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On the other hand, the defendant may prove that the user
was always contentious, and never as of right (q).

Action maintainable, although mode of enjoyment changed. —
The occupier of a mill may maintain an action for any back
water and injury to his mill, although he has not en-
[*712] joyed it precisely in the * same state for twenty years :
and therefore it is no defence to such an action that
the occupier has within a few years erected in his mill a
wheel of different dimensions, but requiring less water than
the old one (r). " The owner is not bound to use the water
in the same precise manner, or to apply it to the same mill :
if he were, that would stop all improvements in machin-
ery "(s). Proof of a slight alteration by the plaintiff in
the course of a stream above his land is not sufficient to de-
stroy his right Q'). But proof that the defendant, or the
person through whom he claims, within twenty years enlarged
certain weirs, &c., so as to abstract more water from the
river than he had previously been accustomed to do, whereby
the plaintiff's mill was injured, is sufficient ; for although the
defendant and his predecessors have on several occasions
(long before the last twenty years) enlarged their weirs and
deepened their channels, &c., so as to appropriate to them-
selves as much water from the river as they from time to time
wanted, yet that will not justify a further abstraction of wa-
ter from the river (/<).

Artificial cuts or drains. — The right of a riparian proprietor,
it was clearly established by Sampson v. Hoddinott, is limited
to natural streams, and does not attach in the case of artifi-
cial cuts^ or drains (x}^ It is also settled that the flow of

(7) Eaton V. Swansea W. W. Co., 5 B. & Adol. 1, 19; Brown v. Best, 1

supra. Wils. 174; Moore v. Webb, 1 C. B.,

(r) Saunders v. Newman, 1 B. & A. N. S. 673.

258. (x) Sampson v. Hoddinott, 1 C. B.,

(s) Id. 261. N. S. 590 ; 3 Id. 596 ; 26 L. J., C. P.

(0 Hall V. Swift, 4 Bing. N. C. 381. 148 (overruling Magor v. Chadwick,

(«) Bealey t'. Shaw, 6 East, 208, ex- 11 A. & E. 571); and see Wardle v.

plained 5 B. & Adol. 19 ; Gale, 216 Brockelhurst, 1 E. & E. 1058 ; 29

(4th ed.); Mason i.. Hill (in error), L. J., Q. B. 145; Gale, 81 (4th ed.).

^ Artificial watercourses. — An artificial watercourse established by the
owner of two lots which is necessary for the use of one of them cannot be
diverted after the sale of the latter lot. Brakely v. Sharp, 10 N. J. Eq. 207.



water from a drain made by a landowner in his own land for
the purposes of agricultural improvements for twenty years
does not give a right to the neighbour, so as to preclude the
landowner from altering the level of his drain for the im-
provement of his land (y), and that no right can be acquired
under 2 & 3 Will. 4, c. 71, s. 2 (2), to the use of an artificial
watercourse made for a particular and temjjorar}- purpose (a).
An artificial watercourse or drain, however, may have been
originally made for permanent i)urposes, and under such cir-
cumstances, and have been since used for such a period as to
give all the rights that the riparian proprietors would have
had if it had been a natural stream (A).

In IJeeston v. Weate, the plaintiff and the defendant oc-
cupied contiguous portions of lands. For more than forty
years, and as far back as living memory went, the occupiers
• of the plaintiff's land had been in the habit of i)assing over
the defendant's land to a brook which lay on the other side
of that land, and of damming up the brook when
* necessary, so as to force the water into an old artificial [*71 3]
watercourse which ran across the defendant's land to
the plaintiff's land. They did this for the purpose of supply-
ing their cattle with water, whenever they wanted the water,
except when the owners of the defendant's land used the

(y) Grcatrcx v. Ilaywanl, 8 Exch. 203; 11 Exch. 610; Gale, 279—287

291 ; Wood v. Waud, 8 Exch. 778. (4th c>d.).

(z) Ante, sect. 1. (b) Sutcliflfe v. Booth, 32 L. J.,

(a) Arkwriglit v. (Jell, 5 M. & W. Q. B. 130.

