn, 1865, 19 C. B.
N. S. 732 ; 34 L. J. C. P. 352 ; 147
R. R. 739.

(n) Chamber v. Hopwood, 1886, 32
Ch. D. 549 ; 55 L. J. Ch. 859.

(o) McEvoy v. G. N. R., 1900, 2 I. R.

(p) Baily v. Clark, 1902, 1 Ch. 665 ;
71 L. J. Ch 396 ; Whitmores v. Stam-
ford, 1909, 1 Ch. 427, 439 ; 78 L. J. Ch.

144 ; Sutcliffe v. Booth, 1863, 32 L. J.
Q. B. 136 ; 139 R. R. 744 ; Roberts v.
Richards, 1881, 50 L. J. Ch. 297. In
McCartney v. Londonderry Co., the
stream was in fact artificial, but the
case was argued nu the hypothesis thai
it was a natural one : see 1SJ04, A. C.
303 ; 73 L. J. P. C. 7.!.

(r/) As in Hanna v. Pollock, 1900,
2 I. R. 664.

(r) Burrows v. Lang, 1901, 2 Ch. 502 ;
70 L. J. Ch. 607.

(s) 1839, 5 M. & W. 203 ; 8 L. J.
N. S. 201 ; 52 R. R. 671.

(t) 1833, 5 B. & Ad. 1 ; 2 L. J. (N. S.)
K. B. 118; 39 R. R. 354.



Artificial by it ; and the flow of water through that channel was, from the very

urses nature of the case, of a temporary character, having its continuance

Arhu-rigU only whilst the convenience of the mine-owners required it, and in
v. Gell. the ordinary course it would most probably cease when the mineral

ore above its level should have been exhausted. . . . What, then,
is the species of right or interest which the proprietor of the surface,
where the stream issued forth, or his grantees, would have in such a
watercourse at common law, and independently of the effect of user
under the recent statute 2 & 3 Will. 4, c. 71 ? He would only have a
right to use it for any purpose to which it was applicable so long as
it continued there. A user for twenty years, or a longer time, would
afford no presumption of a grant of the right to the water in per-
petuity ; for such a grant would, in truth, be neither more nor less
than an obligation on the mine-owner not to work his mines by the
ordinary mode of getting minerals, below the level drained by that
sough, and to keep the mines flooded up to that level, in order to
make the flow of water constant, for the benefit of those who had
used it for some profitable purpose. How can it be supposed that
the mine-owners could have meant to burthen themselves with such
a servitude, so destructive to their interests ; and what is there to
raise an inference of such an intention ? The mine-owner could not
bring any action against the person using the stream of water, so
that the omission to bring an action could afford no argument in
favour of the presumption of a grant ; nor could he prevent the
enjoyment of that stream of water by any act of his, except by at
once making a sough at a lower level, and thus taking away the water
entirely,- — a course so expensive and inconvenient that it would be
very unreasonable, and a very improper extension of the principle
applied to the case of lights, to infer from the abstinence from such
an act an intention to grant the use of the water in perpetuity as a
matter of right.

" Several instances were put in the course of the argument of cases
analogous to the present, in which it could not be contended for a
moment that any right was acquired. A steam-engine is used by
the owner of a mine to drain it, and the water pumped up flows in a
channel to the estate of the adjoining landowner, and is there used
for agricultural purposes for twenty years. Is it possible from the
fact of such a user to presume a grant by the owner of the steam-
engine of the right to the water in perpetuity, so as to burthen him-
self and the assigns of his mine with the obligation to keep a steam-
engine for ever, for the benefit of the landowner ? Or if the water
from the spout of the eaves of a row of houses was to flow into an


adjoining yard and be there used for twenty years by its occupiers Artificial
for domestic purposes, could it be successfully contended that the cour ,
owners of the houses had contracted an obligation not to alter their Arkwright
construction so as to impair the flow of water ? Clearly not : in all, v - '" "■
the nature of the case distinctly shows that no right is acquired as
against the owner of the property from which the course of water
takes its origin ; though, as between the first and any subsequent
appropriator of the watercourse itse!f, such a right may be acquired.
And so, in the present case, Sir Richard Arkwright, by the grant
from the owner of the surface for eighty-four years, acquired a right
to use the stream as against him ; and if there had been no grant he
would, by twenty years' user, have acquired the like right as against
such owner ; but the user even for a much longer period, whilst the
flow of water was going on for the convenience of the mines, would
afford no presumption of a grant at common law as against the
owners of the mines.

" It remains to be considered whether the statute 2 & 3 Will. 4,
c. 71, gives to Mr. Arkwright and those who claim under him any
such right, and we are clearly of opinion that it does not. The
whole purview of the Act shows that it applies only to such rights
as would before the Act have been acquired by the presumption of
a grant from long user. The Act expressly requires enjoyment for
different periods ' without interruption,' and therefore necessarily
imports such a user as could be interrupted by some one ' capable of
resisting the claim ' ; and it also requires it to be ' of right.' But
the use of the water in this case could not be the subject of an action
at the suit of the proprietors of the mineral field lying below the
level of the Cromford Sough, and was incapable of interruption by
them at any time during the whole period by any reasonable mode :
and as against them it was not ' of right ' ; they had no interest to
prevent it : and until it became necessary to drain the lower part of
the field, indeed at all times, it was wholly immaterial to them what
became of the water so long as their mines were freed from it."

After Arkwright v. Gell, where the rights of lower riparian owners
when asserted as against the creator of an artificial stream were
discussed, there came before the same Court Wood v. Waud (u),
where the question arose as to the same rights when asserted as
against upper riparian owners. In the last-mentioned case water
from the working of a colliery had for more than twenty years

Online LibraryCharles James GaleA treatise on the law of easements. → online text (page 38 of 74)