An aqut'dvict Icadinjj: from one lot to another lias been held to be an
apparent and continuous easement u|)on the right to which the owner of the
dominant lot can insist as against the owner of the servient lot from whose
well it flows. l)e Luze v. Bradbury, 25 N. .J. Eq. 70. It has been held that
a right to the increased flow by artificial means through a natural channel
may be acquired by prescrijjtioii. Murchie v. Gates, 78 Me. 300.

- Drains. — At common law (so far as civil law principles have not been
incorporated into it) there exists no right on the part of a proprietor to con-
duct his drainage of surface water or marshes or otherwise upon the land of
another person. Dickinson r. City of Worcester, 7 Allen (Mass.) 19. But
if the owner of two lots establishes a permanent and necessary drain between
them, under the law, at least as held in New Jersey, a purchaser of one of the
lots is entitled to the benefit of the drain. Kelly v. Dunning, 43 N. J. Eq. 02.
And it should be said that tlie civil law theory that an inferior lot is bound to
receive the drainage of a superior lot, prevails in some of the common law states.



water, as they did at certain seasons of tlie year, for irriga-
tion. It was held, that upon this evidence the jury was war-
ranted in inferring an user, as of right, by the occupiers of
the phiintiff 's hmd, of the easement on the defendant's land ;
and that, for the interruption of such easement, the plaintiff
might maintain an action against the defendant (c).

Implied grant or reservation of drains, &c. — Where the
owner of two or more adjoining houses sells and conveys one
of them to a purchaser, such house is entitled to the benefit,
and is subject to the burthen, of all existing drains communi-
cating with the other house, without any express reservation
or grant for that jDurpose : an implied grant or reservation
(as the case may require) will be presumed in the absence
of express words to the contrary (cZ). It makes no differ-
ence in this respect that the purchaser did not know of the
drains under his liouse, if he might have ascertained their
existence' upon a careful inspection by a person ordinarily
conversant with the subject, and it will be deemed his own
fault if he did not do so at the time of his purchase (d). Two
properties, which adjoined, were originally possessed by the
same owner, in one of which was a cesspool and a drain to
carry the water from the adjoining property, which was a
tan-yard. The owner afterwards sold the property to differ-
ent persons, and the conveyances contained no reference to
the drain and cesspool : — held, that there was an implied grant
of the easement of the cesspool in the conveyance of the tan-
yard (e). Where the plaintiff excepts and reserves to him-
self the right to make and use a sewer in land conveyed by
him to the defendant, whereby the exclusive use of such
sewer is reserved to the plaintiff, he may maintain an action
against the defendant for opening and using the sewer (/).
So where the defendant grants to the plaintiff the use of
water, subject to a proviso for the use thereof by the defend-

(c) Beeston v. Weate, 5 E. & B. (e) Ewart v. Cochrane, 4 Macq.

986 ; 25 L. J., Q. B. 115. H. L. Cas. 117 ; 7 Jur., N. S. 925; but

(<f) Pyer v. Carter, 1 H. & N. 916, see Suffield v. Brown, supra.
921; 26L. J.,Ex. 258. But see contra , (/) Lee v. Stevenson, E., B. & E.

Suffield V. Brown (on appeal), 33 L. J., 512; 27 L. J., Q. B. 263.
Ch. 240, 259; Polden v. Bastard, 7 B.
& S. 130, 131.



ant, the plaintiff may maintain an action on tliL' deed for the
abuse of such reservation by the dctcnihint (//).

Licence to make or use draius, &c. — A parol licenee to
make a drain or watercourse in the land of the licensor will
not, even after it has been fully executed at the ex-
pense * of the licensee, confer any right or title on [*714]
him to have the use and benefit of the drain or water-
course free from obstructions ; nor enable liim to maintain
any action against the licensor for obstructing such drain or
watercourse without notice (Ji). But a licence attached to
a valid grant of real or personal property is irrevocable, it
being a licence coupled with an interest (f). No man can
derogate from his own grant, nor can any person claiming
through or under him. But a licence connected Avith an
invalid grant is a mere licence (whether under seal or not),
and may be revoked at any time (/c), either expressly or by
implication (l). A parole licence to erect a skylight, or a
weir, or other easement on the land of the licensee cannot be
revoked, after it has been executed at the licensee's expense,
so as to render it necessary for the licensee to incur further
expense in removing it (w).

Extinguishment or suspension of drains, &c. — Nothing of
absolute necessity/ to a messuage or other Ijuilding is extin-
guished by unity of ownership or possession; as a gutter in
alieno solo to carry off water, &c., or a watercourse, or a
way of necessity. They are merely suspended as easements
during the joint ownership or possession, and will revive
whenever the building or the land is conveyed to another (w)-

(7) Rawstron v. Taylor, 11 Excli. (1) Wood i. Manley, 11 A. & Iv.34;

369". Felthaiu i-. Cartwrij,'lit. 5 Bing. N. C.

(A) Ilewlins i-. Shippani, 5 B. & C. 509.

221 . 7 D. & K. 78;3 ; Cocker v. Cow- (k) Fentiman r. Smith, 4 East, 107 ;

per, 1 C, M. & R. 418; (Jm-nslade r. Wood r. LoadbittiT, 13 M. & W. 8.38,

Halliday, 6 Bing. 379; Mason v. Hill, 845; Taplin v. Florence, 10 C B. 744,

5 B. & Adol. 1 , AVood v. Leadbitter, 7G4.

13 M. & W. 8.38; Adams r. Andrews, (/) Raffey r. Henderson, 17 Q. B.

15 Q. B. 284 ; Taplin v. Florence, 10 574.

C. B. 744; Raffey v. Henderson, 17 (m) Winter v. Brockwell, 8 East,

Q. B. 574; Roberts r. Rose, 3 H. & C. 308; Liggins r. Inge, 7 Bing. 082;

102 ; .33 L. .1., E.\. 1 ; affirmed in error, Harvey '•. Reynolds, 12 Price, 724.

4 H. & C. 103; L. R., 1 Ex. 82; 35 (n) Pheysey r. Vicary, 10 M. & W.

L. .J., Ex. 02. 485, 489.


*715 OF RIGHTS OF COMMON, SzV. [Cii. XVIIl. S. 4.

But it is otlierwisc with respect to ways not of necessity or
other easements not of a continuous nature (o).

Underground water. — The principles which reguhite the
riglits of owiieis of hmd in respect to water flowing in known
and defined channels,^ whether upon or below the surface of
the ground, do not apply to underground water which meiely
percolates'^ through the strata in no known channels (/>).
The owner of land through which water flows in a subterra-
nean course has no right or interest in it which will enable
him to maintain an action against a landowner who, in carry-
ing on mining operations on his own land in the usual
[*715] manner, drains away * the water from the land of the
first-mentioned owner, and leaves his well dry {q^.
The owner of a mill on the banks of a stream cannot inain-
tain an action against a landowner who sinks a deep well on

(o) Pyer v. Carter, 1 H. & C. 916; 349; 29 L. J., Ex. 81 ; Reg. v. Tlie

Dodd V. Burchell, 1 H. & C. 113; 31 Metropolitan Board of Works, 3 B. &

L. J., Ex. 364 ; Worthington v. Gim- S. 710 ; 32 L. J., Q. B. 105 ; New River

son, 2 E. & E. 618; 29 L. J., Q. B. Co. r. Johnson, 29 L. J., M. C. 93;

116; Pearson v. Spencer, 1 B. & S. Ibbotson v. Peat, 3 H. & C. 644, 650.
571, 583; 3 B. & S. 761; Polden v. (</) Acton v. Blundell, 12 M. & W.

Bastard, 4 B. & S. 258 ; 32 L. J., Q. B. 324, 348 ; New River Co. v. Johnson,

372 ; affirmed in error, L. R., 1 Q. B. 29 L. J., M. C. 93 ; Galgay v. Great

156; 7 B. & S. 130; 35 L. J., Q. B. Southern and Western Railway Co.,

92. 4 Ir. Com. L. R. 456, Q. B. ; Gale,

(p) Chasemore v. Richards (in 257 — 277 (4th ed.).
error), 2 H. & N. 168 ; 7 H. L. Cas.

' Underground streams. — It has been held that the owner of land can-
not divert underground water if it flows in a known and defined current. Bur-
roughs V. Saterlee, 67 Iowa, 396; Smith v. Adams, 6 Paige (N. Y.) 435;
Gould on Waters, sec. 281; Angell on Watercourses (7th ed.) sees. 112 &
112 a.

- "Water percolating in the soil, whether beneath or above the surface,
is generally held to belong absolutely to the owner of the soil. He may dig
or bore for water in his own land even though he thereby drain his neighbor's
well (Ocean Grove v. Asbury Park, 40 N. J. Eq. 447 ; Hougan v. Mil. & St.
Paul R. R. Co., 35 Iowa, 558) ; or diminishes it (Greenleaf r. Francis, 18 Pick.
(Mass.) 117) ; or otherwise diminishes his neighbor's water supply (Wheatley
V. Baugh, 25 Pa. St. 528; Roath v. DriscoU, 20 Conn. -533; New Albany &c.
R. R. Co. V. Peterson, 14 Ind. 112; Chatfield v. Wilson, 28 Vt. 49).

When the water percolating in the soil has been gathered into a stream
and conveyed by the owner to adjoining land belonging to him upon sale of
such adjoining land the grantee will take a right under an implied grant to
the continuance of the water. Cross v. Kitts, 69 Cal. 217.

The rule that water percolating in the soil belongs to the owner of the
land is not everywhere unqualifiedly admitted. Swett v. Cutts, 50 N. H. 439.



liis own hiiul aiul by pumps and steam-engines diverts the
underground water which would otherwise have percolated
tin-ough the soil and flowed into the river, by which, for
more than sixty years, the mill was worked (r). "If a man
has the misfortune to lose his spring by his neighbour digging
a w'ell, he must dig his own well deeper '" (.s). A mine-
owner may work his coal in the manner most advantageous
to himself, and remove a bar of coal therein to obtain tlie
coal in such bar, altliougli in consequence of his so doing the
water floods an adjoining mine (0- But he has no right to
j)ollute the water flowing through swallets in his own mine
which communicate with a stream running into an adjoining
mine (m). And after a demise of certain closes and all
streams of water therein, reserving to the lessor all mines
and minerals, with power to win and work the same, the les-
sor or his assigns cannot work the mines so as to cut off the
springs in the closes demised (x).

Surface water. — A landowner has a right to appropriate
surface walci' ^ which flows over his land In no definite chan-
nel^ although the water is thereby prevented from reaching a
watercourse wliich is previously supplied (jy'). He has an
unqualified right to drain his land for agricultural purposes
in order to get rid of mere surface water, the supply of the
water being casual and its flow following no regular or defi-
nite course ; and a neighbouring proprietor cannot complain
that he is thereby deprived of such water, which otherwise
wcmld have come to his land (z). But where the water from

(r) Chasemore v. Kichards (in oJJO ; 37 L. J., Kx. KJl ; Baird r. Wil-

error), 2 H. & N. 168; 7 H. L. Cas. liamson, 15 C. B., N. S. X7().
349 ; 29 L. ,]., Ex. 81 ; Reg. v. Metro- («) Hodgkinson v. Knnor, 4 B. & S.

politan Board of Works, 3 B. & S. 229; 32 L. J., Q. B. 231.
710; 32 L. J., Q. B. 105; New River (x) Wiiitehead v. Parks, 2 IT. & N.

Co. I-'. .Tolmson, 29 L. J., M. C. 93 ; 870.

Ibbotson V. Peat, 3 H. & C. 644, 650; (y) Broadbent r. l{amsbottoni. 11

Gale, 266 (4th ed.). Kxch. 602; 25 L. .1., Hx. 115; Gale,

(s) Per Bramweli, B., in Ibbotson 251 (4th ed).
V. Peat, 3 II. & C. 050. (r) Rawstron v. Taylor, 11 Excii.

(0 Smith V. Kenrick, 7 C. B. 615; 369; 26 L. J., Ex. 33; Gale, 251 (4th

Fletcher v. Rylands, 4 II. &, G. 263 ; ed.) ; Reg. v. Metropolitan Board of

L. R., 1 Ex. 265 ; L. R., 3 II. L. Cas. Works, 3 B. & S. 710 ; 32 L. J., Q. B.


' See nntp, note, " Whether surface water may constitute a watercourse."



a spring flowed in a (juUy or natural channel to a stream on
which was a mill, the spring having been cut oft" at its source
and the water received into a tank as it rose from the earth
by the licence of the owner of the soil on which the spring
rose, it was held, that an action lay by the millowner against

the person so abstracting the water (a).
[*716] *Flow of water from eaves. — The flow of water

for twenty years from the eaves of a house cannot
give a right to a neighbour to insist that the house should not
be pulled down or altered so as to diminish the quantity of
water flowing from the roof (6). On the other hand, it
seems that a man may by user acquire the easement or right
to project his wall or eaves over the boundary line of his
property, or to discharge the rain running from the roof of
his house upon the adjoining land (c).

Sect. 5. — Oopyhold Rights^ ^c.

Customary rights of copyholders. — The customary rights of
copyhold tenants depend upon the special customs of the
manor, and are not affected by the Prescription Act (2 & 3
Will. 4, c. 71), which is confined to easements and profits a
prendre over the lands of another. They may therefore
sometimes be established by less proof than thirty years'
user (tZ).

Unusual incidents or burdens. — The owner of land cannot,
at his pleasure, create new rights or incidents of property and
annex them to it ; or render it subject to a new species of
burden, so as to bind it in the hands of an assignee (e).
But covenants of a restrictive nature have frequently been
enforced in equity, against the owner or his assignees who
took with notice of them, actual or constructive.

(a) Dudden v. Guardians of Glut- (e) Keppel ;•. Bailey, 2 Myl. & K.
ton Union, 1 H. & N. 627 ; 20 L. J., 535, Lord Brougham, C. ; Hill r. Tup-
Ex. 140. per, 2 H. & C. 121 ; 32 L. J., Ex. 217 ;

(6) Wood V. Waud, 3 Exch. 778. Stockport Waterworks Co. v. Potter,

(c) Thomas v. Thomas, 2 C., M. & 3 H. & C. .300 ; 10 Jur., N. S. 1005 ;
11. 34. compare last case with Nuttall v.

(d) Hanmer v. Chance, 34 L. J., Bracewell, 4 H. & C. 714; L. R., 2Ex.
Ch. 413. 1 ; 30 L. J., Ex. 1.



Custom to grind at the manor mill. — A cUstDin '• tliiit ;ill llic
tenants, resiants, and inhabitants within a manor, should
grind at the lord's mill all their corn and ^nain, as well grow-
ing within the manor as brought fiom other places, and
spent or consumed in a ground state in their respective
houses" within the manor, may be a good custom; but it
does not extend to restrain the inhabitants who do not grow
corn and grain, or who have no corn and grain of their own,
from Ijuying or using in such houses ground corn or flour,
though it ma}' not have been ground or grown within the
manor, but produced from corn ground at other mills (_f).
And where, by a similar custom, the tenants were bound to
grind at two ancient mills belonging to the lord, or one of
them, at their own option, and the lord having pulled down
one of the mills, so as to deprive the tenants of their option :
it was held, that the custom was suspended (//).

* "Wind and air to a windmill. — The owner of a wind- [*717]
mill erected within living memory cannot claim, either
by prescription, or by presumption of a grant arising from
twenty years' acquiescence, to be entitled to the free and un-
interrupted passage of the ciurents of wind and air to his
mill: and such a claim is not within the 2 & 3 Will. 4, c. 71,
s. 2, which is confined to rights of way or otlier easements
to be exercised upon or over the surface of the adjoining
land (A).

Use of a yard for certain purposes. — A reservation of a
right to the use of a yard, for the occupiers of an adjoining
messuage, in the same manner as the tenants had been
accustomed to use the same, does not authorize the use of
the yard by the tenants of a cottage built where a loft ami
open woodhouse under it, and forming part of the messuage,
had stood at tlie time of the reservation (/).

Clothes lines to dry linen. — Proof of a privilege for tlie
tenants of a house to hang lines across a yard adjoining for

(/) Kichardson v. Walker. 2 B. & (h) Webb r. Bird, 10 C. B., N. S

C. 827; Cort v. Birkbeck, 1 Doug. 2G8 ; 13 Id. 841.
218. (t) Allan v. Goininc, 11 A. & K.

(g) Richardson u. Capes, 2 B. & C. 759; Ilenninp v. Biinu'tt.S Kxch. 187;

841. Gale, 317, 503, 523 (4tli i-d.).


*718 OF RIGHTS OF COMMON, &C. [Cii. XVIII. S. 0.

the purpose of drying the linen of their own families only
does not support a replication of a general right to put lines
across and liang linen (/r).

To mix dung, &c., on adjoining land. — A right or liberty to
deposit and mix dung, muck, &c., upon adjoining land, and
to make the same into manure and carry away the same, is a
mere easement and not a j)rofit a prendre (/).

Suspension and revival of necessary easements. — A neces-
sari/ easement is suspended as long as the same person
having a term of years in the land a qu4, and a fee-simple in
the land in qu4 is in possession of both ; but it revives on a
cessation of the unity of possession, though the change of
possession be not accompanied with an alienation of the
whole or either of the estates (m).

Sect. 6. — Game, ^c.
(a) Game Generally.

T?^hat is " game." — By the Game Act (1 & 2 Will. 4, c. 32,
s. 2), " the word ' game ' shall for all the purposes of this act
be deemed to include hares, pheasants, partridges, grouse,
heath or moor game, black game and bustards." Sect. 12
only mentions " game," and therefore does not extend to
rabbits (w). Sect. 30 gives a summary remedy against tres-
passers in search or pursuant of " game or woodcocks,
[*718] snipes, quails, * landrails or conies." The 23 & 24
Vict. c. 90, requires a game licence to be taken out
for the purpose of taking or killing " any game whatever, or
any woodcock, snipe, quail or landrail, or any conies, or any
deer." By 25 & 26 Vict. c. 114, entitled " An Act for the
Prevention of Poaching" (sect. 1), "the word 'game' in
this act shall for all the purposes of this act be deemed to

(k) Drewell v. Towler, 3 B. & Adol. (n) Spicer, App., Barnard, resp., 1

735. E. & E. 874; 28 L. J., M. C. 176;

(0 Pye V. Mumford, 11 Q. B. 660, Padwick, app., King, resp., 7 C. B.,
668, n. (6). N. S. 88 ; 29 L. J., M. C. 42.

{in) Pheysey v. Vicary, 16 M. & W.
485, 489.


On. XVIII. S. fi.] GAME, &C. ♦718

include any one or inoie luiics, pheasants, partridges, eggs of
pheasants and partridges, woodcocks, snipes, rabbits, grouse,
bhick or moor game, and eggs of grouse, bhick or moor
game." The meaning of the word "game " must be collected
from the above enactments. " It is a perfectly undefined
word, and one wliich has been used at various times in
diffi-rent senses, sometimes narrower, sometimes more com-
prehensive "(o). Game, whilst in confinement, may be tlu'
subject of Lnceny, and lial)h' to a distress for rent (y>).

Common law right of tenant to game. — At (;ommon law the
right to take and kill game (in whicli, as in all animals fci'ie
naturie, there is no property) belongs to the tenant, and not
to the landlord, by virtue of the tenant's property in the
land (g-). It is and has long been very common however for
tlie landlord to reserve the right to the game in tlie contract
of tenancy, and the Game Act of 1831 (1 & 2 Will. 4, c. 82)
which did away with the numerous restrictions and qualifi-
cations (r), whereby a tenant was almost invariably pre-
vented, even in a case where the game did not happen to be
reserved to the landlord, from enjoying his right to it, has
specially protected such reservations.

Reservation of game. — Where a reservation of game is
spoken of, this (although from its common use in the Game
Act and in leases it is more convenient to employ it) is not
quite a correct term ; when the lease reserves the game,
and the tenant executes the lease, he by so doing regrants
the game to the landlord (.•<), granting to the landlord a
profit a prendre.

Parol reservation. — A profit a prendre, like otlier incorpo-
real hereditaments, can be granted by deed alone (0 5 ^'^'^

(o) Per Erie, C. J., in Jeffryes v. The 7th section of the Act of 1831

Evans, 19 C. B., N. S. 246, 264. gave the game to the landlord in cases

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